Tuesday, April 01, 2008

Superior Orders Revisited

In a previous post, I discussed my take on the superior orders defense, sometimes called the Nuremberg Defense. I had seen various discussions dismissing the "just following orders" defense since it was not accepted at Nuremberg. My point in the post was that the Nuremberg tribunals did not summarily reject the superior orders defense, but considered and rejected it on the merits. I thought that CIA operatives who had performed torture may have a plausible case in using the superior orders defense. Now I'm reconsidering that. The crux of the defense is that the person did not know that the actions were illegal, that is they were excusably ignorant. The Detainee Treatment Act states that "good faith reliance on advice of counsel should be a important factor" in deciding whether the person knew the acts were illegal. The phrases "advice of counsel," "Bush administration" and "good faith" don't exactly go together. I don't find it plausible that executive branch attorneys would exactly be acting in good faith in this situation. Again, experience shows to expect the worst in the Bush administration. And then ratchet it down a little.

Update (Apr. 2):
I wrote this post before I saw that the infamous John Yoo memo authorizing torture had been released. That's what I'm talking about: when a ideological hack like Yoo can say the president can order torture with no legal repercussions, that's not exactly good faith. Glenn Greenwald says it better that I ever could:

This incident provides yet more proof of how rancid and corrupt is the premise that as long as political appointees at the DOJ approve of certain conduct, then that conduct must be shielded from criminal prosecution.

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