The New York Times reports that President Obama is going to nominate James Comey to head the FBI, which I think is a brilliant move. If you recognize the name, it’s because Comey was a high-ranking DOJ official during the Bush administration. He’s the guy who refused to sign off on the warrantless wiretap program when he was acting attorney general (John Ashcroft was in the hospital).
In the 2004 episode that defined Mr. Comey’s time in the Bush administration, the White House counsel, Alberto R. Gonzales, and Mr. Bush’s chief of staff, Andrew H. Card Jr., sought to persuade Attorney General John Ashcroft — who was hospitalized and disoriented — to reauthorize the administration’s controversial eavesdropping program.
Mr. Comey, who was serving as the acting attorney general and had been tipped off that Mr. Gonzales and Mr. Card were trying to go around him, rushed to Mr. Ashcroft’s hospital room to thwart them. With Mr. Comey as well as Mr. Mueller in the room, Mr. Ashcroft refused to reauthorize the program. Mr. Bush later agreed to make changes in the program, and Mr. Comey was widely praised for putting the law over politics.
According to testimony Mr. Comey provided to Congress in 2007, Mr. Ashcroft rose weakly from his hospital bed when Mr. Gonzales and Mr. Card approached and refused to approve the program.
“I was angry,” Mr. Comey said in his testimony. “I had just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me. I thought he had conducted himself in a way that demonstrated a strength I had never seen before, but still I thought it was improper.”
Despite having taken this stand for the rule of law, however, the ACLU is not too happy about the nomination:
“While the ACLU does not take official positions on nominations to appointed office, there are many questions regarding Comey’s record that deserve careful scrutiny from the Senate Judiciary Committee,” ACLU Executive Director Anthony Romero writes. “As the second-highest ranked Justice Department official under John Ashcroft, Comey approved some of the worst abuses committed by the Bush administration. Specifically, the publicly available evidence indicates Comey signed off on enhanced interrogation techniques that constitute torture, including waterboarding. He also oversaw the indefinite detention without charge or trial of an American citizen picked up in the United States and then held for years in a military brig.”
And Glenn Greenwald says that the dramatic story above does not change the fact that Comey did sign off on a slightly-modified warrantless wiretapping plan during the Bush administration:
So why, then, was there no accountability for this systematic illegal spying? That happened for two reasons. First, both the Bush DOJ andthen the Obama DOJ successfully convinced obsequious federal courtsthat the eavesdropping program was so secretive that national security would be harmed if courts were to adjudicate its legality – in other words, top government officials should be placed above and beyond the rule of law because doing so is necessary to Keep Us Safe™. Second, the Bush DOJ’s most senior lawyers – Attorney General John Ashcroft, Deputy Attorney General James Comey and OLC chief Jack Goldsmith – approved a legal memorandum in 2004 endorsing radical executive power theories and warped statutory interpretations, concluding that the Bush NSA warrantless eavesdropping program was legal, thus making it more difficult to prosecute the Bush officials who ordered it (even if the Obama DOJ were inclined to prosecute, which they were not).
It was announced yesterday that this very same James Comey – who as Bush’s Deputy Attorney General authorized the once-very-controversial, patently illegal Bush NSA eavesdropping program - isPresident Obama’s choice to be the new Director of the FBI.
How are Obama’s most devoted media loyalists reacting to the news that he is about to put in charge of the FBI the Bush lawyer who authorized the illegal NSA warrantless eavesdropping program based on warped right-wing legal theories? Exactly as you would expect. Here’sone of them - who wrote post after post after post in 2006 and 2007 vehemently denouncing the NSA program which Comey authorized and the theories on which it was based – hailing Comey as “not only non partisan in [his] job but consistently put constitutional equities at center [of his] thinking”.
It is true that Comey was at the center of a dramatic Bush-era political controversy that earned him praise from many Bush critics, including me. Comey was one of the Bush DOJ lawyers who, along with Ashcroft, Goldsmith, and FBI Director Robert Mueller, had threatened to resign if Bush did not modify the NSA program in order to make it legal in Comey’s eyes, and he then went to the hospital where Ashcroft was quite ill to prevent then-White House counsel Alberto Gonzales and then-White House chief of staff Andy Card from bullying the infirm and barely cogent Attorney General into signing off on the legality of the NSA program.
In other words, there was something the NSA was doing for years – that we still don’t know - even more extreme than the illegal NSA program revealed by the NYT in 2005. It was Comey, along with Ashcroft, Mueller, and Goldsmith, who threatened to resign if it did not stop, and they deserve credit for that. But the reason they didn’t end up resigning was because Bush officials “modified” that NSA program into something those lawyers could and did endorse: the still-illegal, still-radical NSA eavesdropping program that spied on the communications of Americans without warrants and in violation of the law. And this was accomplished by inventing a new legal theory to accompany the old one: that Congress, when it enacted the 2001 AUMF, silently and “implicitly” authorized Bush to eavesdrop in exactly the ways the law expressly forbade.
Thus, it was Comey who gave his legal approval to enable that NSA eavesdropping program to spy on Americans without warrants: the same program that produced so much outrage and scandal when revealed by the NYT. How can any progressive who spent the Bush years vehemently denouncing that domestic spying program as the symbol of Bush radicalism and lawlessness now cheer when the lawyer who approved it is about to be put in charge of the FBI?
Greenwald also points out that it was Comey who most vociferously defended the Bush administration’s declaration of Jose Padilla as an “enemy combatant” and their decision to hold him indefinitely in a military prison without any criminal charges. It’s really hard to imagine a more blatantly unconstitutional and unjust action by the government than locking up an America citizen forever without charging them with anything. And Comey didn’t half-heartedly support that, he enthusiastically defended it:
“Had we tried to make a case against Jose Padilla through our criminal justice system, something that I, as the United States attorney in New York, could not do at that time without jeopardizing intelligence sources, he would very likely have followed his lawyer’s advice and said nothing, which would have been his constitutional right.
“He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week, and hope — pray, really — that we didn’t lose him. . . .
“Two years ago, the president of the United States faced a very difficult choice. After a careful process, he decided to declare Jose Padilla for what he was: an enemy combatant, a member of a terrorist army bent on waging war against innocent civilians. And the president’s decision was to hold him to protect the American people and to find out what he knows.
But the Constitution simply does not allow that. What Bush did in that case was as blatant a violation of the constitution as has ever taken place in this country. My initial response was that this nomination was a positive one, but I no longer think that’s true. That one situation was dramatic and he deserves praise for what he did, but there’s a lot more there that is very problematic.