Is Omar Khadr a War Criminal -- or Just a Headache the U.S. Wants to Give to Canada?

VANCOUVER -- While the United States was occupied with the midterm elections and their attendant hopes and fears, the Obama administration quietly got rid of a major problem in Guantanamo Bay, the case of the child soldier Omar Khadr.

Taken prisoner when he was 15, Khadr is a Canadian citizen who was captured by U.S. forces during fighting in Afghanistan and who was to become the first combatant-cum-terrorist tried on President Barack Obama's watch.

Under a plea agreement arranged by Khadr's lawyer, Lt. Col. Jon Jackson, and White House officials (as well as Secretary of State Hillary Clinton), Khadr will serve one more year in Guantanamo Bay, in solitary confinement, then return to Canada to serve out the rest of his eight-year sentence. He will be eligible to be released in two years -- a far cry from the 40-year sentence Khadr would have faced had he stayed in American custody.

Not a bad deal all around, except that like so many Gitmo-related detainees, Omar Khadr may not go away that easily.

For one thing, many Americans may see Khadr as getting off with a relative slap on the wrist, given the crimes the United States says he confessed to. That kind of permissiveness is not the kind of image Obama needs to project right now.

Here in Canada, people aren't exactly thrilled at the prospect of having a member of an "Al Qaeda family" (his brother's words) and onetime house guest of Osama bin Laden running around free in a few years.

On the other hand, there are many in Canada -- and on the editorial pages of The New York Times, which called the case "Warped Justice" -- who think Omar Khadr has gotten a raw deal all along.

The Toronto-born Khadr, now 24, was captured by U.S. forces on July 27, 2002, after a four-hour firefight in the village of Ayub Kheyl, Afghanistan, and charged with, among other things, killing Special Forces Sgt. Christopher Speer by throwing a grenade at him. While a murder charge arising from battle seems to suggest a judicial sleight-of-hand, U.S. military lawyers argue that because Khadr and other Al Qaeda and Taliban fighters do not wear uniforms, they can be charged with murder and other war crimes, even if the alleged crimes occurred during battle.

Khadr was badly wounded in the battle, blinded in his left eye by shrapnel and shot twice in the back while kneeling to attend the first wound. Despite his guilty plea, he always claimed that a grenade had disabled him to the point that he could not have thrown a grenade at the U.S. soldiers.

After medical treatment for his wounds, he wound up at the Guantanamo Bay detention camp in October 2002, and established several dubious superlatives: He's the youngest detainee in the prison; the first combatant since World War II to be prosecuted for war crimes committed while still a minor; the only detainee charged under the 2006 Military Commissions Act not to boycott the Guantanamo Bay proceedings; and the only remaining Western citizen in the camp. That last distinction is because the Canadian government remained unique among Western governments in not asking for the repatriation of their citizens, or extradition to stand trial at home.

Then again, "home" is a concept laden with toxic baggage when it comes to Omar Khadr. He's part of a family that Canadians regard with a mixture of contempt and pity -- the former emotion more often winning out.

A brief review of the family history helps explain the ambivalence.

Khadr's Egyptian-born father, Ahmed, moved the family between Pakistan, Canada and Afghanistan as Omar was growing up. Omar's father worked with non-governmental organizations to set up refugee relief mainly in Arab countries.

But Ahmed Khadr was suspected of being much more than an NGO charitable worker, and Canada, the United Kingdom and the United States put him on a list of high-ranking Al Qaeda operatives (the family had lived with Osama bin Laden in 1998). In 2003, Ahmed Khadr was killed by Pakistani Special Forces, and Omar's older brother Abdulkareem was paralyzed by a gunshot wound to the spine in the same action.

Another brother, Abdurahman, who referred to the Khadr clan as "an Al Qaeda family" was also imprisoned at Guatanamo Bay, but claims to have been a CIA spy there.

The eldest Khadr brother, Abdullah, admits to having bought guns for Al Qaeda. He was also charged by the Military Commission at Guantanamo Bay, but the U.S. government failed to win his extradition. He was released from a Canadian prison in August after serving a four-and-a-half-year term and lives in Toronto. He had been arrested and imprisoned by Canada on behalf of the United States, and in late August, the Canadian government announced that it will appeal the decision to prevent his extradition.

For Ahmed Khadr's Egyptian-born wife, Maha, who had come to Canada as a 17-year-old from Saudi Arabia, Canada became increasingly unappealing over the years, and she did not want her children to be raised in the country.

"Would you like me to raise my child in Canada and by the time he's 12 or 13 he'll be on drugs or having some homosexual relation?" as she said in the 2004 PBS documentary "Son of Al Qaeda."

The Canadian government eventually stopped issuing passports to Maha Khadr and her equally militant elder daughter, Zaynab, as they had "lost" so many passports already.

With such a family history, it is hardly a surprise that about half of Canadians say they don't want the youngest Khadr son to serve any part of his sentence in Canada -- a level of opposition that poses a problem for Prime Minister Stephen Harper's Conservative government, which has assured Khadr and his legal team that they would honor the deal to take him off the Americans' hands in a year's time.

"The U.S. government has accepted that Omar Khadr will return to Canada and we will implement the agreement reached between Mr. Khadr and the United States," Lawrence Cannon, Canada's foreign affairs minister, said in the House of Commons.

This deft move by the Canadian government appeared to let it stickhandle through the controversy and make the repatriation of Khadr seem like an American deal they had to accept. But in April 2009, the Federal Court of Canada ruled that the country's Charter of Rights and Freedoms legally obliged the government to immediately demand Khadr's return. The government appealed to the Federal Court of Appeal, which upheld the original ruling, so the government moved the argument into the Supreme Court of Canada. In January, the Supreme Court ruled that Khadr's constitutional rights had been violated by his incarceration in Guatanamo Bay as a minor -- but it stopped short of ordering the government to obey its own laws and seek his repatriation immediately.

"You know, whether I like the guy or not, that is not the issue," Liberal Party MP Ujal Dosanjh said to reporters. "Canadians have rights under the charter of rights, under our Constitution. You could be the most vile person on this Earth, [but] if you are a Canadian citizen, you have certain rights and one of those rights is to be able to come back to this country, either after serving some sentence or before serving the sentence. You are after all, a Canadian. A Canadian is a Canadian is a Canadian. And that is what this government has failed to understand."

That kind of statement about a fellow with Omar Khadr's record would be political suicide in the United States today, but whether Canada takes Khadr now or in a year, Canada's willingness to take him at all is a political lifeline for the Obama administration, which is trying to find some way, any way, to empty Guatanamo as fast as it can. It also lets the Canadian government do what its courts have told it to do, without actually "doing" it, so the Harper government can play it as the cost of doing business with the United States.

For the Obama administration, Khadr's guilty plea also avoids the nasty prospect of the slight, young Canadian taking the stand to reveal some of the brutalities he alleges he experienced at Guatanamo Bay, including being refused pain medication, having his hands tied to a door frame for hours at a time, dousings with cold water, threats by military dogs, being forced to urinate on himself due to his captors refusal to let him use the toilet, and being forced to carry five-gallon pails of water to aggravate his shoulder wound. His chief U.S. Army interrogator, Joshua Claus, pleaded guilty to detainee abuse in 2005 after a wrongly accused Afghan prisoner died while in his custody.

Of course, no journalist has been allowed to interview Omar Khadr to verify his story.

But David York, who won an Emmy for his 1997 television documentary "Gerrie and Louise," which chronicled South Africa's Truth Commission, has been to Guatanamo Bay twice to try to get a bead on Khadr's story, and he thinks Khadr's guilty plea with the U.S. government was the only deal that he could reasonably make.

"In fact, I'm not sure it's a deal at all," York said. "Legally, a deal cannot be coerced for it to be valid. It presupposes a non-coercive relationship. In Omar's case he was captured by the military, spirited away, tortured, interrogated, and brought by sham legal processes before a military judge and military lawyers who were able to decide which witnesses the defense would be able to call, and which evidence would be released to the defense team. Khadr and his lawyers -- and any sort of neutral observer -- had to have come to the conclusion that he was not going to get a fair trial. So he was forced to do a deal."

"Even framing the question as that of a 15-year-old-child soldier is a red herring," York said. "Omar Khadr's father moved the family to Afghanistan when Omar was 9, where the family often lived in Osama bin Laden's family compounds and training camps. So Omar was indoctrinated into Al Qaeda from an early age – long before he had the capacity for independent thought."

York thinks that Canada is afflicted with what he calls "Karl Rove disease" -- that is, the "deliberate polarization of issues by right wingers" who advance their agendas by wrapping their arguments in patriotism at the cost of the rule of law, and logic.

Even so, he believes that when Omar Khadr finally returns to Canada next year, his lawyers will go before a Canadian court to argue his plea deal is illegal because it was coerced. To do so earlier would violate the terms of his plea agreement, which would result in his serving the full 40-year sentence in Guantanamo, or wherever a "son of Guantanamo" is constituted when the prison is finally closed.

"My guess is that he will be out in two years, or less," York said of the Canadian prison. It will then be up to child soldier Omar Khadr to set the record straight, as an adult, and a free man.

But if Khadr does talk, he could make the governments on both sides of the 49th parallel wish they'd found another place to stick him.