“Secret U.S. Endorsement of Severe Interrogations”
The most basic premise is that it is a crime to torture, and reliance on the illegal memo, reduced to a field order or operating policy, would not be a defense, if it is beyond the bounds of good faith acceptance.
Even if interrogators reasonably believed in the legality of the memo (as reduced to an operating order to severely interrogate), the senior administrators issuing the writings would be criminally culpable.
A torturer's assertion of an affirmative defense of a mistaken, but good faith belief in the legality of an opinion or order, or an assertion of reasonable reliance on an illegal opinion, is entitled to no presumption of correctness or genuineness.
A fundamental distinction is drawn, in such instances, as a necessary matter of legal logic, in order to prevent a professed, inherently subjective reliance on a belief, as to legality, from obscuring the core proposition that base illegality is recognizable, even in the face of governmental authorities advising or instructing to the contrary.
There is well developed law on this. Even a combat soldier can not legally obey an illegal order to kill or torture.
There is the concept of the order from a superior which you are bound to recognize as being patently illegal and not perform, even under threat of punishment.
You may be entitled to a trial to determine mental culpability, and hear mitigating circumstances relevant to punishment rather than to guilt.
However, the blanket defense that "orders are orders" has long been rejected, at Nuremberg by way of one example, at least with respect to matters of irreducible illegality, such as killing or torturing unarmed humans in your custody or control who have not been first convicted of crime through regular legal process.
It also follows from these concepts that the factual information as to whether “severe” interrogations (torture) actually occurred must be discloseable.
There can be no legal privilege against disclosure of fundamentally unlawful conduct, or otherwise, the premise would be once again lost.
Contesting what constitutes "torture" along the continuum of physical abuse, is not a legal defense to the charge of engaging in torture.
It would instead be a factual defense, determinable by the trier of fact, on case by case basis.
Infliction of physical or mental abuse, having a reasonable probability of doing material, permanent damage to the subject, that is, posing an appreciable risk of rendering serious permanent psychological or bodily harm, would presumptively constitute torture.
The burden would then shift to the defense to introduce evidence that an interrogation procedure involved something short of this.
The memo probably reads much like the wire tapping memoranda, with its extra-legal assumption as to the existence of a reserve of executive discretion to determine measures (and their proportionality) used to respond to perceived threats to national security.
That position is not substantively a legal position, however.
It is instead a Hobsonian philosophical proposition, at best. (It is lacking in the grounding in disciplined reasoning that characterizes what credited scholars would recognize as a genuine political philosophy).
The concept of law must, by definition, reject the notion that there exits, outside of legal analysis, sanction in the law, for immeasurable uses of force or power, for some general value transcending law, left ultimately to the unreviewable determination of individuals.
To say that perceived war exigencies trump law, is not to use legal analysis or to make a statement of a legal disposition.
It is instead a statement that in the conflict between law, and an actor's assertion of a self-imperative of illegality, the dispute was "settled" by the practical reality that the actor had an insurmountable, working , political control (political , in the sense of the mechanisms of governmental power) of the means of law enforcement. This ultimately means control of the police power.
From that point the analysis is only historical or sociological -- the conflict is joined oat the point that police power, naked of legality, loses basic social, normative legitimacy that is needed to function without recourse to repression of majority sentiment.
Finally, needless to say, before that tipping point is reached, majority toleration, or even approbation for, illegality, does not, by itself, constitute a source of a new legality.
The idea, of passive popular acceptance of official acts being a source of legality, has also been well canvassed in the law of war.
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