The British government has refused to accept the men, however, with senior officials saying they have no legal right to return. Documents obtained by the Guardian show US authorities are demanding that the detainees be kept under 24-hour surveillance if set free - restrictions that are dismissed by the British as unnecessary and unworkable.


Although all are accused of terrorist involvement, Britain says there is no intelligence to warrant the measures Washington wants, and it lacks the resources to implement them. "They do not pose a sufficient threat," said the head of counter-terrorism at the Home Office.
The possible security arrangements appear to have caused months of wrangling, but senior UK sources have told the Guardian the government is interested in accepting only one man - Bisher al-Rawi - who is now known to have helped MI5 keep watch on Abu Qatada, the London-based Muslim cleric and al-Qaida suspect who was subsequently arrested.

At least nine former British residents have been detained without trial at Guantánamo for more than four years after being taken prisoner in the so-called war on terror. Their lawyers say some have suffered appalling mistreatment.

With the US government anxious to scale down and eventually close its prison at the Cuban base, however, the US state department is putting pressure on the British government to allow some to return. Foreign Office officials have denied that any talks have taken place.

In Washington, the state department confirmed that there are "ongoing diplomatic negotiations", as the documents show. They were written by the most senior counter-terrorism officials at the Home Office and Foreign Office at a time when some ministers were voicing their harshest criticism of Guantánamo.

The documents are witness statements from David Richmond, director general of defence and intelligence at the Foreign Office, and William Nye, director of counter-terrorism and intelligence at the Home Office. Mr Richmond wrote: "The British embassy in Washington was told in mid-June 2006 that, during an internal meeting between US officials, the possibility had been floated of asking the UK government to consider taking back all the detainees at Guantánamo who had formerly been resident in the UK. Information about what had occurred at this meeting had been fed back informally to the embassy, and the UK government wished to clarify the significance of this idea."

On June 27 UK officials met US officials from the departments of state, defence and the national security council. Mr Richmond wrote of that meeting: "The US administration would only be willing to engage with the UK government if it sought the release and return of all the detainees who had formally resided in the UK (ie, regardless of the quality of their links with the UK), rather than just a subset of the detainees falling in that category."

Britain says the only way to meet the security conditions would be to have MI5 spy on them.

Mr Nye wrote: "The US administration envisages measures such that the returnees cannot legally leave the UK, engage with known extremists or engage in support, promote, plan or advocate extremist or violent activity, and further have the effect of ensuring that the British authorities would be certain to know immediately of any attempt to engage in any such activity."

But Mr Nye says the evidence and intelligence he has seen is not enough for a control order severely restricting their movements: "I am not satisfied it would be proportionate to impose ... the kind of obligations which might be necessary to satisfy the US administration."

The measures the US wants in place would have to be enacted by MI5 and take effort and resources away from countering more dangerous terrorist suspects. Mr Nye wrote: "The use of such resources ... could not be justified and would damage the protection of the UK's national security." He says the Guantánamo detainees "do not pose a sufficient threat to justify the devotion of the high level of resources" the US would require.

The talks have been held against the backdrop of a growing realisation within the Bush administration that it would be in the interests of the US to shut down the camp.

In addition to growing public unease, the supreme court ruled in June that there could be no military tribunals of detainees without the protections of the Geneva conventions and American law, reaffirmed the rights of inmates to challenge the legality of their detention, and implicitly outlawed torture and the enforced movement of detainees known as extraordinary rendition.

As well as arguing that none of the former residents has a legal right to return to the UK, British officials are concerned that human rights legislation would forbid the deportation of any who are permitted to return. However, the supreme court ruling means that it may be impossible for the US to return them to the countries of their birth if there is a risk of them facing persecution. "The result is that the arguments are going around and around like a washing machine cycle," said one official familiar with the talks.

Last month Lord Falconer, the lord chancellor, said Guantánamo was a "shocking affront" to the principles of democracy. In June he branded it a "recruiting agent" for terrorism, whose existence was "intolerable and wrong".

Lawyers for the British residents say they are still being ill-treated, with four being subjected to the extremes of freezing cold and then high heat.

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