Omar Khadr, shown here at 15, not long before he was captured by U.S. forces in July 2002. (Canadian Press)

When Omar Khadr appeared at his hearing at Guantanamo Bay in Cuba on June 4, 2007, he was five years older and eight inches taller than when he was captured on July 27, 2002, after a bloody firefight near the Pakistani border in Afghanistan.

Khadr, the child of Egyptian and Palestinian parents in a fundamentalist Muslim family in Toronto, was only 15 when he was taken into custody and transported to the U.S. naval base at Guantanamo.

He was to have been arraigned on June 4 on five war-crime charges, including murder, spying and providing material support for terrorism. But in a surprise move, the military judge overseeing the special tribunal threw out the charges on a technicality, leaving Khadr's fate in limbo.

The issue for the judge was that Khadr was classified as an "enemy combatant" whereas the special military tribunals were designed to deal with "unlawful enemy combatants," a distinction that likely means his case will be put off to another jurisdiction.

If Khadr eventually does go to trial and is convicted he faces a long fixed term in a federal prison — perhaps in the U.S., perhaps in Canada. But even if acquitted he could be facing an indefinite, perhaps longer term locked up because the U.S. has classified him as an enemy combatant in what is an open-ended war on terror.

The firefight

The Pentagon alleges that after a July 2002 attack by U.S. soldiers on a suspected al-Qaeda compound, Khadr threw a grenade that killed one of the U.S. soldiers.

Those who witnessed his capture on July 27, 2002, say Khadr looked even younger than 15. U.S. soldiers came upon a mud-brick compound and through a crack in the door saw five armed men inside and ordered them to surrender.

When they refused, the soldiers tried to negotiate, sending in translators, but the men inside killed the translators. The Americans called in air support, which smashed the compound to ruins.

According to a Rolling Stone account, the soldiers then walked into what was left of the compound and encountered a wounded fighter behind a broken wall who threw a grenade that killed Special Forces Sgt. Christopher Speer and injured Sgt. Layne Morris. The soldiers opened fire, the bullets striking the wounded fighter twice in the chest.

"When the soldiers got close," the Rolling Stone story says, "they saw that he was just a boy. Fifteen years old and slightly built, he could have passed for thirteen. He was bleeding heavily from his wounds, but he was — unbelievably — alive. The soldiers stood over him. 'Kill me,' he murmured, in fluent English. 'Please, just kill me'."

Khadr 'wasting away'

Two Canadian lawyers, Dennis Edney and his partner Nate Whitling, visited Khadr at Guantanamo at the end May 2007. Edney told the Toronto Star that he found Khadr to be "wasting away," explaining that he never sees the light of day and there is no exercise routine at Guantanamo.

Two days later, a Canadian Press account refuted the Canadian lawyers' claims, quoting U.S. State Department legal adviser John Bellinger as saying the Canadian lawyers exaggerated when they said Khadr gets no exercise and never sees daylight.

According to Bellinger, Khadr's treatment at Guantanamo is what any inmate would receive at a U.S. maximum security prison.

Human rights groups have criticized Canada's silence regarding the detention of a Canadian minor in Guantanamo. Britain has demanded the return of its citizens, while Australia recently negotiated a deal whereby one of its Guantanamo detainees, David Hicks, was returned home to serve the remainder of his sentence.

Bellinger said there have not been negotiations between Canada and the U.S. to discuss similar arrangement with regard to Khadr. Bellinger also said Khadr's Canadian lawyers could serve as consultants in the case, but Khadr must be represented by a U.S. military attorney.

Independent counsel

Journalist Kirk Makin, writing in the May issue of Canadian Lawyer, sympathizes with the plight of Edney, the Edmonton lawyer representing Omar Khadr because he had to wait four years before getting a face-to-face meeting with his client.

Calling U.S. anti-terrorism provisions "draconian," Makin quotes a frustrated Edney as saying: "You have a gutless country called Canada where the government has not been able to extract even the most meager of concessions from the U.S. My client is a boy who was shot twice and is blind in one eye, but they won't even let an independent medical person in to visit him. Out of all the cases I have done, Khadr is the one that gives me nightmares. He has been completely abandoned — and we in Canada have done this. I feel sometimes as if I'm representing Charlie Manson, instead of some youth being held in Guantanamo Bay who has not been proven to have done anything wrong."

As Monday's hearing approached, Omar won a legal fight not to be represented by any American lawyers. Col. Dwight Sullivan, Guantanamo Bay's chief defence counsel, sent a letter Wednesday to Lt.-Col. Colby Vokey, Khadr's military-appointed counsel, excusing him from the hearing.

Khadr has also dismissed two other U.S. lawyers, Muneer Ahmad and Rick Wilson, professors of law at American University. They began representing Khadr in 2004 when the U.S. Supreme Court granted due-process rights to Guantanamo prisoners.

The devout Khadrs

The complexity of the Khadr case is heightened by his upbringing as the youngest in a family of al-Qaeda sympathizers who considered religious martyrdom, being a suicide-bomber, as a supreme calling. Omar's father, Ahmed Said Khadr, was an associate of Osama bin Laden and a reputed financier of al-Qaeda operations. He was killed in October 2003 by Pakistani forces. One of Omar's older brothers, Abdullah Khadr, is in jail in Toronto and is fighting a U.S. extradition request for terrorism-related crimes.

The Rolling Stone article says Omar's father used to tell his children, "If you love me, pray that I will get martyred." He urged his sons to be suicide-bombers, saying it would bring "honour" to the family. He actually warned his son Abdurahman, "If you ever betray Islam, I will be the one to kill you."

The Khadr family moved to Peshawar, Pakistan, in 1988, when Omar was two. Four years later, in 1992, Omar's father Ahmed nearly was killed when he stepped on a land mine in Afghanistan. Ahmed and his family returned to Toronto, but when Ahmed recovered the Khadr family returned to Pakistan and soon found themselves back in Afghanistan where they lived in a large compound with bin Laden.

The U.S. government says this was about the time Omar and his older brothers Abdullah and Abdurahman attended a military camp that provided instruction on handguns, assault rifles, bomb-making and combat tactics. Omar was 14 on Sept. 11, 2001.