Comment American Deserters and Draft Evaders: DOUGLAS W. JONES DAVID L. RAISH INTRODUCTION At his news conference of November 12, 1971, President Nixon was asked the following:1 Mr. President, do you foresee granting amnesty to any of the young men who have fled the United States to avoid fighting in a war that they consider to be immoral? The President's answer was, "No." Whatever the implications of this brief response, and whatever the motivations of these "young men," the phenomenon of large numbers of draft-age Americans, including American servicemen, fleeing to foreign countries has emerged as an issue of national concern.2 This concern has been evidenced in public. forums,3 in numerous articles in newspapers and periodicals, and in 1. N. Y. Times, Nov. 12, 1971, at 10, col. 4. 2. It is not known precisely how many American deserters and draft evaders are presently living abroad. Estimates vary widely, e.g., N. Y. Times, Feb. 5, 1970, at 8, col. 4 (6,000-60,000); Newsweek, Feb. 15, 1971, at 28 (50,000-70,000). A number of unofficial sources cite a total of 50,000 in Canada alone. Canadian government figures have shown over 60,000 draft-age American males living in the country. S. F. Chronicle, Mar. 27, 1970, at 7, col. 5. The World Council of Churches estimates 50,000 deserters and draft evaders in Canada. N. Y. Times, Dec. 8, 1970, at 13, col. 4. Canadian aid groups give estimates between 20,000 and 50,000. Letter from Bob Seeley, Central Comm. for Conscientious Objectors, Philadelphia, Pa., to the Harvard International Law Journal, May 11, 1971. See also Comment, Draft Resisters in Exile: Prospects and Risks of Return, 7 Colum. J. Law and Soc. Prob. 1, n. 1 (1971), which estimated the number of exiles in Canada at 8,000-10,000. 3. See notes 159, 160, 161 & 286 infra and accompanying text. 4. See, e.g., Fleming, America's Sad Young Exiles, Newsweek, Feb. 15, 1971, at 28; 5 activities at various levels of government. As the American combat presence in Indochina decreases, public concern about the phenomenon may be expected to provoke a more elaborate official response. It is the purpose of this Comment, therefore, to examine first, the methods by which deserters and draft evaders have gained entry into Canada (which harbors the largest number of fugitives), and Sweden (whose government has taken special steps to accommodate deserters); second, the means by which the United States might gain jurisdiction over deserters and evaders who have fled to these two countries; and third, the punishment which these fugitives face upon return, and the legal and policy considerations underlying an executive or congressional decision on amnesty. The term "deserter" as used here applies to all American servicemen who have made unauthorized departures from their posts of duty and who have remained absent for over thirty days. The term "draft evader” as used here includes Americans who evade or refuse registration with the Selective Service System or service in the armed forces of the United States. Richard, American Deserters in Stockholm, Interplay, Sept., 1970, at 28; Lang, A Reporter at Large, New Yorker, May 23, 1970, at 42; Bess, What Draft Resisters Face, S.F. Chronicle, Mar. 27, 1970, at 7, col. 5; N. Y. Times, Feb. 5, 1970, at 8, col. 4; May 11, 1970, at 13, col. 1; Nov. 5, 1970, at 5, col. 3. 5. See notes 162-65 & 167 infra and accompanying text. 6. After 30 days of unauthorized absence, an absentee is “dropped from the unit rolls" and administratively classified as a deserter. Hearings Before the Subcomm. on the Treatment of Deserters from the Military of the Sen. Comm. on the Armed Services, 90th Cong., 2nd Sess. 4 (1968). Compare this classification with the statutory definition, p. 107 infra. The Department of Defense maintains systematic records of the total number of deserters. As early as 1968, the Department reported that over 53,000 servicemen were classified as deserters over a twelve month period. S. Rep. No. 93, 91st Cong., 1st Sess. 24 (1969). This figure prompted a subcommittee of the Senate Armed Services Committee to conclude that "the total number of deserters and those who are unauthorized absentees is of such magnitude as to provide reason for serious and special concern by civilian and military officials of the Department of Defense.” Id. at 32. The desertion problem has since intensified; during the first ten months of fiscal year 1971 the army alone reported 68,449 desertions, nearly double the army's 1968 figure. N. Y. Times, Aug. 15, 1971, § 4, at 4, col. 7. If the total number is indicative of the number of deserters abroad, there is reason to believe that the number abroad has been increasing in recent years. In the two countries most populated with deserters, Canada and Sweden, it is thought that there are about 1100 deserters. N. Y. Times, Feb. 5, 1970, at 8, col. 4 The Swedish government has stated that 500-525 deserters are residing in Sweden. See note 33 infra and accompanying text. 7. To evade or refuse registration with the Selective Service System would include making or causing to be made false, improper or incorrect registration, classification, physical or mental examination, deferment, induction, enrollment or muster, or false statements under any provision of the act. This definition accords with the punishment provision of the act, 50 U.S.C. App. § 462(a) (1970). No official figures are publicly available on the number of draft evaders abroad. But see note 2 supra. The number is necessarily uncertain since most evaders have, for obvious reasons, been out of touch with official sources. Any estimate is, of course, complicated by the fact that many evaders have presumably left the country without registering for the draft. STATUS OF AMERICAN DRAFT EVADERS AND DESERTERS American military deserters and draft evaders seeking refuge abroad have had to consider how their status affects (1) their ability to enter a foreign country and (2) their legal status vis-à-vis the United States while abroad. This second consideration breaks down into (a) whether the evader or deserter can be reached by formal extradition and (b) whether he is subject to deportation or other forms of removal to an area over which the United States exercises jurisdiction. These considerations will be discussed here as they apply to the recent experience of deserters and evaders attempting to settle in Canada and Sweden. A. Immigration into Canada Geographic proximity and cultural similarities have undoubtedly been as instrumental as any complex legal considerations in the movement of American draft deserters and evaders to Canada. There are no official Canadian or American estimates as to the number of evaders and deserters who have emigrated to Canada, but the Canadian government does estimate that emigration from the United States to Canada has doubled in the last ten years to approximately 25,000 annually, with most of the emigrants falling in the 20-29 year-old age bracket.10 Nor is it known how many evaders or deserters (1) currently enjoy visitor status;11 (2) reside in Canada illegally; or (3) have returned to the United States. It is the announced policy of Canada not to discriminate against 8. Canada, whose foreign policy long mirrored that of the United States, has in recent years developed a distinct approach to foreign relations in some areas. This was the goal of a major reevaluation of foreign policy undertaken in 1967. See Secretary of State for External Affairs, Foreign Policy for Canadians 38 (1970); Department of External Affairs, Perspectives in Foreign Policy, Statements and Speeches 70/1 (1970). Canada has publicly condemned various aspects of the United States involvement in Indochina. See Department of External Affairs, Some Elements of Canadian Foreign Policy, Statements and Speeches 70/9 (1970). 9. Letter of Consul Allen Bryce, of the Canadian Consulate-General in New York, to Harvard International Law Journal, Oct. 20, 1971; but see notes 2 and 6 supra. 10. Canadian Press and Information Service, Statement of Mar. 25, 1971, New York, New York. 11. The Canadian Immigration Act, Can. Rev. Stat. c. I-2 (1970), does not specifically limit the time an alien may stay in Canada as a visitor. Section 7(3) requires the alien to report to immigration officials any change in status which would cause him to cease being a tourist or visitor, and section 7(4) allows the Immigration Minister to declare on his own initiative that the alien is no longer a tourist or visitor. Section 6 establishes a presumption that the alien is an applicant for immigrant status and not a tourist or visitor. Presumably, taking a job in Canada, coupled with extended residence there, would establish the deserter or evader as no longer being either a tourist or visitor. deserters or evaders seeking refuge in Canada.12 But neither does the draft evader or deserter benefit from any special provisions to ease the legal requirements for residency in Canada. To remain permanently in Canada, aliens must obtain “landed immigrant" status under the Immigration Act.13 This status is currently available with certain qualifications to those who achieve a minimum of fifty "points" on a purportedly objective rating system. Major point categories are as follows: (a) 1 point for each year of formal education, vocational training (b) up to 15 points for skills or professions in high demand; (d) 10 points if applicant is 18-35 years old; (e) 10 points if applicant is applying from without Canada and has a firm job offer within Canada; (f) 5 points each for fluency in English or French; (g) 5 points if applicant has relatives in Canada at the place he wishes to live willing to assist him, 3 points if he has relatives anywhere in Canada willing to assist him; and (h) up to 15 points on the basis of an interviewing officer's personal evaluation of the applicant.14 14 Additionally, there are provisions, rarely invoked, whereby the fifty point minimum can be waived or a person scoring more than fifty points can be denied entry, at the discretion of the interviewing officer.15 Under the above schedule an eighteen year-old American applying either at the border or at a Canadian consulate, who speaks only English and has no special skills, but has arranged for unskilled employment in Canada, begins with a maximum of 37 points.16 Thus, the personal assessment of the interviewing Immigration Officer can be crucial. The interviewing officer has considerable latitude, since there are no standards in either the Immigration Act or the applicable Statutory Orders and Regulations17 as to what questions the Immigration Officer may ask the applicant. However, the Canadian policy not to discriminate against evaders and deserters presumably bars direct questions as to an applicant's military status. A Canadian attorney active in immigration 12. Statement of Canadian Minister of Manpower and Immigration MacEachen, quoted in N. Y. Times, May 23, 1969, at 5, col. 1. 13. Can. Rev. Stat. c. I-2 (1970). 14. Immigration Regulations, Part I, as amended, Can. Stat. Orders and Regs. No. 67-434 (1967). 15. Can. Rev. Stat. c. I-2 § 32(4) (1970). 16. Education, 12; 18-35 years old, 10; knowledge of English, 5; job offer, 10: total of 37 points maximum. 17. Immigration Inquiries Regulations, Can. Stat. Orders and Regs. No. 67-621 (1967); Immigration Regulations, Part I, Can. Stat. Orders and Regs. Nos. 62-36 (1967), 64-327 (1964), 66-147 (1966), 67-434 (1967). 31-658 O-74-7 law confirms that deserters and evaders are currently not discriminated against as such, but applicants of their age group sometimes suffer in isolated cases where an immigration official might tend to discriminate in his personal assessments of young people evidencing "counter-culture" life styles, or, more importantly, where young applicants are unable to accumulate enough points under the education and skill categories.18 On some occasions, border authorities have reportedly refused entry to visitors and landed immigrant applicants and have sent them back to the United States, while simultaneously notifying the American Federal Bureau of Investigation that the applicant was returning.19 Such activity is not now officially sanctioned respecting draft evaders and deserters,20 though informal cooperation might be less accountable to official policy. A Canadian official has acknowledged that such cooperation is sometimes given regarding other fugitives from American laws.21 By contrast, the applicant who enters Canada as a visitor and while there applies for landed immigrant status has a right to appeal a denial of his application to the Immigration Appeals Board before he can be returned to the United States.22 (The Board has broad powers in reviewing the acts of lower officials, as discussed infra at p. 105). There are several further obstacles to obtaining landed immigrant status which could affect the American draft evader or deserter. Section 5(1) of the Immigration Act23 bars absolutely the entry of persons who have previously associated with any group which is reasonably believed to advocate or promote subversion of democratic government, unless the Immigration Minister is convinced that entry would not be detrimental to Canadian security. Further, section 5(m)24 provides a similar bar to anyone who has himself advocated subversion, and section 5(n)25 bars those who might engage in espionage or other subversive activities. On occasion these provisions have reportedly been used to exclude American student radicals from Canada,26 but there are no reported cases in Canadian courts involving this section of the Act. Canada also bars persons convicted of, or who have admitted committing, "crimes of moral turpitude."27 This bar has been held to extend even to cases where the person is convicted after entry on an indictment 18. Letter from Canadian Attorney Clayton C. Ruby to the Harvard International Law Journal, Feb. 23, 1971, at 5. 19. Id. 20. Telephone interview with Consul-General Bruce Rankin, Canadian ConsulateGeneral, New York, N.Y., Oct. 18, 1971. 21. Id. 22. Immigration Appeals Board Act, Can. Rev. Stat. c. I-3, § 11 (1970). 23. Immigration Act, Can. Rev. Stat. c I-2, § 5(1) (1970). 24. Id. § 5(m). 25. Id. § 5(n). 26. Clayton Ruby letter, supra note 18, at 4. 27. Immigration Act, Can. Rev. Stat. c I-2, § 5(d) (1970). |