Deserter faces first formal meeting in asylum bid soon
By KEVIN DOUGHERTY | STARS AND STRIPES Published: December 21, 2008
A week before Spc. André Shepherd applied for political asylum in Germany, the American soldier sat in a farmhouse kitchen in southern Bavaria recounting the events that led him to desert the U.S. Army in spring 2007.
Any application for asylum is a political statement, and on this night Shepherd was opinionated. He called the war on terrorism, particularly with respect to Iraq, a fraud. He said the Bush administration lied to the military. And he asserted that continued combat operations in Afghanistan and Iraq would only serve to further alienate the local population.
He also touched upon another aim of his campaign to win political asylum in Germany. That objective is to avoid jail time and a federal conviction.
"I don’t want to be punished for making the right decision," Shepherd said.
The 30-year-old Apache helicopter mechanic will soon get his first test.
Reinhard Marx, the Frankfurt-based asylum lawyer representing Shepherd, said he expects his client to have his first formal meeting next month. It actually will be more of an interview, involving Shepherd, Marx, a government interpreter and at least one migration official with the German Interior Ministry.
"Legally, we are waiting for the invitation to the personal interview," Marx said. "I think [the interview] will happen after New Year’s.
Meetings of this type usually take no more than a day, though Marx, an asylum attorney for over 30 years, said sometimes a second day is needed. "Every detail of his story will be touched," Marx said.
Aside from a few brief comments from the soldier’s company commander, the Army has had little to say about the Shepherd case. He is the first U.S. servicemember to apply for political asylum in Germany over the war on terrorism.
"It would be inappropriate for us to comment on an ongoing case," Hilde Patton, a U.S. Army Europe spokeswoman, said Friday.
In response to a query earlier this month, USAREUR said the NATO Status of Forces Agreement and a supplementary agreement between the United States and Germany apply to all American servicemembers in Germany.
That includes individuals "dropped from the rolls as a deserter." That administrative action in no way ends their status as member of the U.S. military, USAREUR said.
"The SOFA and SA apply in the same manner to Shepherd, as with any other member of our armed forces stationed in Germany," the statement read.
The supplementary agreement is a thick document covering a range of issues, from taxes and requisitioning procedures to air maneuvers and marriage certificates. Sections of the agreement seem to apply to Shepherd, but U.S. officials have yet to tip their hand as to how they plan to argue their case.
What is certain is that, at least for now, Shepherd enjoys the protection of the German government.
"German asylum law is applicable in this case for Mr. Shepherd," said Christoph Hübner, a spokesman for the Interior Ministry in Berlin.
The spokesman added that each application for asylum is different, and thus handled individually, based on its merits.
"He asked for asylum," Hübner said, "and now this has to be reviewed under our asylum laws."
German attorneys and government officials familiar with the asylum laws have described them as liberal but vague in areas. For years, Germany had among the most liberal asylum laws in Europe, though lawmakers have recently tightened the rules. Still, Article 16a of the Basic Law, as it is known in Germany, provides that "persons persecuted on political grounds shall have the right of asylum."
Shepherd maintains he would be prosecuted as a deserter by the Army — or effectively the U.S. government — if he were to turn himself in. Prosecution and persecution mean different things, but Shepherd and Marx view them as the same side of the same coin.
While at the Bavarian farmhouse last month, Shepherd responded to a question about those who would call him a coward, particularly his brothers in arms.
When he first began to express doubts about the mission during his first tour to Iraq in 2004-05, Shepherd said some noncommissioned officers told him he wasn’t alone, but that "we signed up for this."
Shepherd said when he enlisted he "still had faith in the U.S. government. If I didn’t have faith, I wouldn’t have signed up."
Servicemembers, he added, expect the government officials "to tell us the truth, especially when they are asking us to kill someone."
Legal experts who have commented on Shepherd’s quest for political asylum have said that U.S. and German politics will most certainly be a factor in any resolution.
"This is a highly political question," said Hanns-Christian Salger, a law professor at Goethe University in Frankfurt.
Even though the German government didn’t join the U.S. and the U.K. in the invasion of Iraq, it still helped, probably more than people realize, Salger said. Such assistance clashes with anti-war comments by a host of German politicians, most notably former German Chancellor Gerhard Schroeder, who said there was no justification for a war against Iraq.
Politicians in Germany and the United States, Salger said, "may try to find a way around it without calling the Iraq war ‘illegal.’ "