The argument has always been (for the most part, there are variants):

a) you accept the interpretation that these are "enemy combatants" waging war without the governing aegis of a recognized polity. Since these combatants are not participants in some internal insurrection -- where uniforms and the like are not expected -- they are subject to military tribunals.

OR

b) you accept the interpretation that these terrorists are criminals and entitled to prosecution with all of the due process associated with criminal trials in a typical Western country.


If you believe "b" to be correct, then you believe that about 95% of those in Guantanemo Bay Detention facilities should be released from detention and returned their home countrys.