James B. Comey isn't afraid to stand up to a president. So nominating him to replace Robert Mueller III as head of the FBI at a time when the Obama administration is facing hard questions over its civil liberties record is supposed to show that the president still prioritizes the rule of law and national security in equal measure.
"Jim understands that in time of crisis, we aren’t judged solely by how many plots we disrupt or how many criminals we bring to justice," Obama said as he officially nominated Comey in June. "We’re also judged by our commitment to the Constitution that we’ve sworn to defend, and to the values and civil liberties that we’ve pledged to protect."
Comey nearly resigned over domestic surveillance programs when he was deputy attorney general. But his reputation for defiance of Bush-era excesses in the fight against Al Qaeda may be overstated, and some civil liberties and human rights groups are considerably less impressed than the Obama administration.
"There are some very serious questions that need to be asked about the role that he's played on various issues related to the detention, interrogation and surveillance of terrorism suspects during those years," says Raha Wala, an attorney with Human Rights First, which hasn't taken an official position on Comey's nomination. "We're certainly not attacking his character, but these are important questions that need to be asked."
Comey was one of the few Bush-era officials willing to stand up to the Bush administration's claim to near-unlimited power in the realm of national security. He considered resigning in 2004 over Bush's warrantless surveillance program. But Comey's service coincided with other Bush excesses in the war on terror, including torture and indefinite detention. An Inspector General's report recently reviewed by The Guardian shows that even with warrantless surveillance, legal changes to the basis for secret bulk Internet metadata collection by the National Security Agency were enough to satisfy Comey, who stayed on as a Justice Department official for almost a year as the program continued as an exercise of unilateral power by the president.
"It seems to parallel the concerns with the torture memos, where it's not so much that they're offended by the conduct, or the legality of the conduct, but rather the sloppy legal opinions justifying the conduct," says Mike German, a former FBI agent now with the ACLU, of the internal Bush administration arguments over warrantless surveillance. "In fact the illegal conduct was authorized to continue." The ACLU does not take positions on nominations, but it is challenging the NSA's current surveillance practices as unconstitutional.
Democrats harshly criticized the Bush administration over torture, indefinite detention of American citizens in the name of fighting terrorism, and warrantless surveillance. Whatever his differences with the Bush White House, Comey ultimately signed on to all three.
Yet to the extent former Democratic critics of the Bush administration have made their feelings public, Comey has received mostly praise. Judiciary Committee Chairman Senator Patrick Leahy of Vermont praised Comey for having "stood up to those in the last administration who sought to violate the rule of law," and urged his "swift" confirmation. Senator Dianne Feinstein, who is chair of the Senate intelligence committee but also serves on the judiciary committee, called Comey a "principled person" who would be "an excellent new director of the FBI."
Two other Democratic members of the Senate Judiciary Committee, Dick Durbin of Illinois and Sheldon Whitehouse of Rhode Island, sent Comey a letter last week asking him to clarify his views on waterboarding. A Democratic Senate aide said that Comey's record of support for controversial Bush-era policies would "probably be brought up by members from both parties" during Comey's confirmation hearing before the judiciary committee next week.
Comey's legend has only grown since his face-off with then-White House counsel Alberto Gonzales and White House chief of staff Andrew Card. As detailed in a 2009 Inspector General's report, John Yoo, then-the Bush administration's go-to Justice department official for legal work that justified vast expansions of presidential power, had written the legal opinions justifying the program. Comey regarded Yoo's work as sloppy and as acting attorney general, refused to go along with the Bush administration's warrantless surveillance program as it was then run. Card and Gonzales rushed to the hospital to persuade an ailing John Ashcroft to overrule Comey, but Ashcroft refused. After Bush gave the program the go ahead without the Justice Department's approval, Comey and other top officials, including Mueller, planned to resign. In testimony before the Senate in 2007, Comey called the incident "the most difficult of my professional career."
Comey ultimately prevailed. Bush agreed to make changes to the program's legal basis and Comey stayed on. Congress didn't authorize it, and most members didn't know it existed. But simply altering the legal basis for secret, warrantless spying satisfied Comey.
In addition to warrantless surveillance (after the changes Bush made to the program), the list of programs and policies Comey weighed in on includes waterboarding and indefinite detention. In 2004, Comey publicly defended the indefinite detention of Jose Padilla, an American citizen accused of being an al Qaeda operative who was apprehended in the United States.
"We have a wonderful FBI and they follow people every day, and well. But only on TV do they do it 24 hours a day, seven days a week, without losing someone," Comey told reporters at the time. "And when you're talking about someone bent on the kind of destruction, mass murder, that we're talking about here, you simply can't run that risk."
The "risk" Comey described was in actually accusing an American citizen of a crime before locking them up first. That's something this administration has said it would never do. Padilla was held in a military brig for more than three years and then convicted in a civilian court—the kind of institution Comey said in 2005 couldn't handle Padilla's case "without jeopardizing intelligence sources."
"He was willing to step out publicly and support a policy of detaining American citizens without charge or trial," says the ACLU's German. "It's particularly problematic when he's nominated to fill a position where he will be the law enforcement officer for the nation, in a role where he will last beyond this president, and perhaps beyond even the next president."
A series of emails obtained by The New York Times in 2009 show that Comey also approved of the legality, if not the wisdom, of Bush-era interrogation techniques, including waterboarding. Comey warned that not "everything that may be legal is also appropriate," and that future generations might look back at the techniques as "simply awful." But he still believed, unlike the current president, that waterboarding was within the letter of the law.
"We give Comey some credit for standing up against the worst excesses of the Bush administration," German says, but "we think it's more important to look at what he approved, rather than what he opposed."