James Comey. (AP Photo/Susan Walsh)
So now comes James Comey, the Republican former deputy attorney general almost certain to be confirmed as Obama’s next FBI chief. Some liberals are apparently poised to celebrate. Isn’t Comney the hero who stood up to President Bush and his attorney general and insisted they stop warrantless wiretapping?
Not so simple. As my colleague George Zornick documented three weeks ago, “warrantless surveillance didn’t stop because of that episode. Bush just agreed to make an as-yet-unknown modification to warrantless surveillance, which continued.” And as Glenn Greenwald explains, NSA’s warrantless spying wouldn’t have happened in the first place but for Comey—who as deputy attorney general “approved a legal memorandum in 2004 endorsing radical executive power theories and warped statutory interpretations, concluding that the Bush NSA warrantless eavesdropping program was legal.”
George Z. affixes a plea: “Comey’s nomination hearings are a great venue to press the administration on its failure to hold big financial firms accountable for demonstrable misconduct leading up to the 2008 collapse.” He quotes Senator Chuck Grassley, who offered some refreshingly un-Republican concern about Comey’s stint in the banking biz: “The administration’s efforts to criminally prosecute Wall Street for its part in the economic downturn have been abysmal, and his agency would have to help build the case against some of his colleagues in this lucrative industry.” (Funny how they finally find a conscience on this stuff when the administration is Democratic).
But senators shouldn’t just ask Comey about hedge funds (he went to work for one, Bridgewater Associates, in 2010). They should also ask him about revolving doors. Barely three months ago Comey joined the board of megabank HSBC, shortly after it agreed to pay a record $1.92 billion fine for serving as a conduit for laundered drug money from Mexico, among other sins. The company announced that Comey would be helping “oversee efforts to combat financial crime.” Another Bush administration official, Juan Zarate, a former deputy national security advisor, joined HSBC to help them clean house. And before Bridgewater, he served as general counsel for Lockheed Martin. He was general counsel when Lockheed was busy building Coast Guard vessels that weren’t waterproof and whose hulls buckled in high seas, ignoring the whistleblower who pointed all of that out. Senators, please ask James Comey this: What did you know about the the “Deepwater” scandal and when did you know it? Were you involved in the false claims settlement against whistleblower Michael DeKort? And more generally, how can federal law enforcement officials make independent judgements about prosecutions against companies that once employed them?
Something else they should inquire after? In 2004, after the Washington Post revealed the infamous Department of Justice “Bybee memo” authorizing torture, Comey was the one to announce its withdrawal, and directed the Office of Legal Council to draft a replacement policy. (See the extraordinary and neglected 600-page report of the Constitution Project’s Task Force on Detainee Treetment, pages 166–170, for the full story). What were the specifics of the detainee policy that replaced the one laid out in the Bybee memo, and why did its legality satisfy him when the original policy did not?
They would also be derelict not to ask Comey about torture because he bore primary responsibility for a case in which torture, arguably, occurred. As I explained in 2011:
In May 2002, a 31-year-old Muslim convert named Jose Padilla was arrested without fanfare at Chicago’s O’Hare International Airport on his way back from Pakistan. A month later, with the sort of fanfare worthy of P.T. Barnum, Attorney General Ashcroft introduced Padilla to the public. “We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,’” Ashcroft announced. This “unfolding terrorist plot” might have caused “mass death and injury.”
Now comes the most extraordinary part of the story—the one you likely do not know about at all. It fell to an obscure Chicago investigative journalist (and, full disclosure, a friend) named Lewis Z. Koch to address some reasonable questions the rest of the media failed to: What did it take to build a “radiological dispersion device”? Could a small-time street punk like Padilla do it? How dangerous would it have been if he could?
Koch’s findings were published in the January/February 2004 issue of the Bulletin of the Atomic Scientists, where its 10,000 or so subscribers learned that in order for Jose Padilla to do what the government claimed he and his conspirators were prepared to do, they would have had to locate and move perhaps a metric ton of spent fuel rods, encasing them in a 40-ton lead-lined shipping cask. They would have needed sophisticated remote-handling equipment to build the device. What might their labors have amounted to? If unleashed “at evening rush hour on a business day” in a crowded urban center, according to Koch’s article, the weapon would cause “no immediate fatalities and fewer than three fatalities from latent cancer.”
When FBI chief Robert Mueller was asked in December 2002 whether his agency had really thwarted any actual attacks on U.S. soil, he mentioned Padilla and his “dirty bomb.” Soon after, however, the government dropped the dirty-bomb charge—in favor of an even more ridiculous claim: that Padilla planned to blow up high-rise buildings by turning on the gas in all the stoves and then setting off explosives….
For three and a half years, at a Navy brig—not in Guantanamo, not under rendition in Syria, not at Bagram Airfield in Afghanistan but in Charleston, South Carolina—Padilla had been alternately interrogated and kept in a windowless nine-by-seven-foot cell, without visitors or, for almost two years, a lawyer. A forensic scientist who testified at a pretrial hearing called what happened during those interrogations “essentially the destruction of a human being’s mind.”
That entire outrage seems to have been largely James Comey’s responsibility. In a 2004 press conference, he claimed would tell “the full story of José Padilla,” to “allow the American people to understand the threat he posed, and also understand that the president’s decision [to prosecute Padilla as an “enemy combatant”] was and continues to be essential to the protection of the American people,” he was asked by an alert reporter about how he justified picking up Padilla in 2002 without any criminal charges, and his answer was Orwellian:
QUESTION: You said that if you had picked him up under criminal charges that he would have gotten a lawyer, would have clammed up and would have walked free. But couldn’t you have done what the Justice Department does thousands of times every year and offered him a plea agreement to work with you?
COMEY: All the time we offer plea agreements and people cooperate if we have a hammer over them. The challenge of the Padilla case, for me as the United States attorney, was the absence of a hammer. If I can’t credibly threaten criminal charges, no lawyer in the world is going to tell their client to talk to me, because a good lawyer would know, what I’m sure Mr. Padilla’s lawyers knew, that if you just clam up, they can’t do anything with this.
QUESTION: So does that suggest that possibly he was picked up too soon, because you didn’t have enough on him to pick him up on charges where you could actually bring criminal charges?
COMEY: I don’t think he was picked up too soon. I think it would have been derelict to allow him to come into the country and to hope to follow him.
We have a wonderful FBI and they follow people every day, and well. But only on TV do they do it twenty-four hours a day, seven days a week, without losing someone.
And when you’re talking about someone bent on the kind of destruction, mass murder, that we’re talking about here, you simply can’t run that risk.
QUESTION: So at this point, you have no plans to present any of this to a grand jury?
COMEY: No, we do not have any plans to present this, the information I’ve given you today, to a grand jury. I don’t believe that we could use this information in a criminal case, because we deprived him of access to his counsel and questioned him in the absence of counsel.
This was done not to make—the questioning of José Padilla, something else I should point out, was not undertaken to try and make a criminal case against José Padilla. It was done to find out the truth about what he knew about Al Qaeda and threats to the United States.
We could care less about a criminal case when right before us is the need to protect American citizens and to save lives.
We’ll figure out down the road what we do with José Padilla. What the president wanted to do and what was done was find out what he knows, figure out how it links up with other things that we know and give us a picture of what the enemy’s planning.
Listen to him admitting that criminal charges don’t matter (“we could care less”) when you arrest “the enemy”—meaning this silly, stupid gang kid from the streets of Chicago. Note that when the Justice Department finally “figured out down the road what we do with José Padilla” the solution they arrived at was to accuse him of a conspiracy to break into high-rise buildings, systematically turn on every apartment’s stove and then, um, what? Light a match? For supposedly planning this nefariously cunning scheme he is now serving a seventeen-year sentence, based on basically no evidence at all.
As Lew Koch reported from Padiall’s trial, “Ashcroft, then Comey…have built a case on fantasy, supposition, prejudice and fear mongering.” Ladies and gentlemen, your nation’s next chief law enforcement officer. A victory for bipartisanship, I suppose. For the Constitution, not so much. Senators: do your job.
In 2007, Naomi Klein wrote about the Padilla trial and system of US psychological torture.