Former Deputy Attorney General James Comey testifies on Capitol Hill in Washington, Tuesday, May 15, 2007, before the Senate Judiciary Committee hearing regarding the fired prosecutors. (AP Photo/Susan Walsh)
President Obama is prepared to nominate James Comey, a former Department of Justice official under George W. Bush, to head the FBI, according to various press reports.
Comey’s confirmation hearings before the Senate Judiciary Committee will present an excellent opportunity to press the administration on two of its biggest failings: an out-of-control security state and a dearth of prosecutions related to the 2008 crash on Wall Street.
Luckily, senators seem ready to ask these questions—and fundamental changes to White House policy are possible if they push hard enough.
Quite a bit of attention has already been paid to Comey’s role in warrantless surveillance by the federal government, which expanded dramatically while he was at the Justice Department. Specifically, we’ve repeatedly heard how Comey, along with then–Attorney General John Ashcroft and current FBI Director Robert Mueller, stood up to Bush and then–White House counsel Alberto Gonzales over their warrantless surveillance of Americans. The men threatened to resign en masse if Bush didn’t scale back that program.
Comey’s heroism in that case forced Bush to stand down, for which Comey and the others deserve due credit. But don’t be confused—warrantless surveillance didn’t stop because of that episode. Bush just agreed to make an as-yet-unknown modification to warrantless surveillance, which continued. (His administration ended the program three years later, and returned to seeking warrants from the Foreign Intelligence Surveillance Act courts.)
So Comey was essentially on board with federal surveillance outside the FISA court system, just not this particular abuse of it—and as Glenn Greenwald points out in an excellent column, Comey was actually one of the ones who authorized warrantless surveillance in the first place.
This should be disqualifying for the top law enforcement officer in the land. But at the very least, it presents very fertile territory for senators on the intelligence committee to press Comey, and by extension the administration, on the propriety of federal surveillance, which is no doubt continuing with dubious legal justification.
Senators Ron Wyden and Mark Udall have repeatedly raised these concerns, specifically regarding how the government and the FISA courts have interpreted Section 215 of the PATRIOT Act. While not able to reveal the classified information they are privy to, the two senators have suggested that massive and improper surveillance of Americans is continuing. This was a letter they sent to Attorney General Eric Holder in 2011: