Appearing before the Senate Judiciary Committee early Tuesday, FBI nominee James Comey faced questions about NSA surveillance, domestic drones, and his approval of CIA enhanced interrogation techniques as assistant attorney general under President Bush. The man President Obama picked to follow Robert Mueller’s tenure of nearly 12 years endorsed his predecessor’s view that the FBI must be a law enforcement agency as well as a terrorist prevention agency.
Chairman Patrick Leahy (D-Vt.) jumped right into surveillance, touching on Comey’s personal history with domestic snooping. Comey dramatically prevented the reauthorization of sweeping warrantless surveillance in 2004 as acting attorney general, blocking John Ashcroft's hospital bed after other Bush operatives tried to make the incapacitated Ashcroft sign his approval. Resignation threats by Comey and other DoJ officials pressured the White House to shift surveillance under the Foreign Intelligence Surveillance Court’s (FISC) authority.
Comey professed sweeping ignorance of surveillance, for lack of access to classified material, but added, “I do know as a general matter that the value of collection of data and metadata is great for preventing terrorism.”
The surveillance debate was sparked by leaks from former NSA technical analyst Edward Snowden, who has been roundly criticized in the Senate. Yet Comey readily confirmed to Ranking Member Grassley (R-Iowa) that the FBI would work with whistleblowers instead of persecuting them. “Whistleblowers play a critical role in a functioning democracy,” Comey said, agreeing that “retaliation is unacceptable.” Grassley criticized the FBI’s record of dealing with whistleblowers in his opening statement, speculating that recent leaks stem from inadequate internal channels for dissent.
Grassley also expressed concern over the FBI’s limited domestic use of drones and continued efforts to develop standards of practice, but the issue was not addressed in the early part of the hearing.
Comey unflinchingly praised current oversight of NSA surveillance. Singling out the Foreign Intelligence Surveillance Court, which denied 11 of roughly 34,000 government requests since 1978 and none in 2012, Comey said, “It is anything but a rubber stamp -- anyone who knows federal judges and appears before federal judges” knows that. He also championed the scrutiny provided by Congress as well as inspectors general within various agencies, which he called extremely effective and independent.
Senator Chuck Schumer (D-N.Y.) asked how the public could be assured that the FISC is providing real oversight, given that it reauthorized many of the programs that Comey expressed such misgivings over. Comey responded that, based on his experience with criminal cases, so few surveillance requests are denied because authorities “never want that to happen.” The government is meticulous and conservative in its requests, only pursuing those firmly grounded in evidence and statute. “But you would work for greater transparency, provided it didn’t compromise security?” Schumer rejoined. “Yes,” Comey replied.
Comey stated that his immediate, initial reaction to waterboarding was that it was torture. But he also defended his signature on a 2004 memo authorizing the CIA’s use of it, arguing he fought for a robust debate over the question of waterboarding’s legality, effectiveness, and basic appropriateness. He then criticized as vague the 1994 law cited to justify it. “Do you agree that waterboarding is torture and illegal?” Leahy asked. “Yes,” Comey replied, and was ultimately able to dodge the question of his signature. Likewise, Comey said he did not know enough about the force-feeding of Guantanamo Bay detainees to comment intelligently.
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