A handful of core campaigners showed up at the court for the vigil, but everyone had to go to work, except Newfie Campaign Friend and I. Refugee lawyer Geraldine Sadoway, who was Alyssa Manning's mentor at the Parkdale legal clinic, was there with another young lawyer, and a group of people were there who might have been law students. But mostly it was just NCF and me. And as the hearing was very long and I had to catch a bus, during the Crown arguments, I scurried off and left NCF alone.
* * * *
Dale Landry was an airman in the United States Air Force. He served as a loadmaster in Afghanistan, which means he was involved in transporting detainees. There, he developed a strong moral objection to his military duties.
Dale was scheduled to be deployed to Iraq, where he would also be involved in transporting innocent civilians who were arrested and detained. Knowing he wanted no part of that, he tried for two years to be excused from deployment. For his efforts, he was continually harassed, but deployment was inevitable.
Dale attempted to apply for conscientious objector status, even knowing he wouldn't qualify for it. Almost no one in the US military qualifies as a conscientious objector as defined by the US Department of Defense: being opposed to all wars, always, for any reason, on specifically religious grounds.
In addition, conscientious objector applications have to travel up the chain of command; any officer, at any point, can pull the plug. Still, Dale knew it might be important, and made the attempt. He submitted his application, and his commanding officer shredded it on the spot.
In August of 2007, the Air Force gave Dale two options. He could submit to punishment for missing movement - 30 days of "corrective custody," meaning hard labour and incarceration - then be deployed to Iraq. Or he could be court martialled, then either dishonourably discharged (a felony conviction), or deployed to Iraq.
Dale made a third choice: he came to Canada and applied for refugee status. The IRB rejected Dale's claim, but the Federal Court granted him leave to appeal that decision. Yesterday, Alyssa Manning argued Dale's case in front of Justice Sean Harrington of the Federal Court of Canada.
Alyssa demonstrated how the Immigration and Refugee Board did not adequately assess Dale's qualifications for refugee status, by not analyzing his claim in relation to paragraph 171 of the Handbook of the United Nations High Commissioner for Refugees. That paragraph states, in part:
...the type of military action with which an individual does not wish to be associated is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could...in itself be regarded as persecution.
Alyssa also referred to paragraph 169 of the Refugee Handbook, which states:
A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has a well-founded fear of persecution on these grounds above and beyond the punishment for desertion.
Alyssa relied heavily on two previous decisions in war resister cases, those of Joshua Key and Corey Glass, for whom the court ordered a new IRB hearing and a new H&C review, respectively. (Josh's hearing, a landmark in our battle to Let Them Stay, is next week.)
Using these decisions and others, Alyssa showed that if the specific duties a soldier is ordered to perform violate the Geneva Conventions and have been condemned by the international legal community - even if those orders fall well short of the legal definition of a war crime or crime against humanity - that a soldier has a responsibility to refuse those orders. And any punishment stemming from that refusal constitutes persecution.
The soldier needn't object to all wars, or to the particular war as a whole. The soldier needn't prove war crimes were committed. (In fact, if the soldier was involved in the commission of war crimes, Canada would consider him a Excluded Person and he could not apply for refugee status.) However, Alyssa showed, a soldier has a fundamental right not to violate the dignity of others.
When Alyssa said "condemned by the international legal community," the judge asked, "Like rendition, waterboarding and enhanced interrogation techniques?". The last one sounded sarcastic, like he knew full well what "enhanced interrogation" really meant.
Alyssa argued that the severity of the punishment for deserting is not the central issue - that any punishment meted out for a person's moral or political beliefs is persecution. The Immigration Minister's assertion that war resisters will be afforded due process in the US is beside the point.
In addition, in the court martials of war resisters such as Camilo Mejia, Stephen Funk, Kevin Benderman and others, the specific orders that soldiers object to have been consistently excluded as evidence. Therefore, when it comes to the real reasons for the soldier's objections, there is no due process anyway.
Alyssa cited the new evidence, especially as demonstrated by military lawyer Eric Seitz, that war resisters who speak out publicly against the Iraq War are first selected for prosecution and then singled out for harsher punishment. She showed how the IRB did not adequately assess the risk to Dale and others. The IRB said there is state protection from these risks and due process involved, but they never assessed what the risks are, which is a large part of their mandate.
Alyssa also argued that, regardless of Paragraph 171, the IRB's conclusions about state protection in the US were unreasonable. The IRB continues to insist that US war resisters could have availed themselves of options they do not actually have. In its decision, for example, the IRB characterizes Article 15, under which Dale would have received "corrective custody" plus deployment to Iraq, as a dispute resolution mechanism.
According to the IRB and the Ministry, war resisters can supposedly apply for conscientious objector status, and "let the process take its full course" - a process for which they do not qualify, and over which they have no control. And they can supposedly take their cases to the US Supreme Court. This is, of course, a ridiculous fantasy. Or a brazen lie. Take your pick.
One amusing moment came as the judge addressed Alyssa and drew an analogy to a corporate whistleblower who ends up getting fired. Alyssa paused for a moment, then replied, "In this case, the applicant wants to get fired."
When Alyssa noted that a soldier has a duty to refuse illegal orders, the judge noted that a soldier also has a duty to loyalty. Alyssa said international standards, beginning with the Nuremberg Trials, through the Geneva Conventions and more recent affirmations, make it clear that the duty to refuse illegal orders trumps loyalty.
Selecting soldiers who refuse illegal orders for prosecution constitutes persecution.
Selecting soldiers who speak out against the war for harsher punishment is further persecution.
The judge asked, "So you're guaranteed status in Canada if you shout from the rooftops once you get here?"
NCF and I looked at each other with raised eyebrows, but of course Alyssa was prepared. She made it clear that Dale spoke out against the war before coming to Canada, and before this pattern of selective punishment was documented.
* * * *
I won't attempt to reproduce the Crown's case. They said Alyssa had misinterpreted the Hinzman decision, that the Key decision had no bearing on Dale's case, and that Dale was looking for "an easy exit from the military". Twice (in the portion I heard) the judge interrupted to correct the Crown. Once: "Of course he was not able to quit the military, that was the problem." And again: "But he deserted in order not to commit unlawful acts."
Their case was brief and dishonest.
If I had witnessed this proceeding last year, I would have come away feeling very hopeful for a victory. But I felt that way after the Jeremy's hearing, and Judge Russell ruled against. So I'm certainly not making any predictions about this.
Josh's IRB hearing is on June 3. It has the potential to be a turning point in the campaign to make Canada a refuge from militarism. Stay tuned.