Affirmative defenses

“SO VAST AN AREA OF LEGAL IRRESPONSIBILITY”? THE SUPERIOR ORDERS DEFENSE AND GOOD FAITH RELIANCE ON ADVICE OF COUNSEL, Mark W.S. Hobel,  111 COLUMBIA L. REV. 574 (2011).

This Note argues that the modern superior orders defense represents the most relevant and just paradigm for assessing the potential criminal liability of U.S. interrogators who claim that they were authorized and counseled bygovernment lawyers prior to using techniques that likely constituted torture.

However, recent U.S. law, most importantly sections of the Detainee Treatment Act of 2005, constitutes an extension of the superior orders defense as it would apply to interrogators, and may not only fully immunize government officials and agents involved in interrogations, but also disrupt emerging international legal norms surrounding the superior orders defense.
Part I of the Note discusses the development of the modern superior orders defense in international law and its general incorporation into national military laws, including the Uniform Code of Military Justice. Part II analyzes recent U.S. law and practice and concludes that it may deviate from the international legal standard for the superior orders defense. Part III suggests means through which U.S. practice may be brought back into conformity with the international standard, while at the same time contributing to its positive development.

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