The lawyers were at the heart of the consiparacy — at its root, this wasn’t a conspiracy to commit toirture per se, it was a conspiracy to subvert the law in order to commit whatever crime was deemed expedient with impunity. The instigator was Dick Cheney acting under the authorization of George Bush, and the details of planning and policies were overseen by Cheney’s counsel, David Addington.

These people committed crimes continuo0usly for over seven years, right up to the day they laft office. Cheney and Addington are cut from the same cloth as people like Heydrich and Eichman, and they were building a system… a system of pseudo-law masking the iron fist of naked executive fiat, the “fuhrer prinzip”. It was the lawyers who were charged with making the trains run on time, and those lawyers are among the worst criminals in US history.

I also want the doctors and the psychologists who participated in the torture prosecuted: together with the lawyers, they should be tried, convicted, and disbarred / banned from professional practice and teaching for LIFE.

Perhaps I have caused the confusion as my two posts speak of available defences under two diffferent systems of law. In my earlier post, I was making the point that as a matter of international law, the CIA interrogators could rely on the superior orders defence provided for in the Rome Statute of the ICC. As you know, this defence is really a type of mistake of law defence as it is only available in circumstances where the subordinate did not know that the order was unlawful and the order was not manifestly unlawful. In my post of today, I was suggesting that the CIA interrogators and those who formulated the interrogation policies may be able to rely on the mistake of law defence provided for in US domestic law which includes reasonable reliance on official interpretations of the law.

I agree that there is no defence in the Rome Statute or in international criminal law more generally which is similar to the US mistake of law defence. I think I made that point above. The only mistake of law type defence that may be available under the ICC Statute would be superior orders. But as you say that requires a superior -subordinate relationship. So those who formulated the policies would not be able to rely on that defence in international criminal law. Of course, there is also the point I allude to in my earlier post that the Torture Convention bars reliance on superior orders though I think one can interpret that as not referring to the type of superior orders defence provided for in the Rome Statute.

I am confused about one thing. You argued in your previous post that CIA interrogators could rely on the defense of superior orders. You now argue that they could rely on a “reasonable reliance upon an official statement of law” defense (entrapment by estoppel) similar to the one provided by MPC 2.04. Although it might not matter for the interrogators, those are two very different arguments. The most obvious difference is that the defense of superior orders is much narrower, because it requires a superior-subordinate relationship. The defense of reasonable reliance does not. That has profound practical import in the context of the CIA’s torture regime: although the CIA interrogators could invoke either (if both are available), the political officials in the Bush administration who ordered the CIA interrogators to torture could only invoke the reasonable-reliance defense — they could not invoke superior orders, because they were the superiors. Indeed, is there any doubt that Cheney, Rumsfeld, et al would try to argue, if prosecuted, that they were “reasonably” relying on the OLC’s advice? That is why, as I have pointed out at OJ, it is very important to make clear that there is no reasonable-reliance defense in the Rome Statute.

My post on the defense of reasonable reliance is here: http://opiniojuris.org/2009/04/18/international-criminal-law-and-reasonable-reliance/