At the root of the problem is the decision made early on by the Bush administration to classify these detainees as "enemy combatants." The term is not an empty formality, and the decision to use it certainly not a casual one. Very simply, when the United States began to capture people in Afghanistan, Iraq, and other places after the 9/11 attacks, there were two choices. They could be classified as criminals, which would place them in the criminal justice system, and provide access to the normal rights of persons held under that system. Or, they could be classified as prisoners of war, which would place them in the traditional military wartime detention system, and provide access to the traditional rights of persons held under that system (most notably the Geneva Conventions). Neither choice was acceptable to an administration intent on using "enhanced interrogation techniques" to gain information. By inventing the new classification of "enemy combatant" the detainees could not claim any right or privilege from either the criminal or military systems. The most immediate result was that the administration would not be bound by the inconvenient restrictions of the Constitution nor the Geneva Conventions. The idea was that intelligence gathering would be enhanced in the short term.
The short-term decision has led to long-term problems. If the detainees were held in a (civilian or military) criminal justice system we could rely on a system of protocols and processes developed over hundreds of years to deal with a wide variety of situations. Similarly, if the detainees were held as prisoners of war we would have a system of protocols and procedures developed over hundreds of years to deal with them. Since the category of enemy combatant is newly invented, there are no protocols nor procedures in place to deal with the detainees. There is no process nor standard for obtaining evidence, weighing it, and using it against a (potentially) guilty detainee. The administration effectively had to make it up as they went, and it showed
The lack of process is evident in the constantly changing rules and conditions. For the first two years, detainees had no access to legal counsel. In 2006, the United States Supreme Court rejected the first attempt at a trial system. By 2007, the detainees were granted access to Federal courts. It is absurd that a system that should be central to our security - the system that actually completes the job initiated by the military fighting and dying to capture them - should be run in such a haphazard and ineffective way. By late 2008 no less than four prosecuting attorneys, including the chief prosecuter resigned in protest (Another article on the resignations.) Evidence that was used to place the detainees in Guantanamo was deemed unworthy for use in a trial. In the end, having no system to keep the detainees, we started letting them go.
Think about that. Pretend that all the detainees in the recent news articles were innocent when caught. The years of detention in Guantanamo under a non-existent legal system must have turned them against the United States, creating enemies where they did not exist before. Or assume that these people were actively involved in terrorist actions against the United States when they were captured. The decision to label them as enemy combatants effectively removed them from any known legal system that would have allowed the United States to try them, judge them, and if needed keep them detained. The lack of process set them free to fight against us again.
People can argue as to whether Guantanamo is right or wrong, ethical or unethical, and never agree. But we can measure Guantanamo in another dimension, the measure of effectiveness (turns out nations tend to do what's effective, whether it's right or wrong anyway). Guantanamo is not effective, and maybe we can agree on that. Of the roughly 775 detainees, about 450 have been released without charge. That means either the United States is so bad at catching bad guys that we throw innocent people into a prison reserved for the "worst of the worst" 60 percent of the time, or the system is so leaky that we let the guilty go 60% of the time. The Guantanamo approach fails well over half the time whether the detainee is innocent or guilty. And for that reason alone it should be closed down.