President Obama is trying to put a kinder, gentler, not-so-Cheney face on his anti-terrorism surveillance policies. On Friday, Obama nominated James Comey to be director of the FBI; Comey is a hero to some liberals for intervening to stop warrantless wiretapping in 2004. Attorney General Eric Holder told Bloomberg News on Friday that the Justice Department is working on a "holistic" plan to declassify details about the NSA spying. And the White House announced that Obama will meet with the Privacy and Civil Liberties Oversight Board to discuss the National Security Agency's surveillance programs. But pretty much all of these things have a catch.
As we've seen with Edward Snowden, it's hard for real humans to be civil liberties heroes — most people have said or done something in their past that doesn't look so good a few years later. The same is true of James Comey. As acting attorney general under President Bush in 2004, Comey refused reauthorize warrantless wiretapping program, thinking it was illegal. He found out that White House counsel Alberto Gonzales and White House chief of staff Andy Card were going to the bedside of Attorney General John Ashcroft, who'd been hospitalized with pancreatitis, to get around Comey's objections. "And so I raced to the hospital room, entered," Comey told Congress in 2007. "I was very upset. I was angry. I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me." The Washington Post reports that was the end of a program called STELLARWIND, which enabled the NSA to spy on Americans. Whatever reforms Comey and others enacted, however, we now know the NSA is still able to collect all Americans' phone calls in bulk every three months by secret court order.
But complicating to the story that Comey is a civil liberties hero is that he proudly defended the suspension of habeas corpus in the case of Jose Padilla, who was declared an enemy combatant in 2002. Padilla was an American citizen arrested on American soil, but he was held in a military brig and tortured, without charge and without access to a lawyer. Padilla was eventually convicted of material support for terrorism — a far lesser crime than what he was accused of: plotting to detonate a dirty bomb. The ACLU's Matthew Harwood calls this "indefensible." In a June 2004 speech, Comey said that if Padilla had gotten the rights the Constitution entitles him to, "He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week, and hope — pray, really — that we didn't lose him." Instead, "After a careful process, [Bush] decided to declare Jose Padilla for what he was, an enemy combatant, a member of a terrorist army bent on waging war against innocent civilians. And the president's decision was to hold him to protect the American people and to find out what he knows."
The Privacy and Civil Liberties Oversight Board has an encouraging name, but not an encouraging past. It was created in 2004, but was inactive for five years. Congress often failed to confirm nominees to the board. Four members were confirmed last August, but the chair, David Medine, was not confirmed till May. "Nine years after its inception, PCLOB may begin with its task," CNN notes.
That Holder wants to declassify information about the NSA sounds great. Holder told Bloomberg there was a lot of "misinformation" about the NSA phone and Internet programs. "We'd like to do it sooner rather than later, but I also think that we want to do this in such a way that we tell a complete story," Holder said. "I think we can help clear up by declassifying things, so I think that's what we're intending to do." When Holder says he wants to paint a fuller picture, it sounds like more stories about the effectiveness of the program, which several other administration officials have testified to. What we're giving up to catch the bad guys is what everyone's interested in.
Inset photos of Comey and Padilla via the Associated Press.