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Nominee for F.B.I. Director Appears Before Senate Panel Nominee for F.B.I. Director Addresses Torture Before Senate Panel
(about 5 hours later)
WASHINGTON — James B. Comey, President Obama’s nominee for F.B.I. director, said on Tuesday that although he authorized the use of waterboarding when he was a deputy attorney general under President George W. Bush, he believes that the technique is torture and illegal. WASHINGTON — James B. Comey, President Obama’s nominee for F.B.I. director, said on Tuesday that he no longer believed it was legal to waterboard detainees under United States law. His statements contrasted with the position he took in 2005 when, as President George W. Bush’s deputy attorney general, he oversaw the government’s legal opinions.
“When I first learned about waterboarding when I became deputy attorney general, my reaction as a citizen and a leader was, this is torture,” Mr. Comey said in testimony during a confirmation hearing before the Senate Judiciary Committee. “It’s still what I think.” At his confirmation hearing before the Senate Judiciary Committee on Tuesday, Mr. Comey said that the government’s statute on the issue at the time was vague, complicating the ability of government lawyers to determine its legality. He said that despite his authorization of the opinions in 2005, he had urged senior Bush administration officials to end the use of the practice.
But Mr. Comey, who was the deputy attorney general from 2003 to 2005 under Mr. Bush and whose job was to review the government’s legal opinions, said the question of whether waterboarding was legal was hard to determine because the government’s statute was vague. He said that despite believing it was legal at the time, he urged the administration to stop using the tactic. “Even though I as a person, as a father, as a leader thought, ‘That’s torture — We shouldn’t be doing that kind of thing,’ I discovered that it’s actually a much harder question to interpret this 1994 statute, which I found very vague,” Mr. Comey, 52, said at the hearing.
“And so I made that argument as forcefully as I could to the attorney general,” Mr. Comey said. “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 on board with the policy, and so my argument was rejected.” Many senators, legal scholars and human rights advocates have long believed that the 1994 statue clearly banned waterboarding.
Mr. Comey’s nomination has received strong bipartisan support, but some Democrats and civil liberty groups have raised questions about his role in the Bush administration. Mr. Comey said that he urged the attorney general at the time, Alberto R. Gonzales, to make his point directly to the White House.
In particular, two senior Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, raised concerns last week about how Mr. Comey approved the use of “enhanced interrogation techniques” that included waterboarding. “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 on board with the policy, and so my argument was rejected,” he said.
In testimony before the same Senate committee five years ago, Mr. Comey distinguished himself from many members of the Bush administration — and significantly raised his national profile — with testimony that was perceived as repudiating government surveillance programs. Mr. Comey did not say at the hearing why his position had changed. But one of his aides said Tuesday afternoon that Mr. Comey believed waterboarding was illegal for several reasons: President Obama had banned its use, the legal opinions supporting it had been withdrawn, and Congress passed an act in late 2005 clearly banning such treatment.
At a hearing about the Justice Department’s firings of several United States attorneys, Mr. Comey riveted the senators by testifying about a 2004 episode in which he believed that senior Bush administration officials tried to persuade his ailing boss, Attorney General John Ashcroft, to sign off on an illegal data-collection program. Mr. Comey’s current position on the legality of waterboarding brings him into line with President Obama, Attorney General Eric H. Holder Jr. and several senior Democratic senators who had raised concerns about his position in the days leading up to the hearing.
Mr. Comey said that Mr. Ashcroft, who was in the hospital, had signed his powers over to him. But Mr. Bush’s chief of staff and White House counsel, he said, went to Mr. Ashcroft’s hospital room and asked him to sign off on a National Security Agency program that was collecting Internet data on Americans. Mr. Comey’s nomination has received strong bipartisan support, but some Democrats and civil liberty groups have raised questions about his role in the Bush administration. Last week, two of the Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, sent a letter to Mr. Comey, expressing their concern about how he approved the use of “enhanced interrogation techniques” that included waterboarding.
Mr. Comey, who said he had been tipped off that the White House officials were headed to the hospital, testified that he confronted them. The program was halted soon after. On Tuesday, many of the Senators appeared satisfied with Mr. Comey’s answers about waterboarding, and it does not appear that the Republicans will try to block his confirmation.
After his testimony, Mr. Comey was widely credited with putting the law over political concerns. But senior Bush administration officials said that although Mr. Comey’s objections halted the program, it was later resumed under a similar legal framework and with few procedural changes. Mr. Comey distinguished himself from many members of the Bush administration — and significantly raised his national profile — when he testified before the same Senate committee five years ago. His testimony was perceived as repudiating government surveillance programs.
Mr. Comey did not provide new details about the incident on Tuesday, but he did defend the use of surveillance programs to identify terrorists. “I do know as a general matter that the collection of metadata and analysis of metadata is a valuable tool in counterterrorism,” he said. At the hearing, about the Justice Department’s firings of several United States attorneys, Mr. Comey riveted the senators by testifying about a 2004 episode in which he thwarted Bush administration officials from persuading his ailing boss, Attorney General John Ashcroft, to sign off on an illegal data-collection program. Although Mr. Comey’s objections halted the program, it was later resumed under a similar legal framework, and senior Bush administration officials have said he raised few objections to other programs.
When Mr. Obama nominated Mr. Comey as F.B.I. director, Bush administration officials and civil liberty groups raised questions about whether he was truly skeptical of government surveillance programs. Mr. Comey did not provide new details about the incident on Tuesday, but he addressed the issue of government surveillance, which has become a thorny issue given a series of disclosures of classified programs by Edward J. Snowden, a former National Security Agency contractor. Mr. Comey also defended the use of surveillance programs to identify terrorists.
They have pointed to the other surveillance programs that Mr. Comey supported — like wiretapping without warrants — as examples of how he is comfortable with an array of controversial programs. A senior Bush administration official who worked closely with Mr. Comey said that “he was quite comfortable with a whole bunch” of government surveillance programs and that he had repeatedly signed off on their authorization. “I do know as a general matter that the collection of metadata and analysis of metadata is a valuable tool in counterterrorism,” he said.
“There’s one very big problem with describing Comey as some sort of civil libertarian — some facts suggest otherwise,” Laura W. Murphy, the director of the American Civil Liberties Union’s legislative office in Washington, said in an article published by The Guardian. Mr. Comey has served as the United States attorney in Manhattan and most recently as the general counsel at a huge hedge fund in Connecticut and at Lockheed Martin. On Tuesday, he sidestepped several questions about the transparency of legal rulings that govern the surveillance programs and the force-feeding of detainees at Guantánamo Bay.
She added: “While Comey deserves credit for stopping an illegal spying program in dramatic fashion, he also approved or defended some of the worst abuses of the Bush administration during his time as deputy attorney general. Those included torture, warrantless wiretapping and indefinite detention.” Unlike more contentious nomination hearings, the banter between Mr. Comey and the senators was blithe.
Before serving as the deputy attorney general under Mr. Bush, Mr. Comey was the United States attorney in the Southern District of New York, where he oversaw a variety of prosecutions, including the case against Martha Stewart. He teaches at Columbia Law School after having served as general counsel for the large Connecticut hedge fund Bridgewater Associates. As Mr. Comey introduced his family, he mentioned how his five children, who are in their teens and 20s and were seated behind him, had been in nearly the same seats 10 years ago when he was confirmed as deputy attorney general.
“They’re a little bit older,” Mr. Comey said.
“I was going to say,” said Patrick Leahy, Democrat of Vermont and the committee chairman. “They — they — I was here at that time and they have been changed.”
“They have, right,” Mr. Comey said. “The only one who hasn’t aged a bit is my wife.”
The senators laughed.