07/23/2012 05:01 EDT | Updated 09/22/2012 05:12 EDT

Will Khadr Come Between Canada and the U.S.?

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Repatriating convicted terrorist Omar Khadr to Canada to serve the rest of his sentence is the right thing for the Obama administration to offer to do, and the Harper government has a right to say "thanks, but no thanks."

An international campaign to generate sympathy for Khadr as a "child soldier" is inapt for two reasons. Firstly, because for certain crimes, relative youth is not exculpatory, though it may be a consideration at sentencing. The 14-year old Todd Cameron Smith who shot a fellow student and wounded another at his high school in Taber, Alberta in 1999 was not excused from trial or punishment due to his age. Nor was Shae Priaulx when he killed his drug dealer in Toronto at age 16 in 2007.

Secondly, Khadr was never a soldier. He was a terrorist, an intended killer of civilians with no respect for any military discipline or code of conduct. True, he was captured on a battlefield in Afghanistan, but this does not confer any special status on him. Khadr is no more a soldier than Eaton Centre shooter Christopher Husbands -- like Husbands, Khadr could be considered a kind of gang member, but this does not excuse either man for murder.

Khadr may not deserve to be called a child soldier, but he does have Canadian citizenship. In 2010, following Khadr's guilty plea on five charges, the U.S. military commission sentenced him to eight years imprisonment (on top of the eight years that Khadr had already spent in U.S. custody at Bagram and Guantanamo Bay detention facilities). Sixteen years for murder is not a cruel sentence for an adult or for a young offender.

In 2002, the George W. Bush administration began repatriating convicted terrorists to their countries of citizenship on a case-by-case basis when requested to do so by the government of an individual's country of citizenship. The Obama administration has continued this practice, despite the fact that several former Guantanamo detainees were subsequently found to have returned to terrorism.

When repatriation was requested by countries like Yemen, which have experienced instability and poor government capacity, the Obama administration has hesitated to agree. But a country like Canada raises no such concerns. As a result, a Canadian request for Khadr's repatriation was favourably reviewed by U.S. officials.

However, a request for additional information by Canadian Minister of Public Safety Vic Toews last week has created doubt as to whether Canada wants Khadr back.

Some Canadian observers have suggested that a bilateral row over Khadr is brewing and could generate a full-blown crisis in the U.S.-Canadian relationship. Ezra Levant wrote in an article that appeared in the Toronto Star that it was "shocking" that the Obama administration had not provided the Harper government with complete access to all of the trial evidence related to Khadr, and further that the Obama administration had "pressured" the Harper government to repatriate Khadr. These are serious charges, and Levant calls the case a "diplomatic incident" threatening U.S. -Canadian relations.

It is true that the Obama administration has sought to resolve the status of all detainees at Guantanamo through trial and repatriation as appropriate. Yet it has become clear that it will not be possible for the Obama administration to close the Guantanamo detention facility prior to the November 2012 election. Space in this prison, or another one, will be available if Canada decides not to repatriate Khadr. There is no political or strategic reason for the United States government to bring pressure to bear on Canada to accept Khadr.

U.S. military commissions are not public trials, and evidence in these cases is routinely sealed. It is not automatic -- nor shocking in the breach -- that trial evidence would be made available to a foreign government considering repatriation; it is also not impossible for the Obama administration to accede to a request from the Harper government for access to information presented to the military commission after following the appropriate legal process for such a release, with allowance for certain terms and conditions in the interests of national security.

Jonathan Kay wrote in the National Post that the Harper government's hesitation about accepting Khadr's repatriation (after first agreeing to accept it) is an instance of the Canadian government reacting to polls and scoring domestic political points by standing up to the United States. Kay compares this to past Liberal governments which inflicted damage on the U.S.-Canadian relationship by switching positions on participation in U.S. plans for missile defences.

This comparison is not quite right. The United States repeatedly offered Canada the chance to collaborate on missile defences in North America because these flowed naturally from the same rationale that led the two countries to establish NORAD. Washington saw participation as an opportunity for Canada.

Khadr's repatriation is different. Washington officials can certainly understand the headaches that Khadr's repatriation may cause, and why any country would be reluctant to welcome home a terrorist.

Where Kay's comparison does fit is in the broadest sense. The United States in both cases had decided on its course of action: after a strategic review, to build missile defences; and after a trial by military commission, to incarcerate Omar Khadr. Canada's indecision in both cases has a similar quality, and if Canada ultimately refuses the U.S. offer in each case, Washington will stay to its chosen course.

Either way, Khadr will not trigger a crisis in the U.S.-Canadian relationship. No one in Washington blames Ottawa for Khadr's crimes, and no one here should blame Ottawa for leaving Khadr to serve out his time in U.S. custody.