In early October, many Canadians travel “home,” to their families, to celebrate Thanksgiving. Families are celebrated, constituted, and affirmed in this ritual feast. On September 29^th, just in time for Thanksgiving, Omar Khadr found himself on a flight from Guantanamo Bay to Canada. Khadr’s homecoming s contested and raises questions for the nation as the family writ large. A commenter on a news story remarked: “It does not seem right that Canada took him back into her arms after trying to cut one off.” Happy Thanksgiving, or what?

Who is Omar Khadr? He was born in Toronto. The Khadr family spent much time in Afghanistan, where the US-backed fight of Mujahedeen against Soviet occupiers in the 1980s morphed into other forms of organized violence in the 1990s. Omar’s father Ahmed Said Khadr was part of the Al Qaeda circle; he and Osama bin Laden attended each others’ children’s weddings. Omar was raised in this environment. On 11 September 2001, when he was 15, Al Qaeda members hijacked four planes and crashed all of them, obliterating the World Trade Center, killing and maiming thousands of people. In response to the 9/11 attacks, the US and allies invade Afghanistan. Omar’s father was on the list of wanted terrorists. Omar was part of the war that came to the place that his family stayed at. On 27 July 2002, he was part of a group that was attacked by U.S. forces. In the attack, Omar was seriously injured; all other members of his group were killed. Three coalition soldiers were killed, among them one U.S. soldier. Omar Khadr was captured and eventually transferred to the infamous detention facility in Guantanamo Bay.

Is Omar Khadr a terrorist like his father, or was he a child soldier? Did he betray Canada? This is how we debate him.

Yet some basic facts about Khadr’s detention and ‘trial’ in Guantanamo are absent from this discussion. Yes, Khadr was a minor at the time of his capture and arrest, and courts typically refrain from charging persons under 18 years of age for violence committed in war. This is the child soldier argument. I agree with it; and yet, it is not even half the story.

Omar Khadr was classified as an “alien unlawful enemy combatant.” If this phrase seems new or confusing to you, your intuitions are correct. Let’s review the law of war. In its basic form, the law of war, called humanitarian law, distinguishes between two groups of people: civilians and combatants. For each group, different rules apply. Civilians may not participate in violence, and they cannot be targeted by combatants. Combatants are allowed to participate in the violence of war (within bounds, such as not targeting civilians), but they can also be legitimately targeted in war. Those who kill can be killed.

What, then, is an “alien unprivileged enemy combatant”? The phrase “enemy combatant” was coined by the U.S. Supreme Court in a 1941 decision on German soldiers who, while sneaking into the U.S., got rid of their uniforms in order to commit sabotage. The court intended the term to be for one-time use. It allowed the government to treat some people as having none of the rights of civilians and none of the rights of combatants. This concept was recycled and extended through a series of court decisions. If you want to know more about the details, how about you read my article on the U.S. Supreme Court and enemy concepts?

After 9/11, the US government wanted to wage a war against people that had committed a crime; and it got tangled up in the contradiction between the different logics of crime and war. After a few years of legal wrangling with the Supreme Court, the government passed legislation establishing military commissions to try “alien unlawful enemy combatants.” “Alien” because U.S. citizens were entitled to rights that people like Omar Khadr weren’t. Those rightless people were subject to detention until the “war on terror” ends (don’t hold your breath) as well as trials by military commissions. These military commissions did not include independent lawyers or judges, and they operated by rules of evidence that seemed to have been copied from Stalin’s playbook. Technically, the Nuremberg Trials were also trials by military commissions. In practice, the Nuremberg trials relate to the Guantanamo Bay military commissions like a mansion to a wooden shack with a half-finished roof.

Omar Khadr was, in other words, rendered rightless by the country that captured him. He was also tortured. The conditions at Guantanamo Bay were such that up to this point nine detainees have committed suicide, and an untold number have attempted to do so. Details here and here and here.

What did the Canadian government do upon finding out about the legal black hole and physical torture that a Canadian citizen, a minor, was subjected to? Nothing worth reporting.

The UK government, also an ally of the U.S., was more vigorous in demanding the release of three UK citizens, the so-called Tipton three. Since their release in 2004, Rhuhel Ahmed, Asif Iqbal and Shafiq Rasul have talked about the vilification and the mistreatment they endured. Under physical and mental assault, they made false confessions: “Mr Rasul admitted meeting Osama bin Laden and Mohammed Atta, one of the September 11 hijackers, in Afghanistan in 2000. In fact, he was working in a Currys store in the West Midlands,” the Guardian details. While the UK government could have done more for its citizens, the Canadian government could hardly have done any less for Omar Khadr.

In 2007, Omar Khadr was charged by a military commission with murder and attempted murder in violation of the laws of war. Khadr was charged with murdering U.S. soldier Christopher Speer by throwing a hand grenade, and with manufacturing IEDs, i.e. home-made explosive devices.

In October 2008, as part of a “pre-trial agreement”, Khadr admitted to killing Christopher Speer at a time when the firefight had ended. This statement was part of an agreement in which Khadr agreed to an eight year prison term, part of it to be served in Canada. This statement is not a document of facts found by an independent court, but a statement obtained through torture, intimidation, and the sheer inequality of the parties at military commissions. Remember that Shafiq Rasul admitted to meeting Osama bin Laden when Rasul was in fact in the UK. Khadr’s statement in the pre-trial agreement is also the basis for his possible parole hearing in Canada.

About a week ago, Khadr has come back to Canada, to a mixed reception of hostile voices (Public Safety Minister Vic Toews called him a “known supporter of the al-Qaeda terrorist network and a convicted terrorist”) and embarrassment for Canadian inaction in his case. He is imprisoned in high-security facility in Millhaven, Ontario. He will be eligible for day parole in January 2013, and for full parole later in 2013. This raises the question how Khadr and Canada will negotiate on his parole.  What does it mean to come home for thanksgiving? On which terms is he allowed to come? Are we ready to hear the complaints that the wayward son might have about us?

In order to get parole, the Parole Board tells us on the website, the board will look at:

• Your criminal and social history, the reasons for and type of offence, including your understanding of the offence and any past offences;
• Any progress you have made by yourself or through participation in programs, your behaviour in the institution and while on any previous conditional release(s);
• Any victim impact statements;
• Your release plan and your community management strategy.

What is Khadr supposed to say at his parole hearing? He counts as being guilty of an offence that would not be an offence if his age had been taken into account or if the U.S. had not invented the concept of “unprivileged enemy belligerent.” What kind of remorse can, should, or may we expect?

And what kind of rehabilitation should his detention in Guantanamo, prolonged through Canadian inaction, have constituted? If anything, he will need rehabilitation for the things he has experienced in Guantanamo.

Finally, is Khadr expected to reach out to “the community” of Canadians, to beg to sit at the Thanksgiving table, as if only he has done wrong, while the Canadian government and public are to be thanked for their “tolerance” of this “terrorist”?

This is going to be a complicated Thanksgiving with Omar Khadr in the country, locked away, and expected to talk to us at the parole hearing. Yet welcoming Omar Khadr back to Canada should not become an exercise in congratulating ourselves for braving the danger that he might pose. It should instead be an exercise in questioning how family and nation are felt, shaped, and upheld through action and inaction – not only on holidays, but throughout the entire year.