In one of Barack Obama’s first acts as president, waterboarding was banned. The controversial interrogation method — in which a piece of cloth is laid over the detainee’s face and water is poured over it to simulate drowning — had been a key component of the Bush administration’s counterterrorism program.
“Waterboarding is torture. It’s contrary to America’s traditions, it’s contrary to our ideals, it’s not who we are, it’s not how we operate,” Obama told reporters at a press conference in 2011. “We don’t need it in order to prosecute the war on terrorism. If we want to lead around the world part of our leadership is setting a good example. And anybody who has actually read about and understands the practice of waterboarding would say that that is torture and that’s not something we do. Period.”
A year and a half after making those comments, the president has nominated a director of the FBI who has conceded that he signed a memo consenting to waterboarding.
James B. Comey, the Bush administration’s deputy attorney general under John Ashcroft, acknowledged at his Senate confirmation hearing Monday that he approved — under heavy protest — an Office of Legal Counsel memo that allowed not only waterboarding, but also sleep deprivation and other “enhanced interrogation techniques” on captured terrorist suspects.
Comey said of his interactions with Ashcroft, “I went to attorney general and said, ‘This is wrong. This is awful. You have to go to the White House and force them to stare and this and answer the question.’ I believe we should not be involved in this kind of stuff. … Now on the legal front, what I discovered with I became deputy attorney general, even though I as 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.”
Comey argued that the vagueness of the law made it impossible to oppose waterboarding on legal terms.
“When I first learned about waterboarding, when I became deputy attorney general, my reaction as a citizen and a leader was: this is torture,” Comey said in response to a question from Judiciary Committee Chairman Patrick Leahy’s (D-Vt.). about his 2005 statement that the “enhanced interrogation” techniques were legal. “It’s still what I think. To his great credit, Bob Mueller made sure the FBI had nothing to do with that business, and if I were FBI director it would never have anything to do with that.”
If confirmed, Comey would replace the retiring Robert Mueller, who has served as director of the FBI since Sept. 4, 2001. He will resign Sept. 4 after 12 years on the job — making him the second-longest serving director. President Obama has hoped that Comey, a Republican, would be able to avoid a Republican filibuster — a tactic has ensnared many of the president’s judicial and executive branch nominees — while still being palatable to Democrats. As acting attorney general in 2004, Comey famously blocked an attempt by White House Counsel Alberto Gonzales and Chief of Staff Andrew Card to get the Justice Department’s approval for a warrantless electronic surveillance program that is now under the oversight of the Foreign Intelligence Court of Review.
In his testimony, Comey supported the nation’s electronic surveillance programs and the intelligence community as they operate today.
“I’m not familiar with the details of the current (National Security Agency surveillance) programs,” Comey told the committee. “Obviously, I haven’t been cleared for anything like that, and I’ve been out of government for eight years.”
But, he said, “I do know as a general matter that the collection of metadata and analysis of metadata is a valuable tool in counter-terrorism.”
“Sometimes folks also don’t understand what the FISA court is. They hear secret court. Sometimes they hear rubber stamp,” Comey said. “In my experience, which is long, with the FISA court, folks don’t realize that it’s a group of independent federal judges who sit and operate under a statutory regime to review requests by the government to use certain authorities to gather information. And it is anything but a rubber stamp… Anyone knows federal judges and has appeared before federal judges knows that calling them a rubber stamp is — shows you don’t have experience before them.”
Opposition from the right
Sen. Rand Paul (R-Ky.) has threatened to filibuster Comey unless Mueller produce answers on the FBI’s use of unmanned aerial vehicles in the United States. Previously, Paul led a filibuster against CIA Director John Brennan’s confirmation on the grounds that Attorney General Eric Holder failed to definitively rule out the use of drones to kill American citizens on American soil.
Paul, in a June 20 letter to Mueller, asked the director how long the FBI has been using drones, whether the FBI has developed guidelines on drone use, whether the FBI has consulted Congress on its drone use, whether the FBI will publicly disclose these guidelines, how large the FBI’s drone arsenal will be, whether the drones can be armed, and whether the FBI is prohibiting federal grant funds from being used for private drone purchases.
“I indicated that I would like a response to my questions by July 1, 2013, which was a very reasonable timeframe to produce a response to a limited number of questions,” Paul said in a follow-up letter sent Tuesday. “Legitimate questions on important government functions should not be ignored.”
“The President has submitted the nomination of your successor to the Senate, the Senate Judiciary Committee has begun consideration of his nomination, and that nomination could be considered by the full Senate this month,” Paul added. “Without adequate answers to my questions, I will object to the consideration of that nomination and ask my colleagues to do the same.”
The ranking Republican in the Senate Judiciary Committee, Sen. Charles Grassley (R-Iowa), has indicated that Comey’s hedge fund past may be an issue of concern, as there may be a conflict of interest.
“If he’s nominated, he would have to answer questions about his recent work in the hedge fund industry. The administration’s efforts to criminally prosecute Wall Street for its part in the economic downturn have been abysmal, and his agency would have to help build the case against some of his colleagues in this lucrative industry,” wrote Grassley in an emailed statement to Pensions & Investments.
“I appreciate … that Mr. Comey has a lot of experience on national security issues, which is one of the most important focuses for the FBI in the aftermath of 9/11 and (he) has shown integrity in dealing with these matters,” Grassley continued.
Comey has served as general counsel of Bridgewater Associates — a major hedge fund consultancy — from 2010 until earlier this year.
The change of leadership at the FBI comes at a time when the bureau is under attack for several mishandled investigations, including the secret gathering of Associated Press and Fox News communications and the possible missed warning from Russian authorities concerning a suspect in the Boston Marathon bombing.
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