Donald Macintyre: Why Mr Blair must make an urgent call to the President

'The worst possible scenario would be for London to watch its own citizens being executed in the US'

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The Government could not have got away without making a statement on Guantanamo Bay yesterday, though the sight of a disappointingly half-empty Commons chamber makes you wonder. The performance of the Foreign Office minister Ben Bradshaw was reassuring. On the face of it, he did quite a lot to defuse the disquiet of backbench MPs. But he also left some important questions unanswered.

Though it wasn't evident in Mr Bradshaw's polished performance, you don't have to be a nitpicking Kremlinologist to detect a difference of emphasis between Downing Street and the Foreign Office, conscious about how an issue plays in – say – Cairo and Berlin as well as in Peoria, Illinois. Jack Straw's expressions of dismay at the shocking photographs of kneeling prisoners in Guantanamo Bay may have been belated. But they were, by the standards so far set by most British ministers, robust.

That did not, however, stop Downing Street from maximising its gloss yesterday on the report supplied to London by officials from the British embassy in Washington on Feroz Abbasi and the other two British citizens held at Camp X-Ray. There was just a trace of exultation yesterday in the No 10 belief that the report had vindicated its warning against the earlier "rush to judgement".

But those advocating caution are almost certainly right. For a start, the report covers less than 3 per cent of the total – 144 and still coming. The report seems to have established that the three Britons appeared in reasonable health and did not complain about ill-treatment or torture. Nevertheless, for the whole picture, London will still have to wait for what it can glean from the Americans about the confidential report that the International Red Cross will be submitting to Washington.

Second, there is certainly – as is freely acknowledged in parts of Whitehall – a Donald Rumsfield problem on this side of the Atlantic. It has become a commonplace – and rightly so – that to shear beards and hair, to inflict sensory deprivation and publicly humiliate prisoners, is to start yielding the moral high ground to the enemies of freedom. This has been compounded when the Defence Secretary has appeared to revel in the rough treatment meted out to the captives.

But there is also a fallacy by no means confined to Mr Rumsfield. Which is to confuse the monstrousness of the crimes with the likelihood that the apprehended are guilty of them – the very confusion that helped, here, to ensure the convictions of the Birmingham Six and Guildford Four, different as those cases may seem. There isn't much doubt that Guantanamo Bay now contains some of the most dangerous men ever held in captivity. But it doesn't follow that all of them perpetrated the crimes being used to justify the exceptional processes under which they may be arraigned.

This matters, because it now looks as if the critical problem is going to be not so much the present treatment of the prisoners but what happens to them next. Here, the Government is being circumspect. Discussions are going on. It isn't yet clear, Whitehall insists, whether the administration is going to carry out its threat to resort to secret military tribunals. Will the prisoners – including the Britons – be executed if found guilty, making them martyrs in much of the Islamic world? Mr Bradshaw said yesterday the British government had already reminded the US that it was against the death penalty as a matter of policy. The UK, it is clear, would like to extradite the British prisoners for trial here. But supposing the US doesn't agree. Supposing, too, as is all too possible, there isn't enough evidence to secure a conviction in a normal court, British or otherwise.

It is widely acknowledged that at least a few of the prisoners may simply be Taliban fighters who could justly be treated as prisoners of war. For others, there may be concrete and justiciable evidence. But the hardest cases are those of men strongly suspected of terrorist activity in al-Qa'ida, for whom sufficient evidence does not exist for a normal trial. And in these cases, particularly but not exclusively the British ones, it is hard to see how the Government could assent to summary execution without violating every legal standard. The worst possible scenario would be for London to watch in silence as three of its own citizens were executed in the US after the application of a standard of proof it would not accept here.

Indeed, for Britain, there is a danger of double standards unless it fights to preserve the due processes of law internationally. The triumphant arrival in Westminster yesterday of Martin McGuinness and Gerry Adams is a powerful testament to the British government's belief in the redeemability of terrorists. Some liberals would no doubt argue that there is no equivalence between the past acts of Northern Ireland terrorists, republican and loyalist, and the murders of 11 September. It is a hard argument to sustain in the presence of their all-too-many innocent victims over the past 30 years. But in any case, there is an even more pertinent point. Since the end of internment, the British way has been not to punish the – sometimes known – perpetrators of terrible crimes and their associates unless and until the evidence can be found to sustain a criminal prosecution against them. That applies even to Omagh, a mass murder that differs in heinousness from 11 September – difficult thought it is to say it to bereaved New Yorkers – only in relation to the number of victims. Such a scrupulous observance of the rule of law and judicial values is very painful indeed for the families of the victims to bear. But it remains the mark of a free, civilised, and democratic society.

Sometimes a little too easily accused by his opponents, at least on the left, of slavish adherence to the Washington line, Tony Blair has established a position in relation to the US probably unique among British Prime Ministers of modern times. Perhaps he cannot stop Washington doing what it is determined to do. But he isn't without influence. A freely aired difference of opinion, in other words, between London and Washington would be a story there as well as here.

And that has had some force behind the scenes. There have been occasions, I'm told by an authoritative and relatively dispassionate source, well away from the New Labour spin machine, when Colin Powell has come on the line to Downing Street suggesting that the Prime Minister takes the trouble to call the White House again to re-emphasise a point he has already made to President Bush. So far, Mr Blair has probably been right to pursue differences of opinion, when they exist, in private rather than public.

But there may yet come, quite soon, a point when public silence is no longer a sustainable option. To support the violation of human rights in the process eventually to be applied to the prisoners in Guantanamo Bay would be neither right nor in the British national interest.

d.macintyre@independent.co.uk