Sorter Bush Administration According to the Senate Torure Report

If the law is against you, pound the facts
If the facts are against you, pound the law
If the law and the facts are against you, pound the prisoners.

of course I can’t keep it shorter so another

If the law an even the OLC opinions are against you, pound the facts
If the facts are against you, pound the OLC opinions
If the law and the OLC opionions are against you and top secret, lie.

The poinst is that when the office of legal council (OLC) claimed that “enhanced interrogation” of Abu Zubaydah wasn’t against the law, they stressed that the determination which they wree determined to make depended on the extraordinary facts of the particular case. But those supposed facts were falsehoods.

Futhermore the CIA torturers continued to torture Abu Zubaydah after they conceded that one key claim of fact — that he knew about imminent attacks on the USA, was almost certainly false. Also they tortured others and only afterwards went back to the OLC. Since the original deterination was explicitly case specific, they can’t claim the OLC mislead them. Since the OLC opinions are plainly incorrect as a matter of law, that would be their only shred of a defence.

Also all public defences of the torture program were based on extremely strong and false claims of fact (some made to congress and therefore felonies).

So the law bans torture, but maybe a defendent can win acquital using the necessity defence if the torture were necessary and sufficient to prevent a terrorist attack . This expplicitly requires that no other method would work (and that torture would work). Since Hassan Ghul, -Abu Zubaydah and Abd al-Rahim al-Nashiri cooperated before being tortured and Khalid Sheik Muhammad kept lying after being tortured, the two conditions were never met. There is almost no evidence that the torture served any useful purpose let alone that it was necessary.

I think that, if for the sake of argument, one pretends that OLC opinions are authorotative, then one must conclude that crimes were committed.

And always note that paluasibly alleged violations of the Geneva Conventions (including common article three which bans torture of anyone ever) must be investigated, and, if there is proof, prosecuted. The conventions are an exception to the principle of prosecutorial discretion and are US law.