EDITOR’S NOTE: As The Nation was going to press, Canada’s willingness to take in Americans resisting the Iraq war became more concrete. In a year-end review with Canada’s Global National, Prime Minister Paul Martin said that Canada was prepared to accept US citizens who do not want to serve in the war. According to the report, when reminded that former Prime Minister Pierre Trudeau opened Canada’s doors to draft dodgers and deserters during the Vietnam War, Martin said: “In terms of immigration, we are a country of immigrants and we will take immigrants from around the world. I’m not going to discriminate.” Asked whether Martin was referring to Jeremy Hinzman’s request for refugee status, a spokesperson said that Martin “was not commenting on any individual case and certainly was not sending a signal to the immigration board.” Still, Hinzman’s attorney Jeffry House tells The Nation that the prime minister’s remarks represent “a step in the right direction.”

Protests over the conduct of the Iraq war are mounting from what seems an unlikely place: the ranks of the military. In early December, eight soldiers sued in federal court to overturn the stop-loss policy that has extended their tour of duty indefinitely. At Camp Buehring in the Kuwaiti desert, Army National Guard Specialist Thomas Wilson, cheered on by his fellow soldiers, demanded that Donald Rumsfeld explain why the troops had to rummage through garbage heaps for scraps to armor their vehicles. Meanwhile, the Pentagon has admitted that some 5,500 enlisted soldiers have deserted since the “liberation” of Iraq began. While these disgruntled grunts don’t explicitly challenge the validity of the war itself, their decision to complain formally, or even to quit, strongly suggests a dwindling of faith in the mission.

Pfc. Jeremy Hinzman, of the 82nd Airborne, has made his second thoughts public. As he told me this past March, “The war is bogus. There weren’t any weapons of mass destruction, and Saddam Hussein had nothing to do with 9/11. The war was not pursued in self-defense, and as such it is illegal. I decided I could not participate in such a criminal enterprise.”

On December 6-8, while his comrades were filing suit and confronting Rumsfeld, Hinzman was making this argument before Canada’s Immigration and Refugee Board (IRB) in a bid for asylum as a principled deserter from the US Army. In doing so, he was putting the war itself on trial, articulating clearly the doubts that are beginning to tug at the conscience of some US troops.

Hinzman enlisted in the Army in 2001, making what he calls a typical “Faustian bargain”–trading service for college–and looking for a way to be part of something “bigger than myself,” where he might “live for ideals rather than just to consume.” But in basic training, as drills focused on “breaking down the human inhibition to killing,” he began to realize he had made the wrong choice. Aghast at finding himself joining in training chants like, “What makes the grass grow? Blood, blood, bright red blood,” he filed for conscientious objector status, serving in noncombat duty in Afghanistan while his application was in process. Back at Fort Bragg in late 2003, his CO application denied, Hinzman received word that his unit would be shipping out to Iraq in a few days. He and his wife got into their Chevy with their toddler and drove to Toronto, arriving there January 3 of last year. He is the first of three deserters to ask for refugee protection. A ruling is expected in February.

As is typical in a case making a novel claim or with a high public profile, the Canadian government intervened, asserting that Hinzman does not fit the definition of a refugee: someone who is fleeing a well-founded fear of persecution. Canada also argued–and in an interim ruling issued about two weeks before the hearing, the IRB judge agreed–that the question of the war’s legality is irrelevant to the case.

The government is not revealing its reasoning, but one can imagine a number of competing concerns pulsing beneath it: on the one hand, a reluctance to embarrass its bullying trading partner; on the other, an intense domestic opposition to the Iraq War. At the same time, Canada may be anxious about the possibility of an American draft, despite the Bush Administration’s repeated denials that one is coming. Some thirty-five years ago, an estimated 60,000 men and women resisting the Vietnam War surged north. (In those days, they could simply present themselves at the border and apply for landed immigrant status; since then, Canada has instituted a refugee determination procedure.)

One of them was Jeffry House, Hinzman’s attorney. He regrets losing “our cleanest argument”: While refugee law states that prosecution is not persecution, House intended to show that it is indeed persecution to punish someone for refusing to take part in a war that is illegal under international law, which sanctions war only when it is undertaken in self-defense or with authorization of the United Nations Security Council.

Still, House explains, even if the illegality of the decision to go to war is off the table, the question of how the war is being waged remains relevant to Hinzman’s claim. “What’s happening on the ground in Iraq is violating Geneva Conventions and international human rights law,” House says. “No one should be forced to participate.” From the cells of Abu Ghraib to the living rooms of Falluja, any number of examples can make the case.

Marine Sgt. Jimmy Massey, who served in Iraq during the invasion in March 2003, testified on Hinzman’s behalf, explaining, he told me, that “it’s the system, not the individual soldier, that is the problem. Even atrocities are standard operating procedure.” At the hearing, he recounted in graphic and shocking detail how his unit killed more than thirty innocent Iraqi civilians at checkpoints, “lighting them up” with machine gun fire. He also described how Marines shot dead unarmed Iraqi demonstrators who posed no threat. “I was never clear on who was the enemy and who was not,” he said. “When you don’t know who the enemy is, what are you doing there?” A Marine Corps spokesman has said that none of the acts Massey described violated rules of engagement.

If Hinzman is denied at the IRB, there are possibilities for appeal. And then, House notes, “the question of the illegality of the war has to be confronted politically.” After all, Prime Minister Paul Martin may have promised to help with Iraq’s elections, but his predecessor, Jean Chrétien, declined to join the “coalition” forces without a nod from the UN Security Council. And the current Justice Minister, Irwin Cotler, is on record challenging the war under international law. In answering Specialist Wilson’s question at Camp Buehring, Rumsfeld smugly told the 2,000 assembled soldiers, “You go to war with the army you have.” In his brave stand, Jeremy Hinzman suggests another option: The army can refuse to go at all.