James B. Comey, picked by President Barack Obama to head the FBI, delivered a strong rebuke of waterboarding during his confirmation hearing Tuesday despite previously signing memos that approved the tactic during the George W. Bush administration.
Comey, the No. 2 official in the Bush Justice Department, said that when he first learned about waterboarding, “My first reaction as a citizen and a leader was, ‘This is torture.’”
Waterboarding is a controversial interrogation technique that forces water into a suspect’s nose and mouth to simulate the sense of drowning.
Testifying before the Senate Judiciary Committee, Comey also parried questions related to the current debate over the government’s use of surveillance programs and metadata to prevent terrorism.
“Where do we draw the line at going too far?” asked Sen. Mazie Hirono, D-Hawaii.
Comey said he did not know details of the current programs to be able to answer her question. But at one point he offered an endorsement of greater transparency.
“I think the transparency is a key value, especially when it helps the American people understand what the government is doing to try to keep them safe,” Comey said. “And I think if they understood more, they would feel better about it. . . . But at the same time, I’m not in a position to judge what is on the other side. I wouldn’t want to let transparency be the only value.”
Discussing Comey’s role in the interrogation practices of the Bush administration, Sen. Patrick Leahy, D-Vt., chairman of the panel, expressed concerns over the memos Comey had signed while at Justice approving certain tactics, which included waterboarding.
“These memos led to the treatment of detainees that was contrary to our laws and our values, and this, frankly, made us less safe,” Leahy said.
Comey said that he believed the 1994 federal anti-torture statute was vague in its application to interrogation techniques, and while he tried to halt use of the tactic, he was unsuccessful.
He testified that he 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. And so I made that argument as forcefully as I could. . . . He took my – actually literally took my notes with him to a meeting at the White House and told me he made my argument in full, and that the principals were fully onboard with the policy. And so my argument was rejected.”
But Sen. John Cornyn, R-Texas, said that he believed that the Obama administration’s refusal to use enhanced interrogation techniques is harmful to national security.
“We don’t have a lot of information that we might have otherwise been able to get from an intelligence gathering perspective, and that strikes me as problematic,” he said.
If confirmed by the Senate, Comey, a former federal prosecutor, would succeed FBI Director Robert Mueller. His background appears to have secured bipartisan support on Capital Hill, but civil liberties groups and some Democrats have voiced concerns about his record of signing off on tactics employed by the Bush administration to go after and prosecute suspected terrorists.
“He also approved or defended some of the worst abuses of the Bush administration,” Laura Murphy, director of the Washington legislative office for the American Civil Liberties Union, wrote on the group’s website.
Comey, however, stiff-armed some of those methods in a now-famous 2004 nighttime episode at the bedside of Ashcroft, when the attorney general was hospitalized and had temporarily transferred his authority to Comey.
Top Bush administration officials went to hospital to persuade the ailing Ashcroft, despite his condition, to approve warrantless surveillance. Comey arrived at the hospital before the Bush officials and as acting attorney general blocked their attempts.
Legislators also questioned Comey on a variety of current topics, including the National Security Agency’s surveillance program, which was disclosed recently by former NSA analyst-turned-fugitive Edward Snowden; government whistleblowers; and the force-feeding of Guantanamo inmates.
He told Sen. Dianne Feinstein, D-Calif., that as FBI director, the forced-feeding issue wouldn’t come under his authority. But he added, “What you’re describing, I frankly wouldn’t want done to me. But I don’t know the circumstances well enough to offer you an opinion.”
Feinstein also asked about his view that the Bush White House’s National Security Council was, as she described it, “unaware or willfully blind” to the details of the CIA’s interrogation program.
“Because I heard no one asking that third and critical question,” Comey replied. “I think there are three key questions of counterterrorism technique, especially with interrogation. Is it effective? Is it legal? And is this what we should be doing? Instead, I heard nothing, and in fact, it was reported to me that the White House’s view was that only the first two questions mattered."
Comey disagreed with Leahy when the senator brought up the NSA surveillance program, which relies on metadata, tiny bits of information that could provide information, such as a user’s location or a comprehensive call sheet.
Instead of agreeing with Leahy that it could be an overreach, Comey called metadata collection a “valuable tool in counterterrorism.” Under questioning by Sen. Mike Lee, R-Utah, he compared the tactic to looking at the outside of an envelope, vs. opening it to read the contents.
Sen. Ted Cruz, R-Texas, asked the nominee whether as FBI director he would be sure to “connect the dots,” which the freshman senator said the FBI failed to do and had “dropped the ball,” in cases like the Boston Marathon bombing.
“I think it’s always important to connect the dots,” Comey said.
Sen. Jeff Sessions, R-Ala., asked him about the wisdom of trying terrorists in criminal courts vs. military courts.
“If you don’t try them in military commissions,” Sessions said, “you aren’t going to get convictions."
Comey straddled the fence.
“In some ways, the military commission has its advantages,” he said, but in others, “I’m not so sure."