Comey has received vast credit for his 2004 efforts to stop White House legal counsel Alberto Gonzales and chief of staff Andrew Card from forcing the exceedingly ill Attorney General John Ashcroft into signing papers from his hospital bed to reauthorize a secret domestic surveillance program. Comey's objections blocked the program temporarily, but it was subsequently continued with modest changes. Comey raised no further dissent.
Civil liberties advocates and other critics have raised several concerns about Comey's nomination. There were, for instance, the five former FBI agents who wrote a letter to the Judiciary committee last week regarding Comey's concurrence over a May 2005 memo authorizing as legal waterboarding and other “enhanced interrogation techniques” and for his vigorous support as George Bush's deputy attorney general nine years ago of the indefinite detention of American citizen Jose Padilla in a military brig without access to a lawyer. Padilla was subsequently convicted in a civilian court on terrorism charges.
Said Judiciary Committee Chairman Pat Leahy, the Vermont Democrat, "These memos led to the treatment of detainees that was contrary to our laws and our values, and this frankly made us less safe." Please read more about the hearing below the fold.
But Comey stated with considerable fervor that he was on the losing side of an internal argument with others in the Bush administration over waterboarding, and that he opposes its use, which he views as illegal. He said when he first learned of its use as deputy attorney general, “My first reaction as a citizen and a leader was, 'This is torture.'" Part of the problem to objecting, he said, stemmed from the vagueness of a 1994 government statute.
"As assistant Attorney General I had to fight for a discussion about whether this was the right thing: 'Should we be doing this and is it appropriate as Americans?'" Comey said. "I went to the Attorney General's office and said, 'This is wrong, this is awful.' I made that argument as forcefully as I could."Before the hearing, in a column in The New York Times, former FBI agent Colleen Rowley also offered up a list of 10 detailed questions the committee should ask, and Marcy Wheeler added five questions to that. For the most part those weren't asked or the pieces of them that did get asked received answers with considerable wiggle room.
Asked about a recent New York Times story saying Comey did not subsequently oppose the surveillance program, the nominee told Democratic Sen. Al Franken of Minnesota that "I don't think the Times's story is accurate." But he couldn't provide details he said because he doesn't know which details are still classified.
Comey also said he believes protecting whistleblowers should be a priority and "retaliation is just unacceptable." He was not asked about how that might apply to former NSA contractor Edward J. Snowden whose disclosures of the agency's top-secret collection of metadata have roused widespread controversy inside the United States and among its allies.
Sen. Jeff Sessions, R-Ala., asked [Comey] about the wisdom of trying terrorists in criminal courts, versus military courts.A committee vote could come as early as Friday.
"A trial in military commissions provides a better protection for the United States in regards to intelligence, revealing and being able to maintain the individual with or without a trial," Sessions said. “If you don't try them in military commissions, you aren't going to get convictions."
"In some ways,” Comey replied, “the military commission has its advantages, but in others, I'm not so sure."