> Waterboarding involves risk prevention not retribution,
> the latter being the purpose of criminal justice.
Michael wasn't suggesting waterboarding for punishment; he was suggesting that it be used to find the truth: whether waterboarding can really be expected to produce actionable intelligence. There's a suspicion that it cannot; but there's an assertion by Cheney that it can.
So, the suggestion is to waterboard him until he tells you the truth you really want to hear: namely, that he's been lying all this time about how useful it really is.
I think it's a fine experimental setup.
/jordan