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Despite plea-bargain deal, Omar Khadr to spend his tenth New Year's in Guantanamo

In a court sketch vetted by the U.S. Department of Defense, Omar Khadr listens to testimony during his war-crimes trial before a military tribunal in Guantanamo Bay, Cuba, in May of 2010.

Janet Hamlin/Janet Hamlin

Omar Khadr won't be home for the holidays.

Instead, the convicted Canadian terrorist – who many regard as a victim, a child soldier, not a murderer – will spend his tenth New Year's imprisoned in Guantanamo Bay.

Mr. Khadr also seems certain to spend Mawlid an-Nabi – the Feb 4, 2012 Sunni observance of the birthday of the prophet Mohammad – still in Guantanamo, more than three months after he was eligible for repatriation to a Canadian prison.

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Although both the Harper government and the Obama administration signed off on an Oct 2010 plea-bargain deal that would have sent Mr. Khadr home after he spent one more year in Guantanamo, he remains the only Canadian and the last westerner held in the notorious offshore prison.

"He's frustrated, he wants to get on with his life," says John Norris, one of Mr. Khadr's legal team.

Both governments claim the delays are just part of a complicated process, that there is no willful foot-dragging.

The Pentagon, "will abide by all applicable laws in its processes to transfer detainees out of Guantanamo," said Lieutenant-Colonel Todd Breasseale, a spokesman in the office of Defence Secretary Leon Panetta, who 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.

That hasn't happened and Mr. Khadr can't go anywhere until it does.

"The NDAA language 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," Lt.-Col Breasseale added.

Except there is now a new twist. A new National Defence Authorization Act for 2012 – passed by Congress but not yet signed by Mr. Obama – allows for transfers without certification in cases where a pre-trial agreement was signed.

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No one seems certain whether Mr. Khadr's deal – which allowed for repatriation to Canada but didn't explicitly guarantee it – fits the exception still-unsigned 2012 act. If it does, it would save Mr. Panetta from 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.

"Your country doesn't want him back," said another American official, familiar with the case. Certainly, unlike Britain and Australia, which demanded the return of their citizens from Guantanamo, successive Canadian government has refused to seek Mr. Khadr's return.

Mr. Khadr's lawyers are in the dark. Mr. Khadr remains locked up, almost alone in one of the hulking prison wings because, as a convict, he can't mingle with the 170-plus ordinary "detainees" in Guantanamo.

``I wish I knew, I wish they would tell us," said Mr. Norris, ``So far have received no word about a transfer date."

Mr. Khadr, pleaded guilty to murder, spying, and terrorism, as part a plea deal sentencing him to eight more years, only one of which needed to be spent in Guantanamo. Some legal experts believe he has a strong case under Canadian law to seek release soon after he is repatriated. Even if he serves the usual one-third of his sentence, before being paroled, he could be free in 2013.

He was captured, aged 15, severely wounded, after a firefight in July 2002 in Afghanistan during which a U.S. Special Forces soldier was killed.

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Mr. Khadr was born in Toronto but spent almost all of his life abroad; first in Pakistan as the child of a leading al-Qaeda family, followed by a brief summer learning bomb-making with Islamic jihadists in Afghanistan.

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International Affairs and Security Correspondent

Paul More

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