FBI nominee Comey explains role in Bush administration decisions on waterboarding

James Comey, President Barack Obama’s choice to head the Federal Bureau of Investigation, told senators Tuesday that he thought waterboarding interrogation techniques used to try to get information from al Qaida prisoners held at Guantanamo were “awful” and illegal. 

But Comey insisted that the 1994 law on torture was “very vague” and that as the second-ranking official in the Justice Department in the Bush administration, he couldn’t find that use of waterboarding violated that anti-torture statute.

Comey made those comments Tuesday at his confirmation hearing before the Senate Judiciary Committee.


When committee chairman Patrick Leahy, D-Vt., asked Comey how his view that waterboarding was torture and illegal could be reconciled with his approval of a legal memo that permitted its use, he told Leahy "maybe the most important thing" he had done on this topic as deputy attorney general "was try to force and fight for a discussion about whether this was the kind of thing we ought to be doing as Americans.”

But as a legal matter, he told Leahy, “I discovered that it's actually a much harder question to interpret this 1994 statute, which I found very vague, and apply that statute to the individual (interrogation) techniques.”

Comey said that he had told then-Attorney General John Ashcroft, "This is wrong; this is awful; you have to go to the White House and force them to stare at this and answer that question. I believe the answer is we should not be involved in this kind of stuff."

Comey added, “I made that argument as forcefully as I could to the attorney general,” but top officials in the Bush administration rejected his view.

Based on the smooth hearing and the comments of members afterward, Comey’s confirmation by the Senate seems likely.

Asked about Comey’s response to his questions on torture, Leahy said after the hearing, “I thought they were good answers. I have had some other positive discussions with him. We’ll have more” before the committee votes on Comey’s nomination.

Comey deflected a question from Sen. Dianne Feinstein, D-Calif., about forced feeding of some detainees now held at Guantanamo – a practice that Feinstein condemned.

“If I were FBI director, I don't think it's an area that would be within my job scope,” he said, to which Feinstein replied, “It's within all of our job scopes to care about how the United States of America acts.”

Comey said he agreed with that idea, but added “there are times in the Bureau of Prisons when the federal authorities have had to force feed someone who's refusing to eat. And they try to do it in the least invasive way.” As for those at Guantanamo detainees, he said, “I don't know the circumstances well enough to offer you an opinion. I don't think it would be worth much, my opinion, at this point.”

Sen. Charles Schumer, D-N.Y., praised Comey at the hearing for his role in refusing to give legal authorization to a warrantless electronic surveillance program carried out by the Bush administration prior to 2006 – a program that has since been modified, given congressional approval and now is under the oversight of federal judges on the Foreign Intelligence Court of Review, which meets secretly.

As acting attorney general when Ashcroft was ailing in the hospital in March of 2004, Comey threatened to resign if White House Counsel Alberto Gonzales and Chief of Staff Andrew Card insisted that he or Ashcroft give their blessing to the program. Comey went to Ashcroft’s hospital room to block Gonzales and Card from getting Ashcroft’s approval.

Comey told the committee, “I'm not familiar with the details of the current (National Security Agency surveillance) programs. Obviously, I haven't been cleared for anything like that, and I've been out of government for eight years.” But he did say, “I do know as a general matter that the collection of metadata and analysis of metadata is a valuable tool in counter-terrorism.”

And Comey gave a resounding endorsement of the judges who serve on the Foreign Intelligence Court of Review, also known as the FISA court.

“Sometimes folks also don't understand what the FISA court is. They hear secret court. Sometimes they hear rubber stamp,” Comey remarked. “In my experience, which is long, with the FISA court, folks don't realize that it's a group of independent federal judges who sit and operate under a statutory regime to review requests by the government to use certain authorities to gather information. And it is anything but a rubber stamp.”

He added, “Anyone knows federal judges and has appeared before federal judges knows that calling them a rubber stamp is -- shows you don't have experience before them.”


For a year and a half, from late 2003 to the summer of 2005, Comey served as the deputy attorney general in the Bush administration.

Earlier in Comey’s career, he was a federal prosecutor in New York and in Richmond, Va. Comey served more recently as general counsel to a hedge fund, Bridgewater Associates, based in Westport, Conn.

Prior to that, he served as chairman of the U.S. Chamber of Commerce’s National Chamber Litigation Center and as general counsel of defense contractor Lockheed Martin.

It’s Comey’s stint as deputy attorney general in the Bush administration that is the most controversial episode in his career.

In a July 1 letter to Leahy and ranking Republican member Sen. Charles Grassley, R Iowa, Human Rights Watch, the American Civil Liberties Union, and other advocacy groups urged them to “determine the full extent of Mr. Comey’s role in the approval and use of torture and abuse before voting to confirm him.”

The groups say that while Comey agreed with the decision in 2004 by Jack Goldsmith, head of the Office of Legal Counsel in the Justice Department, to withdraw one 2002 legal guidance authorizing use of interrogation techniques equivalent to torture, he concurred in a subsequent guidance which permitted some use of methods such as waterboarding and sleep deprivation.

Those two memos on interrogation techniques were signed by Jay Bybee, Goldsmith’s predecessor as the head of the Office of Legal Counsel. Bybee is now a federal appeals court judge in Nevada. The Senate became aware of the Bybee memos after it voted to confirm him in March 2003.

The human rights groups say that “Mr. Comey’s apparent view that these (interrogation) techniques were lawful is deeply troubling and raises important questions that need to be answered.”