James Comey Explains the Difference Between the Constitution and Yogurt

The Senate Judiciary Committee today questioned James Comey, a deputy attorney general under President Bush and Obama's noimnee to lead the FBI. His revealing answers touched on his record standing up to the use of torture and the current debate over NSA surveillance.

The Senate Judiciary Committee today questioned President Obama's nominee to replace Robert Mueller as the head of the FBI. James Comey, a deputy attorney general under President Bush, answered the senators' questions about both his record standing up to the use of torture and the current debate over NSA surveillance. His answers were often revealing.

Comey first came to national attention when he testified before the Senate about his 2004 confrontation with White House aides at the hospital bedside of then-Attorney General John Ashcroft. That moment focused on Comey's (and Ashcroft's) objections to the government's secret surveillance systems. But, as we've noted, his commitment to other constitutional protections has wavered.

On torture: Asked by Sen. Patrick Leahy of Vermont about his 2005 agreement that the CIA's use of torture techniques was legal, Comey replied, "When I first learned about waterboarding, when I became deputy attorney general, my reaction as a citizen and a leader was: this is torture. It's still what I think. To his great credit, Bob Mueller made sure the FBI had nothing to do with that business, and if I were FBI director it would never have anything to do with that."

"I went to attorney general and said, 'This is wrong. This is awful. You have to go to the White House and force them to stare and this and answer the question.' I believe we should not be involved in this kind of stuff. … Now on the legal front, what I discovered with I became deputy attorney general, even though I as person, as a father, as a leader thought, 'that's torture, we shouldn't be doing that kind of thing,' I discovered that it's actually a much harder question to interpret this 1994 statute." To that end, he drafted new opinions on that statute.

Later, questioned by Sen. John Cornyn of Texas, Comey indicated that torture didn't stop at waterboarding. "I was concerned, Senator, that particularly in aggregation, the use of six-and-a-half days of sleep deprivation plus these other things" constituted inappropriate activity.

On time limits on surveillance of American citizens: "I don't think the Fourth Amendment, like your yogurt, has a date it expires on it."

On the secret court authorizing surveillance: "In my experience, which is long with the FISA court, folks don't realize it is a group of independent federal judges who sit and review requests by the government who gather information and it is anything but a rubber stamp. Anyone knows that calling them a rubber stamp shows that you don't have experience before them."

On releasing details of the court's opinions: "I agree with you that transparency is a critical value. And I'm aware that the Director of National Intelligence is looking at that question. Because i don't know what is in the opinion or on the other side, it is hard for me to say. I think it is a worthy exercise."

In a later response, he added, "I think the transparency is a key value especially when it helps the government understand what they are doing to keep them safe. It is when folks don't know things that people can question whether the government is doing the right thing."

On whistleblowers: "I think whistleblowers are also a critical element of a functioning democracy." And later: "Retaliation is just unacceptable."

On the prosecution of white-collar criminals: "I believe deterrence works in that area, because you don't have people committing crimes of accounting fraud or securities fraud high on crack or inflamed with passion. They're people who think before they act, so they can be deterred."

On the free press: "There are secrets we must keep. We have to investigate their loss. That may lead to bumping into the media. When we do those bumps … essential to what a remarkable country this is, is that aggressive, sometimes pain-in-the-neck press. They are a great pain-in-the-neck. An enforcer has to keep both front of mind."

On serving in the government: "I've been gone from the government for almost eight years and I've missed it for every day of those eight years."

Barring some exceptional event, Comey will be confirmed by the full Senate when it votes on his nomination later this month.