As I have written before, James Comey’s situational ethics and devotion to telling whoever might help his career what they’d like to hear is problematic in an FBI director. In his hearing today, Comey’s nomination became more problematic.
He testified, “When I first learned about waterboarding when I became deputy attorney general, my reaction as a citizen and a leader was this is torture.” He said he made his argument to the attorney general and lost the debate. Nevertheless he said that he authorized this and other anti-terror tactics (e.g. National Security Agency surveillance) to which liberals now object.
The testimony was curious in the extreme. I contacted two attorneys who worked in the Bush Justice Department. Neither was aware Comey ever objected to waterboarding. Certainly, if he believed it to be “torture,” he had an obligation to not only cease participation in the use of the offending tactics but also to refer it for prosecution and/or quit.
But it gets sticky since Comey says the relevant 1994 statute was vague on the point. Then on what legal basis does/did he claim it to be “torture”? A former high-ranking national security official in the Bush administration e-mailed me: “The question asked of justice is, ‘Is it legal?’. He obviously thought that it was.”
So, again Comey’s behavior and views shift with the political winds. But there is a way to clear this all up. The Senate Judiciary Committee has an obligation to subpoena John Ashcroft, who was attorney general at the time, and Jack Goldsmith, the former head of the Office of Legal Counsel. Surely they can corroborate what Comey said and did. Goldsmith did not respond to my request for comment, but the Senate can demand his and Ashcroft’s testimony.
Nevertheless, for the sake of argument let’s assume he genuinely believed it to have been torture but gave it his blessing anyway. Is this the sort of character we want as head of the FBI, which is supposed to be beyond politics and operate under the highest ethical standards?
Civil libertarians smell a rat, the New York Times reports:
“There’s one very big problem with describing Comey as some sort of civil libertarian — some facts suggest otherwise,” Laura W. Murphy, the director of the American Civil Liberties Union’s legislative office in Washington, said in an article published by The Guardian.
She added: “While Comey deserves credit for stopping an illegal spying program in dramatic fashion, he also approved or defended some of the worst abuses of the Bush administration during his time as deputy attorney general. Those included torture, warrantless wiretapping and indefinite detention.”
It seems rather than pleasing everyone, Comey has managed to alert everyone to his flexible principles. (He is beginning to sound like Groucho Marx: “Those are my principles, and if you don’t like them, well, I have others.”) We would expect nothing less from a president who condemned his predecessor and then implemented many of the same practices. But the Senate, ideally, should demand a truth-telling FBI director — and one willing to stand up for past conduct, even if he now regrets it.