EDMONTON—On the afternoon of Jan. 11, 2006, a lanky Canadian teenager walked into a Guantanamo courtroom for the first time since he was shot and captured years earlier by U.S. forces.

Omar Khadr was 19, and he wore a Roots rugby shirt and bright, white, new sneakers. He looked confused, and spent most of the hearing watching a video monitor that broadcast a live feed of the room where he was seated.

The military judge was a gruff Marine colonel named Robert Chester, and at the start of the hearing he wanted to know if Khadr spoke English. Khadr quietly said he did.

“I need you to please speak up so that I can hear you. All right?” Chester said.

“Yes, sir,” Khadr replied.

“I consider it very important that you understand everything that we are doing today as well as throughout these proceedings. So again,” Chester continued, “I want to make sure you understand. If you do have a problem with the language, let me know. All right?”

Outside the courtroom, Khadr’s American lawyer later laughed at the judge’s concerns about translation. How was it possible to explain Guantanamo’s new law in any language to Khadr, Muneer Ahmad asked, when the lawyers didn’t understand the law themselves?

The legal uncertainty about Guantanamo’s prosecutions continues today, and quite likely, for years to come.

On Tuesday, Khadr is to appear in an Edmonton courtroom to apply for bail, no longer the confused teenager, but a 28-year-old who has spent almost half his life behind bars.

The question that still lingers is whether he is guilty of war crimes.

He accepted a Pentagon deal in 2010, pleading guilty to five Military Commissions Act offences, including “murder in violation of the laws of war.” He was given an eight-year sentence and a chance to come back to Canada.

Khadr was only 15 when captured. Under international law he would be considered a child soldier, but the Pentagon’s new military law did not make concessions for age.

Once Khadr was transferred home, he recanted his confession, denying that he threw the grenade that fatally wounded U.S. Delta Force soldier Christopher Speer during the 2002 firefight in Afghanistan when Khadr was shot and captured.

He said he thought the plea deal was his only way out of Guantanamo. “I believe it would be impossible for me to receive a fair trial, and that even if I was miraculously found not guilty of the offences with which I was charged, the U.S. authorities could still lawfully detain me indefinitely as an enemy combatant,” Khadr wrote in a 2013 affidavit.

“I was left with a hopeless choice.”

But whether Khadr threw the grenade or not is irrelevant if his alleged crimes weren’t war crimes at all.

That’s what Khadr’s Pentagon-appointed attorney, Sam Morison, is arguing on Khadr’s behalf in a D.C. court.

Loading... Loading... Loading... Loading... Loading... Loading...

Killing a soldier in conflict was not a war crime until the Bush Administration rewrote the laws of war after 9/11. The U.S. Supreme Court struck down the government’s first Military Commissions Act as unconstitutional in 2006.

Morison is arguing that the Pentagon cannot retroactively prosecute Khadr when “murder in violation of the laws of war” was not a crime in 2002.

The U.S. courts have already overturned the majority of Guantanamo’s convictions — including the landmark case against Yemeni Salim Hamdan.

Hamdan was charged, convicted and sentenced for the war crime of “material support for terrorism.” But the U.S. Court of Appeals for the D.C. Circuit vacated the conviction, ruling that was not a war crime at the time Hamdan was captured.

Alberta’s Court of Queen’s Bench, in deciding on whether to grant bail, won’t wade into the legal arguments of whether Khadr’s Guantanamo conviction should be overturned.

“I believe that it is very likely that Omar will have served his entire sentence in Canada before the U.S. courts finally resolve the merits of his appeal,” writes Morison in his affidavit to the Edmonton court.

Bail pending an appeal is common in Canadian criminal cases. And Khadr’s Edmonton lawyers — Dennis Edney and Nathan Whitling — have gathered an impressive list of supporters who vow to care for the former Guantanamo detainee if he is given limited freedom.

But Khadr’s historic and politically charged case is anything but common.

Whitling and Edney will first have to convince the judge that the court has jurisdiction to grant bail, which Ottawa contests for a variety of reasons, including its possible impact on Canada’s relations with the U.S.

Then, if there’s jurisdiction, the judge must decide whether Khadr should be granted bail.

Khadr’s case has historically divided Canadians, in large part because of his controversial family.

But in Edmonton, supporters have rallied around Toronto-born Khadr and are expected to fill the courtroom, as they have during Khadr’s last two Canadian appearances.