Omar Khadr could be repatriated to Canada as part of a plea deal that would allow the Obama administration to avoid the international notoriety of a Guantanamo Bay war crimes trial of a child soldier.
"We can confirm that there is a potential deal in the works," said Nate Whitling, one of Mr. Khadr's Canadian lawyers. He declined to discuss specifics.
No deal has yet been concluded but the shape of one - Omar Khadr pleading guilty to some or all of the war crimes charges, including murder and terrorism, in exchange for a reduced sentence and the option of serving at least some of it in Canada - has emerged.
Late Thursday, after a conference call with prosecutors and defence lawyers, Colonel Patrick Parrish, the military judge, postponed the long-delayed trial. Instead of military transports flying more than 100 witnesses, lawyers, journalists and human rights observers to Guantanamo Bay Friday for what was expected to be a four-week trial, a short sentencing session is now expected to begin Oct. 25.
The military's convening authority formally signed off on a plea deal Wednesday morning, The Globe has learned. This means that, while Mr. Khadr can change his mind, the plea deal is nearly complete.
A plea deal would avoid a couple of historic firsts: the first Western war crimes trial of a child (Omar Khadr was 15 when he was severely wounded in a firefight with U.S. special forces in Afghanistan in 2002) since the end of the Second World War and the only trial of an "enemy combatant" for allegedly killing a U.S. soldier in combat on the battlefield in the Afghan and Iraq wars.
Given the international attention Mr. Khadr has attracted, because of his age and claims of torture, a trial would have cast a light on the Obama administration's controversial decision to retain the military tribunals and the prisons on the leased naval base in Cuba. Mr. Obama vowed to shut down the prisons at Guantanamo within a year of reaching the Oval Office but has shelved that pledge indefinitely.
Mr. Khadr, now 24, has spent more than one-third of his life in U.S. prisons, first in Bagram, Afghanistan, and since 2003, in Guantanamo Bay.
He has previously turned down plea-bargain deals and - as recently as July - pledged never to accept one. "I will not take any plea offer because it will give excuse for the (U.S) government for torturing and abusing me when I was a child," he said.
Meanwhile, Prime Minister Stephen Harper's office was denying any involvement in any deal. Unlike Britain and Australia, both of which demanded repatriation of their citizens imprisoned at Guantanamo, successive Canadian governments have refused to intervene on Mr. Khadr's behalf, even after being ordered by the Supreme Court to do so.
Any special effort to return Mr. Khadr to Canada would be awkward for Mr. Harper. The Conservatives have been reluctant to repatriate even ordinary criminals seeking to serve their time in Canada.
Were Mr. Harper to agree to Mr. Khadr's return, the request may have to come from Mr. Obama himself.
Allowing the trial to go ahead could be a political minefield for Mr. Obama, who savaged the Bush administration for creating the Guantanamo prisons and special military tribunals that so sullied America's reputation.
"A trial would be an ugly, lopsided affair, full of 'evidence' that would be tossed out of a real court," said Mr. Whitling in an interview earlier this week. In Guantanamo, "the rules have all been written to ensure conviction, it's a sham, a fraud and a mockery." With Mr. Khadr facing decades behind bars if convicted on all counts even a deal for 15 or 20 years in prison might be more attractive than taking his chances with a jury of U.S. military personnel.
Rights activists say that both the Canadian and U.S. governments have failed to uphold international law protecting so-called child soldiers - which by UN Convention must be treated as victims and rehabilitated, not punished.
"The Canadian government still turns its back," said Alex Neve, secretary-general of Amnesty International Canada who was planning to travel to Guantanamo to witness the trial. "The U.S. government still refuses to provide a fair trial. Both governments have an opportunity to help restore a commitment to human rights, … instead, Prime Minister Harper and President Obama both maintain a stance in Omar Khadr's case that does neither human rights nor security any favours."
More than 5,000 U.S., Canadian and other Western soldiers have been killed in combat in Afghanistan and Iraq since 2001. Aside from Mr. Khadr, no other captured enemy combatant has been charged with murder on the battlefield.
Mr. Khadr's father, Ahmed Said Khadr, was a major al-Qaeda figure and a close confidant of Osama bin Laden. Many critics of the Guantanamo process believe his family connections, not anything he did in the July, 2002, firefight, are behind the unique decision to prosecute him for allegedly throwing the grenade that killed Sergeant Christopher Speer. Mr. Khadr was severely injured with head and torso wounds. U.S. soldiers dug him out from beneath a pile of rubble, provided prompt medical attention and a helicopter evacuation to a U.S. military hospital that probably saved his life.
In Toronto, the Khadr family, who like all families of Guantanamo detainees have been denied any chance to visit, refused to comment on whether he might be coming home. "We're not giving anything to any reporters," said a woman who answered the phone at the Khadr residence. "We haven't even had a chance to speak with a lawyer yet."
With reports from John Ibbitson and Anna Mehler PapernyReport Typo/Error