As a matter of history, law and morality, the president is wrong. Two of the six purposes set forth in the Preamble to our Constitution are to "establish justice" and "provide for the common defense."
Our Founding Fathers were not cowards. They placed their faith, and the very existence of our newborn nation, in the rule of law. The pursuits of justice and our national security were not mutually exclusive for these men. We were to pursue both with equal zeal and vigor. More than 220 years later, the lessons are no different.
Waterboarding is torture. It was when the Spanish Inquisition, Gestapo and Japanese soldiers during World War II used it to coerce confessions, and it is now. The United States is signatory to the 1984 Convention Against Torture, which was ratified by the Senate. In authorizing waterboarding, the United States is violating both U.S. and international law.
Furthermore, experienced interrogators consistently and constantly state that torture is ineffective. A detainee subjected to torture will tell the interrogator anything to stop the torture. That is human nature. That is also the antithesis of a successful and sophisticated interrogation, whose purpose it is to get viable, actionable intelligence.
What is missing in this super-heated, jingoistic discussion regarding the limits of interrogation is rationality and objectivity. Without a candid - and necessarily graphic - description of waterboarding, the discussion is vague and meaningless. We should not indulge such vague word games, particularly, when the law is broken - by presidential order - in our name.
When subjected to waterboarding, a detainee is held or strapped down on a gurney with water poured - against his will - into his mouth. At some point, the detainee begins vomiting. Thereafter, the process is repeated: more water, more vomiting.
Some characterize this process as "simulating" drowning and impending death. Not so from the detainee's perspective. He is actually drowning and subjectively is convinced he is going to die. Not simulated death, rather actual death. In such circumstances, most people would confess to anything. Is this effective interrogation? Not by any measure.
While the president insists that waterboarding has proven effective in preventing terrorism, the truth may well be different. The administration repeatedly has insisted that Khalid Sheikh Muhammad - the mastermind of 9/11 and undoubtedly the "worst of the worst" - provided valuable information when subjected to waterboarding.
However, KSM confessed to a litany of crimes that defies imagination. Superman could not have possibly done all the things that KSM claims to have done or been all the places KSM claims to have been.
Furthermore, the administration has hemmed and hawed concerning the unanswered question: Would KSM have confessed to crimes without being subjected to waterboarding? Was it necessary to waterboard him, and did he provide accurate information? The refusal to answer these questions suggests the answer is in the question.
Interrogators must be able to receive information from detainees while protecting not only the rights of the detainee, but also of the rule of law itself. Interrogators must be able to use coercive interrogation measures that have proven to be effective.
These measures include sleep deprivation, loud and cacophonous music, modulation of room temperature, stress positions and the placement of a sack over the head.
However, these methods of coercion must be subject to strict conditions. Authorization to implement any of them should be made in writing by the head of the relevant national intelligence service. A physician subject to the Hippocratic oath (and therefore in a patient-physician relationship with the detainee) and outside the interrogator's chain of command must be physically present at all times in the detention center and the imposition of any of these measures must be time limited.
Is this proposal controversy-free? No. However, it seeks to create a balance between legal and illegal interrogation measures and provides interrogators the lawful means to gain necessary information. It differs from the president's adamant insistence on enabling illegal and medieval methods in a most significant way: It not only protects the detainee, but also the interrogator, against an unfettered executive.
By supporting waterboarding, President Bush has placed the nation's interrogators in an extraordinary bind. His mandate to them is to turn their backs on the rule of law and embrace the same sadistic measures used by many evil and failed regimes throughout history.
The president's decision does a fundamental disservice to those who have taken an oath to protect us and ultimately, like the perverse excesses of Abu Ghraib, makes us weaker and not stronger.
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* AMOS N. GUIORA is a professor of law at S. J. Quinney College of Law, University of Utah. DANIEL C. BARR is a lawyer with Perkins Coie Brown & Bain in Phoenix.
