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Obama's Choice for FBI Chief Fought Bush over Privacy, Supported Enhanced Interrogation

A nominee is being touted for having paid the most lip service to our eroding concept of privacy.
Comey discusses the power balance between the White House and the Department of Justice.

President Obama is set to nominate James Comey, a former Bush official who famously resisted the administration's secret warrantless wiretapping program, to take over as FBI director. With the Bureau caught up in controversy over privacy lately—not to mention the DOJ's recent overzealous spying on news organizations—the choice is telling.

How Comey's whistleblowing went down is straight out of a soap opera. Flash back to 2004: The war on terror is reaching a fever pitch, and Comey is a DOJ official serving as Acting Attorney General for John Ashcroft, who was sick and hospitalized. Knowing Ashcroft had concerns over the legality of the White House's proposed wiretapping program, Comey refused to approve it. The Bush administration forged ahead anyway, and for three weeks operated a program that quite likely was illegal—prompting Coney and a bunch of other top DOJ officials to threaten to resign.

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The fight culminated in an outrageously sketchy episode in which White House officials literally rushed to Ashcroft's hospital bedside to try and cajole him into approving the program.  "I was angry," Comey said later in a now-famous testimony before Congress. "I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general."

The day after the hospital incident the Bush administration revised the surveillance law to satisfy Justice Department concerns. It was then billed as a win for progressives and for Comey—as well as privacy, though to a lesser extent.

Fast forward seven years and not only has Congress extended the warrantless wiretapping program, the FBI and DOJ want to greatly expand their own surveillance powers in order to easily tap and monitor all online communication. The FBI wants access not just to phone calls but to chats, email, Facebook, Twitter, and other such places where obviously criminal activity is occurring. And they want access in real-time, without having to wait for the slow process of obtaining a Warren. Indeed documents obtained by the ACLU show that the FBI most likely isn't getting warrants before reading your tweets and Gchats—a blatant FU to the Fourth Amendment.

FBI Director Robert Mueller, whose 10-year term is up in September, pushed for years for the bureau to have backdoor access to online communication providers like Google, a plan the White House is close to backing. Now that such plans have become widely criticized, Obama selecting Comey, once the privacy hero, feels a wee bit forced. And despite Comey's laudable resistance to a terrible Bush-era program, he still signed off on some of the most abhorrent parts of the war on terror, as the ACLU noted:

As the second-highest ranked Justice Department official under John Ashcroft, Comey approved some of the worst abuses committed by the Bush administration. Specifically, the publicly available evidence indicates Comey signed off on enhanced interrogation techniques that constitute torture, including waterboarding. He also oversaw the indefinite detention without charge or trial of an American citizen picked up in the United States and then held for years in a military brig. Although Comey, despite tremendous pressure from the Bush White House, deserves credit for courageously stopping the reauthorization of a secret National Security Agency program, he reportedly approved programs that struck at the very core of who we all are as Americans.

That Comey is being billed as the guy who stood up to Bush is a sign of how much things have changed in the last decade. A nominee being touted for having once fought a losing battle for American's eroding concept of privacy isn't the strongest evidence that he'll be able to change the course of an agency that's continually maneuvering to have more access to American's private data. Assuming Comey's confirmed this summer, we'll see if he picks things up where Mueller left off.