AMY GOODMAN: Opposition to attorney general nominee Michael Mukasey is growing, after the retired federal judge refused again to declare the practice of waterboarding a form of torture. On Wednesday, Senate Majority Whip Dick Durbin of Illinois and Democratic Senator Sheldon Whitehouse of Rhode Island announced they’ll join Democratic Senator Joe Biden of Delaware in voting against Mukasey’s nomination. All three serve on the Senate Judiciary Committee, which will vote on Mukasey’s nomination on Tuesday. A party-line vote by the Democrats on the Judiciary Committee could block Mukasey’s nomination from reaching the Senate floor, but the remaining Democrats on the committee have declined to say how they’ll vote.

The controversy over Mukasey centers on his comments about the interrogation practice known as waterboarding, which is widely considered a form of torture.

Senator Sheldon Whitehouse of Rhode Island asked Mukasey about waterboarding during the second day of his confirmation hearings on October 18.

SEN. SHELDON WHITEHOUSE: Finish that thought. So, is waterboarding constitutional?

MICHAEL MUKASEY: I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.

SEN. SHELDON WHITEHOUSE: “If waterboarding is constitutional” is a massive hedge.

MICHAEL MUKASEY: No, I said if it’s torture. I’m sorry, I said if it’s torture.

SEN. SHELDON WHITEHOUSE: If it’s torture. That’s a massive hedge. I mean, it either is, or it isn’t. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping him down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning — is that constitutional?

MICHAEL MUKASEY: If it amounts to torture, it is not constitutional.

SEN. SHELDON WHITEHOUSE: I’m very disappointed in that answer. I think it is purely semantic.

AMY GOODMAN: That was attorney general nominee Michael Mukasey, questioned by Senator Sheldon Whitehouse of Rhode Island on October 18.

Earlier this week, Mukasey issued an additional written response about his views on waterboarding. He wrote he feels the practice seems “over the line” and “repugnant,” but he said he does not have enough information to determine if it’s illegal.

The New York Times reports Mukasey might be refusing to say waterboarding is illegal because it could open the door to criminal or civil liability for many CIA and military interrogators. Some legal experts suggest liability could go all the way to President Bush, if he explicitly authorized waterboarding.

On the campaign front, Senators Christopher Dodd, Hillary Clinton, Barack Obama have all announced they’ll also vote against Mukasey when his nomination goes before the full Senate. Three Republicans on the Judiciary Committee — Lindsey Graham, John McCain, and John Warner — have criticized Mukasey’s response, but they’ve suggested they’ll support the nomination.

To talk more about the nomination, Marjorie Cohn joins us. She is president of the National Lawyers Guild, a professor at Thomas Jefferson School of Law, author of the new book, Cowboy Republic: Six Ways the Bush Gang has Defied the Law. She is in Washington this week for the National Lawyers Guild 70th anniversary. Congratulations.

MARJORIE COHN: Thank you, Amy.

AMY GOODMAN: Mukasey, your assessment?

MARJORIE COHN: Mukasey has made it clear that he is going to construe the law in favor of presidential power. And when he says that he doesn’t know what waterboarding is, he’s probably the only person in this country, and indeed in many countries, who doesn’t know what waterboarding is. And he can’t say whether it’s torture or not. And yet Rear Admiral John Hutson, who also testified at the hearing, said other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish Inquisition. It has been repudiated for centuries.

AMY GOODMAN: That was…?

MARJORIE COHN: That was John Hutson, retired Navy admiral, who also testified at Mukasey’s confirmation hearing.

AMY GOODMAN: Why do you think Mukasey will not say it’s torture?

MARJORIE COHN: Because the Bush administration has tried from the beginning to insulate itself against war crimes prosecutions. Under the U.S. War Crimes Act, torture can be prosecuted as a war crime, and even if the person didn’t personally commit the torture, commanders, all the way up the chain of command to the commander-in-chief, can be held liable, if they knew or should have known their subordinates would be torturing and they did nothing to stop or prevent it. And Bush knows that, and he is walking a very fine line. Mukasey is walking a very fine line, because if he says that waterboarding is torture — and the administration has admitted that it has engaged in waterboarding at least three times — then we’re talking about war crimes liability, and it could go all the way up the chain of command.

And I also want to say that one of the people who was waterboarded was Khalid Sheikh Mohammed at one of the secret CIA black sites, and he was supposedly the mastermind of the 9/11 attacks. And he was waterboarded and tortured so severely that his information is practically worthless, which means that the waterboarding is actually interfering with the administration’s ability to get good intelligence to stop terrorism.

AMY GOODMAN: Marjorie Cohn, you’re testifying today in Congress.

MARJORIE COHN: Yes, at the House Judiciary Committee. It’s a public policy forum. I’m going to be testifying about torture from 2:00 to 4:00 p.m. in the Rayburn Office Building. I think it’s Room 2141.

AMY GOODMAN: And what are — why is the hearing being held?

MARJORIE COHN: The hearing is being held — it also covers the illegality of the war, and it’s being held so that Congress can understand why this illegality is happening in Iraq, and also looking toward an impending war on Iran, which would be equally illegal.

AMY GOODMAN: Congressmember Conyers is holding the hearing?

MARJORIE COHN: He will be holding the hearing, yes.

AMY GOODMAN: You’re celebrating the 70th anniversary of the National Lawyers Guild. Can you talk about why it formed?

MARJORIE COHN: In 1937, 70 years ago, the American Bar Association would not admit people of color. So the National Lawyers Guild started as an alternative to the American Bar Association. And during the last seventy years, National Lawyers Guild legal people — lawyers, law students, legal workers — have been involved in the cutting edge struggles to support the rights of people. And our preamble says it all, and we’re dedicated to the proposition that human rights are more sacred than property interests.

AMY GOODMAN: You have written a great deal about the Bush administration. What do you think is President Bush’s greatest offense at this point?

MARJORIE COHN: The war in Iraq is clearly his greatest offense, and the torture is part and parcel of that. And in his co-called war on terror, he has really made us less safe. He has put many of our lives in danger. And more than 3,800 people have lost their lives in this country. Hundreds of thousands of Iraqis have been killed. Untold numbers of people have been wounded on both sides. And, in fact, he is rattling — he and Cheney are rattling the sabers against Iran and promise to do even more horrible damage.

AMY GOODMAN: Have the Democrats coming to power in Congress made a difference?

MARJORIE COHN: They are holding hearings. So far, that’s the only difference. They gave him the so-called Protect America Act, which legalizes his illegal spying program, which is not used just to spy on the terrorists, but also used to spy on dissidents, people who dissent against the administration policy. And I’ve seen a lot of timidity on the part of the Democrats.

This vote in the Senate Judiciary Committee that’s going to happen next week on the Mukasey nomination is going to be very telling, to see if the Democrats put their money where their mouth is. And it’s not just waterboarding. If you look at his testimony, it supports the Bush administration in lockstep right down the line.

AMY GOODMAN: In what other ways?

MARJORIE COHN: He would not say that the President is forbidden from violating congressional statutes like the Foreign Intelligence Surveillance Act that allows — that regulates electronic surveillance. He would not say that he would follow the law in referring congressional contempt citations to the grand jury, the way the law requires when Congress holds people in contempt for refusing to testify about the attorney general spying purge. He refused to say that the president cannot hold a U.S. citizen caught in the United States indefinitely. He refused to say that habeas corpus is constitutional, under the Suspension Clause the Constitution, for all people. And it goes on and on and on.

AMY GOODMAN: Marjorie Cohn, I want to thank you for being with us. Marjorie Cohn, who is president of the National Lawyers Guild, celebrating 70 years. It was established in 1937.