More U.S. soldiers in Canada could be sent back for court martial on desertion charges

The activists in the dimly lit Steelworkers Hall on Toronto’s Cecil St. remind each other why they are fighting to keep Joshua Key and other war resisters in Canada, although they say the passage of time may have dimmed the memory for others.

It’s been more than a decade since U.S. soldiers began to trickle across the border and declare themselves conscientious objectors to the war in Iraq, which was called an absolute “error” by Prime Minister Stephen Harper in 2008.

It’s been so long in fact, that Key tells the group he has to educate university students about the war — supporters like those from the student union at the University of Winnipeg, in the city where he now lives — because they were children when it started.

“When we began this whole fight . . . it was very much in the context of a mass anti-war movement that kept Canada out of the war in Iraq,” says Michelle Robidoux, a member of the War Resisters Support Campaign. “And so we began this thing and Canada didn’t go to Iraq and there was tons of support.”

But “the government has managed to stretch this out for so long, without giving you any answer,” she says of Key. “And what’s happened is that people almost don’t remember why you even came up here.

“Even this American Sniper movie,” continues Robidoux, referring to the criticism director Clint Eastwood has received for glorifying war and associating the invasion of Iraq with 9/11 instead of the false claim that Saddam Hussein had weapons of mass destruction.

“We’re back to the same arguments. It’s really a revolting kind of situation.”

But the group is gearing up once again after a flurry of negative decisions in immigration cases from September to December.

Eight applications from war resisters to stay in Canada as permanent residents, on humanitarian and compassionate grounds as well as spousal sponsorships, were denied. Four war resisters have received removal orders, including one last month.

Key, who was born in Oklahoma, served as a combat engineer in Iraq in 2003. He deserted the army while on a two-week furlough and fled to Canada in 2005, when he applied for refugee status. His request was denied in 2006, but a federal court judge ordered the refugee board to review his bid for asylum. In 2010, he was rejected again and applied for spousal sponsorship with his Canadian wife.

The negative decisions have renewed fears that Key’s spousal sponsorship application could be turned down any day.

If sent back, Key, like other soldiers who have spoken out about their opposition to the war in Iraq, will probably face a court martial, a felony conviction and jail time, a harsh penalty compared to other deserters, who are typically given an administrative discharge.

The group is meeting in the Steelworkers hall this night to launch a letter-writing campaign to Citizenship and Immigration Minister Chris Alexander and Public Safety Minister Steven Blaney to stop the deportations.

The Conservative government has been vocally opposed to granting war resisters refugee or permanent residence status, but the group is not without support.

Parliament passed a motion in 2008 calling on the government to create a program that would allow conscientious objectors to apply for permanent resident status and cease any removal or deportation actions against them. The motion passed a second time a year later, but the government never took action.

And in 2010, Bill C-440, a private member’s bill that would have allowed U.S. war resisters to stay in Canada was defeated by only seven votes on its second reading.

Key and Robidoux went back to Ottawa last week to seek political support from Parliament Hill, this time accompanied by award-winning author Lawrence Hill.

“I think as a campaign, what we’ve always said is our job is to try and win a provision for all the war resisters who came up here to be allowed to stay,” says Robidoux.

The NDP reiterated the same position that they have consistently taken since 2008. “They want the resisters to stay,” says Robidoux. “They want a provision enacted.”

But the trio was less successful in getting a commitment from Liberal MP Dominic Leblanc, who they also met with in 2008, before the original motion was passed.

“It wasn’t a great meeting. It wasn’t a bad meeting,” says Robidoux. Leblanc said he wasn’t in a position to make a decision, but said he would speak to his boss.

The biggest buzz came from Hill’s presence on Parliament Hill, which just happened to coincide with a screening of The Book of Negroes, a miniseries based on his novel of the same name.

“So there was a big buzz walking around,” says Robidoux. “People were stopping Larry and asking him for his autograph and getting their picture taken.”

Hill co-wrote The Deserter’s Tale, Key’s story of his time in Iraq, during which he was part of the 43rd combat engineer company, raiding civilian homes at night, looking for people of interest, or evidence.

“We’d usually get a briefing. It was always either looking for a potential terrorist, insurgent or a cache of weapons,” says Key, who took part in 200 house raids, primarily at night. He said males more than five feet tall were handcuffed and sent off for interrogation.

“I came to the point of having communication with the Iraqis,” says Key. “I sort of noticed the similarities — that I’m just like them and that they’re just like me; poor, from the middle of nowhere in a sense. And we were terrorizing them.”

He was contacted by a literary agent after a CBC interview and ended up writing the book with Hill, who he says has become a good friend and supporter of all the war resisters.

In one scene, he describes an episode at night on the Euphrates River where he saw American soldiers kicking around the heads of two civilians who had been decapitated by rifle fire.

“I got back inside of my armoured personnel carrier and told my sergeant that I would have no involvement with it,” says Key, now 36. He also witnessed other abuses: “Woman getting butted in the face because they were asking questions to women and children getting held at gunpoint, men getting beaten. About everything.”

“The only thing I knew was that to me, it was morally wrong. I never saw a person that deserved to die there,” said Key.

The Conservatives have taken a dim view of conscientious objectors and in 2010, issued an operational bulletin that flags the war resisters as potential criminals, which has critics challenging the government’s assertion that applications are being assessed on a case-by-case basis.

The government says the deserters may be inadmissible because of sections of the Immigration and Refugee Protection Act, which refer to committing acts, or being convicted of offences, outside Canada that if committed here could result in prison terms of at least 10 years.

“Military deserters from the United States are not genuine refugees under the internationally-accepted meaning of the term,” said Rémi Larivière, a spokesperson for Citizenship and Immigration Canada. “These unfounded claims clog up our system for genuine refugees who are actually fleeing persecution,” he wrote in an email.

Desertion in Canada is punishable by up to life in prison.

To date, no refugee claims made by U.S. military deserters have been accepted.

Most soldiers are less willing now than in the past to challenge the rulings in the public domain because of the harsh treatment deserters have encountered when they are ordered to return to the U.S.

“One of the really big difficulties we confront right now,” says Robidoux, “is because people are unable to punch through in the public realm — to say what this issue is about and why people shouldn’t be deported — it’s been really hard for people to fight back in the public sphere.”

One of the most outspoken deserters was Kimberly Rivera, who came to Canada with her family in 2007 during a two-week leave to avoid a second deployment to Iraq. Rivera was quoted in numerous newspaper and magazine articles about her objections to the war.

In 2012 she told Torstar News Service that “citizens were being put on random lockdowns. We used city patrols, checkpoints and violence and intimidation against innocent civilians.

“We raided their houses without cause. I saw mothers and fathers and grandparents and children come to us asking for compensation for their dead loved ones,” she said. “There was no good reason for their pain and suffering.”

Rivera said she went on duty without her weapon and after being reprimanded for doing so, she carried it, but without any ammunition.

She was deported from Canada in 2012 and turned herself in at the border, where she was detained and transferred to the custody of the U.S. army.

Rivera plead guilty to desertion, a plea deal that meant she would serve 10 months instead of 14 months in a U.S. military jail in California, far away from her husband and four children, who were living in Texas. Pregnant, she was denied early release and gave birth in jail.

“Some who have been quiet have received little if any jail time at all,” says James Branum, her U.S. lawyer. “Those who have spoken out the most have been singled out for the worst sentences.”

At her trial, prosecutors had a collection of articles from the press that were presented as evidence.

“At every stage of the proceedings . . . the prosecution was insistent on raising the fact that Kim was vocal in her opposition to U.S. military actions on the ground in Iraq,” said Toronto lawyer Alyssa Manning, who represented Rivera in Canada. “And that was argued to be something that was an aggravating factor in her desertion. And the military prosecution said a stronger sentence should be given to Kim in order to send a message.”

Manning is challenging many of the negative decisions in court.

Since 2008, 11 federal court or federal court of appeal decisions have ruled in favour of war resisters, including a 2010 unanimous decision involving Jeremy Hinzman, the first U.S. Iraq War resister to arrive in Canada.

Hinzman joined the U.S. army in 2000, but applied for conscientious objector status after deciding “he could not kill, and that all violence does is perpetuate more violence,” according to federal court documents.

His first application wasn’t “dealt with on its merits,” according to the documents. His second application was denied while he was serving in Afghanistan, where he had been assigned kitchen duties.

When he returned to the U.S. and found out that his unit was going to Iraq in 2004, he deserted to Canada with his wife and son and applied for refugee status.

That, too, was denied, as was his attempt to stay here on humanitarian and compassionate grounds.

In 2010, the federal court of appeal ruled the immigration officer who considered Hinzman’s case failed to properly consider his “beliefs and motivations before determining if there were sufficient reasons to make a positive H&C (humanitarian and compassionate) decision.”

In the case of another war resister, a federal court judge criticized numerous findings by a refugee board member in 2013 and wrote that the U.S. military justice system, “on the evidence before me and the RPD (Refugee Protection Division), appears to be outdated and sadly at odds with Canadian and international norms.”

“We’ve had a number of decisions from the federal court that recognize that decision makers, both at the refugee board and Citizenship and Immigration Canada haven’t properly dealt with the evidence before them,” says Manning.

But, she says, the judges can’t grant someone status. All the court can do is send a matter back to be reconsidered.

“A lot of these soldiers have been in this cycle of getting negative decisions from an immigration officer. And then they go up to court. The court says that decision is wrong,” says Manning.

“And then it simply goes back to an immigration officer.

“Given the opinion of their employer about these cases, I would find a positive decision to be unlikely.”