Britain’s formal request for the release of five former British residents from Guantanamo Bay reverses a stance that was uncomfortably ambivalent. Tony Blair and Jack Straw declared that the prison camp violated fundamental judicial principles and that the US should close it down. Yet, when discussions with Washington turned to such practical matters as where to send the released inmates, Britain insisted that it had already taken back all British prisoners held there, and that was that. It had no responsibility to accept back nationals of third countries simply because, before their capture and detention, they had been resident in this country.

Legally, the British Government had a case, tested and successfully defended before the Court of Appeal last year. No country has a duty of care towards non-citizens arrested outside its borders. The former British residents in Guantanamo were persons who had sought asylum from political persecution in Britain, and been granted either asylum or leave to remain. In or around 2001, they had left Britain voluntarily, in most instances for Pakistan and Afghanistan, and in so doing had forfeited their right to sanctuary.

Politically, however, the British position had become untenable and embarrassingly inconsistent. You cannot wax indignant about justice denied, publicly encourage and applaud the steps that the US has been taking for the past year to reduce the numbers held at Guantanamo and move towards closing it down, and then cynic- ally wash your hands of the business when your close ally seeks your help. It is 14 months since Washington informed Britain that it was willing to release all remaining prisoners with a connection to this country, provided that they were put under close surveillance, and was in effect told that the police had more important things to do than take in the Guantanamo washing.

Now that Britain has changed its mind, negotiations are likely to take some time. If the men whose transfer Britain has now requested are considered by the US to be security risks, the evidence must be examined seriously. Equality before the law does not translate as “above the law”. Guantanamo was America’s flawed response to an undeniably difficult problem: what to do with prisoners who hold Western justice in contempt. To deposit them in a legal limbo should never have been part of the answer. Their detention without charges laid or rights of appeal has been rightly held to betray America’s historically impassioned commitment to liberty under the law, and has done grave damage. It is good that around half of the 775 detained have been released; it is shocking that only ten should have been charged. But it should not be asssumed that Guantanamo’s inmates are all innocent Muslims who happened to be in the wrong place at the wrong time. It houses al-Qaeda masterminds and fanatical Islamist footsoldiers. Some of those released have returned to fight with the Taleban.

Detainees handed over to the British authorities to date have been either released after cursory questioning, or placed under “control orders” that the US could be forgiven for judging to be less than rigorously enforced. The five cases under discussion differ, but no option should be excluded: release, close monitoring, trial or even deportation. They are innocent until proved guilty, but, unlike the brave Iraqi translators for the British Armed Forces whose just claims on this country’s loyalty apparently leave the Prime Minister unmoved, these men are no heroes.