James B. Comey Jr., President Obama’s nominee to head the Federal Bureau of Investigation, has an ideal resume for the position — he served as a federal prosecutor and deputy attorney general — and the fact that he served in a Republican administration adds a desirable aspect of bipartisanship to the nomination. Although the FBI director is a presidential appointee, Congress has decided that he should be more insulated from politics than the typical executive branch official. That’s why the director serves a 10-year term that overlaps presidential administrations.
There is one aspect of Comey’s record that is troubling, and it received appropriate attention at his confirmation hearings before the Senate Judiciary Committee. In 2004 Comey famously threatened to resign as George W. Bush’s deputy attorney general if a secret electronic surveillance program wasn’t put on sounder legal footing. But in a 2005 email, he said he concurred with a memorandum allowing waterboarding and other “enhanced interrogation techniques” that by any reasonable construction amounted to torture.
The 2005 memos by Steven G. Bradbury, head of the Justice Department’s Office of Legal Counsel, were among several opinions issued by the department during the Bush administration that adopted a strained reading of laws against torture in order to enable the Central Intelligence Agency to subject suspected terrorists to waterboarding, stress positions and other inhumane and degrading methods.
Comey told the Judiciary Committee that when he first learned about waterboarding, “my reaction as a citizen and leader was, this was torture. It’s still what I think.” In that case, he shouldn’t have acquiesced in a reading of the law that purported to find the practice legal. The twisting of legal precedents to justify inhumane treatment of detainees is one of the most scandalous legacies of the Bush administration’s post-9/11 excesses.
Waterboarding, fortunately, is no longer a live issue. A law enacted in December 2005 requires military interrogators to adhere to the Army Field Manual, which bans most enhanced interrogation techniques, and President Obama by executive order has imposed the same restrictions on the CIA. The FBI, which Comey has been nominated to lead, always had a dim view of the CIA’s interrogation practices.
Still, despite Obama’s suggestion that the war against terrorism is entering a new phase, it’s possible that in this administration or the next one, overzealous bureaucrats will again propose policies or legal theories that cut legal or constitutional corners in the cause of protecting the public. Before confirming Comey, the Senate should satisfy itself that he would resist such proposals.