Prime Minister Stephen Harper has come under repeated attack for not intervening in the case of Omar Khadr, the only Canadian — and now the only Westerner — detained at the U.S. military prison in Guantanamo Bay, Cuba.
Critics, including the opposition Liberals, have lashed out at Harper for not calling for Khadr's release and not pushing for his return to Canada, especially in light of recent reports that suggest Khadr has endured harsh conditions in Guantanamo, including weeks of forced sleep-deprivation.
But legal experts in the United States say the likelihood that Khadr would ever be released to Canada, either to be tried in a Canadian court or simply freed, is highly unlikely, even if the Canadian government did plead Khadr's case. However, some experts say there is a chance he could serve his sentence, or a portion of it, if he receives one, in Canada.
Experts say there are just too many obstacles standing in the way of trying Khadr in Canada, most notably that the charges against Khadr are highly unique to U.S. military law and that there are no equivalent charges under Canada's Criminal Code or War Crimes Act.
What happens next is anyone's guess, as Khadr is now set to become one of the first individuals to stand trial under the special military commissions set up to deal with suspected terrorists.
U.S. legal experts say the rules are still evolving, while the impact of the presidential election in November on Khadr's case can't be discounted.
A unique charge
Khadr was only 15 when he was captured by U.S. soldiers after a bloody firefight near the Pakistani border in Afghanistan. The Toronto-born teen was accused of throwing a grenade that killed U.S. Special Forces Sgt. Christopher Speer. In addition to being charged with murder, Khadr was also charged with attempted murder, conspiracy and supporting terrorism.
Michael Newton, a former military prosecutor who is now a law professor at Vanderbilt University in Tennessee, said the circumstances surrounding Khadr's charges are unique.
The U.S. military commission that has been established to try Khadr views him as an "unlawful" participant in an international conflict — a civilian who had no legal right to attack American soldiers, and kill one of them, during U.S.-led invasion of Afghanistan, Newton said.
He said there are no Canadian laws that would fully reflect the nature of these charges. A murder charge under Canada's criminal code wouldn't speak to Khadr's so-called "unlawful" combatant status, while a charge under Canada's War Crimes Act, which criminalizes offences like genocide and crimes against humanity, likely wouldn't hold up, he added.
"Canadians would probably not view Khadr as having committed a war crime within the meaning of the act," Newton said.
While the Canadian options are slim, Khadr's case is moving along steadily in the U.S. system, and the U.S. government will likely not want to derail it, Newton said. More than 50 defence motions have been filed, judges have made several rulings, and the trial is set to begin in October.
"This case already has a lot of momentum going," Newton said. "It's taken on a life of itself … It's just hard to see all of that going for nothing."
Robert Chesney, a law professor at Wake Forest in North Carolina, said the possibility of transferring Khadr into the Canadian legal system doesn't appear to even be a consideration at this point.
"I've not heard any talk of this," said Chesney, who specializes in national security law and terrorism. "There's no buzz about a Canadian indictment of Khadr... I think it's relatively unlikely."
Rules still to be set
With the possibility of a move to Canada so slight, the case against Khadr will likely progress as planned before the military commission, experts say. And given the amount of motions already filed in the case, Khadr's trial will likely be far from smooth.
"It will be an intensely litigated case," Newton said, noting that every aspect of the trial will likely be challenged by the lawyers involved. "It will be long. The only guarantee you have is that it won't be easily disposed of."
Chesney said Khadr's lawyers will likely take a factual approach, arguing that Khadr wasn't alone at the time of attack on U.S. troops and perhaps wasn't the one who threw the fatal grenade, as recently uncovered witness accounts have suggested.
The defence will also likely argue that, even if he did throw the grenade, Khadr was only acting in self-defence, and that what he did does not constitute a war crime.
"All of those are interesting questions," Chesney said.
He also pointed out that the exact constitutional and legal rights that Khadr will be afforded — as well as what issues can be raised during the trial — will only be established in the next few months, during the military commission trial of Guantanamo detainee Salmi Ahmed Hamdan, accused of being al-Qaeda leader Osama bin Laden's chauffeur.
Hamdan's trial for conspiracy, which is set to begin next week, will be the first full-fledged trial held at Guantanamo.
What won't be raised during Khadr's trial is the argument that he should be considered a child soldier, and should be afforded the protections offered under international law to children under the age of 18 who are drawn into conflict. That's because a ruling has already been made that his age won't be considered as part of this trial.
Khadr's lawyers have argued that the fact that their client was only 15 at the time of battle is crucial; so is the fact that he was only 17, and still a child, when he was sleep-deprived for weeks in Guantanamo Bay in order to make him more willing to talk to investigators, as recently released documents have suggested.
But military judge Col. Peter Brownback previously ruled that the defence cannot raise matters of international law in Khadr's trial. The trial will therefore only be considering the events that occurred on the day that Khadr allegedly killed Speer.
Col. Patrick Parrish has since replaced Brownback as the judge presiding over Khadr's case, but there has been no suggestion that the change will affect the earlier rulings. Given this, the issue of Khadr's age will likely only come up at his sentence hearing, should he be convicted, Chesney said.
Prosecutors are expected to seek a life sentence, but Chesney predicts the defence will likely plead for leniency, arguing that their client was young at the time of the attack.
Chesney said lawyers will also likely bring up Khadr's family at a sentencing hearing, arguing that their documented ties to al-Qaeda and their belief system had an impact on Khadr and the decisions he made. However, under Brownback's earlier rulings, these family arguments cannot be discussed in the trial.
Is a plea deal possible?
One thing in Khadr's favour, besides any sympathy generated from a recently released interrogation video showing a highly distraught Khadr being interrogated at Guantanamo, is that while his case is important to the U.S. government, there are other Guantanamo cases considered more of a priority.
For example, trials still need to be held for the alleged co-conspirators in the Sept. 11 attacks on the United States and the alleged mastermind of the deadly USS Cole bombing in 2000.
Newton said because of these pressing cases, the U.S. government may be interested in getting Khadr's case out of the way quickly so that it can focus on the other trials. As a result, Khadr could be offered a deal that could see him plead guilty to lesser charges and face a reduced sentence.
"In the big scheme of things, I think it's fair to say there may be other pressing prosecutorial priorities," Newton said. "It becomes a question of resources and a question of space."
Newton said Khadr will likely be allowed to serve any sentence he receives in a Canadian prison. That sentence would then most likely follow the rules and guidelines governing Canadian sentences.
"But that, of course, takes co-ordination," Newton said of a sentencing agreement.
A deal was struck with Australian David Hicks, a Guantanamo detainee who pleaded guilty in 2007 to supporting al-Qaeda. As part of his plea deal, he was allowed to serve the final seven months of his nine-month jail sentence on home soil.
Some 445 other Guantanamo detainees have been released to their home countries, including nine Britons, but unlike Hicks and Khadr, these detainees were never charged with crimes.
Chesney said Khadr could get a similar plea arrangement to Hicks's, although he noted that Khadr's case is substantially different from the Australian's. While Hicks carried out surveillance work on an abandoned American Embassy, participated in al-Qaeda training camps, and fought in the front lines alongside al-Qaeda in the early days of the Afghan war, he has never been accused of harming or killing an American.
"The charges are much less serious with Hicks," Chesney said. "The U.S. has more grounds to be concerned about how dangerous Khadr is."
One other event that could change the course of Khadr's future is the U.S. presidential election, which will take place just a few weeks after Khadr's trial is set to begin. Both presidential candidates have hinted that they want to close Guantanamo.
"But neither has been entirely clear about what they would do with each detainee once it's closed," Chesney said. "[Republican John] McCain seems to have interest in maintaining the same system in a different location, but it's less clear what [Democrat Barack] Obama would do."
The U.S. government has been forced to realize there is no legal advantage to holding detainees in Cuba. U.S. officials had hoped to avoid the American court system by placing the detention centre overseas, but the U.S Supreme Court ruled in June that Guantanamo detainees have the right under the American constitution to challenge their detention in U.S. civilian courts.
Chesney said a new president could opt to move Guantanamo's detainees to the U.S., but keep them in a military commission system. For the detainees, this would mean virtually no changes, as a military commission trial in the U.S. would be essentially no different from a military commmission trial in Guantanamo.
A new president could also have the detainees stand trial in a regular military court, which are similar to these special military commissions, although less controversial because they are well-established and well-used.
The detainees could also be moved into a regular civilian court system, which have many of the same aspects of military commissions, although they have far stricter rules on what types of evidence can be used.
With so many options available for Khadr's case, it's impossible to predict exactly what his future holds, the legal experts said.
"I think there's any number of possibilities," Newton said. "You can't say for certain what will happen."