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OTTAWA — Ottawa has repeatedly claimed that any action to bring Omar Khadr home from Guantanamo Bay would be “premature,” given that a legal process is still under way.
However, it is unclear what exactly happens once that legal process comes to an end.
If Mr. Khadr is convicted of some or all the charges he faces before a U.S. military commission – the most serious charge being the alleged murder of a U.S. soldier in a 2002 Afghan firefight – there is no clear process dictating where he would serve his sentence.
Until recently, it was believed that anyone convicted of a crime in a Guantanamo courtroom would spend at least a significant portion of their sentence at the naval base. The reason for this had a lot to do with legal issues – with Washington arguing that Guantanamo was not U.S. territory, sending inmates from the detention camps to a prison in the United States would have raised significant questions about what rights those inmates had under U.S. law.
Omar Khadr in an undated family photo
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But those questions were answered in large part by a U.S. Supreme Court decision last month. The court ruled that terrorism suspects imprisoned at Guantanamo Bay can fight for their rights in U.S. courts. In effect, some of the impetus for keeping Guantanamo prisoners outside the United States was rendered moot.
As such, Mr. Khadr could spend a portion of any sentence he receives in the United States, his U.S. military lawyer, Lieutenant-Commander Bill Kuebler, said. However, there appears to be no concrete decision one way or the other.
“I'm not sure anybody knows the answer to that question right now – there is certainly a possibility it could be Guantanamo for some period of time, but there's also a thought that there could be a transfer to a federal facility at some point in the United States,” Lt.-Cmdr. Kuebler said.
“When you're making it up as you go along, you make up the step that you're on.”
A State Department spokesman did not return a call requesting comment Friday.
Other than his home country arranging to repatriate him, virtually any outcome for Mr. Khadr would be precedent-setting. There has been only one conviction under the Guantanamo Bay military commissions system. Last year, Australian David Hicks pleaded guilty to supporting terrorism and was allowed to serve the remaining nine months of his sentence in Australia.
If Mr. Khadr is convicted, Canadian law allows him to appeal to Ottawa to let him serve the remainder of his sentence at home. Under the International Transfer of Offenders Act, the Public Safety Minister may consent to such a transfer.
Mr. Khadr's case made headlines across the country this week when newly released documents showed that Department of Foreign Affairs officials knew the detained Canadian was subjected to three weeks of sleep-deprivation techniques before he was to meet with Canadian agents.
Since February of this year, a series of documents have shed more light on what Ottawa knew about Mr. Khadr's six-year Guantanamo saga.
Lt.-Cmdr. Kuebler said he believes the prosecution in Guantanamo is currently in possession of a top-secret Canadian listing of Khadr-related documents in Canada's possession. Such a list could go a long way toward showing what the Canadian government knew about the events surrounding Mr. Khadr's capture – for example, whether Ottawa knew early on of a report that Mr. Khadr was not the only person alive when a grenade was thrown at U.S. forces, killing a soldier. Until earlier this year, it was widely assumed that Mr. Khadr was the sole person alive, and so must have thrown the grenade.
It is not yet clear what, if any, portions of the list will be released to the defence lawyers or to the public.
Mr. Khadr is expected back in a Guantanamo courtroom in mid-August for more pretrial hearings. His actual trial is slated to begin in October.
