Besides prosecutorial discretion and jury nullification, there is always the presidential pardon option. To me, this demonstrates that Bush doesn'tÂt have in mind rare cases of torture- which, if proved vital, or event useful, could be pardoned. He wants it to be a regular procedure, for which pardons would be unwieldy given the number of people needing them.This is from TPM
The real danger is if torture can be routinely used by individuals who know they will face no review of their judgment and actions.
If torture is really the only choice possible, the torturer and the decision-maker who decides to use it must be subject to effective review and know they will face severe penalties if they are wrong.
If they use torture and it really was necessary, then the prosecutor can judge that it comes under his discretion not to prosecute. If he decides otherwise, that is what we have juries for. Finally, if both of these fail when torture was truly necessary, there is always the possibility of a Presidential Pardon.
That's three opportunities to justify the use of torture. The victim of torture has only a single opportunity to get a favorable decision. The person making the decision to apply torture must know that his decision will be reviewed, that his decision must be judged as the best of a set of very bad choices, and that the penalty for being wrong is very high.
Using torture is not a decision we want anyone to make as a matter of routine. But that is what Bush wants to approve.