Furthermore, there are instrumental arguments against the use of waterboarding. First, torture is neither an efficient nor an effective means of gathering intelligence. Second, waterboarding prisoners violates our treaty obligations, thus offending our allies in the War on Terror. Third, by engaging in this practice ourselves, we invite our enemies to treat our captured soldiers likewise, and if our government adopts the position that waterboarding is legal, then we will have given up the right to prosecute our enemies for subjecting our soldiers to this treatment. Finally, in the event that we were to obtain useful information from a prisoner by means of waterboarding, it would be virtually impossible to prosecute the prisoner because coerced confessions and any evidence obtained by means of a coerced confession are constitutionally inadmissible, despite provisions of the Detainee Treatment Act and the Military Commissions Act which purport to preserve the admissibility of coerced confessions.
The policy considerations which militate against the use of waterboarding are compelling, but they are not relevant to assessing the legality of the practice. Regardless of its utility or lack of utility as a method of interrogation, waterboarding violates both the letter and the spirit of the Torture Act, the War Crimes Act, and the Prohibition against Cruel, Inhuman, or Degrading Treatment. Accordingly, waterboarding is illegal.