"I told ya so!" [continued]

I am now going to venture into a realm in which I have exactly zero competence: THE LAW!

The Law is the true embodiment
Of everything that’s excellent.
It has no kind of fault or flaw,
And I, my Lords, embody the Law.
[G&S, Iolanthe]

Brief recap of the presenting issue:

Mukasey: No waterboarding inquiry plans

Mukasey effectively argues that CIA personnel can reasonably assert the defense that they relied on a DoJ opinion which allowed waterboarding, and he's not going to question whether or not this reliance was justified.

Now, under what circumstances is this defense legitimate?

I don't know the relevant criminal statutory or case law, so will argue from analogy to a well-publicized civil case: Enron's bankruptcy.

A question addressed by the Court-Appointed Bankruptcy Examiner in the Enron case was whether Enron's corporate officers could legitimately assert their reliance on independent external accounting advice as a defense.

He first notes that,

"The applicable law ... gives an officer the right to rely on public accountants with respect to matters the officer reasonably believes to be withn the accountants’ professional competence."

He goes on to note that,

"In order to avail themselves of this defense, however, such reliance must not be unwarranted. The defense fails if the officers (i) possess actual knowledge of the facts that would render reliance unwarranted or (ii) have a measure of knowledge that would cause another person in a similar position and under similar circumstances to make reasonable inquiry that would lead to information rendering reliance unwarranted."

If such a standard were applied with respect to waterboarding, I'd suggest that the reliance on a DoJ opinion could be found to be unwarranted based on a finding that the agents involved ...

"have a measure of knowledge that would cause another person in a similar position and under similar circumstances to make reasonable inquiry that would lead to information rendering reliance unwarranted"

with respect to the advice provided by DoJ.

Again, my legal competence is zero, and this is an argument by analogy with civil law,... but it seems a plausible argument against CIA's unquestioning reliance on DoJ's opinion with respect to waterboarding. (I know that I'd want a second opinion if I were ordered to torture someone!)