25 year old Omar Khadr perhaps has the dubious distinction of being the prisoner who has spent the largest proportion of his short life in Guantanamo Bay.  Khadr was fifteen years old when American forces captured him in Afghanistan; he has now been detained in Guantanamo for almost a decade.  His continued detention draws attention both to the failure of the Obama administration to deal adequately with the ‘war on terror’-era aftermath of Guantanamo, and the dark history  of Canada’s little-acknowledged role in the ‘war on terror’-era’s use of torture and arbitrary detention. 

The United Nations Committee Against Torture is amongst the organisations that have urged the transfer of the 25 year old from Guantanamo to Canada.  Yet almost a decade after he was captured in Afghanistan, Khadr resides in the murky purgatory conjured by the word ‘Guantanamo’ – a dark void of international law and due process.

America accused Khadr of killing US Army Sergeant First Class Christopher Speer with a grenade.  After Khadr’s capture, in which he was seriously injured, the United States famously refused to apply international standards and human rights law guidelines relating to Khadr’s juvenile status, and even refused to recognise that he was underage.  Khadr, a Canadian national, was then held for two years before he was tried, and three before he was charged.  He was detained with adults despite his age, not provided with educational opportunities despite the fact he was legally a child at the start of his capture, and Human Rights Watch states that he was subjected to abusive interrogations.

In 2010, after spending over half a decade in detention, Khadr pled guilty to war crimes including the murder of Christopher Speer, committed when Khadr was a juvenile in Afghanistan.  The guilty plea contained a plea bargain stating that Khadr would be eligible to transfer to Canada after serving a year of his sentence.  But while in 2010 Canada’s foreign minister stated that Ottawa will implement the transfer deal between Khadr and the American government, little has moved forward since.  As of October 2011, Khadr has been declared eligible to serve the rest of his sentence in Canada, but Canada’s Public Safety Minister Vic Toews seems content to delay the legal stasis of Khadr’s detention in Guantanamo.  In an effort to force his hand, Khadr’s Canadian lawyers are now seeking a federal order to force Toews to make an immediate decision on Khadr’s return.

Canadian human rights and civil liberties groups have mobilised to protest Khadr’s continued detention in Guantanamo despite his eligibility to return to Canada, and Senator Roméo Dallaire, who has advocated on behalf of child soldiers, has demanded that the Canadian government at least explain why it is taking so long to make a decision on whether or not Khadr can return.   Even aside from the murky nature of Khadr’s underage capture and legally-dubious treatment while in Guantanamo, what shocks and dismays many now is the feeling that Canada has broken its promise to Khadr.

Admittedly, not all are happy with Khadr becoming a poster child for the violations of the ‘war on terror’ era.  Right-wing columnist Ezra Levant’s book, The Enemy Within, for instance, attempted to deconstruct the arguments of the ‘Omar Khadr fan club in Canada’, by pointing to Khadr’s admission of committing the attack on Christopher Speer, reports of his father’s role as an al-Qaeda financier and painting a (somewhat unconvincing) picture of the ‘cushy’ life Khadr had in Guantanamo.  But the arguments that Khadr is not the perfect human rights poster-child ignore two basic facts in favour of his removal from Guantanamo: the fact he was underage when he was first detained, and the dubious legality of the Guantanamo system under which he was held.

Many want Khadr’s case resolved as quickly as possible to minimise the ‘dark chapter’ of Harper’s cooperation with the Bush-Blair ‘war on terror’.  Reviewing the state’s conduct during this period, Canada was later criticised by the United Nations Committee Against Torture for its “complicity” in torture in the case of several Muslim men, and in human rights violations in the case of Omar Khadr, as well as the immigration laws proposed by Harper’s Conservatives, which would entail the use of secret evidence against suspected terrorists.

As well as highlighting the little noted issue of Canada’s complicity in the murky legal territory of America’s ‘war on terror’ policies, Khadr’s continued detention – the fact that, in 2012, someone who was captured as a juvenile in Afghanistan in 2002 is still being detained despite the nature of his two-year wait for a trial – is also a reminder of another issue that has slipped from the headlines: Obama’s failure to adequately deal with the legal and moral quagmire he inherited in Guantanamo.   

As the notorious detention centre turned ten years old this year, the 2012 National Defense Authorization Act effectively legally entrenched indefinite detention, a ‘war on terror’-era inheritance now creepily stitched into the fabric of American law.  And while perhaps Obama cannot be blamed for the Congressional resistance he met in attempts to close the prison, the fact that his administration has resumed military tribunals at the base lies squarely on his shoulders.  The National Defense Authorization Act’s provisions make the chances of closing Guantanamo grow even dimmer.  In the meantime, detainees like Khadr remain both a relic of the Bush-era’s disregard for international and human rights law and a contemporary reminder of the continuation of the world the neo-cons built. 

With Khadr eligible to serve the rest of his sentence outside of the moral-void of Guantanamo, why Canada is refusing to declare whether or not they will let him serve the rest of his sentence in Canada is baffling and frustrating.  America’s National Defense Authorization Act may have let the stain of ‘war on terror’-era treatment of prisoners permanently smear the body of US law.  But it is not too late for Canada to at least undo some of the damage of its complicity in the ‘war on terror’ years by allowing Omar Khadr to serve the rest of his sentence outside of the kangaroo court of Guantanamo where he was sent as a teenager.