Posted by on July 10, 2013 in Blog

By Abdulaziz Al-Alami
Legal Fellow
James Comey, President Obama’s nominee for Director of the Federal Bureau of Investigations (FBI), had his confirmation hearing with the Senate Judiciary Committee last Tuesday, ahead of what observers predict will be a relatively easy confirmation for an FBI director. Comey previously served as US Deputy Attorney General from 2002-2005. His time with the Bush Administration has linked him to a number of controversial issues ranging from illegal surveillance to enhanced interrogation techniques.

Comey is known for a 2004 hospital incident during his time as Deputy Attorney General. Sitting Attorney General John Ashcroft was suffering from severe health complications and Comey thus became the acting attorney general.  White House Counsel Alberto R. Gonzales and President Bush's Chief of Staff, Andrew H. Card Jr., were on their way to see Ashcroft and convince him to reauthorize Bush’s domestic surveillance program.

When notified of Gonzales and Card’s plans, Comey rushed to the hospital, "sirens blazing," and arrived to Ashcroft’s room before the others did. Both Comey and Ashcroft refused to sign the papers Gonzales and Card had (Comey was reportedly not acknowledged in the hospital room). When Gonzales and Card decided to go through with the program without the Justice Department authorization, Ashcroft, Comey, and then FBI Director Robert Mueller prepared a mass resignation in protest. The showdown ended when President Bush overruled Gonzales and Card.

Many in the media point to this incident when discussing Comey's nomination, arguing that it demonstrates his concern for civil liberties. However, he also has his share of critics. For instance, Glenn Greenwald's recent analysis on the Guardian website suggests that when rejecting Gonzales and Card's request in this instance, Comey merely wanted them to modify the standards of surveillance in order for the process to fit what he (Comey) deemed to be legal before he could approve them, which he did. Comey could not explain why he had later approved the warrantless wiretapping and what changes to the program were made, citing its classified status.

Other decisions Comey made during his tenure as Deputy Attorney General have come under scrutiny as well. During the nomination, Comey acknowledged approving the C.I.A.’s list of "enhanced interrogation" techniques, including waterboarding when he was Deputy Attorney General. When asked by Sen. Patrick Leahy (D-Vermont) on his views on waterboarding today, Comey responded by describing waterboarding as "torture" and "illegal," indicating a change in policy. In his time with the Bush Administration, Comey had also approved "The Bradbury Memos," which argue that sleep deprivation of detainees for up to seven and a half days while shackled from their hands and ankles does not constitute torture. This decision was one of many which Senators questioned Comey about over the course of the confirmation hearing. Lawmakers also asked about ongoing issues which Comey may face if appointed, such as the status of detainees at Guantanamo Bay, and the ongoing surveillance activities of the National Security Administration (NSA). Throughout the confirmation hearing, Comey was quick to identify issues for which he would require access to classified information before drawing judgment, making it difficult to predict his potential treatment of them if confirmed.

FBI directors serve a term of ten years. The committee is expected to vote on his nomination on Thursday, July 18th.

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