war resister campaign update: behind the tindungan decision

Supporters of U.S. war resisters in Canada may be interested in hearing about the War Resisters Support Campaign event earlier this week. A large crowd came out to share a meal, hear an update on the Campaign, and raise funds for legal fees for the court martial of war resister Kimberly Rivera.

War resister Jules Tindungan kicked off the evening by speaking about the letter from Iraq War veteran and resister Tomas Young, which I'm sure you've all seen. We watched Young himself read the letter on Democracy Now (here).

It was announced that war resister Justin Colby was sentenced to 15 months in prison, which his lawyer, James Branum, was able to get reduced to nine months. Justin returned to the U.S. "voluntarily," meaning he was not deported or technically forced out by the Harper Government, but had he been granted status in Canada, his decision might have been very different.

Courage to Resist has posted about Justin. They are asking supporters to write respectful letters to the commanding general of Fort Carson, where Justin is being held, requesting he be granted clemency.

Kim Rivera will be sentenced on April 29. At that time, we'll have more information on what we can do to support her.

Kim is in good spirits, but the ordeal has been extremely difficult. If you know Kim, a woman of peace and light, you can imagine that being in uniform, forced to be a part of the military, is very hard on her. Through some grant money (which we learned about through a Toronto supporter), Kim was able to visit with her children, but the inevitable re-separation was incredibly painful for everyone. Because of this, Kim feels it's best that her children not visit with her again, and is choosing not to see them until the ordeal is completely over. With the help of many incredible local supporters, Kim and her husband Mario have been able to spend several weeks together in Colorado, before her sentencing hearing and (we assume) prison sentence.

Now for the positive news.

Last month, the Federal Court ordered that war resister Jules Tindungan be given a new refugee hearing. In that decision, Justice Russell used extremely strong, unequivocal language, slamming the government's ridiculously weak arguments and chastising the Refugee Board for ignoring previous Federal Court rulings on war resisters. If you are interested in this campaign, I highly recommend reading the decision, which is posted here.

At the fundraising dinner, Campaign lawyer Alyssa Manning explained the most significant aspects of the Tindungan decision. This decision overcomes every argument in the government's case that forced Kim out of Canada. Of course, Kim and her family had to leave in September 2012, and this decision came down in February 2013. It was too late for the Riveras, but the Tindungan decision gives us every reason to keep fighting. Here's why.

Refugee cases always revolve around the issue of state protection. According to the Harper Government, the US war resisters have adequate state protection, because the US military has a fair, impartial, and adequate justice system.

However... Alyssa has produced a mountain of evidence from four unassailable expert witnesses showing that the US military justice system does not meet either international or Canadian standards of impartiality and fairness. In fact, the Canadian court martial system was overhauled in the 1990s, in order to comply with international standards. The US refused to do the same, and clings to a court martial system in which, among other issues, the accuser acts as judge and jury.

Against the unassailable evidence presented by Alyssa, the government produced one expert, a military apologist, who said, in essence, I think the US system is fair. He gave no evidence to support this claim; it is simply his opinion. Then the refugee board said, in essence, we're ok with that. For more on this, see paragraphs 144 through 169 of the Tindungan decision. At the end of the section on the fairness and adequacy of the US military justice system, Justice Russell concludes:

In the end, I do not think the RPD has found a way out of the mistakes it made in Vassey. It has simply, in the face of a plethora of principled evidence to the contrary, grasped at the straw offered by Professor Hansen, which, in my view, offered nothing more than a personal opinion unconnected to any coherent principle of fairness and adequacy and which attempts to defend a U.S. military justice system that, on the evidence before me and the RPD, appears to be outdated and sadly at odds with Canadian and international norms. 

With this, we have overcome one of the three reasons we lost in September - that is, one of the reasons the Riveras were forced out of Canada.

Next, there is the issue of differential punishment. In all the war resisters' cases, Alyssa has been demonstrating how US soldiers who speak out against the war are punished more harshly than other soldiers who go AWOL - indeed, more harshly than some soldiers who have committed horrific violent crimes against civilians or against their fellow troops. This means that war resisters are being punished for their deeply held personal beliefs. In addition, Alyssa has shown that the treatment of soldiers who try to speak out from within the military amounts not to prosecution, but persecution. These conditions make the US war resisters eligible for refugee protection... but the Refugee Board continues to ignore them.

In response to Alyssa's long list of outspoken war resisters who received differential treatment, the government pointed to three other AWOL soldiers who were also given harsh sentences. But - get this - the three people they named were also outspoken war resisters! You can read more about this at paragraphs 160 through 167 of the Tindungan decision. Justice Russell concludes:

This information is directly contrary to the RPD's findings, and it should have been referenced and dealt with. It was either overlooked or ignored. Once again, the lessons of Vassey appear to have been ignored by the RPD.

With that, we overcome the second reason we lost in September.

Finally, we come to a tremendous legal breakthrough in the fight to keep US war resisters in Canada. The realities of the Iraq War - the reasons war resisters deserted or refused to deploy - have never been addressed by any court decision, because of legal technicalities. Now we have this, in paragraphs 170 and 171 of Tindungan. Is it a coincidence that war resisters' cases rest on section 171 of the UNHCR Handbook?

[170] One of the fundamental problems with the RPD's approach on this issue is that it assesses the Applicant's personal experiences as isolated incidents that were not condoned by the USA and were not systemic, while completely ignoring the documentary evidence that confirms that the opposite is true.

[171] The Applicant submitted voluminous documentary evidence from credible, third-party sources such as Amnesty International that discuss routine and authorized military practices in Iraq and Afghanistan by the U.S. Army that describe conduct falling under section 171, and which suggest that the U.S. has not complied with its international obligations in this regard. The RPD simply ignores this evidence.

There it is. It took nine years, but we finally have a statement from the Federal Court saying the US has systematically acted outside international laws and conventions in Iraq and Afghanistan. And with that, we overcome the third reason we lost in September.

This decision came too late for the Rivera family, and for the many US war resisters who have been deported from Canada, or who gave up the fight to stay. Yet it is a significant legal victory. It gives us every reason to keep fighting - for war resisters, and for the country we want Canada to be.