Executive Session
Floor Speech
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Mr. WHITEHOUSE. Madam President, I rise today to speak regarding the nomination of James B. Comey, Jr., to serve as Director of the Federal Bureau of Investigation.
Mr. Comey has a long record of service to the Department of Justice. Colleagues doubtless are familiar with Mr. Comey's role in the infamous scene at the side of Attorney General Ashcroft's hospital bed over the reauthorization of part of President Bush's warrantless wiretapping program. Mr. Comey, to his great credit, stood firm for the rule of law and for the Department he served.
Nonetheless, I believe Mr. Comey's role in the issuance of Justice Department legal opinions on torture deserves close examination by this body.
In August 2002, Assistant Attorney General Jay Bybee and John Yoo of the Justice Department's Office of Legal Counsel used what are now acknowledged to be radical--some would say outlandish--legal arguments to authorize the use of torture. Jack Goldsmith, the subsequent head of the office, withdrew those opinions. His successor, Daniel Levin, issued a new opinion, dated December 30, 2004, that provided a new analysis of the Federal statute outlawing torture. The Office of Legal Counsel, under the leadership of Steven Bradbury, applied that analysis to a series of abusive interrogation techniques, as used individually and in combination. The resulting two opinions--the Individual Techniques Opinion and the Combined Techniques Opinion--were issued on May 10, 2005. Then-Deputy Attorney General Comey concurred in the former and vigorously objected to the latter on both legal and policy grounds.
I strongly disagree with Mr. Comey's conclusion that the Individual Techniques Opinion was, as he put it at his confirmation hearing before the Judiciary Committee, a ``serious and responsible interpretation'' of the torture statute. Its legal analysis is inadequate in numerous ways, but for today I will focus on one of the most significant shortcomings.
As I have observed on other occasions, this opinion omits the 1984 Fifth Circuit case of United States v. Lee, which involved the prosecution by the Reagan Justice Department of a local sheriff and deputies who had engaged in waterboarding. The Justice Department's brief on appeal described the technique in detail and described it as ``water torture.'' The opinion by the Fifth Circuit likewise repeatedly referred to ``water torture'' and ``torture.'' As Professor David Luban of Georgetown Law School explained at a hearing I chaired in May 2009, Lee is ``perhaps the single most relevant case in American law on the legality of waterboarding.''
To give you an idea of how widely the Individual Techniques Opinion ranged, it evaluated the meaning of the terms ``severe physical or mental pain or suffering;'' it evaluated ``[t]he common understanding of the term `torture' and the context in which the statute was enacted'' and it discussed ``the historical understanding of torture.'' Yet nowhere in this discussion of the ``historical understanding of torture'' and the ``common understanding of the term `torture''' does this opinion mention that it was the view of the Department of Justice itself, confirmed by the U.S. Court of Appeals for the Fifth Circuit in 1984, that waterboarding is torture. The opinion likewise fails to consider the American prosecutions of Japanese soldiers for waterboarding our troops during the Second World War or the court-martials of American soldiers for using the technique in the Philippines after the Spanish-American war.
The shortcomings of the Individual Techniques Opinion go beyond the failings of its legal analysis. Lawyers cannot analyze the law without knowing the facts, and the record demonstrates that the CIA repeatedly gave the Office of Legal Counsel bad information about the use and effectiveness of the techniques. How willingly Yoo and Bybee accepted false representations by the CIA about their use of the techniques is a question for another day--and their consciences.
In 2004, however, the CIA's Inspector General explained that the CIA had used the techniques differently than they were described in the Yoo and Bybee opinions. Significant misrepresentations also made their way into Office of Legal Counsel opinions in 2005. As former FBI interrogator Ali Soufan testified at a hearing I held in 2009, a May 30, 2005, opinion claim about the effectiveness of waterboarding against Khalid Sheik Muhammad and the so-called Dirty Bomber, Jose Padilla, was demonstrably false. And although I cannot discuss the report of the Senate Intelligence Committee, which remains classified, it is my firm belief that when all the facts are finally made public, the judgment about the candor of the CIA will be harsh and the Individual Techniques Opinion will be further discredited.
As I pointed out at Mr. Comey's confirmation hearing, it is not enough to say that letting the Individual Techniques Opinion go was ok because the techniques would likely only be used in combination. If Mr. Comey's view had prevailed and the Combined Techniques Opinion had not been issued, an interrogator could have waterboarded a detainee as long as that technique was used in isolation.
It also concerns me that Mr. Comey did not press for an analysis of legal prohibitions other than the torture statute. The Individual Techniques Opinion and the Combined Techniques Opinion did not consider, for example, the legality of abusive techniques under American treaty obligations, such as those imposed by the Convention Against Torture or even under the Constitution. It may be the practice of the Office of Legal Counsel to divide relevant legal questions among multiple opinions, but that does not justify failing to address all obvious and relevant legal questions. As a result, I believe that concurrence in the Individual Techniques Opinion should have been withheld until it was clear that the Office was evaluating all relevant treaty and constitutional questions.
Because I do not believe the Individual Techniques Opinion is reasonable or responsible, and because I believe the process for reviewing that opinion was flawed, I cannot hold Mr. Comey blameless for concurring it. He should have done better.
This evaluation has the benefit of hindsight and is free from the pressurized atmosphere of early 2005, when Mr. Comey was forced to contend with a White House pulling the Justice Department in the wrong direction on a number of fronts.
I accept that it was not Mr. Comey's responsibility as the Deputy Attorney General to do his own research on the questions addressed by the Individual Techniques Opinion. I do think that the opinion had a bad enough odor to put a responsible, well-trained lawyer on alert.
Mr. Comey did take significant, affirmative steps to satisfy himself that the Individual Techniques Opinion was issued in good faith, seeing to it that the opinion was pressure-tested by exposing it to broad review within the Department of Justice and the executive branch. This fact distinguishes the Individual Techniques Opinion from the earlier opinions that had been crafted without adequate scrutiny within the executive branch--scrutiny they likely could not have survived: remember the use of the Medicare standard for a torture opinion.
In sum, while I believe that the Individual Techniques Opinion does not meet the standards expected of Justice Department attorneys, I ultimately have concluded that Mr. Comey performed his role reasonably.
One key fact corroborates this conclusion. As discussed above, the legality of waterboarding under American treaty obligations and the Constitution was the obvious followup question. In fact, the Office of Legal Counsel was working on a separate opinion on those very questions and would publish it on May 30, 2005. Mr. Comey, however, was deliberately cut out. Though he already had submitted his resignation, Mr. Comey apparently was enough of a thorn in the side of the enablers of torture that they wanted to get around him.
It is my judgment, overall, that Mr. Comey was an opponent of torture and a defender of the best traditions of the Justice Department and our Nation. I think he could have done better, but Mr. Comey was on the right side. Add to this his clear statements to the committee, his long track record of public service, and his principled stands on other matters of national importance, and I conclude that Mr. Comey has the integrity, the capability, and the commitment to lead the Federal Bureau of Investigation. I will work to see his nomination confirmed and work with him as he undertakes this new chapter in his public service.
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