With James Comey nominated by Barack Obama to head up the Federal Bureau of Investigation, the ACLU has compiled a useful list of "The Ten Most Disturbing Things You Should Know About the FBI Since 9/11."
Comey worked in the Bush administration and gets praise from Barack Obama for not just being experienced but principled:
Jim understands that in time of crisis, we aren't judged solely by how many plots we disrupt or how many criminals we bring to justice," Obama said as he officially nominated Comey in June. "We're also judged by our commitment to the Constitution that we've sworn to defend, and to the values and civil liberties that we've pledged to protect."
Which is Washington-speak for saying that Comey will figure out a way to tap-dance around restrictions on state power. Comey has been applauded for standing up to some of Bush's more-expansive surveillance policies, but he also defended indefinite detention without a trial, waterboarding, and—once a new legal rationale had been hammered out—those more-expansive surveillance policies:
Comey was one of the few Bush-era officials willing to stand up to the Bush administration's claim to near-unlimited power in the realm of national security. He considered resigning in 2004 over Bush's warrantless surveillance program. But Comey's service coincided with other Bush excesses in the war on terror, including torture and indefinite detention. An Inspector General's report recently reviewed by The Guardian shows that even with warrantless surveillance, legal changes to the basis for secret bulk Internet metadata collection by the National Security Agency were enough to satisfy Comey, who stayed on as a Justice Department official for almost a year as the program continued as an exercise of unilateral power by the president.
"It seems to parallel the concerns with the torture memos, where it's not so much that they're offended by the conduct, or the legality of the conduct, but rather the sloppy legal opinions justifying the conduct," says Mike German, a former FBI agent now with the ACLU, of the internal Bush administration arguments over warrantless surveillance. "In fact the illegal conduct was authorized to continue." The ACLU does not take positions on nominations, but it is challenging the NSA's current surveillance practices as unconstitutional.
Here are some of the ACLU's Top 10 disturbing things about the agency Comey is nominated to head up:
1. Patriot Act Abuse
The recent revelation about the FBI using the Patriot Act's "business records provision" to track all U.S. telephone calls is only the latest in a long line of abuse. Five Justice Department Inspector General audits documented widespread FBI misuse of Patriot Act authorities (1,2,3,4,5), and a federal district court recently struck down the National Security Letter (NSL) statute because of its unconstitutional gag orders. The IG also revealed the FBI's unlawful use of "exigent letters" that claimed false emergencies to get private information without NSLs, but in 2009 the Justice Department secretly re-interpreted the law to allow the FBI to get this information without emergencies or legal process. Congress and the American public need to know the full scope of the FBI's spying on Americans under the Patriot Act and all other surveillance authorities enacted since 9/11, like the FISA Amendments Act that underlies the PRISM program….
4. Unrestrained Data Collection and Data Mining
The FBI has claimed the authority to secretly sweep up voluminous amounts of private information from data aggregators for data mining purposes. In 2007 the FBI said it amassed databases containing 1.5 billion records, which were predicted to grow to 6 billion records by 2012, or equal to "20 separate 'records' for each man, woman and child in the United States." When Congress sought information about one of these programs, the FBI refused to give the Government Accountability Office access. That program was temporarily defunded, but its successor, the FBI Foreign Terrorist Tracking Task Force, currently has 360 staff members running 40 separate projects. Records show analysts are allowed to use data mining tools to establish "risk scores" for U.S. persons. A 2013 IG auditquestioned the task force's effectiveness, concluding it "did not always provide FBI field offices with timely and relevant information."…
10. Use of No Fly List to Pressure Americans Abroad to Become Informants
The number of U.S. persons on the No Fly List has more than doubled since 2009, and people mistakenly on the list are denied their due process rights to meaningfully challenge their inclusion. In many cases Americans only find out they are on the list while they are traveling abroad, which all but forces them to interact with the U.S. government from a position of extreme vulnerability, and often without easy access to counsel. Many of those prevented from flying home have been subjected to FBI interviews while they sought assistance from U.S. Embassies to return. In those interviews, FBI agents sometimes offer to take people off the No Fly List if they agree to become an FBI informant. In 2010 the ACLU and its affiliates filed alawsuit on behalf of 10 American citizens and permanent residents, including several U.S. military veterans, seven of whom were prevented from returning home until the suit was filed. We argue that barring them from flying without due process was unconstitutional. There are now 13 plaintiffs; none have been charged with a crime, told why they are barred from flying, or given an opportunity to challenge their inclusion on the No Fly List.