Posted by Orin Kerr:
Mukasey, Waterboarding, and Public Opinion:
http://volokh.com/archives/archive_2007_10_21-2007_10_27.shtml#1193155425
Marty Lederman has an [1]interesting post at Balkinization about
waterboarding, Michael Mukasey's testimony, and the reaction of Senate
Democrats and Republicans to it. An excerpt:
The real explanation [for why Mukasey did not condemn
waterboarding] lies in . . . Mukasey's revealing testimony that
"there are people who are using coercive techniques and who are
being authorized to use coercive techniques, and for me to say
something that is going to put their careers or freedom at risk
simply because I want to be congenial�I don't think it would be
responsible of me to do that." Mukasey can't say that waterboarding
is unlawful because OLC has already opined -- several times over,
apparently -- that it's not, and CIA operatives have acted in
reliance upon that advice. Mukasey understandably is reluctant to
publicly accuse those for whom he is about to work of being war
criminals.
I haven't followed these issues closely, so I don't feel I have much
informed to say about them, but did have one meta-level comment about
the issue. As far as I can tell, the best poll on public attitudes
towards torture generally is one provided by the Pew Research Center
for the People & the Press. The question they ask is this: "Do you
think the use of torture against suspected terrorists in order to gain
important information can often be justified, sometimes be justified,
rarely be justified, or never be justified?"
[2]Here's the latest set of results from about 10 months ago:
Never Justified: 29%
Rarely Justified: 35%
Sometimes Justified: 31%
Often Justified: 12%
Unsure: 3%
I gather these results help explain why some politicians are not
condemning techniques like waterboarding: Whether or not such
techniques technically count as "torture," a significant majority of
the public in the United States doesn't want a categorical ban on
torture. Now just to be extra clear, I am not claiming and could not
possibly claim that these poll results shed any light on the legality
or the morality of any of these techniques nor whether they are better
banned or permitted as a matter of policy. A public opinion poll is
only a public opinion poll. But I think the poll numbers provide a
helpful context to understand the public debate on the issue.
A prospective note about comments: In my experience, this issue
draws out more anger and frustration than any other issue within the
usual range of blogging topics here at the VC. Despite that -- or
perhaps because of that -- I think it's unusually important for
commenters to be civil and respectful. To enforce that norm, I'll be
unusually ready to delete comments that I think cross the line.
References
1. http://balkin.blogspot.com/2007/10/welcome-senatorial-challenge.html
2. http://www.pollingreport.com/terror.htm
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