Comey as FBI Nominee: Of All the People Who Could be Nominated orThe Empire Strikes Back Again

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By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

At his confirmation hearing before the Senate Judiciary Committee on Tuesday, Mr. Comey said that the government’s statute on the issue [waterboarding]at the time was vague, complicating the ability of government lawyers to determine its legality. He said that despite his authorization of the opinions in 2005, he had urged senior Bush administration officials to end the use of the practice.

“Even though I as a person, as a father, as a leader thought, ‘That’s torture — we shouldn’t be doing that kind of thing,’ I discovered that it’s actually a much harder question to interpret this 1994 statute, which I found very vague,” Mr. Comey, 52, said at the hearing.       

Many senators, legal scholars and human rights advocates have long believed that the 1994 statute clearly banned waterboarding.       

Mr. Comey said that he urged the attorney general at the time, Alberto R. Gonzales, to make his point directly to the White House.       

“He took my — actually literally took my notes with him to a meeting at the White House and told me he made my argument in full and that the principals were fully on board with the policy, and so my argument was rejected,” he said.       

Mr. Comey did not say at the hearing why his position had changed. But one of his aides said Tuesday afternoon that Mr. Comey believed waterboarding was illegal for several reasons: President Obama had banned its use, the legal opinions supporting it had been withdrawn, and Congress passed an act in late 2005 clearly banning such treatment.

Comey is known for his refusal to sign off as Acting Attorney General on Bush era warrantless wiretapping, making him a hero of sorts in the privacy/civil liberties space in Washington, D.C.   In his testimony above of course we see that he did sign off on certain of the torture memos.  His position today is changed because the law has changed and the position of the President has changed.

Neither of his actions in these two cases warrant any enthusiasm about his possible confirmation.  Rather, they should be seen as the triumph of the intelligence services over the FBI in the longrunning struggle on the proper way of framing the torture by the American intelligence services at the behest of the highest levels of the Bush administration and the non-prosecution of those involved by either the Bush or Obama administrations.

Comey’s principled stand on the warrantless wiretapping makes him one of the few lawyers from that period in the Justice Department who was willing to buck the Presidential overreach.  Yet, as a practical matter for Americans, the drama of the Ashcroft hospital room scene was only drama.  Bush with Gonzales and Card found a workaround to continue the warrantless wiretapping and Congress has granted telecoms immunity and the program continued and, as we have learned with the Snowden revelations, is as vast as one could possibly imagine.  Put another way, Comey’s assertion of independence was without effect as it did not curb the national security excesses that were and remain unconstitutional.

Turning now to the torture memos, these 2005 memos most likely mean the late 2004 memo of Dan Levin and the 2005-2006 memos of Stephen Bradbury.  On the Dan Levin memo,  Levin as a man of principle still acquiesced to adding a footnote to say the legality of what had been done before pursuant to the Yoo-Bybee 2002 torture memos was not changed by his memo. When he was turning to the memo of guidance on specific techniques, he of course lost his job and was replaced by Stephen Bradbury.  The 2005-2006 Stephen Bradbury memos are disgraceful on both interrogation techniques and conditions of confinement.  All these memos were done post-Abu Ghraib scandal blowing up and gave political and legal cover to those who wished to continue torturing up until the Detainee Treatment Act of 2005 to a certain extent and the Hamdan 2006 decision came down saying Common Article 3 of the Geneva Conventions applied.

Comey states he authorized those memos while urging the torture not being done.  The point though is that, whatever he did, just like the warrantless wiretapping, the torture was able to be continued.

This carefully orchestrated testimony may be hoped by some to make Mr. Comey confirmable because 1) he was a valiant though unsuccessful hero on warrantless wiretapping and 2) he was a less valiant and just as unsuccessful person on the waterboarding memos.

In both cases, he ends up being a person who was unsuccessful at thwarting intelligence services abuses or winning arguments with the President to curb Executive abuses.

It is THAT track record of lack of success in prevailing on Executive abuses that is being sought through his confirmation – that he would have similar lack of success at the FBI.  The consequence of that would be that the intelligence services would have a person at the head of the FBI who would be ineffectual and without any inclination to revisit warrantless wiretapping or torture done before the Detainee Treatment Act of 2005.  His assertion of vagueness of the torture law is a thinly veiled signal to the torturers of that period that they will be safe from FBI prying on his watch.

Mr. Comey also says that he encouraged the Attorney General to argue in the Principals’ meetings against these policies, but that the policies were adopted.  Does anyone other than me see his statement as a confirmation that the principals were and remain criminally liable for torture for adopting that policy?   Yet, again, for those principals his testimony is a reassurance that they can sleep soundly at night as the head of the FBI will not disturb them.

His testimony is artful and convenient careerist signaling. Give him credit, he plays the game masterfully.

However, at the moment of judgment – he only stood really strong when what his government was doing might have blowback on Americans.  When what his government was doing might hit foreigners, he was perfectly willing to do the things that countenanced the “legalization” of the torture.

Once again, not good enough.  If you need a name, call Alberto Mora.  Of course, the problem with him is that there are so many present and former members of Congress who also went along with and countenanced the warrantless wiretapping and the torture, that Alberto Mora as head of the FBI would be too much shaming in one nominee.  Better a compliant one with the aura of independence, than a truly independent nominee.

This sad situation is a further example of the corrosive effect of the non-prosecution of the high-level members of government for the torture.  These high-level members are allowed to seep back into our government with their lack of will on torture.

I am sure John Rizzo, Jose Rodriguez, and other company men are sleeping well knowing that Comey is set to be at FBI.  I for one am not.