These are the arguments one John Winn would use for a jury:
[W]ere I defending such a case, my final argument would simply consist of replaying tapes of New Yorkers jumping from the World Trade Center roof to avoid being immolated by burning aviation fuel.
Finally, plausible evidence that plots were in fact foiled and American lives saved through "harsh methods" would be the ace-in-the-hole. Besides, no one likes a Monday morning quarterback, especially if the defendants can convince the jury they actually did something to protect us from Osama bin Laden.
I do not doubt that these could be effective ploys - but do they not reduce the law to a farce? If all criminal acts have to be worse than 9/11 to be successfully prosecuted and if the only criterion needed to defend any action - war crime or not - is that the defendant "actually did something to protect us from Osama bin Laden", then there is no law of war at all. The government is empowered to do anything to anyone and be immune from accountability. This is, at bottom, the position of the far right. At least John Yoo simply proposed a more straightforward jury nullification of all potential war crimes.
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