Arab News- Canada, Toronto: The diplomatic game of hot potato surrounding Omar Khadr got more complex this spring, when a Canadian Federal

Court judge ruled that Prime Minister Stephen Harper must press the United States for the terror suspect's return to Canada.

Khadr is the the last Western prisoner being held at the Guantanamo Bay detention centre in Cuba. Now 22, he has been held at the U.S. naval base for more than six years, accused of killing a U.S. soldier in Afghanistan.

Video images show Omar Khadr being interrogated in 2003 at the U.S. naval prison at Guantanamo Bay, Cuba. The black dot obscures the face of his interrogator. (CBC)

Khadr's charter challenge involved the Canadian government's decision not to request his repatriation from Guantanamo Bay. His lawyers argued the Canadian government was complicit in the detainee's alleged torture and mistreatment while in U.S. custody, and obliged under international law to demand his return.

The ongoing refusal of Canada to request Mr. Khadr's repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr's rights," Justice James O'Reilly said in his 43-page decision.

"To mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr's repatriation as soon as practicable."

The prime minister wasted no time in responding, saying during question period on April 23 that he is considering an appeal of the court order. The Conservative government has consistently said that it can't interfere in the U.S. legal process.

But Khadr's lawyers say Khadr would be willing to face Canadian justice and would undergo a rehabilitation if returned to Canada.

Taller and older

Omar Khadr, shown here at 15, not long before he was captured by U.S. forces in July 2002. (Canadian Press)

When Khadr appeared at a hearing at Guantanamo Bay on June 4, 2007, he was five years older and eight inches taller than when he was captured.

Raised in a fundamentalist Muslim family in Toronto, the child of Egyptian and Palestinian parents, Omar Khadr was only 15 when he was taken into custody and transported to the U.S. naval base at Guantanamo. Those who witnessed his capture say Khadr looked even younger than that.

The Pentagon alleges that after a July 2002 attack by U.S. soldiers on a suspected al-Qaeda compound, Khadr threw a grenade that killed one of the soldiers, Sgt. Christopher Speer, and wounded another.

Khadr's defence team has argued that he was a child soldier and should be treated as a victim.

He was to have been arraigned at that June 2007 hearing on five war-crime charges, including murder, spying and providing material support for terrorism. But in a surprise move, the military judge overseeing the special tribunal threw out the charges on a technicality, leaving Khadr's fate in limbo.

The Court of Military Commission Review overturned the judge's ruling a few months later and reinstated the charges.

Subsequent hearings focused on Khadr's status — whether he was an "unlawful enemy combatant," a critical legal designation — and on a witness account that cast doubt on the U.S. military's official version of events that led up to his capture.

Khadr's saga took another twist after U.S. President Barack Obama was sworn in on Jan. 20, 2009. The new president issued orders to prosecutors that legal proceedings against Khadr and 244 others at the base in Cuba be put on hold, pending a review. A judge responded with a 120-day halt to Khadr's war crimes trial.

But three months later, the judge presiding over Khadr's military commission proceedings issued an order that the hearings were to go ahead on June 1.

If Khadr eventually does go to trial and is convicted, he faces a long fixed term in a federal prison — perhaps in the U.S., perhaps in Canada. But even if acquitted, he could be facing an indefinite, perhaps longer term locked up because the U.S. has classified him as an enemy combatant in what is an open-ended war on terror.

The case

Prosecutors do not have a witness who saw Khadr throw the grenade, but the Pentagon says he was the only al-Qaeda fighter left alive and the only person who could have thrown the grenade.

However, a U.S. soldier who took part in the battle said in sworn testimony that two al-Qaeda fighters were alive after the fatal grenade attack.

Even if prosecutors can't prove that Khadr threw the grenade, he could still be found guilty if they show that he was an "unlawful combatant" on the battlefield, that is, not a member of a uniformed state armed group.

His defence lawyers will try to show that he was a child soldier and not a willing member of the insurgent group.

Khadr 'wasting away'

Two Canadian lawyers, Dennis Edney and Nate Whitling, visited Khadr at Guantanamo at the end of May 2007. Edney told the Toronto Star that he found Khadr to be "wasting away," explaining that he never sees the light of day and there is no exercise routine at Guantanamo.

Two days later, a Canadian Press account refuted the Canadian lawyers' claims, quoting U.S. State Department legal adviser John Bellinger as saying the Canadian lawyers exaggerated when they said Khadr gets no exercise and never sees daylight.

According to Bellinger, Khadr's treatment at Guantanamo is what any inmate would receive at a U.S. maximum-security prison.

Human rights groups have criticized Canada's silence regarding the detention of a Canadian minor in Guantanamo. Britain has demanded the return of its citizens while Australia recently negotiated a deal whereby one of its Guantanamo detainees, David Hicks, was returned home to serve the remainder of his sentence.

Bellinger said there have not been negotiations between Canada and the U.S. to discuss similar arrangement with regard to Khadr. Bellinger also said Khadr's Canadian lawyers could serve as consultants in the case, but Khadr must be represented by a U.S. military attorney.

Independent counsel

Journalist Kirk Makin, writing in Canadian Lawyer magazine, sympathized with the plight of Edney, the Edmonton lawyer representing Khadr, because he had to wait four years before getting a face-to-face meeting with his client.

Calling U.S. anti-terrorism provisions "draconian," Makin quoted a frustrated Edney as saying: "You have a gutless country called Canada where the government has not been able to extract even the most meagre of concessions from the U.S. My client is a boy who was shot twice and is blind in one eye, but they won't even let an independent medical person in to visit him. Out of all the cases I have done, Khadr is the one that gives me nightmares. He has been completely abandoned — and we in Canada have done this. I feel sometimes as if I'm representing Charlie Manson, instead of some youth being held in Guantanamo Bay who has not been proven to have done anything wrong."

As the hearing approached, Omar won a legal fight not to be represented by any American lawyers. Col. Dwight Sullivan, Guantanamo Bay's chief defence counsel, sent a letter to Lt.-Col. Colby Vokey, Khadr's military-appointed counsel, excusing him from the hearing.

Khadr has also dismissed two other U.S. lawyers, Muneer Ahmad and Rick Wilson, professors of law at American University. They began representing Khadr in 2004 when the U.S. Supreme Court granted due-process rights to Guantanamo prisoners.

The devout Khadrs

The complexity of the Khadr case is heightened by his upbringing as the youngest in a family of al-Qaeda sympathizers who considered religious martyrdom, including being a suicide-bomber, as a supreme calling. Omar's father, Ahmed Said Khadr, was an associate of Osama bin Laden and a reputed financier of al-Qaeda operations. He was killed in October 2003 by Pakistani forces. One of Omar's older brothers, Abdullah Khadr, is in jail in Toronto and is fighting a U.S. extradition request for alleged terrorism-related crimes.

A Rolling Stone article says Omar's father used to tell his children, "If you love me, pray that I will get martyred." He urged his sons to be suicide-bombers, saying it would bring "honour" to the family. He allegedly warned his son Abdurahman, "If you ever betray Islam, I will be the one to kill you."

The Khadr family moved to Peshawar, Pakistan, in 1988, when Omar was two. Four years later, in 1992, Omar's father, Ahmed, nearly was killed when he stepped on a land mine in Afghanistan. Ahmed and his family returned to Toronto, but when Ahmed recovered, the Khadr family returned to Pakistan and soon found themselves back in Afghanistan, where they lived in a large compound with bin Laden.

The U.S. government says this was about the time Omar and his older brothers, Abdullah and Abdurahman, attended a military camp that provided instruction on handguns, assault rifles, bomb-making and combat tactics. Omar was 14 on the day of the Sept. 11, 2001, attacks against the U.S.

CBC+  files from the Canadian Press and the Associated Press