James Comey's Lackluster Civil Liberties Record Shows Washington's Failure to Police Itself

Comey stood up to the Bush administration over illegal snooping, but as FBI director he defended surveillance.


As all of Washington braces for James Comey's incendiary testimony before Congress Thursday, it's worth a trip down memory lane to reflect on his tenure as FBI director.

When Comey was appointed by Barack Obama to lead the FBI in 2013, he was seen as a hero in many circles for dramatically pushing back against the Bush administration's illegal surveillance programs.

"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 nominated Comey in 2013. "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."

Yet as Reason's Nick Gillespie wrote shortly after Comey's nomination, "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."

During his confirmation hearing to replace then-FBI Director Robert Mueller—who, because time is a flat circle, is now the special counsel leading the investigation into the Trump campaign's ties to Russia—Comey assured senators and the public that there were plenty of checks and safeguards against FBI overreach, such as the FISA court, investigative guidelines from the attorney general, and oversight from Congress and the inspector general. "I think folks don't understand that the FBI operates under a wide variety of constraints," Comey argued.

But as all good civil libertarians know, the FBI has always been an intensely political agency that is almost never restrained from using its vast powers to address the anxieties and paranoias of the people in power. (See: the redbaiting of the '50s, the efforts to blackmail and discredit civil rights leaders in the '60s, and the infiltration of dissident political groups both before and after 9/11.) Congress, meanwhile, is deferential to the point of uselessness when it comes to delegating power to the intelligence community.

It was about six months after Comey's appointment that Edward Snowden leaked evidence that the National Security Agency was vacuuming up massive amounts of U.S. citizens' phone data. Comey said he was "confused" by the public perception of Snowden as a whistleblower—hero, even—since all three branches of government had approved the surveillance dragnet.

"I see the government operating the way the founders intended," Comey declared. "So I have trouble applying the whistleblower label to someone who basically disagrees with the way our government is structured and operates."

As Reason's Scott Shackford wrote in 2014:

Even before Edward Snowden began leaking classified documents showing exactly how humongous federal data collection had become, there were already a number of previous examples of government snooping out of control.

In particular, the FBI's system of using National Security Letters (NSLs) to obtain personal records without a court order was found by the Department of Justice's inspector general to have been terribly abused, gathering records with little oversight or reason, not following processes and resorting to "exigent letters" to even bypass the NSL rules entirely by claiming emergencies.

Similarly, when Apple and Google announced in 2014 they were making encryption easier for consumers, Comey knew who the real victim was: the government. "What concerns me about this is companies marketing something expressly to allow people to hold themselves beyond the law," Comey told reporters. Over his tenure, Comey would repeatedly testify about the dangers of allowing U.S. citizens to keep their communications hidden from the government's prying eyes.

Comey put muscle behind that rhetoric in 2016 when the FBI attempted to force Apple to create a backdoor into the locked iPhone of the San Bernardino terrorist Syed Farook.

Then there was Project Exile, one of Comey's favorite ideas. Under the banner of reducing gun violence, Project Exile encouraged local police to refer firearm cases to federal prosecutors, who could pursue five-year mandatory minimum sentences. The program, which was embraced by law enforcement groups, essentially federalized local gun crime and resulted in convicted defendants being shipped hundreds of miles away to federal prisons. Exiled, in other words. The program is now being enthusiastically embraced by Attorney General Jeff Sessions and President Trump.

Yet Congress didn't have have serious credibility concerns with Comey until the 2016 presidential election, when the FBI had to juggle investigations into Hillary Clinton's private email server, Donald Trump's alleged links to Russia, and the Kremlin's thinly disguised efforts to undermine U.S. elections.

When Comey came into the FBI director's office, we were told he'd leave the unconstitutional excesses of the Bush years behind. Now he has been unceremoniously ousted, and the Senate is once again talking about the crucial need to appoint an independent and trustworthy FBI chief, free from political influence. The next director will no doubt tell senators what they want to hear. Whether they actually attempt to hold him to those words is up to them.

NEXT: Comey to Testify Trump Tried Influencing Him to End Flynn Investigation, Obama Says Future Doesn't Belong to Strongmen, Oldest Human Fossils Found in Morocco: P.M. Links

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  1. “I see the government operating the way the founders intended,” Comey declared.

    “I see dead people everywhere,” Cole Sear declared.

    1. Maybe Hamilton.

      1. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

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    2. “I see the government operating the way the founders intended,” Comey declared.

      When you start with a false premise, there’s no telling where you can end up.

    3. Shreds… +1 supercharged woodchipper. Oops. I meant supercharged ballot box.

  2. Comey said he was “confused” by the public perception of Snowden as a whistleblower?hero, even?since all three branches of government had approved the surveillance dragnet.

    Yes, this was the best. “All of us here in the government completely agreed that the 4th Amendment didn’t apply, so what is everyone else so worked up about?”

    1. Look, the Constitution says you need a warrant but some times you need some information and you can’t get a warrant, so what else can you do? The Constitution doesn’t say what you’re supposed to do in the event you don’t have a warrant so they’re not actually violating the Constitution.

      1. Well, don’t want to get a warrant. Warrants seem pretty easy to come by if you put in a minimum of effort.

        1. This is the saddest part. Some of the warrants that have been talked about on reason and other sites show how judges are just rubber stamps.

          1. No judge or cop is ever accountable for shit warrants so its not like they even give a shit anymore.

            1. I would love to see legislation fining individual judges and police officers $1000 for every warrant that is sought after, signed, and fails to turn up what was sought after. Said fine should be paid directly to the target.

              1. OK wow that sentence needs rewording.

        2. Right. Just ask for one. Not too difficult. Don’t even have to pay for damages, even if they’re fatal. And you get a vacation with pay if it goes wrong.

      2. The 4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
        The Constitution does not need to address punishment for not having a warrant because a warrant is required for searches and seizures.

        In other words, if you don’t have a warrant, then you don’t get a search and/or seizure. Its that simple. Government wants these issues to be complex but they really are not.

        1. You forgot about the FYTW amendment.

  3. I see someone doesn’t alt-text. Don’t get me killed, new guy.

  4. and the Kremlin’s thinly disguised efforts to undermine U.S. elections.

    By undermine, does that mean keep Hillary out of the white house?

    I’m not trying to be glib, I just don’t hear… and haven’t heard an explanation as to what Russia’s goals ultimately were in the 2016 U.S. Election.

    1. Hell, I have yet to see even an ounce of proof that they did anything in our election.

      1. I’m willing to entertain the notion that Russia had an interest in the 2016 election– and even further willing to entertain that the Russian government either funded or aided in the hacks on Clinton’s email server.

        What was the goal? Keep Hillary out of office? Was that it? Destabilize America by promoting the easily manipulated, undisciplined hack into the White House?

        Give me something, anything here.

        1. What was the goal?

          Destabilize America

          I think that’s it. Or, just be a nuisance. I like: they gained access to the Dem email and just decided to fuck with us.

          1. Why would they need to? That DNC worker already gave their emails to Wikileaks, before Podesta had him executed.

          2. Don’t be stupid. Putin wants Melania.

          3. Sell more Stoli.

        2. They didn’t need to help. It was either the shoot from the hip erratic Trump or the Clinton who should have had her security clearance revoked. If their goal was to destabilize America they should just sit back have a Vodka and enjoy the show.

          1. As I’ve taken to putting it, the Presidential election was a choice between shooting yourself in the foot and shooting yourself in the head. I voted not to fire but it came in a distant third.

    2. I would have expected the Russians to prefer Hillary. She’s someone they have done business with. Plus, they probably have a ton of dirt on her from the emails. Why wouldn’t they want her to win?

  5. Weird how something could be ‘thinly disguised’, and yet not one lone single solitry piece of evidence exists for it in all of the public sphere.

    1. its so thin its in the air. They are trying to grasp it in the air!

  6. Saw this over on Antiwar:

    Mueller and Comey are being held up as credible, honorable law enforcement figures by the left and the neocons right now. Would Hoover qualify for such praise as well?

    1. Only if she were a talented Hooverer.

  7. Well, he certainly made sure the hag wasn’t indicted for security breaches, so maybe his support of civil liberties is somewhat biased.

  8. You’re wasting time. Just say that he’s an asshole. A useful asshole, maybe.

  9. Thanks for this article. What a bunch of empty words from Obama and Comey. The “Patriot Act” was an assault on our constitutional freedoms. So what did democrats do when they controlled all 3 branches of government? Renewed it as is!!!! As long as many of “We the People” take those rights for granted we have 2 parties in full bi-partisan agreement to take as much of them away as possible.

  10. Even in the world’s strongest government, this is true:
    “….it does not belong to man who is walking even to direct his step.” (Jeremiah 10:23)

    -According to Chronology, the Bible is 3,500 years old, & if you doubt this, go to a *Museum not the Internet. The Bible has been translated into about 2,600 languages, and billions of copies printed & distribute. More than 90 percent of the people in the world can read the Bible in their own language. And each week, more than a million people get a Bible! Yes, there is no other book like the Bible. Have a Bible question?

  11. Anytime in the past when Comey has stuck his head up beyond the top of the battlements, it has always been preceded by a wetted-finger to see which direction the winds are blowing.
    He is a DC denizen of the slime that permeates the swamp.

  12. In a battle between J. Edgar Comey and Richard M. Trump, there can be no winners. What is obvious is that Trump does not meet the standard of aristocrats to lead the country in Comey’s mind. He was okay with not calling the Clinton investigation an investigation on orders from the Obama administration and was willing to call the Trump non-investigation an investigation under orders, as well. The FBI is a very dangerous organization, possibly as dangerous as the imperial presidency. The Obama administration totally co-opted the FBI, so we had the worst of two worlds. I hope the FBI remains an enemy of the presidency until a Libertarian is elected to the office. Then, the imperial presidency can be dethroned and the FBI can be broken up into at least two less powerful organizations. In the meantime, a pox on both the imperial presidency and the unlawful FBI.

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