“ If the right to defend the national government can be raised as a defense in an individual prosecution as Neagle suggests, then a government defendant, acting in his official capacity, should be able to argue that any conduct that arguably violated a criminal prohibition was undertaken pursuant to more than just individual self-defense or defense of another. ”

“ Further, the fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. ”

“ If the President is confronted with an unforeseen attack on the territory and people of the United States, or other immediate dangerous threat to American interests and security, it is his constitutional responsibility to respond to that threat with whatever means are necessary. ”

“ More than two centuries ago, Blackstone, best known of the expositors of the English common law taught that “all homicide is malicious, and of course amounts to murder, unless...excused on the account of accident or self preservation”. Self-defense, as a doctrine legally exonerating the taking of human life, is as viable now as it was in Blackstone’s time. ”

“ The threat of an impending terrorist attack threatens the lives of hundreds if not thousands of American citizens. Whether such a defense will be upheld depends on the specific context within which the interrogation decision is made. If an attack appears increasingly likely, but our intelligence services and Armed Forces cannot prevent it without information from the interrogation of a specific individual, then the more likely it will appear that the conduct in question will be seen as necessary. ”

“ The international Military Tribunal at Nuremberg declared in its judgment that the test of responsibility for superior orders “is not the existence of the order, but whether moral choice was in fact possible.” ”

“ Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President. There can be little doubt that intelligence operations, such as the detention and interrogation of enemy combatants and leaders, are both necessary and proper for the effective conduct of a military campaign. ”

“ This right of self-defense is a right to effective self-defense. In other words, the victim state has the right to use force against the aggressor who has initiated an "armed attack" until the threat was abated. The United States, through its military and intelligence personnel, has a right recognized by Article 51 to continue using force until such time as the threat posed by al Qaida and other terrorist groups connected to the September 11th attack is completely ended." Other treaties re-affirm the right of the United States to use force in its self-defense. ”

“ Obedience to orders provides a viable defense only to the extent that the accused acted under orders, and did not know (nor would a person of ordinary sense have known? The orders were unlawful. This the viability of this defense is key to the accused’s (or a reasonable person’s) knowledge of the lawfulness of the order. Common sense suggests that the more aggressive and physical the technique authorized (ordered) by the command, the more unlikely the reasonable belief that the order to employ such methods is lawful. ”

“ A defendant could negate a showing of specific intent to cause severe mental pain or suffering by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute. Thus, if as defendant has a good faith belief that his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture. A defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience. ”

“ Nonetheless, leading scholarly commentators believe that interrogation of such individuals using methods that might violate Section 2340A would be justified under the doctrine of self-defense, because the combatant by aiding and promoting the terrorist plot "has culpably caused the situation here someone might get hurt. If hurting him is the only means to prevent the death or injury of others put at risk by his actions, such torture should be permissible, and on the same basis that self-defense is permissible." ”

“ As DOJ has made clear in opinions involving the war on al Qaida, the nation's right to self-defense has been triggered by the events on September 11. If a government defendant were to harm an enemy combatant during an interrogation in manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaida terrorist network. In that case, DOJ believes that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions. ”

“ Under international law, the fact that a war crime is committed persuant to the orders of a military or civilian superior does not by itself relieve the subordinate committing it from criminal responsibility under international law. ”

“ The majority of the crimes discussed above do not require specific intent. For instance, in the case of violations of general orders, knowledge is presumed. Most of the “mistakes” would likely be mistakes of law in that the accused would not believe that the conduct was unlawful. While mistakes of law are generally not a defense, unawareness of a law may be a defense to show the absence of a criminal state of mind when actual knowledge is not necessary to establish the offense. ”

“ The defense arises when an accused is doing a lawful act in a lawful manner, free of any negligence, and unforeseeable or unintentional death or bodily harm occurs. MJB, Section 5-4.
d. Mistake of Fact (U) If ignorance or mistake of a fact concerns an element of an offense involving specific intent, the ignorance or mistake need only exist in the mind of the accused, i.e., if the circumstances of an event were as the accused believed, there would be no offense. For crimes not involving specific intent, the ignorance or mistake must be both honest (actual) and reasonable. ”

“ Thus, an official must know of a serious risk to the health or safety of a detainee and he must act in conscious disregard for that risk in order to violate due process standards. Third, this standard permits some physical contact. Employing a shove or slap as part of an interrogation would not run afoul of this standard. Fourth, the detainee must sustain some sort of injury as a result of the conduct, e.g., physical injury or severe mental distress, in order for the constraints of substantive due process to be applicable. ”

“ To be sure, this situation is different from the usual self-defense justification, and indeed, it overlaps with elements of the necessity defense. Self-defense as usually discussed involves using force against an individual who is about to conduct the attack. In the current circumstances, however, an enemy combatant in detention does not himself present a threat of harm. He is not actually carrying out the attack, rather he has participated in the planning and preparation for the attack, or merely has knowledge of the attack through his memborship in the organization. ”

“ Additional elements of necessity defense are worth noting here. First, the defense is not limited to certain types of harms. Therefore, the harm inflicted by necessity may include intentional homicide, so long as the harm avoided is greater (i.e., preventing more deaths) Id. at 634. Second, it must actually be the defendant’s intention to avoid the greater harm: intending to commit murder and then learning only later that the death had the fortuitous result of saving other lives will not support a necessity defense. ”

“ Given that Congress omitted CAT’s effort to bar a necessity or wartime defense, Section 2340 could be read as permitting defense.
c. Self-Defense (U) Even if a court were to find that necessity did not justify the violation of a criminal statue, the defendant could still appropriately raise a claim of self-defense. The right to self-defense, even when it involves deadly force, is deeply embedded in our law, both as to individuals and as to the nation as a whole. ”

“ As the analysis explains, legal justification for action that could otherwise be unlawful (e.g., relying upon national necessity and self-defense) depends in large part on whether the specific circumstances would justify the imposition of more aggressive techniques. Interrogation of an individual known to have facts essential to prevent an immedia threat of catastrophic harm to large populations may support use of "exceptional" techniques, particularly when milder techniques have been unavailing. ”

“ Use of force in military law enforcement is authorized for (1) self-defense and defense of others against a hostile person when in imminent danger of death or serious bodily harm by the hostile person; (2) to prevent the actual theft or or sabotage of assets vital to national security; (3) to prevent the actual theft or sabotage of resources that are inherently dangerous to others; (4) to prevent the commission of a serious crime that invovles imminent danger of death or serious bodily harm ”

“ Every murder perpetrated by poison, lying in wait, or nay other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree. ”

“ Army interrogation experts view the use of force as an inferior technique that yields information of questionable quality. The primary concerns, in addition to the effect on information quality, are the adverse effect on future interrogations and the behavioural change on those being interrogated (offering particular information to avoid the use of force) . However, the Army’s doctrinal prohibition on the use of force does not proscribe legitimate psychological tools and deception techniques.
(U) FM 34-52 outlines procedures and approach techniques for conducting Army interrogations. ”

“ Indeed, timing is an indicator of certainty that the harm will be fall the defendant. Thus, a vague threat that someday the prisoner might be killed would not suffice. Instead, subjecting a prisoner to mock executions or playing Russian roulette with him would have sufficient immediacy to constitute a threat of imminent death. Additionally, as discussed earlier, we believe that the existence of a threat must be assessed from the perspective of a reasonable person in the same circumstances. ”

“ Interrogations must always be planned, deliberate actions that take into account numerous, often interlocking factors such as a detainee's current and past performance in both detention and interrogation, a detainee's emotional and physical strengths and weaknesses, an assessment of possible approaches that may work on a certain detainee in an effort to gain the trust of the detainee, strenghts and weaknesses of interrogators, and augmentation by other personnel for a certain detainee based on other factors. ”

“ If intelligence and other information support the conclusion that attack is increasingly certain, then the necessity for the interrogation will be reasonable. The increasing certainty of an attack will also satisfy the imminence requirement. Finally, the fact that previous al Qaida attacks have ahd as their aim the deaths of American citizens, and that evidence of other plots have had a similar goal in mind, would justify proportionality of interrogation methods designed to elicit information to prevent them. ”

“ That the United States considers itself bound by the obligation under article 16 to prevent ‘cruel, inhuman, or degrading treatment or punishment’, means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. ”

“ In criminal law, courts generally determine whether and individual’s word or actions constitute a threat by examining whether a reasonable person in the same circumstances would conclude that a threat had been made. ”

“ In cases involving the excessive use of force the central question is whether the force was applied with good intentions in an attempt to restore order or maliciously and sadistically with the purpose of causing harm. ”

“ Although the United States, as a practical matter, may be the arbiter of international law in deciding its application to our national activities, the views of other nations are relevant in considering their reactions, potential effects on our captured personnel in future conflicts, and possible liability to prosecution in other countries and international forums for interrogators, supervisors and commanders involved in interrogation processes and decisions. ”

“ The first priority of any detainee interrogation is to obtain intelligence on imminent or planned terrorist attacks against the United States and its citizens or interests A clearly related priority is to obtain intelligence to enable the United States to conduct the ongoing war on terrorism effectively. Detainee interrogations have proven instrumental to the United States efforts to uncover terrorist cells and thwart planned attacks. ”