A Speech About Saying No, From a Man Who Would Know

Tuesday, September 25, 2007

The following are excerpts from a newly published speech by former deputy attorney general James B. Comey, who addressed the National Security Agency in May 2005. A year earlier, Comey and other Justice Department lawyers had waged a fierce battle with the White House after determining that parts of the NSA's warrantless surveillance program were illegal. Most of the people who heard Comey's speech knew nothing about the dispute.

The standoff included an attempt by the White House to overrule Comey by gaining the approval of then-Attorney General John D. Ashcroft, who was in the hospital.

After Comey and others threatened to resign, President Bush agreed to make changes to the program.

The speech was published in the summer issue of the Green Bag, a legal affairs journal.

It can be very, very hard to be a conscientious attorney working in the intelligence community, particularly for those whose work touches on counter-terrorism and war-fighting. It is not because we don't work with great people. We do. We work with people who have dedicated their lives to protecting this great country and all it stands for.

It can be hard, instead, because the stakes couldn't be higher. Hard because we are likely to hear the words: "If we don't do this, people will die." You can all supply your own this: "If we don't collect this type of information," or "If we don't use this technique," or "If we don't extend this authority." It is extraordinarily difficult to be the attorney standing in front of the freight train that is the need for this. Because we don't want people to die. . . .

But it's not that simple, although during crises, at times of great threat, it can surely seem that simple, certainly to the policy maker and operator, and even to the lawyer. We lawyers know -- or should know -- better than anyone, that it is not that simple. . . .

It is the job of a good lawyer to say "yes." It is as much the job of a good lawyer to say "no." "No" is much, much harder. "No" must be spoken into a storm of crisis, with loud voices all around, with lives hanging in the balance. "No" is often the undoing of a career. And often, "no" must be spoken in competition with the voices of other lawyers who do not have the courage to echo it.

For all those reasons, it takes far more than a sharp legal mind to say "no" when it matters most. It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified "yes." It takes an understanding that, in the long-run, intelligence under law is the only sustainable intelligence in this country. . . .

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