The ball will soon be in Prime Minister Stephen Harper's court in the case of Omar Khadr, the lone Canadian incarcerated at Guantanamo Bay. Mr. Harper has argued until now that Canada should not interfere in U.S. justice. But president-elect Barack Obama has a markedly different view from the Bush administration of what U.S. justice should be. If Canada offered a repatriation plan for Mr. Khadr that addressed security concerns, Mr. Obama would give it serious consideration.
Over to you, Mr. Harper. Mr. Obama will undoubtedly not wish to have a military-commission trial of Mr. Khadr, who was 15 (he is now 22) when arrested on war-crimes charges of murder and attempted murder in Afghanistan. Politically, the trial is an obvious non-starter, a Bush legacy that Mr. Obama would never allow on centre stage during his first weeks or months in office.
Mr. Harper is the only Western leader who took the non-interference position. Every other Western country repatriated their nationals who were in the U.S. prison at Guantanamo Bay, Cuba, after a British jurist referred to that prison as a “legal black hole.” Mr. Khadr is charged with very serious crimes, but on due-process grounds, Canada should have spoken up for its citizen. He had no access to a lawyer for his first 28 months in custody, and there is no guarantee that information he gave under coercion (including while lying on his back with two bullet holes in his chest) would not be used against him at a military-commission trial.
Mr. Obama intends to close the prison at Guantanamo Bay and, it appears, the military commissions created to try the foreign terror suspects jailed there. He will be looking for countries to take back their nationals, except for the most serious offenders, who may be tried under U.S. law in federal courts.
There is good reason for Mr. Obama to take a fresh look at the Khadr case, as several human-rights groups, including the American Civil Liberties Union and Amnesty International, urged him to do in a joint statement this week. (Those groups said Mr. Obama risks becoming the first U.S. president to prosecute a child soldier for war crimes.) U.S. officials initially declared that Mr. Khadr's case was open-and-shut, as he was the only person alive after a firefight with U.S. forces. Later, the government's own evidence showed an adult soldier was next to him, and fiercely engaged in battle. The perception in Canada and the United States of Mr. Khadr as a cold-blooded killer has never been dispelled.
Another look at the case may reveal no possibility of conviction, either because convincing evidence doesn't exist or statements were obtained under coercion. It would then be easier, with Canada's involvement, for all parties involved to find a just and safe resolution that would return Mr. Khadr to Canada.