AG Mukasey and waterboarding

Captain Ed makes a salient point:

Mukasey doesn't get to classify waterboarding as torture. As I have repeatedly pointed out, the AG and the DoJ don't get to write their own laws. Congress writes the laws, and the AG makes sure that they are enforced. Congress has explicitly forbidden the Pentagon to use waterboarding as an interrogation technique, but has not yet passed that same restriction on other agencies -- and until they do, any instance of waterboarding cannot be said to be explicitly illegal.

Well, then, why doesn't Congress simply outlaw waterboarding at the CIA?

Congress does not want to take responsibility for restricting the options for time-critical interrogations. Many of these same Senators have thought what a future commission looking into a massive terrorist attack on the US might say if we had a member of the conspiracy in custody and failed to save hundreds or thousands of American lives through coercive interrogation techniques. They want to make sure that they don't have to answer for their choices in those circumstances as those involved in building "the wall" between law enforcement and intelligence agents did after 9/11. They like being in the position of demanding to know why dots weren't connected when they kept putting barriers between the dots themselves.

Even the NY Times reported that Mukasey could not take an explicit position on waterboarding since it would evince an opinion he was not authorized to make, either as a nominee or as attorney general. This authority rests with the executive branch unless Congress steps in to force a change in policy.