James Comey’s Forgotten Rescue of Bush-Era Torture

“Here I stand, I can do no other,” James Comey told President George W. Bush in 2004 when Bush pressured Comey – who was then Deputy Attorney General – to approve an unlawful antiterrorist policy. Comey, who was FBI chief from 2013 to 2017, was quoting a line reputedly uttered by Martin Luther in 1521, when he told Holy Roman Emperor Charles V that he would not recant his sweeping criticisms of the Catholic Church. Comey’s quotation of himself quoting the father of the Reformation is par for the self-reverence of his new memoir, A Higher Loyalty: Truth, Lies, and Leadership.

MSNBC host Chris Matthews recently declared, “James Comey made his bones by standing up against torture. He was a made man before Trump came along.” Washington Post columnist Fareed Zakaria, in a column declaring that Americans should be “deeply grateful” to lawyers like Comey, declared, “The Bush administration wanted to claim that its ‘enhanced interrogation techniques’ were lawful. Comey believed they were not… So Comey pushed back as much as he could.”

Martin Luther risked death to fight against what he considered the heresies of his time. Comey, a top Bush administration policymaker, found a safer way to oppose the worldwide secret U.S. torture regime widely considered a heresy against American values. Comey approved brutal practices and then wrote some memos and emails fretting about the optics.

Comey became Deputy Attorney General in late 2003 and “had oversight of the legal justification used to authorize” key Bush programs in the war on terror. At that time, the Bush White House was pushing the Justice Department to again sign off on an array of extreme practices that had begun shortly after the 9/11 attacks. A 2002 Justice Department memo had leaked out that declared that the president was entitled to ignore federal law in approving extreme interrogation techniques. Photos had also leaked from Abu Ghraib prison showing the stacking of naked prisoners with bags over their heads, mock electrocution via a wire connected to a man’s penis, guard dogs on the verge of ripping into naked men, and grinning U.S. male and female soldiers celebrating the bloody degradation. A confidential CIA Inspector General report had just warned that post-9/11 CIA interrogation methods may violate the international Convention Against Torture.

Rather than ending the abuses, Comey repudiated the memo. Speaking to the media in a not-for-attribution session on June 22, 2004, Comey declared that the 2002 memo was “overbroad,” “abstract academic theory,” and “legally unnecessary.” Comey helped oversee crafting a new memo with different legal footing to justify the same interrogation methods.

Comey twice gave explicit approval for waterboarding, which sought to break detainees with near-drowning. This practice had been recognized as a war crime by the U.S. government since the Spanish American War.

Comey wrote in his memoir that he was losing sleep over concern about Bush administration torture polices. But losing sleep was not an option for detainees because Comey approved sleep deprivation as an interrogation technique. Detainees could be forcibly kept awake for up to 180 hours until they confessed their sins. How did this work? At Abu Ghraib, the notorious Iraqi prison, one FBI agent reported seeing a detainee “handcuffed to a railing with a nylon sack on his head and a shower curtain draped around him, being slapped by a soldier to keep him awake.”

Comey also approved “wall slamming” – which, as law professor David Cole wrote, meant that detainees could be thrown against a wall up to 30 times. Comey also signed off on the CIA using “interrogation” methods such as facial slaps, locking detainees in small boxes for 18 hours, and forced nudity. When the secret Comey memo approving those methods finally became public in 2009, many Americans were aghast – and relieved that the Obama administration had repudiated Bush policies.

When it came to opposing torture, Comey’s version of “Here I stand” had more loopholes than a reverse mortgage contract. Though Comey in 2005 approved each of 13 controversial extreme interrogation methods, he objected to combining multiple methods on one detainee. It was as if Martin Luther grudgingly approved of the Catholic Church selling indulgences to individually expunge sins for adultery, robbery, lying, and gluttony but vehemently objected if all the sins were expunged in one lump sum payment.

In 2014, the Senate Intelligence Committee finally released a massive report, Americans learned grisly details of the CIA torture regime that Comey helped legally sanctify – including death via hypothermia, rape-like rectal feeding of detainees, compelling detainees to stand long periods on broken legs, and dozens of cases of innocent people pointlessly brutalized. Psychologists aided the torture regime, offering hints on how to destroy the will and resistance of prisoners. The only CIA official to go to prison for the torture scandal was courageous whistleblower John Kiriakou.

If Comey had resigned in 2004 or 2005 to protest the torture techniques he now claims to abhor, he would deserve some of the praise he is now receiving. Instead, he remained in the Bush administration but wrote an email summarizing his objections, declaring that “it was my job to protect the department and the A.G. [Attorney General] and that I could not agree to this because it was wrong.” A 2009 New York Times analysis noted that Comey and two colleagues “have largely escaped criticism [for approving torture] because they raised questions about interrogation and the law.” In Washington, writing emails is “close enough for government work” to convey sainthood.

When Comey finally exited the Justice Department in August 2005 to become a lavishly-paid senior vice president for Lockheed Martin, he proclaimed in a farewell speech that protecting the Justice Department’s “reservoir” of “trust and credibility” requires “vigilance” and “an unerring commitment to truth.” But Comey perpetuated policies that shattered the moral credibility of both the Justice Department and the U.S. government. Comey failed to heed another Martin Luther admonition: “You are not only responsible for what you say, but also for what you do not say.”