Canada and the United States know many fundamental differences. People on both sides of the border are quick to point out the primordial divides like Canadian beer versus American beige water, U.S. states versus Canadian provinces, or America’s global military might versus the Canadian non-army.

Fortunately, none of these differences threaten to the vitality of Canado-American trade or the proper functioning of the National Hockey League.

Most unfortunate, however, is the one thing that manages to bring us all together. We in the United States and Canada are united across our long and porous border by our disregard for international law.

There’s a Canadian prisoner at Guantanamo Bay. He was captured by American forces in July 2002 after a four-hour firefight with Afghan militants and accused of allegedly throwing a grenade that killed an American soldier, war crimes, and providing support to terrorism. He was 15 years old at the time of his capture.

Omar Khadr has now spent six years in American custody, first at Bagram Air Force Base in Afghanistan and now at Guantanamo Bay.

He is the sole Western citizen remaining at Guantanamo. All of the European and Australian detainees were eventually repatriated due to their governments’ demands and public pressure.

On another score, if Khadr is not extradited to Canada before his upcoming trial, he will be the first child EVER to be tried for war crimes.

Despite the outcry by prominent groups like Amnesty International and UNICEF, despite the relentless efforts of his American court-appointed lawyer, Lt. Cmdr. William Kuebler, Canada refuses to repatriate or extradite their citizen. Even two Liberal governments before Conservative Prime Minister Stephen Harper failed to take necessary action to get Khadr out of Guantanamo. Harper maintains that it’s “premature and speculative” to answer questions about Khadr’s return to Canada and that he thus won’t interfere in his case.

Guantanamo remains a sphere of legal exception that, irrespective of the objections of the United Nations and the judicial branches in United States and Canada, continues to openly violate international law.

Repeated rulings by both the Supreme Court of Canada and the United States are incapable of loosening the executive stranglehold on Guantanamo. This goes beyond setting a dangerous legal precedent. It is, on a human level, creating victims like Omar Khadr in this “War on Terrorism.”

Khadr’s fate is inextricably and tragically tied to the legal developments concerning Guantanamo.

Since he was first officially charged in 2005, after three years of detention, his trial has been delayed several times. American officials have been consistently reluctant to turn over information, witnesses, and evidence and won’t allow Khadr’s lawyer to access the witness to the 2002 firefight.

With this delay, the Canadian and U.S. elections could now impact his case. In Canada, Stephen Harper was re-elected at the helm of another Conservative minority government last Tuesday, and it is unclear whether his stance on the Khadr case will change. On this side of the border, both McCain and Obama have long advocated closing Guantanamo, but McCain, an architect of the 2006 Military Commissions Act, is opposed to the rights granted to detainees by the Supreme Court. Both potential results on Nov. 4 thus promise to have an impact on Khadr’s case.

His potential extradition-or condemnation-comes after a six-year ride on the U.S. Supreme Court’s private roller coaster.

Although he has been charged on numerous occasions, his trial continues to be delayed, and Khadr remains imprisoned at Guantanamo, mostly in solitary confinement and with only limited access to his attorneys.

This continued detention and delay of his trial is complicated by the fact that significant evidence exists to support Khadr’s innocence, including multiple conflicting accounts of the events in question.

In February 2003, the Canadian government sent two officials to interrogate Khadr. They subsequently turned their findings over to the Guantanamo Tribunal prosecutors, and the Canadian government refused to release them. The taped interrogation was also withheld. Khadr’s lawyers alleged that this was illegal and that the evidence could help prove his innocence if release.

On May 23 of this year, the Supreme Court of Canada concurred with Khadr’s lawyers and issued a unanimous ruling that the Canadian government had acted illegally by refusing to release the interrogation videotapes. According to the Court, the withholding also violated the Charter of Rights and Freedoms.

The problem with Guantanamo — and Khadr — is not contained to procedural delays. Whether Khadr is guilty or innocent or eventually proven to be guilty or innocent, in U.S. military or federal court or in Canada, the treatment administered by U.S. authorities during his detention has been abhorrent.

In 2004, an independent investigation authorized by the U.S. government determined that Guantanamo had played host to “severe prisoner abuse amounting to inhumane and degrading treatment and possibly torture.” The FBI, the Red Cross, and the UN Committee Against Torture concurred with this finding.

Khadr appears to have been directly affected by this treatment. It is reported that at Bagram Air Force Base, he was denied pain medication by his interrogators. At Guantanamo, it is alleged, he was physically abused, deprived of sleep for several weeks, and threatened with rape and torture. One reported instance of this treatment states that in March 2003, Khadr was left in a stress position for several hours before being used as a “human mop” to pick up his own urine, after which he was not allowed to change his clothes for two days.

The Federal Court of Canada concluded this June that Khadr’s treatment, as elaborated in official U.S. documents provided to Canada, was in violation of the UN Convention Against Torture.

The nail in the coffin came on July 9, when Canadian authorities released documents stating that they had known for some time that Khadr was being mistreated by his American captors.

Yet Khadr remains at Guantanamo, and Canada, against all logic, still refuses to repatriate or extradite him.

U.S. conduct toward Guantanamo detainees has been, in its disregard for basic human rights, nothing short of abhorrent. Furthermore, the continued existence of Guantanamo Bay as a space of legal exception defies all common sense.

But the United States is not the only nation to blame. In allowing Khadr to remain locked up at Guantanamo despite evidence of abuse and likely torture, despite evidence of his innocence, despite the fact that he was a child at the time of his capture, despite the fact that he is the only Western citizen to remain there, Canada demonstrates its complicity.

Canada risks going down in history as the first country to allow a child to be tried for war crimes. The United States risks being the country that tried a child for war crimes.

It remains to be seen whether Canada can reverse course and extradite their citizen and, more largely, whether the United States can close down Guantanamo. Just this Tuesday, Bush maintained that he would not.

On this extended juridical vacation, the United States and Canada need to get off their Cuban lounge chairs, lay off the mojitos, and get back to work.