James Comey: Obama's New FBI Pick Will Not Defend Your Civil Liberties

On Wednesday the New York Times reported that President Obama plans to nominate James Comey, former deputy attorney general under the Bush administration, to replace Robert S. Mueller III as the director of the Federal Bureau of Investigation (FBI). Having served under a Republican administration, donated to both John McCain and Mitt Romney’s presidential campaigns, and stood up to the Bush administration over its warrantless surveillance of Americans, Comey appears to have the bipartisan credentials needed to be approved if nominated. He is expected to be formally nominated within the next few days.

Comey's apparent bipartisan appeal, however, does not mean that he is a good choice for FBI director, given that critics have highlighted the limited extent to which he actually opposed the Bush-era surveillance policies and the worrying similarities between the Bush policies and Obama's.

The Times argues: “By choosing Mr. Comey, a Republican, Mr. Obama made a strong statement about bipartisanship at a time when he faces renewed criticism from Republicans in Congress and has had difficulty winning confirmation of some important nominees. At the same time, Mr. Comey’s role in one of the most dramatic episodes of the Bush administration — in which he refused to acquiesce to White House aides and reauthorize a program for eavesdropping without warrants when he was serving as acting attorney general — should make him an acceptable choice to Democrats.”

Comey would seem to be the perfect bipartisan candidate then. But critics have questioned the extent to which he was actually opposed to the wiretapping program under Bush.

Glenn Greenwald of The Guardian writes that Comey, along with other officials including then–Attorney General John Ashcroft and current FBI Director Mueller, should be praised for pushing back against the warrantless surveillance policy under Bush. Comey, along with the others, threatened to resign if the illegal National Security Agency (NSA) program was not modified in order to make it legal in their eyes. Greenwald, however, goes on to point out that they did not resign because the program was modified, using the 2001 Authorization for the Use of Military Force (AUMF) as its basis, into something that they could and did endorse. Yet the modified program, says Greenwald, was “still-illegal [and] still-radical [spying] on the communications of Americans without warrants and in violation of the law.” Greenwald also highlights the fact that Comey gave his legal approval to the torture techniques the White House wanted to use, despite having serious reservations about them.

Elias Groll of Foreign Policy notes that following Wednesday’s reports by the Times, “the media has been stumbling over itself to recount” the above story. Except, largely, for the bit where Comey and the others continued to endorse the warrantless, illegal surveillance of Americans. Furthermore, The Nation’s George Zornick points out that “Comey was actually one of the ones who authorized warrantless surveillance in the first place.”

The point here is not to demonize Comey as responsible for all the bad things that the Bush administration did, but rather to highlight the limited extent to which he actually opposed the Bush surveillance policies. It is, therefore, a worrying indictment of the Obama administration’s own authoritarian approach to issues of surveillance, secrecy, and due process that Obama wants to nominate him for FBI director. As Michael Ratner, president emeritus of the Center for Constitutional Rights, argues, simply “recycling Bush people is not a good guarantee for the protection of civil liberties.”

It seems likely that if Comey is nominated he will be approved for the position, given his bipartisan appeal. But rather than being a positive move by the Obama administration, Comey’s nomination would instead just highlight how little has changed since the Bush era and confirm that the real bipartisan consensus is one that still, and increasingly so, permits (indeed often encourages) a dangerous overreach of government power and a consequent erosion of civil liberties.