When NYT Accused Jim Comey of Approving Torture

As you’ve likely heard already, NPR and others have reported that President Obama will nominate Jim Comey to lead the FBI.

I think Comey is a decent choice.

Much of the attention since this news broke has focused on Comey’s role in the hospital confrontation, where he threatened to resign unless the Bush Administration fixed the illegal wiretap program. That will clearly be a highlight of Comey’s confirmation discussion.

But just as much as Comey’s unsent resignation letter, I’m curious how these emails will play in his confirmation process.

They were similar Comey CYA, from the period in May 2005 when Dick Cheney was pushing Alberto Gonzales to reauthorize all the torture CIA had been doing since Jack Goldsmith had withdrawn the Bybee Two memo in 2004. While Comey did buy off on approving the waterboarding that had already been done (he unsuccessfully tried to limit it to one detainee whose treatment occurred after the Bybee Two memo was withdrawn), he also pushed hard — and failed — to get Alberto Gonzales to refuse to approve the techniques in combination, as they had reportedly always been used.

In the emails, he talks about when news of what was being approved broke (details of what freaked Comey out so much still haven’t become public), those pushing for torture would be gone. He regretted how much weaker Gonzales was than John Ashcroft, recalling that hospital bed scene.

I told him the people who were applying pressure now would not be there when the shit hit the fan. Rather they would simply say they had only asked for an opinion.


It leaves me feeling sad for the Department and the AG.


I just hope that when this all comes out, this institution doesn’t take the hit, but rather the hit is taken by those individuals who occupied positions at OLC and OAG and were too weak to stand up for the principles that undergird the rest of this great institution.


People may think it strange to hear me say I miss John Ashcroft, but as intimidated as he could be by the WH, when it came to crunch-time, he stood up, even from an intensive care hospital bed. That backbone is gone.

Comey even tried to scare the torturers with warnings that the torture videos would one day become public — just six months before the torturers destroyed those videos.

There’s far more, which I laid out in this post and this post.

But what’s just as interesting as the actual content of the emails is the spin that NYT reporters Scott Shane and David Johnston gave it, presumably at the behest of the torturers who leaked it to them. They chose to ignore all the details about people like Cheney and Condi Rice pushing for more more more, immediately, and instead to focus on Comey’s assent to the memo effectively approving of the torture — including waterboarding — that had already been done.

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 C.I.A. 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.

It’s true. Comey did buy off on that memo. He did buy off on a memo approving 7.5 days of sleep deprivation and waterboarding (though not, as Cheney was pushing so hard to do, together).

During John Brennan’s confirmation hearing, Saxby Chambliss made sure to get John Brennan’s much more complacent involvement in torture into the record. He made sure to get Brennan to admit to having submitted FISA warrant applications that relied on tortured information. Those efforts, I suspect, were designed to make it a lot harder for Brennan to separate the CIA from torture going forward.

The evidence in these emails is in some ways more damning, but in most ways far, far less, than what we know of Brennan’s role in torture.

But I expect the same people who leaked these emails to NYT’s remarkably obedient reporters will try the line again.

And why not? At least one of those credulous reporters is still parroting his sources’ spin.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

16 replies
  1. Jeff Kaye says:

    Noting, Daniel Levin’s December 30, 2004 memo to then Deputy Attorney General James Comey — the memo David Cole said that, despite some criticism of Yoo/Bybee “”did not change anything with respect to the bottom line” — was also accepted by Comey. Just sayin’.

    How, given Comey’s acceptance of these torture memos, can you say “Comey is a decent choice”?

  2. Snoopdido says:

    As a nomination for FBI Director is handled by the Senate Judiciary Committee, I expect entertaining fireworks will come from the verbal jousting between Comey and former Texas Solicitor General and now Texas Senator Ted Cruz.

    If there is any lawyer who could put Cruz in his place, Comey seems like the guy.

  3. emptywheel says:

    @Jeff Kaye: Right. Of the available choices (even assuming Mike Rogers, who is far worse, was never really a choice), he is a good choice. Still a very conservative hard ass willing to push the limits in the name of national security.

    But at least he has limits.

  4. orionATL says:

    “… I think Comey is a decent choice…”

    under the (highly partisan) circumstances, so do i -from a political standpoint.

    from a bill of rights standpoint, i am doubtful, but faintly hopeful.

    the fbi as a bureaucracy is an out of control monster, an undisciplined, ideological, police-state monster.

    i am hoping comey cares enough about both the bill of rights and realistic national security needs, to discipline his undisciplined troops.

    but the problems with fbi, doj, and cia is that they are dysfunctional social systems, each of which can never do what we, the nation, need done without having their entire social structure drastically changed – in particular, their “layers of bureaucracy” approach to meeting real, not political, national security needs while displaying absolute deference to the bill of rights.

  5. scribe says:

    I’m supposed to be excited. Surfing the TV last night my clicker lighted on Maddow, who seemed excited enough to rip her clothes off and dance naked in the streets or something. So, we know the party line on this deal.

    I’m not.

    For all the standing up for principle Comey is asserted to have done in Ashcroft’s hospital room, that was over 9 years ago. A real man would have capped AGAG and Card, taken the papers they brought for Ashcroft to sign, and blasted the whole program into the public – before the 2004 election, when it could have made a difference – then and there. He didn’t.

    In the interim, none of the torturers have been charged. The evidence of their crimes has been efectively buried if not destroyed. None of the wiretapping has ended – it has become regularized, legalized, and goes on uninterrupted without diminution. And in every instance when someone has tried to expose or end it, the FBI has been among those landing like the proverbial ton of bricks to stop exposure or termination.

    As head of the FBI, Comey (or anyone else) would be charged with protecting the interests of the institution. In the face of those, the less definitive generalized interests of the civil liberties of the people being surveilled by the institution (i.e., everyone) and those investigated, persecuted, prosecuted or killed by the institution tend to fall by the wayside pretty quickly.

    So, color me unimpressed and definitely not excited.

  6. emptywheel says:

    @scribe: I’m definitely not excited.

    Though I do consider him better than the alternatives.

    There was never a chance Obama would consider anyone less enthused with the war on terror or more enthused with civil liberties.

  7. klynn says:


    “There was never a chance Obama would consider anyone less enthused with the war on terror or more enthused with civil liberties.”

    The quote of the year. This says everything.

  8. matt carmody says:

    Just another corrupted gatekeeper who will ensure nothing stands in the way of the continued destruction of this country for anyone’s advantage except the owners and with the traitors installed by the Bush Crime Family and left behind in GS positions the system will punish anyone who tries to blow the whistle on overreach or downright illegal acts by government.

  9. Garrett says:

    An interesting source for the quotes-in-favor-of, in a 2003 James Comey profile:

    Comey will play a major role in all those dramas, and more, which will force his closely guarded political views into the public eye. “I had no sense whether Jim was an R or a D,” says Eric Holder Jr., who worked closely with Comey when Holder was deputy attorney general to Janet Reno in the Clinton administration—and who remains a confirmed D. “He’s just a good guy. It’s only now, because he’s in this administration, that I’m assuming Jim is a Republican.”

    “Jim is a chess player,” says Eric Holder, who learned about the political land mines of the job when he was deputy attorney general during the Monica Lewinsky mess. “He’s thinking not only What’s the impact of the move I make today, what’s the impact going to be tomorrow? He’s thinking, What’s the impact going to be one month, two months, six months from now?”

    Mr. Comey Goes To Washington, New York Magazine, October 2003

    NY Mag was certainly right about the drama part.

  10. Yardley Bottlessen says:

    I wonder if Lynne Stewart thinks Comey is all that? Spent her life defending the defenseless and is rotting in prison dying of breast cancer

  11. earlofhuntingdon says:

    @emptywheel: It is, after all, Mr. Constitutional Lawyer President who decided who did, and who did not, make his short list. His notions of diverse choices are suspect, so to say that Mr. Comey was better than anyone else on a published or rumored list may be a flawed deduction, based on nomenklatura theater.

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