What should we do with the people held at Gitmo without due process? Can we, with good conscience, hold people forever?

SGT Larry Smith, I don't see your service dates prior to you posting them in this last message, but given what you did just post, I will certainly agree that at those times waterboarding was not formally listed as illegal. That's not the same as saying it was *legal*, as there were prohibitions in place on torture that could have been applied, just that it was not *explicitly* singled out as unambiguously illegal until the Convention against Torture.

You keep bringing up the various Military Commission Acts as if they say something meaningful about waterboarding, or as if their not saying something about it has any bearing on the legality. The thing is, it doesn't matter at all that the MCA'06 or its follow-on of the MCA'09 don't specifically address waterboarding. Since the Convention against Torture clearly defines torture in a way that unambiguously includes waterboarding, and since that convention is a ratified treaty and thus part of the law of the land (per the Supremacy clause), it's illegal, period, and has been since the treaty ratification in 1994. All other protestations are moot -- it's illegal. Unless and until the U.S. either adopts an amendment to the Constitution legalizing it, formally withdraws from the treaty, or writes specific legislation to exempt waterboarding from the definition, it will remain illegal [*].

It will, of course, remain immoral and repugnant regardless, plus it didn't even work (and yes, that it didn't work is well established).

[*] All 3 acts would have severe negative consequences for the U.S., and the third one is on shaky legal foundation because of the clear conflict it would have with the treaty.

SGT Larry Smith, on the contrary, I cited US legal authority, I just didn't cite a federal statute. But here:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land..."
--United States Constitution, Article VI, Clause 2

See that part where all treaties made are part of that supreme law of the land? Treaties are legally equivalent to legislation, period, and all your attempts to diminish that fact are and always will be ultimately fruitless.

The OLC memos you're talking about are from John Yoo, a man who because of those memos was charged with war crimes and crimes against humanity in Spain (under the very torture treaty being discussed) and has been barred from travel to several other countries for the same under threat of war crimes prosecution, a man whose opinions not only on torture but on many other subjects (e.g. his memos on warrantless wiretapping) are resoundingly rejected by nearly all legal scholars, lawyers, and judges. Those torture memos you're talking about were formally withdrawn and renounced by the same OLC only a few months later with instructions that they not be followed, cited, or used as justification for any action because the reasoning is flawed and inconsistent with U.S. legal obligations.

Yoo, interestingly, also believes that treaties don't ever carry the weight of law within a country's boundaries unless there is specifically enacting legislation, an opinion that is contrary not only to the clear evidence from the founders but to the continued SCOTUS precedent since the issue first came up in the early 1800s all the way to a reaffirming of it as recently as 2009. Treaties are self-enacting as law to the extent that the treaty formally places a domestic requirement, and thus carry the full weight of law on those matters. They are thus US legal authority, even though they are not a federal statute.

And you're really going to cite a *report* as evidence against? Have you never read the wording of UN reports before? (Probably not, if that's what you're left resorting to) That's not even a "non-binding resolution," which are historically worded in a toothless manner. Of course a *report* is going to make recommendations -- because it doesn't have the power to do anything stronger than recommendations. The legal strength of the treaty itself holds.

This is a terrible way of thinking. One, presuming guilt is unAmerican. How can you legally know that a person is, indeed, a terrorist, without putting him or her on trial? If your logic is looked at further you would suggest that suspected child rapists and child murderers are more decent people than suspected terrorists. Is this your contention? Every man or woman has the inherent right of habeus corpus. Regardless of the crime suspected. To deny that is to admit you have no faith in the judicial system.

CPT Jack Durish - Doesn't matter how many thumbs up you get. The reason the U.S. was formed as a Republic and not a Democracy is to ensure against the will of a tyrannical majority against the minority. The Constitution validates the natural right of habeus corpus. Doesn't matter how many people disagree with that.

SFC (Join to see) - I know that KSM was water-boarded away from GTMO. It always rubs me the wrong way that there are service members, and the public, who care more for our enemies, than what they have done to our people. For instance, mention the name of PFC Tucker, from my home state of Oregon. He was captured and killed by insurgents in Iraq. His body was mutilated-I pray after he was dead. Yet the left in the US only cares that KSM was water-boarded because we are supposed to better than our enemies.
The reason I posted that is because everyone always says torture was going on at GTMO as well. When I tell them what I posted earlier, their eyes glaze over like "what?", "You were there?".

LTC Trent Klug - Well, in all fairness, we ARE supposed to be better than them, right? What's the point otherwise? I don't think anyone is saying they care MORE for the enemy than they do anyone else - but we do value the Constitution and the values of the nation more than any one Servicemember. That is the whole point of supporting and defending the Constitution and the values of the nation. You and I both know that we may die defending the nation, it's values, and the Constitution - that's part of our job. Our Soldiers may also die doing the same thing. We may have to send them into a situation that will likely result in death. We do it because we understand that the nation, the Constitution, and it's values are greater than any individual. If we throw out those values to save lives, then we've defeated ourselves.

SGM Charlie Fergurson - Wars against countries are easier to win than wars against ideals - and I think they take different strategies. You can't nuke the capital of "Islam" and have anyone surrender the war. It's not that type of war we're engaged in. It's a war of ideals and that isn't won with bombs.

But if you are going to free them...then drop them off in the middle of Antarctica...It's neutral, they can be free to go whereever they want from there. Hell, I'd even say cough up a sweater or a pair of shoes.

Yup some would give them rights and protections they would deny us were we captured. Screw these guys!

MAJ Bryan Zeski - The Geneva Conventions spell out who is to be granted POW status. Requirements include such things as wearing a uniform or some kind of identifying mark or article of clothing that can be identified at a distance to distinguish combatants from non-combatants, not hiding among civilians, not targeting civilians, etc. Such people are subject to the same treatment as enemy combatants behind the lines who are found wearing civilian clothes (a.k.a., spies) -- summary execution.

The people at Gitmo are not enemy combatants as defined in the Geneva Conventions and are not entitled to the right of protection of POW status. Your contention that they are deserving of due process is invalid.

MAJ Bryan Zeski - There are certain standards that our conscience will not allow us to ignore. I will let each individual soldier decide when they have reached that point. The situation may dictate something you or I might feel was wrong but you can't send a soldier into combat with the understanding that he must die and allow the enemy to live for the purpose of satisfying either my or your moral values. I don't think our soldiers will disappoint the average American citizen.

Who makes that determination? You really believe in giving the government the power to determine who deserves to have their rights acknowledged and who doesn't? It's a slippery slope.