Why Obama won’t prosecute those responsible for torture

I explain the legal and normative problems with prosecution in Slate.

My colleague Richard McAdams pointed out to me another law that would frustrate prosecution, one that I missed and has not received much attention in the press. The Detainee Treatment Act of 2005 says:

In any … criminal prosecution against an … agent of the United States Government … arising out of the … agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, … and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such … agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

42 U.S.C.A. § 2000dd-1.

Mistake of law provides a defense for all CIA agents acting within the parameters of OLC’s legal advice.