Free torture

David Theroux links to Harvey Silverglate's opposition to prosecutions for the CIA torturers.

This caught my eye:

... A CIA agent, operating in good faith, could readily consider such DOJ advice to be a binding legal opinion that he could safely follow. And in our legal system, based on an ancient Anglo-Saxon moral and legal tenet incorporated into our own criminal codes, a wrongdoer may be punished only if he knowingly and intentionally committed an act that he believed to be illegal. Given the facts and circumstances - the nation had just withstood the worst terrorist attack in its history and was being led by a president who suddenly declared a full-scale "war on terror" - it is inconceivable that any criminal jury in any American jurisdiction could, would, or even should agree unanimously (which is what it takes to convict) that an agent, acting in accord with DOJ legal advice, is guilty beyond a reasonable doubt (another prerequisite for conviction). These are legal realities often missed by those outside the practice of trial law.

I don't know exactly what training the CIA gives its personnel, but I'm sure they must cover the rules about what is permitted and what is forbidden. With that in mind, it's a flimsy defense to hide behind the DOJ. These operatives are trained professionals. To say that a specialist in interrogations operates in good faith when the DOJ all of a sudden allows him to do something he'd previously been unable to do is almost laughable. What if the DOJ were to declare some form of torture legal that even the most bloodthirsty Republican couldn't abide? The Nuremberg defense just wouldn't hold water in that case.

Either things are legal because the DOJ says they are, or agents need to take some individual responsibility.

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Whereas whenever some mere

Whereas whenever some mere commoner like you or I gets punished for violating some arcane requirement buried in the bowels of some telephone book-sized tome of ordinances that even the people who passed them have never read, we're self-righteously reminded that "ignorance of the law is no excuse."

mens rea

And in our legal system, based on an ancient Anglo-Saxon moral and legal tenet incorporated into our own criminal codes, a wrongdoer may be punished only if he knowingly and intentionally committed an act that he believed to be illegal.

That is a gross misstatement of the mens rea usually required for criminal liability. There are few specific intent crimes that require the type of mental state described above. http://en.wikipedia.org/wiki/Mens_rea#Ignorance_of_the_law_and_mens_rea

In any case, civil liability to the persons harmed seems like a better remedy.