This Christmas, when so many of us spend time with our families, my thoughts are with Omar Khadr, a scapegoat in the “war on terror” for two countries — not just the United States, which has held him at Guantánamo for over nine years, but also Canada, his home.

Seized at the age of 15 in Afghanistan, where he had been taken by his father, who was allegedly a fundraiser for al-Qaeda, Omar was abused by the US authorities at Bagram and then Guantánamo, and was then put forward for a war crimes trial, and he has also been neglected throughout his long ordeal by the Canadian government. Neither country cared that he was a juvenile prisoner when seized, and should have been rehabilitated rather then punished, as stipulated in the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, even though Canada, in particular, has stood up for the rights of child soldiers in other countries.

In October 2010, the Obama administration reached a particularly low point in its respect for the law, when Omar was obliged to agree to a plea deal in his trial by Military Commission in exchange for a promise that, as a result, he would serve an eight-year sentence, with just one more year at Guantánamo followed by seven years back in Canada.

In the plea deal, Omar accepted that he had thrown a grenade that killed a US soldier during the firefight that led to his capture in July 2002 (even though that may not have been true), and also agreed that he was an “alien unprivileged enemy belligerent,” who was guilty of war crimes because he was not entitled, under any circumstances, to be engaged in a combat situation with US forces, even though he was captured in a war zone in a country in which the US was at war.

This whole saga is disgraceful, but for the last two months what has been particularly distressing and disturbing is that Omar is still held at Guantánamo, even though, according to the terms of the plea deal, he was supposed to have been transferred to Canadian custody.

As the Globe and Mail reported this week, John Norris, a member of Omar’s Canadian legal team, said of his client, “He’s frustrated, he wants to get on with his life.” The article also noted that both the US and Canadian governments are still claiming, as they did when the deadline passed on October 31, that “the delays are just part of a complicated process, that there is no willful foot-dragging,” as though they haven’t had a year to prepare.

Pentagon spokesperson Lt. Col. Todd Breasseale pointed out that, due to legislation passed by Congress, one problem is that the US defence secretary Leon Panetta “must ‘certify’ to Congress that Canada is a fit place to send a convicted terrorist, a nation not likely to permit him to attack the United States, and one that has control of its prisons.” The Globe and Mail added, “That hasn’t happened and Mr. Khadr can’t go anywhere until it does.” Lt. Col. Breasseale also explained that the Congressional imposition “restricts our ability to transfer detainees from GTMO for 30 days after we inform Congress of our intent to transfer the individual, but levies no requirements after the 30 days.”

This is a ridiculous situation, of course, as Canada can hardly be regarded as an unsafe country by all but the most paranoid and unhinged members of Congress, but the Globe and Mail claimed that this might be embarrassing for Leon Panetta, and described “the odd, and potentially embarrassing, requirement of formally certifying to Congress that a close ally could be trusted not to allow a convicted terrorist to attack American again.”

Ironically, the new National Defence Authorization Act, which has caused great consternation because of its deranged provision for the mandatory military custody of all terror suspects, “allows for transfers without certification in cases where a pre-trial agreement was signed,” as the Globe and Mail explained.

In the most alarming passage in the article, it was claimed that Omar’s plea deal “allowed for repatriation to Canada but didn’t explicitly guarantee it” — which strikes me as a rather casual revisionism, when the whole purpose of the plea deal was to guarantee Omar’s return to Canada — and this was followed by a quote from an unnamed US official, who stated bluntly, “Your country doesn’t want him back.”

Sadly, Omar’s lawyers are in the dark about his future. “I wish I knew, I wish they would tell us,” John Norris said. “So far we have received no word about a transfer date.”

The Globe and Mail noted that some legal experts believe Omar “has a strong case under Canadian law to seek release soon after he is repatriated,” and that, “[e]ven if he serves the usual one-third of his sentence, before being paroled, he could be free in 2013.” That, however depends on him being allowed to leave Guantánamo, and as was noted in an article in The Lawyers Weekly on December 16, it was obviously no coincidence that, on the day that Omar became eligible for transfer to Canada, Public Safety Minister Vic Toews “told the House of Commons that Khadr had ‘voluntarily’ pleaded guilty” to the charge of killing a US soldier. As a result, there are fears that the International Transfer of Offenders Act (ITOA), passed in 2004, under which Omar would be returned, could be conveniently amended under new legislation to give the minister “the ability to deny a Canadian offender the right to return if it would ‘endanger public safety.'”

Errol Mendes, a law professor at the University of Ottawa, spelled out these fears clearly, stating that he “fears the Harper government may play to its Conservative base, for whom Khadr is ‘hugely unpopular,’ and let him ‘rot in hell’ before allowing his return to Canada.”

Is this appropriate behaviour over nine years after Omar Khadr was first seized? I believe it is not, however much right-wingers in Canada ignore the fact that he was a child when seized, and seem to believe that he should be abandoned forever or stripped of his citizenship because of the perceived sins of his father. Omar has lost nearly half his life in Guantánamo, and has been imprisoned for longer than the whole of the Second World War, and it is time for him to be repatriated. He is, after all, a human being, despite the persistent attempts to dehumanize him. As John Norris explained, “His spirit is very strong. He’s a serious young man who’s working very hard on his studies in Canadian literature, geography and history. He’s also quite engaging.”

That has always been apparent to those who knew Omar, and it was made particularly obvious over a year ago, in a report about his exchange of letters with a literature professor in Canada, which, if you have the time, I recommend reading. As I explained at the time, the comments by Omar that I found the most moving were the following:

Children’s hearts are like a sponge that will absorb what is around it, like wet cement, soft until it is sculptured in a certain way. A child’s soul is a sacred dough that must be shaped in a holy way.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.