5. Unlawful conduct occurred, but the suspects have a credible defense -- that before undertaking their unlawful conduct, they relied in good faith on authoritative (though in retrospect, mistaken) legal opinions that the planned conduct would be lawful, and these opinions were NOT issued in good faith. Again, that judgment should be made, at least initially, by the attorney general, free from political influence.

It is always the case that a combatant should refuse an illegal order. I would have thought that there is a grey area in which you can have orders that it would be unreasonable to expect a low ranking soldier, or CIA operative, to distinguish with enough certainty for him to defy his superiors but which a senior officer, or lawyer, should have known to have been wrong at the time they issued it.

"Unlawful conduct occurred, but the suspects have a credible defense -- that before undertaking their unlawful conduct, they relied in good faith on authoritative (though in retrospect, mistaken) legal opinions that the planned conduct would be lawful, and these opinions were also issued in good faith. Again, that judgment should be made, at least initially, by the attorney general, free from political influence."

UN Convention Against Torture:
"No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture [...] An order from a superior officer or a public authority may not be invoked as a justification of torture."

Hardly gives the impression that it's a valid defence to rely on word of the last administration, does it?

It's not clear to me that the response would be so much different if a Republican president exercised option #5, provided that that president was not himself implicated in decisions prior to 2009, or closely tied to people who were; had opposed the enhanced interrogation program in his campaign; declared that that program would stop; released the memos; etc.

Plenty of people are saying that of course it makes sense to look forward, and plenty are pointing out that the US has an obligation to investigate. That would be true regardless.

Beyond the fact that Obama cannot "promise" anything about who the Attorney General decides to prosecute, and beyond anyone's opinion about who the A.G. should or should not prosecute, isn't Obama tying Holder's hands in terms of how Holder might build whatever cases he decides to pursue? Shouldn't Holder have the option of offering plea deals in exchange for testimony against the higher-ups? Of course he does have that option, but Obama's rhetoric makes it more difficult -- and suggests that Obama doesn't want anyone held accountable.

With all respect, I believe that politics has a role to play when it comes to judging conduct. And not just because policy drives law-giving. There are ethical issues as well, which are extra-legal, and the question of what practicing torture does to those who apply it while trying to hide the fact, which is also extra-legal. Especially in the light of statements from several professional interrogators (FBI, Israeli police) that applying physical torture does not produce better intelligence and that getting answers quicker is almost never worth it.

Of course there is the important consideration that government officials should be reasonably certain that they will not be prosecuted afterwards for implementing policy that isn't clearly illegal, of whose legality or illegality is a gray area. Especially not after a change in policy and/or administration.

However, the stance that *anything* that isn't actually illegal is therefore OK to do is a very dangerous one. If nothing else, the Nuerenberg trials showed that atrocities that were not in and by themselves illegal can still be wrong. Now I will not muddy the waters by suggesting that the conduct of the US is somehow comparable to that of Nazi Germany, but I contend that the principle stands: absence of illegality does not necessarily imply that something is OK. Especially not when it comes to deliberate, widespread, and systematic torture which is equally deliberately hidden from the public.

The higher the position a Government officials occupies, the more responsibility and discretion they tend to have and the more infeasible (and undesirable) it is to legally circumscribe the boundaries of their freedom of action. However, Common Law has a tradition of interpreting general directives as binding when it comes to determining culpability. An examples is: "Good seamanship" when it comes to avoiding collisions at sea. How about "Good government" when it comes to providing legal cover for a policy and a set of operations that the current administration deliberately tries to hide from the public? I think there may be cause to take up this issue.

Therefore, in my opinion, a narrow legalistic approach does not seem to be completely adequate.