James B. Comey Jr. testifies before the Senate Judiciary Committee. (Mark Wilson, Getty Images )
WASHINGTON — James B. Comey Jr., nominated to become the nation's seventh director of the FBI, conceded Tuesday that he signed a controversial memo allowing waterboarding but said he first lobbied hard to have the policy toned down.
Comey, who is facing confirmation hearings before the Senate Judiciary Committee, has been hailed by some as a hero for blocking, at least temporarily, a White House surveillance program during his time as deputy attorney general under President George W. Bush.
Lately, though, he has come under fire from civil liberties advocates for approving the Office of Legal Counsel memo allowing not just waterboarding but also sleep deprivation and other so-called enhanced interrogation techniques for captured terrorism suspects.
Comey told the senators he personally believes many of the tactics are torture. But he said that in the case of the waterboarding memo in May 2005 he was more concerned with what he called "the critical third question" beyond saying yes or no to its legality: "Should we be doing this and is it appropriate as Americans?" he said he asked himself.
Comey said he urged his boss, Atty. Gen. John Ashcroft, to persuade the White House not to implement it. "He took my notes with him to a meeting at the White House and made the argument in full," Comey said. But "the principals [on the National Security Council] were fully on board with the policy, and so my argument was rejected."
The memo that Comey finally signed, he said, came from a compilation of several versions, and the final form, he said, was toned down. He said he signed the memo knowing he would soon be leaving the Justice Department.
Would he have abruptly resigned had he not already announced his departure? "I would have given it very serious consideration," Comey said.
Comey's nomination by President Obama is expected to sail through the committee and the full Senate in time for him to replace Robert S. Mueller III, who by law must step down by Sept. 4. Long past the days when FBI Director J. Edgar Hoover held the post for most of his life, the position now has a 10-year tenure.
Though most committee members seemed comfortable with Comey, they still had concerns about the memo.
Committee Chairman Patrick J. Leahy (D-Vt.) said it "led to the treatment of detainees that was contrary to our laws and our values, and this frankly made us less safe. We must never repeat those mistakes. They have left a permanent stain on this great nation."
In addition, five former FBI officials were critical in written testimony of Comey's sign-off on the policy and his defense of the Bush administration's decision to hold Jose Padilla, a U.S. citizen arrested in Chicago on suspicion of planting a radiological bomb, indefinitely without trial in a military brig in South Carolina. (Padilla was eventually convicted on charges of aiding terrorism overseas.)
Comey said he believed waterboarding was illegal and tantamount to torture and that when he first learned about the practice as deputy attorney general, "my reaction as a citizen and leader was, this was torture. It's still what I think."
He also noted that Mueller "made sure the FBI had nothing to do with that business," and said that "if I was FBI director, it would never have anything to do with that" either.
Sen. Dianne Feinstein (D-Calif.) asked Comey about the ongoing hunger strike by detainees at the U.S. naval base at Guantanamo Bay, Cuba, where many are being force-fed.
"Detainees are restrained in a chair by body, by foot, by hand, and twice a day a tube is inserted, perhaps covered with olive oil, up the nose and down into the stomach, and the individual is force-fed," said Feinstein, who recently toured the prison. "This goes on week after week and month after month. In my view, this is inhumane."
Comey said that as FBI director, operations at the Pentagon-run prison would "not be within my scope."
Feinstein shot back, "It's within all of our job scopes to care about how the United States of America acts."
Comey agreed, and added: "What you're describing, I frankly wouldn't want done to me, but I don't know the circumstances well enough to offer you an opinion."
Sen. Al Franken (D-Minn.) asked Comey about Padilla, who was held in the U.S. for nearly two years without an attorney or due process. Comey said any American should be afforded those rights, "except when that person is detained as a prisoner of war in an ongoing armed conflict."
On other matters, Comey said he would consider favoring the release of summaries of secret court decisions dealing with surveillance and wiretaps, as long as it did not aid terrorist organizations. It could, he said, "help the American people understand what the government is doing to try to keep them safe. And I think if they understood more, they would feel better about it."