Conscience on trial

While Americans were watching fireworks on the Fourth of July, a Canadian federal judge fired off a legal Roman candle by ruling that an immigration panel had erred in denying refugee status to a U.S. Army deserter named Joshua Key. The sparks are still flying Up There, though, as usual, most Americans haven't taken note. They should. The judge ruled that Key may be entitled to asylum in Canada because of evidence that the U.S. may have violated the Geneva Convention in the conduct of its counter-terrorism operations in Iraq.

Because of the sympathetic reception that Canada gave U.S. conscientious objectors and deserters during the Vietnam War, Americans may assume that our gentle northern neighbor will grant refuge to the perhaps 200 Iraq war deserters who have fled to Canada and thus spare us the agony of prosecuting them. But times and Canadian laws have changed. Although Canada declined to help the U.S. invade Iraq and its public largely opposes the continuing U.S. operations there, its courts have consistently ruled that U.S. deserters have no right to asylum. The courts have sensibly concluded that Americans who volunteer for military service cannot claim to be conscientious objectors merely because they oppose the war in Iraq, and that soldiers who wish to challenge the conduct of the war can do so through established legal procedures at home without fear of persecution.

In June, a more lenient Parliament passed a resolution saying the U.S. war resisters should be allowed to stay. But that resolution was nonbinding, and the Conservative government led by Prime Minister Stephen Harper, a Bush administration ally, has announced that it will begin deporting the deserters as early as this week.

Key won't be among them. He was trained as a combat engineer and spent eight months in Iraq kicking down doors in house-to-house searches for terrorists. He says that he fled to Canada with his wife and children after he told a military lawyer his qualms about what he believed were human rights abuses by U.S. forces, and that he was told his choices were to return to Iraq or go to prison. The judge ruled that Key need not have witnessed war crimes to qualify for asylum. Rather, "officially condoned military misconduct falling well short of a war crime may support a claim to refugee protection."