Welcome home, boys?

By Julian Baggini
Philosopher and author

The five British former detainees from Camp Delta are today going back to ordinary society after their two-year stay in Cuba. This poses challenges for the detainees themselves - but society must again ask itself how it views anyone released without charge.

Celebrations are understandably muted for the Britons released from Camp Delta in Guantanamo Bay.

Perhaps they are aware of the fate of Lotfi Raissi, a pilot arrested in London ten days after 11 September and held for five months in Belmarsh high security prison.

When finally cleared, the judge ruled that there was "no evidence whatsoever" to support the allegations of involvement in terrorism made against him. Yet he was unable to get another job as a pilot, his wife lost her job with Air France and his brother's wife lost hers at Heathrow airport.

Lotfi Raissi: Cleared but having a tough time

Justice demands that those released from Guantanamo uncharged and officially clear of any guilt are treated as innocent by those in the communities they return to.

These men are entirely innocent, and this article is not intended to cast any doubt on that. But there is a question about how the community views others who are released without charge.

The law says a person is innocent until proven guilty, but people still tend to act according to the principle that there is no smoke without fire. While this may appear to be simple and inexcusable prejudice, there are in fact good prudential reasons why we may find it hard to treat anyone released with charge as innocent, as we surely should.

Justice and prudence

What would it be reasonable to do, for example, if I were to give you a dozen eggs and told you it was highly likely that at least one was lethally poisoned, but I didn't know which? Prudence would demand that you throw them all away rather than risk death by omelette.

We owe it to the uncharged innocent not to allow the fact that fate has thrown them together with the uncharged guilty to destroy their lives

But what if the "bad eggs" are human beings? If I were to say of twelve people that it was highly likely that at least one was a terrorist, would you be justified in treating all twelve as though they were guilty? Justice would trump prudence, and we would have no choice but to allow the possibility that a terrorist would go free rather than incarcerate the innocent.

But although justice would weigh more heavily here than prudence, prudence does not count for nothing at all. Indeed, when the stakes are very high we might agree that prudence, not justice, ought to prevail. If we knew that one of a group of 12 people had the capacity to detonate a nuclear device in central London, then we should detain all twelve until we found out which one it was.

Those who disagree with the way in which America is treating suspects in its war on terror are taking issue not so much with a fundamental principle as with the assessment as to what the risks are in placing justice before prudence.

The problem of balancing prudence and justice is one we all face when deciding how to treat people who have been arrested, held for a lengthy period and then released without charge. We know that although many such people are innocent, there may be a significant number among them who have been released due to lack of sufficient evidence to achieve a conviction, not because of their innocence.

When a police officer reads someone their rights, they may be placing a black mark on their record that nothing can erase

Reason, not prejudice, tells us that the probability that a person released without charge is in fact guilty is higher than it is for a random member of the public. The same kind of probabilistic reasoning which justifies prudence in the case of the poisoned eggs justifies heightened suspicion of those released without charge.

What is objectionable is not that we have this suspicion, but that we allow ourselves to let it govern our actions. For should we act on our justifiable suspicion, we will certainly end up treating many innocent people as though they were guilty. We owe it to the uncharged innocent not to allow the fact that fate has thrown them together with the uncharged guilty to destroy their lives.

Moral fibre

The fact that it is nonetheless perfectly reasonable for us to be more suspicious about those released without charge shows the great responsibility those who hold the power of arrest shoulder. When a police officer reads someone their rights, they may be placing a black mark on their record that nothing can erase. Shoddy justice blurs the distinction between the innocent and the guilty, to the detriment of the guiltless who are caught up in the mess.

For the majority of us, the problem is not how we implement justice, but how we respond to those who have been through the system and emerged without charge. Do we have the moral fibre to act as justice demands and treat the freed as innocent, despite the reasonable suspicions we may have about them?

Would we allow ourselves to discriminate against many innocent people just because some time in the future might find that someone who was released was guilty after all?

We have to accept that justice is served better when we risk freeing the guilty than it is when we risk locking up the innocent. To behave as decent citizens we must sometimes put prudence, usually so reasonable a creature, to one side and respect the rights of those who have not been found guilty in a court of law.

Julian Baggini is editor of The Philosopher's Magazine