The answer is, we don’t. Nobody does.
You see, that’s what habeas corpus is for. You can’t drag someone off the street proclaim them to be a Bad Person and then take them away and lock them up for ever. We’ve been assured that Guantanamo is reserved for the “worst of the worst.” The question is, how do we know they are the worst?
Without lawyers, a trial, evidence, a judge and a jury, there’s no way to figure it out. Yeah, it’s true that sometimes bad guys go free and it’s true that sometimes innocent people go to jail. But the thing is, it works most of the time and we haven’t been able to figure out how to make it better.
Suspension of habeus corpus is the most terrifying thing BushCo. has done with our rights and freedoms. And if you think they are only doing it to foreign nationals, guess again.
I suggest you read this post:
New Evidence on Innocent Men at Gitmo
Over on Dispatches from the Culture Wars