Washington Markup

Is the Spying Comey Approved More Important Than the Spying He Opposed?

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 2:05pm

What's worse than waterboarding and letting the government wiretap Americans without warrants? It's not a riddle; it is a question we need James Comey to answer, particularly if President Obama nominates him to lead the FBI for the next 10 years.

You see, while serving as acting attorney general in March 2004, Comey took a courageous and defiant stand against the Bush administration's secret [REDACTED] surveillance program, refusing to sign a certification saying the program was legal. When White House Counsel Alberto Gonzales authorized the program to go forward without a Justice Department certification, Comey threatened to resign, along with his staff and FBI Director Robert Mueller.

The threats worked, President Bush blinked, and Comey won modifications to the [REDACTED] surveillance program that he felt brought it into compliance with the law. He deserves credit for taking a stand, as others in the administration clearly weren't willing to do the same. The problem is we don't know what exactly he took a stand against, why, or what reforms they enacted to make him agree to let the program continue. (The Washington Post has the latest theory.)

For clues we have to look at the programs Comey did allow to go forward. My colleague Chris Anders wrote about his approval of, or at least acquiescence to, certain Justice Department memos authorizing torture. On the surveillance question, we also know Comey authorized the National Security Agency to intercept Americans' international communications without warrants, in clear violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act. In fact, the FBI found out about the NSA's warrantless wiretapping program almost from its inception. But rather than initiate an investigation to enforce the criminal provisions in FISA, the Bureau played along and dutifully chased the leads the program produced (mostly to dead ends).

Comey was only read into the program in January 2004, and to his credit immediately began raising concerns. When the New York Times exposed what we know as the NSA's warrantless wiretapping program in December 2005, however, it was still ongoing. The Bush administration described the program the Times exposed in very narrow terms – an attempt to identify people in the U.S. who were calling or receiving calls from al Qaeda member abroad – in an effort to put the best possible spin on what was on its face an illegal surveillance operation (and even called it the "Terrorist Surveillance Program" for good measure).

But the bottom line is the illegal warrantless wiretapping program was still alive and kicking more than a year and a half after Comey's hospital showdown with Gonzales. In fact, it was supported by a May 2004 legal opinion produced by the Justice Department's Office of Legal Counsel that replaced the 2001 legal opinion Comey had problems with. So the changed legal opinion apparently won Comey's approval, though it is unclear the nature of the surveillance program itself changed at all. And we now know the so-called "Terrorist Surveillance Program" wasn't the only Bush administration spying program, much less the one Comey was so concerned about. In May 2006, USA Today reported the NSA had been secretly collecting a massive data base of Americans' phone call records without warrants or FISA orders since shortly after 9/11. All we know for sure is that Comey was okay with the NSA violating FISA to spy on innocent Americans' international calls.

Recent revelations in the Guardian and the Washington Post indicate that neither the FBI nor the NSA has lost their appetite for collecting data about innocent Americans' communications, nor lost their aversion to transparency regarding the legal reasoning they claim authorizes such activity. The exposure of these ongoing suspicion-less surveillance programs makes getting answers from Comey all the more important.

We're glad Comey stood up against one of the Bush administration's illegal spying programs. That said, unless we fully understand what he complained about and why, and why he let the NSA warrantless wiretapping and calling-data collection programs continue, we will not know whether he could be an FBI Director that stands up to a new president's unconstitutional programs to spy on Americans.

So, here's the question: is President Obama considering making Comey head of the FBI because of the surveillance program he objected to, or because of the ones he didn't?

For more on the unsettling record of President Obama’s prospective pick to lead the FBI, see "James Comey: A Closer Look".

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