Omar Khadr in a court hearingHe was just 15 years old when arrested after a fire fight with US forces in Afghanistan; Omar Khadr has spent the last six years locked up in the detention centre at Guantanamo Bay without a trial. A friend of mine mentioned the other day that spending this long in prison without trial is a form of torture. Supporters of Khadr say he is simply a child soldier and should not be facing charges in an American military tribunal. Others say that since Omar Khadr is a Canadian citizen, he should be brought home to Canada to face charges, rather than remain the last Western citizen locked up at the makeshift prison dubbed “Gitmo”.

If any of this is true, why is Canada, Boy Scout to the World, the country that pioneered “soft power” throughout the 1990s and spearheaded the international treaty on landmines, letting one of its citizens rot on his own without help? The answer is, things aren’t always what they seem with the Khadr family. History, post-9/11 politics and the legal systems of two countries all contribute to this tale that has been generating international headlines.

Truth be told, Omar Khadr is a Canadian of convenience. Although born in Toronto in 1986, Omar’s parents, both immigrants to Canada, had decided to raise their family elsewhere to escape a culture they viewed as having a corrupting influence on their young and growing family. The family was living overseas in locales such as Bahrain and Pakistan, returning for brief spells in 1985 and 1986 only for Omar and his older brother Ibrahim to be born or receive medical care from Canada’s state medical system. Omar left Canada for Pakistan’s Peshawar district when he was only months old, spending the rest of his life going between Pakistan, Afghanistan and when the family needed medical treatment, Canada.

Like his son, Omar’s late father Ahmed Khadr, once faced charges of supporting terrorism and appealed to the Canadian government for help. Ahmed had been arrested in connection with the November 1995 bombing of the Egyptian Embassy in Pakistan. Petitions were organized in Toronto, a media campaign was launched and a personal appeal was made to then Prime Minister Jean Chretien. While Chretien was leading a business delegation through Pakistan, he was met one day in a hotel lobby by Ahmed’s wife Maha and her then 9 year-old son Omar. The family pleaded with Chretien to do something to free Ahmed, a Canadian citizen and “humanitarian relief worker” who was wrongly imprisoned. Prime Minister Chretien promised to raise the issue with Pakistani Prime Minister Benazir Bhutto; a short time later the elder Khadr was released. The Khadr family returned to Canada briefly before moving away again, this time to Afghanistan and formed a close association with Osama bin Laden; the Khadr and bin Laden families lived together for a short time. Ahmed Khadr was eventually identified by the United Nations as a terrorist financier supporting Al Qaida, suspected of having provided funds for the 9/11 attacks.

In Canada, Prime Minister Chretien was pilloried for helping a terrorist gain his freedom. Small wonder that when Omar Khadr showed up in jail on terrorism charges in October of 2002, Jean Chretien offered consular assistance but never asked for Khadr’s freedom. Neither the Liberal government of Paul Martin nor the current Conservative government of Stephen Harper have altered Chretien’s initial position, offering Omar Khadr consular services, but letting the US justice system do its work and perhaps asking for Khadr to be returned to Canada after his trial.

Omar Khadr’s distant relationship with Canada and the cold feet of Canadian politicians may explain why there is not a groundswell of support for his cause in his home and native land, but that does not excuse the lengthy time it has taken to get to trial. Even by my own standards, as someone who watches courts and has followed complex cases as they slowly wind their way to trial, six years is a long time. If you accept the position that the Americans have obviously messed up and not given Khadr a speedy trial, does that mean he should be freed? No, at least not on those grounds, because he and his fellow prisoners have a part in the long delay.

Beginning with the Hamdan case, which overturned the original process for trying those held at Guantanamo Bay and continuing now with another case brought by former Osama bin Laden driver Salim Hamdan, court rulings and proceedings have set back or derailed the prosecution of the men held on terrorism charges. In 2006, the US Supreme Court ruled that the Military Tribunals did not have “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.” In June 2008, the Boumediene case granted all prisoners at Guantanamo the right to petition for habeas corpus, the decision opening the way for 270 prisoners to seek trial in a US civil court.

Each of these proceedings has affected all of the other cases at Gitmo through delays. With each case won by the prisoners, the Bush administration and Congress has sought to find ways of trying the prisoners while staying within the law, which is what legislators are supposed to do when faced with a Supreme Court decision they don’t like; change the law to match the court ruling. With each change, the prisoners have exercised their right to challenge the proceedings in court. Khadr himself has launched legal challenges in Canada, winning a slight and limited victory over the Canadian government over access to information Canada has obtained on him. Each side is responsible for the delay in getting to trial. To portray any of this as the Bush administration refusing to try prisoners and holding them indefinitely is simply wrong.

All of this may soon become a moot point; both Democratic presidential nominee Barack Obama and Republican nominee John McCain have talked of closing down the Guantanamo Bay facility. Such a move would either see the detainees moved to American civil prisons and courts, or in the case of people like Omar Khadr, returned to their home countries. Khadr’s supporters in Canada continue to call for his repatriation saying he can face charges under Canada’s legal system. Yet several experts such as John Thompson, a security specialist with the Mackenzie Institute, and law professor Michael Newton at Vanderbilt University, say Khadr likely would not face charges in Canada due to the way Canada’s treason and anti-terrorism legislation are written. Even a University of Ottawa legal opinion that says Khadr should face charges in Canada, concludes that he would likely never be convicted under the Canadian legal system. That leaves the government welcoming home the youngest son of a clan dubbed by Maclean’s magazine as “Canada’s First Family of Terror” and having him released onto the streets.

To Khadr supporters who view him as a child soldier and a victim, his immediate release into Canadian society could hardly be viewed as a victory. Rehabilitation of a child soldier would normally include an attempt to reintegrate the boy into society in a normal way and to reunite him with his family. If Omar Khadr is a victim, taught to hate and take up arms against his will or better judgement, then the people who did this to him are his mother and father. His father is now dead, but his mother is back in Canada, having moved back in 2003 to obtain medical care for one of her other children. She and her daughters have spoken openly of their support for Al Qaida and their disdain for western society. One of Omar’s brothers is fighting extradition to the United States, where he faces charges of being an arms supplier to jihadists. This is hardly the environment you would want to rehabilitate a victim in, yet without charges to hold him on, or a conviction to jail him with, the Canadian government would have no choice but to release Omar Khadr into the loving arms of his mother. How would it help a supposed child soldier to send him back to a woman with a deep seated hatred for the society she lives in, a woman who has already proven that she and her loved ones will act on that hatred?

So, the trouble with Omar is that there is no good solution. The American Military Tribunal system is flawed and raises serious questions about fundamental rights; rights that governments are supposed to protect. Yet to bring Omar home, would mean putting him straight back into the environment that his supporters say made him a victim in the first place. And finally, given the family history, there is the public backlash awaiting the government that actively seeks to release Omar as a free citizen onto the streets of Toronto. So things are not always what they seem when it comes to Omar Khadr and his family, and there are no easy answers when it comes to solving his case.

Brian Lilley is Ottawa Bureau Chief for Newstalk 1010 CFRB in Toronto and CJAD 800 in Montreal.