7-11-2013By Adam Jacobson
Law and Security Program
On Tuesday, James Comey faced a Senate confirmation hearing for his nomination to become the next FBI Director. Much of the hearing was spent questioning Mr. Comey about the torture policies of the Bush Administration. In his time as Deputy Attorney General, Mr. Comey approved legal memos declaring 13 “enhanced interrogation techniques,” including waterboarding, to be lawful when used individually.
Mr. Comey told the senators that he believed, “as a citizen and a leader,” that waterboarding and sleep deprivation were torture, and that he had objected on policy grounds to the use of these and other torture methods, but had been overruled. At the time, he also rejected legal memos advocating the use of these methods in tandem, which he believed did amount to torture. He now says that waterboarding is torture and is illegal.
These stances certainly deserve to be highlighted and praised, and they have been, with fawning coverage from the New York Times, in a piece titled “FBI Nominee Explains How View Has Changed on Interrogation Tactic.” But at no point during the hearing did Mr. Comey reject or fully explain the memo he had signed saying that “enhanced interrogation techniques” were legal.
Mr. Comey testified that, at the time, he thought the torture statute was “vague” and so he couldn’t say that any of the individual techniques were illegal, even waterboarding, which Senator Patrick Leahy reminded him, “has been recognized to be torture since the time of the Spanish Inquisition. We prosecuted American soldiers for using this technique in the last century. We prosecuted Japanese soldiers for using it on Americans during World War II.”
The United States is also signatory to the Convention Against Torture, which bans all torture and cruel and degrading treatment. And if in armed conflict, which both the Bush and Obama Administrations have maintained the U.S. is, Common Article 3 of the Geneva Conventions would apply, which mandates that prisoners be treated humanely and bars the use of cruel treatment and torture. Was Mr. Comey unaware of these domestic and international laws? We didn’t find out at his hearing.
Asked time and time again about the memos he signed, Mr. Comey repeatedly dodged the questions, one minute saying that his “reaction at the time” was that sleep deprivation was torture, the next agreeing that he had signed the legal memo saying that it wasn’t. At no point during the hearing did Mr. Comey explicitly say that the legal opinions he had approved were wrong.
Mr. Comey couldn’t even give a straight answer to the question of whether, as FBI Director, he would oppose torture and recommend that prosecution take place against government officials who took place in torture. He answered, “That’s correct, Senator. I think that would be without lawful authority, so would be a violation of law,” possibly implying that if these methods had lawful authority (the kind that he himself approved), that they would not be a violation of the law.
Mr. Comey needs to more explicitly repudiate the legal opinions he signed saying waterboarding and other “enhanced interrogation techniques” weren’t torture. Both Senator Feinstein and Senator Whitehouse recommended that Mr. Comey read the Senate Intelligence report on post-9/11 CIA torture and detention, which Sen. Feinstein says repudiates the CIA’s claims that “enhanced interrogation techniques” were effective.
That would be a good start. Mr. Comey should advocate for the public release of the Senate Intelligence report, so the American people can finally know how these torture methods were used in their name.
Mr. Comey should also explicitly reject the memos he approved on the legality of individual torture methods, and needs to be unequivocal in his opposition to the use and legality of torture–not just waterboarding and sleep deprivation, but all “enhanced interrogation techniques.” If he is going to be the director of the FBI, we should expect no less.