Waterboarding and other torture tactics may once again take center stage in yet another nomination fight. But this time, the stakes involve a ten-year appointment to head the FBI.
Before President Obama nominates鈥攁nd certainly before the Senate Judiciary Committee confirms鈥擩ames Comey to be FBI director, the president and the senators should read three torture memos that are central to understanding who Comey is. There is a mountain of other torture documents from the Bush era, but we only need to read three of them.
During the Bush administration, the Senate Judiciary Committee turned away several nominees for top government jobs because of their roles in approving waterboarding and other torture. And on his second full day in office, President Obama invalidated the torture memos and banned the use of waterboarding and other torture tactics. But the president is reportedly poised to sign off on the nomination of the former number two official in the Bush Justice Department, who twice signed off on torture memos okaying waterboarding, wall slams, and other forms of torture.
The first key torture memo for the president and senators to read is the document now known as (it was the second torture memo signed by Assistant Attorney General Jay Bybee). There were two memos issued on August 1, 2002, that kicked off the torture program. The first memo鈥擝ybee I鈥攍aid out the Bush administration's legal theory for how to effectively ignore the Anti-Torture Act, while the second memo鈥擝ybee II鈥攄escribed waterboarding and other torture tactics in horrific detail and approved their use on a suspect.
Comey had no role in writing Bybee II (he didn't start as deputy attorney general until more than a year later), but he made sure it was still "good" law. After the news of widespread torture at Abu Ghraib broke, Comey, to his credit, supported the withdrawal of the Bybee I legal memo. But Bybee II stayed in place.
That brings us to the second key torture memo. Because Bybee II had relied on withdrawn Bybee I, waterboarding and other torture tactics were on even shakier legal ground. Comey reportedly ordered a replacement opinion for Bybee I, so that Bybee II would have a revised legal foundation.
鈥攁ddressed to "Deputy Attorney General James Comey"鈥攚as signed on December 30, 2004. The key sentence in the opinion is tucked away in footnote 8. It concludes that the new Comey memo does not change the authorizations of interrogation tactics in any earlier memos. In short, the Comey memo gave a thumbs-up on waterboarding. Read the footnote for yourself:
While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.
Even with this new memo, the Bush White House and CIA were still worried about whether they could get away with torture. They ordered up additional legal memos in the spring of 2005. The essentially is a rewrite of Bybee II, with basically a how-to guide on how to simulate drowning, induce hypothermia, slam a person into a wall, and otherwise commit torture and abuse and get away with it. The approved the use of these tactics in combination.
Comey gave a second thumbs-up to waterboarding in signing off on the May 2005 rewrite of Bybee II. He reportedly wrote an email to a colleague at the time, in which he said he "concurred" with the new torture memo. At the same time, he strenuously opposed the approval of the second memo combining torture tactics. Waterboarding was okay, as long as it was done the "right" way.
The FBI director serves for ten years and heads the nation's top federal law enforcement agency. No one in law enforcement should be more committed to lawful interrogation tactics鈥攁nd more opposed to waterboarding and other forms of torture and abuse鈥攖han the director of the FBI. Before the president decides whether to nominate Comey and before senators decide to confirm him to a ten-year term, they should all spend an hour or two reading these three torture memos that show Comey's two thumbs-up on waterboarding.
For more on the unsettling record of President Obama鈥檚 prospective pick to lead the FBI, see "James Comey: A Closer Look".
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Press ReleaseDec 2024
Free Speech
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Press ReleaseDec 2024
National Security
Religious Liberty
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VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. 鈥� Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. 鈥� Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government鈥檚 case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi鈥檚 detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
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