More on the DOD torture memo

From the New York Times

The report also advised that if an interrogator "has a good faith belief his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture."

The report also said that interrogators could justify breaching laws or treaties by invoking the doctrine of necessity. An interrogator using harmful techniques that cause harm might be inoculated from liability if he "believed at the moment that his act is necessary and designed to avoid greater harm."

This is bizarre the argument is that the mental state of the alleged torturer must be assessed in order to arrive at a verdict. The alleged torturer is the only person who can know this, so, short of a guilty plea, proof beyond reasonable doubt is impossible. Did the defence department lawyers really mean to say that "gee I didn't know that people minded having limbs cut off" should be an decisive legal defence. Just try to prove I knew (without torturing me of course). Or how aobut "I believed at the moment that I had to torture him or the Martians would invade"

To me this is related to the argument made by Ashcroft "Ashcroft refused to provide several of the memorandums, saying they amounted to confidential legal advice given the president". It seems to me that the defence department lawyers lacked the proper state of mind to give legal advice, being either insane or completely contemptuous of the concept of law at the time. Does that mean that their memos are not protected ? By their own logic it should.