On March 12 of this year, Dianne Feinstein plaintively asked Jim Comey to read the full SSCI Torture Report. Before giving a really lame answer about how FBI doesn’t torture to excuse why he (and his staffers) hadn’t read, perhaps even opened, the report, he asserted he had read the Executive Summary. “You asked me to do it during my confirmation hearing, I kept that promise and read it.”
Particularly given what we now know — specifically, that Comey concurred in an opinion retroactively authorizing the torture of Janat Gul, whom the Torture Report shows was tortured largely to get torture approved again — that led me to review precisely what transpired between Comey and Feinstein during his 2013 confirmation process. Granted, the report was not yet public, so no one could ask Comey directly whether he knew that’s what CIA was scheming — to torture Janat Gul largely to get torture approved again — at least not publicly.
But what kind of commitment did they get?
First of all, at least in the public hearing, Comey did not promise to fulfill Feinstein’s request. Moreover, she requested that he do more than read the Summary — she said he should read all 6,000 pages, emphasizing the importance of the case studies (which would show far more specifics about what was done to Janat Gul than the Summary does).
I’d like to ask you to personally review our report. It’s a big deal to review it — it’s 6,000 pages. But I think it’s very important. You have that background. And I think it’s important to read the actual case studies.
During his turn, after pointing to how shoddy the memo Comey did concur in was, Sheldon Whitehouse reiterated Feinstein’s request that Comey read the entire report, noting that the specific details of the torture cases showed how much CIA lied about what went on. (It’s not clear whether the details surrounding the Janat Gul case would have been clear before Whitehouse left SSCI, so it’s not clear whether he knew those specific details — the ones most pertinent to Comey’s role on concurring in torture — during this hearing.)
In any case, after recommending he read the full report, Feinstein then went on to the memo Comey did concur in, asking him to explain why he had said in an email that the Principals were “unaware” or “willfully blind” when they reapproved torture.
Feinstein: You described telling Attorney General Gonzales that CIA interrogation techniques were, quote, simply awful, end quote. That quote, there needed to be a detailed factual discussion, end quote of how they were used before approving them and that, quote, it simply could not be that the Principals would be willfully blind.
Here’s the question: Why did you believe that there was a danger that the Principals on the National Security Council were unaware, or willfully blind to the details of the CIA program?
Comey: Thank you Senator. Because I heard … I heard no one asking that third critical question. As you recall I said [in response to a Pat Leahy question] I think there are 3 critical questions with any counterterrorism technique, but especially with the interrogations. Is it effective — something the CIA was talking about. Is it legal under the — Title 18 Section 2340, the legal question. And then this last question, is this what we should be doing. And instead, I heard nothing, and in fact it was reported to me that the White House’s view was only the first two questions matter. If the CIA says it works and DOJ will issue a legal opinion that it doesn’t violate the statute, that’s the end of the inquiry. And, as you said, Senator, I thought that was simply unacceptable.
The answer is interesting given that — earlier in the hearing — he had confirmed (or at least claimed) to Pat Leahy what I believed to be true, that he was out of the loop on the Article 16 CAT memo. I’ve believed that because on May 31, 2005, Comey was still trying (futilely) to influence the Principals through Alberto Gonzales, while still framing the discussion in terms of the earlier May 10 memo, not the May 30 one that got finalized the day before.
He also seemed unaware in his email that (as reported by the Torture Report) CIA had started torturing Abu Faraj al-Libi 3 days earlier, based on the May 10 memos and anticipating the May 30 one.
But he should have known — because he was in the loop on some discussions going back to the previous summer — that CIA felt it needed a memo addressing whether torture complied with the Constitution and therefore the Convention on Torture. Indeed, that’s what CIA had demanded in a July 29, 2003 hearing Comey attended part of; is he now claiming (which would be possible but notable) that they only addressed that demand after he and Bellinger left the meeting? That claim, given Comey’s emphasis on 18 USC 2340 rather than legal questions more generally, is rather curious.
In any case, Comey’s answer last week now appears all the more lame, given that Feinstein had in fact asked him to read the full report, not just the summary.
In any case, having gotten Comey to agree during his confirmation hearing to the notion that there are things the US shouldn’t do, even if they’re legal, Feinstein took this principle, and tried to get Comey to apply it to force feeding at Gitmo.
Feinstein: You have looked at the Combination of EITs, the manner in which they are administered, and you have come to the conclusion that they form torture. These are people, now, 86 of them, who are no threat to this country. They’ve been cleared for transfer, many of whom are being force fed to keep them alive. In my view, this is inhumane, and I am very curious what you would say about this.
Comey refused to do so, at first making the same argument he is now: force-feeding at Gitmo is not part of the FBI’s job, then pleading ignorance about the practice (and, seemingly, protecting the use of force-feeding in an area where it’d be more pertinent to FBI use, especially given its use to get informants on gangs in California’s Pelican Bay, in US prisons).
Comey: If I were FBI Director, I don’t think it’s an area that would be within my job scope. But I don’t know more about what you’re describing than what you’re describ–
Feinstein: Well, let me just say it’s within all of our job scopes to care about how the United States of America acts.
Comey: I agree very much with that Senator. And I do also know that there are times in the Bureau of Prisons when the Federal authorities have had to force feed someone who’s refusing to eat and they try to do it in the least invasive way. What you’re describing I frankly wouldn’t want done to me but I don’t know the circumstances well enough to offer an opinion. I don’t think it would be worth much at this point.
Ultimately, though, Comey didn’t really fulfill his standard of reviewing to make sure counterterrorism techniques are effective and legal as well as reasonable. But that’s not surprising, because he didn’t exercise that standard in defending the phone dragnet either.
That’s not the end of the public exchange between Feinstein and Comey during his confirmation process, however. She asked him one more question on torture while invoking the report in her Questions for the Record.
In December 2012 the Senate Intelligence Committee adopted a bipartisan 6,300-page Study of the CIA’s former detention and interrogation program. The review is by far the most comprehensive intelligence oversight activity ever conducted by the Committee. The Study— which builds a factual record based on more than 6 million pages of intelligence community records—uncovers startling new details about the management, operation, and representations made to the Department of Justice, Congress, and the White House. I believe the Study will provide an important lessons learned opportunity for Congress, the executive branch, and the American people. You have testified that you raised objections about the CIA interrogation program with Attorney General Gonzales in May 2005 before departing the Department of Justice. In one of your emails that was made public in 2009, you described telling the Attorney General that the CIA interrogation techniques were “simply awful,” that “there needed to be a detailed factual discussion” of how they were used before approving them, and that “it simply could not be that the Principles would be willfully blind.” In your confirmation hearing you expressed frustration that there was not a wider policy discussion on this matter, which you believed—rightfully so—was of great importance and contrary to our values and ideals as a nation.
Should you be confirmed, how will your experience raising concerns about CIA’s so-called “Enhanced Interrogation Techniques” behind closed doors influence your approach and leadership at the Federal Bureau of Investigation, your interactions with Congress, and your communications with the American people?
RESPONSE: My experience as Deputy Attorney General reinforced my long-standing view about the importance of fostering a culture of transparency, which I will bring to the FBI if I am confirmed as its new Director. I believe, as I did when I served as Deputy Attorney General, that if there are questions about whether proposed conduct is appropriate—consistent with our values —we should seek a vigorous debate about that conduct before going forward. In those circumstances, I am prepared to detail my concerns and reasoning to the relevant stakeholders, as I have done in the past. If confirmed, I intend to foster a culture at the Bureau that encourages subordinates to provide their candid advice to me and transparency with Congress and the American people, consistent with the Bureau’s law enforcement and national security responsibilities, and long-standing Executive Branch confidentiality interests.
Comey’s tribute to transparency is pretty absurd, given that under him his Agency has stalled on IG reports and redacted things from Congress that were shared in the previous IG Report.
But it’s also a throwaway question. I think Feinstein wanted Comey to reveal that he would share things he discovered with Congress. Given his nod to “Executive Branch confidentiality interests,” there’s no reason to believe he would.
Still, this question was even further away from the question of, “did you know, when you concurred in torture you now claim to recognize as torture, that the victim was someone tortured in part because CIA didn’t vet a fabricator (again) and in part because CIA was so anxious to win torture approval’?
It still doesn’t ask the question Comey should now be asked: when you concurred in retroactively authorizing the torture of Janat Gul, did you know CIA had been lying about him for the better part of a year? Did you know you were concurring in the torture of a man largely torture for legal cover?
I asked both Senator Feinstein’s office and the FBI whether any more specific question got asked in classified fashion but I got a No Comment and a non-answer.
My guess is that Feinstein didn’t come to a realistic understanding of just how cynical the CIA is and was until they started spying on her earlier this year, and so didn’t ask the questions during confirmation that might have made Comey’s willingness to — again — play useful idiot to the CIA’s crimes (including in investigating their spying on Congress).
But it deserves to be noted, even then, Comey was claiming that it is not the FBI Director to investigate the crimes committed by agents of the government.