From the Washington Post:
Schumer and Feinstein said they took solace in Mukasey’s assurances that he would enforce any future waterboarding ban passed by Congress. That argument prompted a robust retort from Sen. Edward M. Kennedy (D-Mass.). “He will, in fact, enforce the laws that we pass in the future? Can our standards have really sunk so low?” Kennedy said. “Enforcing the law is the job of the attorney general. It’s a prerequisite, not a virtue.” . .
Not only that. Waterboarding is already illegal according to Marty Lederman:
— On July 6, 1955, the Senate unanimously gave its advice and consent to the ratification of the Geneva Conventions, each of which (in Article 3, which applies to al Qaeda detainees) categorically prohibits “torture” (not to mention “cruel treatment”).
— On October 27, 1990, the Senate unanimously gave its advice and consent to the ratification of the Convention Against Torture, article 2(1) of which obligated the United States to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”
— In compliance with article 2(1) of the CAT, in 1994 the Senate and House approved, and on April 30, 1994 President Clinton signed, the Torture Act, which categorically prohibits torture outside the United States (18 U.S.C. 2340A(a)).
— And it’s not as if torture was legal even before the Senate, House and President acted on these instruments. As the Supreme Court recently explained, under international law (including the laws of war binding on the executive branch), the flat ban on torture is among the handful of international law norms with the greatest “definite content and acceptance among civilized nations”: Even for purposes of civil liability, “the torturer has become–like the pirate and slave trader before him–hostis humani generis, an enemy of all mankind”.
So, in summary, Mukasey refuses to enforce existing laws against waterboarding but if the Congress passes a new law, he promises to enforce it. Honest.