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FBI Nominee James Comey Answers Questions about Domestic Surveillance

Senators grill the former Bush administration lawyer in Congressional hearing

James Comey speaks during a Senate Judiciary Committee hearing in Washington, D.C.
Andrew Harrer/Bloomberg via Getty Images
July 9, 2013 5:15 PM ET

James Comey faced questions from the Senate Judiciary Committee this morning in a quick and mostly cordial hearing prior to his likely confirmation as the next director of the FBI. The topic of what Comey called "the metastasizing terrorist threat" came up repeatedly, as did concerns about related government policies. If confirmed, Comey – who previously served as Deputy Attorney General under President Bush – will serve a 10-year term, which means he would last into at least one new presidential administration, if not two.

Committee chairperson Sen. Patrick Leahy (D-Vermont) referenced the recent revelations about the NSA's domestic surveillance programs, worrying that the agency has gone overboard. "There's always going to be more dots to try to connect," Leahy said in opening statements. "When is enough enough?" Ranking member Sen. Chuck Grassley (R-Iowa) voiced concern about the domestic use of drones, and mentioned outgoing FBI director Robert Mueller's acknowledgment that drones have been used in some investigations on U.S. soil. Grassley also asked about the Obama administration's failure to prosecute bankers responsible for the financial crash, and wondered if Comey's connections to HSBC would preclude him from pursuing investigations into the financial industry.

In a show of the continuing desire for more disclosures following the leaks by former NSA contractor Edward Snowden, Sen. Chuck Schumer (D-New York) asked Comey whether he would support making the FISA court which oversees domestic surveillance more transparent, and support the release of de-classified summaries of that court's opinions. Comey hedged, saying that without more information he couldn't offer a full answer, but argued that the government's undefeated streak before the FISA court shouldn't be seen as evidence that the court is a rubber stamp – but rather that government lawyers take great care to only bring appropriate cases. Schumer, to his credit, remained somewhat skeptical of these assurances.

Mike German, a former FBI agent and senior policy counsel at the ACLU's Washington Legislative Office, says Comey's promise to continue the transparency and accountability policies of his predecessor should be met with concern. Says German, "We and others have documented widespread abuse of authority during [Mueller's] tenure, including misuse of Patriot Act authorities to conduct widespread spying on innocent Americans, racial and ethnic mapping, the improper use of informants in American Muslim communities and the unjustifiable investigation and harassment of political advocacy organizations."

Comey's nomination has proved contentious among human rights and civil liberties groups, who say his past support for torture techniques should be thoroughly questioned. In a letter addressed to top members of the Senate judiciary committee, a coalition of rights groups raised concerns that Comey "concurred" with Office of Legal Counsel memos that authorized torture, including "waterboarding, 180 hours of sleep deprivation, and other techniques long recognized as torture or cruel, inhuman or degrading treatment in violation of both domestic and international law – contrary to the advice of experienced FBI interrogators, who believed that these techniques were wrong." The letter continues: "Mr. Comey's apparent view that these techniques were lawful is deeply troubling and raises important questions that need to be answered."

Comey also supported the indefinite detention of an American citizen, Jose Padilla, who was captured on U.S. soil in 2002 and held in a military brig in Charleston, South Carolina. He was eventually convicted in a civilian trial, which Comey had objected to on the grounds that it would jeopardize sources and methods.

A separate letter, signed by "former government officials and agents who have worked with the FBI," echoed concerns about Comey's previous seeming approval of torture techniques. That letter also called for Comey to "support a process by which the Senate Intelligence Committee can make public its 6,000 plus page report on the post-9/11 CIA interrogation program, which was in substantial part authorized by the Office of Legal Counsel while Mr. Comey served as Deputy Attorney General." Both of the letters acknowledged that Comey had referred to some torture methods as "simply awful," and spoken against policies that would allow the use of techniques in combination.

Comey is best known for a high-profile late-night hospital room showdown in 2004, at the bedside of an ailing John Ashcroft. At the time, Comey was acting Attorney General, filling in for Ashcroft, and had refused to sign off on the renewal of a program that collected Americans' Internet metadata without warrants. Comey, along with FBI Director Mueller and Assistant Attorney General Jack Goldsmith, threatened to resign in protest. White House counsel Alberto Gonzales and chief of staff Andy Card attempted to get around Comey's refusal by pressuring Ashcroft, who was recovering from surgery, to sign it. Ashcroft, too, refused, and the program was put on hold.

Comey emerged with a reputation as an independent, strong advocate for the rule of law – though a leaked National Security Agency Inspector General's report has complicated that story. After Comey's objections, lawyers in the Bush administration went to the secretive FISA court for the first time to request an order that "essentially gave NSA the same authority to collect bulk internet metadata that it had." As Spencer Ackerman reported in the Guardian, Comey "remained at the Justice Department for another year as that effort [collection of Internet metadata], operating under a new legal theory, continued nearly unchanged."

In related surveillance news, the Brennan Center at NYU and 22 other good-government groups sent a letter to the Justice Department this week calling for the release of any Inspector General's reports detailing the collection of phone records under a controversial part of the Patriot Act, called Section 215. Previous public reports about the programs have been redacted, but the authors write that "blanket withholding or redaction is no longer appropriate . . . because executive officials have declassified the existence of the program and many details of its operation."

Another online privacy group, the Electronic Privacy Information Center, filed an emergency petition with the Supreme Court this week asking them to overturn a judge's ruling in the secretive FISA court that allowed for the bulk collection of Verizon Business users' metadata. The FISA court has come under increased scrutiny following Snowden's leaks, to the extent that a recent New York Times story referred to it as "almost a parallel Supreme Court."

"I think there is great momentum for additional transparency in surveillance, as we've seen by a number of new bills in Congress, and this is something we greatly need," says German, the former FBI agent, who adds that more needs to be done to protect whistleblowers. "Until we have effective whistleblower protections for FBI and intelligence community personnel, Congress and the public will continue to have to wait for someone to risk their freedom in order to tell Americans what their government is doing."

Chris Anders, senior legislative director of the ACLU's Washington Legislative Office, feels there are still additional questions Comey needs to answer before the Senate votes to confirm him. Comey testified today that he believes waterboarding is illegal – but he also said that the 1994 anti-torture act was vague enough to allow him to sign off on waterboarding and other torture techniques. "He was looking to condemn waterboarding as torture without backing off the advice he gave," says Anders. "What lawmakers have to ask Comey is: Under what statute is this a crime?"

More broadly, Anders criticized the Obama administration for its lack of clarity on whether it explicitly believes the techniques Comey and others authorized are violations of the anti-torture act. "The Obama administration withdrew the opinions" that authorized torture, says Anders. "But we don't know if the Obama administration believes those acts are violations of the anti-torture act."

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