http://www.youtube.com/watch?v=oBzsF2z5ofU

James. Getting Away With It. Good song. Sad post.

WE THE PEOPLE DID. We did so via the Eigth Amendment in the Bill of Rights which states 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'

What was intended by this can be seen from the discussion in the Wikipedia article on the Bill of Rights about the history of its adoption:

"Virginians such as George Mason and Patrick Henry wanted to ensure that this restriction would also be applied as a limitation on Congress. Mason warned that, otherwise, Congress may “inflict unusual and severe punishments.”[8] Henry emphasized that Congress could otherwise depart from precedent: "What has distinguished our ancestors?--That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany...."[9] Ultimately, Henry and Mason prevailed, and the Eighth Amendment was adopted. James Madison merely changed "ought" to "shall", when he proposed the amendment to Congress in 1789.[7]"

The subsequent legal history of the Amendment as recited in the Wikipedia article is also telling and demonstrates that the Supreme Court whose Justices are selected by the President respresenting the whole of the American people and confirmed by the Senate have continued to hold that torture is unconstitutional:

"In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."

* The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
* "A severe punishment that is obviously inflicted in wholly arbitrary fashion."
* "A severe punishment that is clearly and totally rejected throughout society."
* "A severe punishment that is patently unnecessary."

Continuing, he wrote that he expected that no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a "cumulative" analysis of the implication of each of the four principles.

[edit] Punishments forbidden regardless of the crime

In Wilkerson v. Utah, 99 U.S. 130 (1878), the Supreme Court commented that drawing and quartering, public dissecting, burning alive, or disemboweling would constitute cruel and unusual punishment regardless of the crime. The Supreme Court declared executing the mentally handicapped in Atkins v. Virginia, 536 U.S. 304 (2002), and executing people who were under age 18 in Roper v. Simmons, 543 U.S. 551 (2005), to be violations of the Eighth Amendment, regardless of the crime.

[edit] Punishments forbidden for certain crimes

The case of Weems v. United States, 217 U.S. 349 (1910), marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual.[12] The Court overturned a punishment called cadena temporal, which mandated "hard and painful labor," shackling for the duration of incarceration, and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment.[13] However, others have written that "it is hard to view Weems as announcing a constitutional requirement of proportionality."[14]"

Remember as you think about this that quite a number of those incarcerated at GITMO were eventually believed to be innocent and released without trial.