James Comey. (AP Photo)
If James Comey is confirmed to be the next director of the Federal Bureau of Investigation, he will naturally find himself at the center of the rapidly evolving debate over government surveillance.
The FBI is often the organization making applications to the Foreign Intelligence Surveillance Court, which, as we’ve learned thanks to Glenn Greenwald at The Guardian, is authorizing all sorts of broad, and deeply troubling, surveillance. For instance, it was the FBI who made the now-infamous application to FISC mandating that Verizon turn over all of its telephonic metadata to the National Security Agency.
This means members of the Senate Judiciary Committee had a serious obligation to press Comey on this issue—not least because, despite his bold stance against the very worst excesses of the Bush administration’s surveillance techniques, he still approved several other problematic surveillance programs.
To their credit, some senators did so. Comey’s responses, taken in total, were quite troubling—and signified that the administration isn’t ready for the “debate” that President Obama claimed he wanted about the government’s surveillance programs.
Several senators focused on the opaque nature of the FISC. Comey was asked repeatedly if FISC was a “rubber stamp” for government surveillance requests, and not a meaningful check on executive authority.
First, Comey pushed back against the idea that FISC is not, functionally, a check on government surveillance demands:
COMEY: Sometimes folks also don’t understand what the FISA Court is. They hear “secret court,” sometimes they hear “rubber stamp.” In my experience, which is long, 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. Anyone who knows federal judges, and who appears before federal judges, knows that calling them a rubber stamp shows you don’t have experience before them.
But only about ten minutes later, in a dialogue with Senator Chuck Schumer, Comey said this:
I hear folks say that quite often, that the government is undefeated in front of the FISA court, so how can it be a real court? I know from criminal cases that—I don’t know of a case where a wiretap application in a criminal case has been rejected by a federal judge, certainly none that I was involved with. And the reason is, we [law enforcement] don’t ever want that to happen. So we work like crazy to make sure we have our ducks in a row, we have probable cause easily cleared, because if we lose that credibility with the court, we worry that we’ll have lost something that we can’t ever get back. So I know that in FISA applications and criminal applications for court-order wiretaps, the government is extremely conservative in putting together what it presents to the court.