Marty Lederman has an 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?"

  Here's the latest set of results from about 10 months ago:

Never Justified: 29%
Rarely Justified: 25%
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.

  UPDATE: My apologies for an earlier transcription error -- the "rarely justified" numbers in the poll are 25%, not 35%,