As I understand the reasoning of the recently disclosed DOD/DOJ studies authorizing the use of "torture" based interrogation techniques, they claim that GWBush has authority to use torture because he cannot as "Commander-in-Chief" be limited in his tactics for waging war. According to the DOD/DOJ analyis, this power of the Commander-in-Chief to wage war without restraint, trumps even the Geneva Convention and United States statutes.
The next step of this analysis is to point out that decisions by the President infer a sense of validity as to those decisions and that subordinates then lack the ability to refuse to follow the decisions of the "Commander-in-Chief" regarding the use of torture. This lack of ability to refuse to follow these decisions should insulate subordinates from liability for their actions that are otherwise in apparent violation of the Geneva Convention and US statutes -- because their conduct was authorized by the "Commander-in-Chief" and because they lack the ability under these circumstances to make a "moral choice" against torture, citing to the Nuremberg Trials.
No wonder the president has a personal lawyer. Everyone is protected under these DOD/DOJ studies except the President.
Subordinates of the President can say that their torture related conduct was authorized by the President because it is the Commander-in-Chief (and not the Secretary of Defense) who has claimed the implied authority to wage war unconstrained by the Geneva Convention or federal law. These surbordinates can also point out that the government has already recognized that they lacked the ability under these circumstances to make the "moral choice" to not particpate in torture related activities.
What about GWBush? This DOD/DOJ anaylsis authorized him to walk with a bigger swagger (larger than the Geneva Convention, etc.), but did not inform him of the consequences of the analysis being incorrect. If GWBush does not have the implied authority to overrule the Geneva Convention and federal law as Commander-in-Chief, then because these laws are criminal laws rather than civil or administrative laws, GWBush is personally liable for their violation when he directs others to act contrary to those laws by using torture for interrogation.
The best defense for GWBush is to claim that these DOD/DOJ studies were never accepted by him, that he never acted in contravention of the Geneva Convention, and that others used these studies to encourage subordinates to violate the Geneva Convention without his approval. The weakness of this defense is that it is fact based, i.e., did GWBush know or approve of torture based interrogation, and is there a subordinate who will come forward and convincingly say that the "Comander-in-Chief" knew of these techniques.
Everyone has a built in defense except GWBush who must rely the Rumsfeld/Cheney duo to breakoff any claim that knowledge of these torture techniques had been passed up to the Commander-in-Chief, to eliminate any claim that he exercised his claimed, implied power as Commander-in-Chief to override the Geneva Convention and federal law. This duo's problem is that they cannot say that they are the ones who permitted the torture, because the studies state that the implied power to allow torture comes only from the Commander-in-Chief.
Will GWBush succeed? My intuition is that people in the GWBush administration write a lot of memos that are not read by GWBush but which may cause harm to GWBush.