(Updated below - Update II)
One of the biggest scandals of the Bush administration (which is really saying something) began on December 16, 2005. That was when the New York Times' James Risen and Eric Lichtblau were finally allowed to reveal what they had learned more than a year earlier: namely, that President Bush, in 2002, had ordered the National Security Agency to eavesdrop on the electronic communications of US citizens without first obtaining warrants from the FISA court as required by 30-year-old criminal law. For the next three years, they reported, the NSA "monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants." The two NYT reporters won the Pulitzer Prize for that story.
To say that progressives and liberals bellowed sustained outrage over that revelation is to understate the case. That NSA program was revealed less than two months after I first began writing about political issues, and I spent the next full year overwhelmingly focused on that story, and also wrote my first book on it. In progressive circles, the NSA warrantless eavesdropping program was the pure symbol of Bush/Cheney radicalism and lawlessness: they secretly decided that they were empowered to break the law, to commit what US statutes classified as felonies, based on extremist theories of executive power that held that the President, as Commander-in-Chief, was entitled under Article II of the Constitution to eavesdrop however he wanted in the name of national security, even if it meant doing exactly that which the law forbade.
The FISA law provided that anyone who eavesdrops without the required warrants - exactly what Bush officials did - is committing a felony "punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both" - for each offense. Moreover, all three federal judges who actually ruled on the merits of the Bush NSA warrantless eavesdropping program concluded that it violated the law.
So why, then, was there no accountability for this systematic illegal spying? That happened for two reasons. First, both the Bush DOJ and then the Obama DOJ successfully convinced obsequious federal courts that the eavesdropping program was so secretive that national security would be harmed if courts were to adjudicate its legality -- in other words, top government officials should be placed above and beyond the rule of law because doing so is necessary to Keep Us Safe (TM).
Second, the Bush DOJ's most senior lawyers -- Attorney General John Ashcroft, Deputy Attorney General James Comey and OLC chief Jack Goldsmith -- 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, thus making it more difficult to prosecute the Bush officials who ordered it (even if the Obama DOJ were inclined to prosecute, which they were not).
It was announced yesterday that this very same James Comey -- who as Bush's Deputy Attorney General authorized the once-very-controversial, patently illegal Bush NSA eavesdropping program -- is President Obama's choice to be the new Director of the FBI.
How are Obama's most devoted media loyalists reacting to the news that he is about to put in charge of the FBI the Bush lawyer who authorized the illegal NSA warrantless eavesdropping program based on warped right-wing legal theories? Exactly as you would expect. Here's one of them -- who wrote post after post after post in 2006 and 2007 vehemently denouncing the NSA program which Comey authorized and the theories on which it was based -- hailing Comey as "not only non partisan in [his] job but consistently put constitutional equities at center [of his] thinking."
It is true that Comey was at the center of a dramatic Bush-era political controversy that earned him praise from many Bush critics, including me. Comey was one of the Bush DOJ lawyers who, along with Ashcroft, Goldsmith, and FBI Director Robert Mueller, had threatened to resign if Bush did not modify the NSA program in order to make it legal in Comey's eyes, and he then went to the hospital where Ashcroft was quite ill to prevent then-White House counsel Alberto Gonzales and then-White House chief of staff Andy Card from bullying the infirm and barely cogent Attorney General into signing off on the legality of the NSA program.
In other words, there was something the NSA was doing for years -- that we still don't know -- even more extreme than the illegal NSA program revealed by the NYT in 2005. It was Comey, along with Ashcroft, Mueller, and Goldsmith, who threatened to resign if it did not stop, and they deserve credit for that. But the reason they didn't end up resigning was because Bush officials "modified" that NSA program into something those lawyers could and did endorse: the still-illegal, still-radical NSA eavesdropping program that spied on the communications of Americans without warrants and in violation of the law. And this was accomplished by inventing a new legal theory to accompany the old one: that Congress, when it enacted the 2001 AUMF, silently and "implicitly" authorized Bush to eavesdrop in exactly the ways the law expressly forbade.
Thus, it was Comey who gave his legal approval to enable that NSA eavesdropping program to spy on Americans without warrants: the same program that produced so much outrage and scandal when revealed by the NYT. How can any progressive who spent the Bush years vehemently denouncing that domestic spying program as the symbol of Bush radicalism and lawlessness now cheer when the lawyer who approved it is about to be put in charge of the FBI?
Then there's Comey's mixed and quite murky role in authorizing Bush's torture program. Internal DOJ emails released to the New York Times in 2009 show Comey expressing serious reservations, and even objections, to the willingness of Albert Gonzales to legally authorize any interrogation techniques the White House wanted, and he warned those officials that their involvement would be condemned by history. But even as he did so, Comey, as the New York Times explained, eventually, albeit reluctantly, gave his legal approval to those techniques:
"Previously undisclosed Justice Department e-mail messages, interviews and newly declassified documents show that some of the lawyers, including James B. Comey, the deputy attorney general who argued repeatedly that the United States would regret using harsh methods, went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful.
"That opinion, giving the green light for the CIA to use all 13 methods in interrogating terrorism suspects, including waterboarding and up to 180 hours of sleep deprivation,'was ready to go out and I concurred,' Mr. Comey wrote to a colleague in an April 27, 2005, e-mail message obtained by The New York Times."
As I wrote at the time, the NYT article significantly overstated Comey's role in approving these torture programs. But it is true that he ultimately acquiesced to their legalization.
There's no question that James Comey was far from among the worst people at the Bush DOJ. He's not John Yoo or David Addington, some of whose theories he rejected. He engaged in some rare, commendable conduct, including objecting to the more extreme version of the NSA program to the point of threatening resignation, and voicing serious reservations about the wisdom of some of the more extreme torture techniques. I understand the respect people have for some of what he did, and even share it.
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