Except that it’s 2004, not 2017. And the president is George W. Bush, not Donald J. Trump. By and large, pundits and book reviewers have overlooked Comey’s most explosive revelations involving illegal conduct in the White House. It’s not until page 211 that Comey recounts his now-familiar meetings and conversations with Trump. But what is of greater and more lasting importance to the history of our constitutional democracy are the stunning disclosures Comey makes about the years of secret surveillance and torture that President Bush initiated, President Barack Obama ignored, and President Trump is threatening to resurrect and expand. Instead of wasting time accusing Comey of being “petty” for describing the color of Trump’s skin and the length of his tie, what is really important about his book is that we have a senior official in the Bush administration documenting how the government conducted illegal surveillance on US citizens and engaged in illegal torture (including waterboarding of detainees) in various “black sites” around the world.
Comey frames his entire book as a plea for “ethical leadership” based on the values of “truth, integrity, and respect for others,” without which the justice system begins to decay. Yet he never addresses why neither he nor anyone else has ever used their authority to hold those who engaged in illegal surveillance and torture fully accountable.
After serving as an assistant US attorney and later as US attorney in New York, prosecuting among others the Mafia, Martha Stewart, and Scooter Libby, in December 2003 Comey was appointed by President Bush to serve as second in command to Attorney General John Ashcroft. In March 2004, Ashcroft was hospitalized with acute pancreatitis, so severe it had immobilized him with pain in the ICU at George Washington University Hospital, and Comey became acting attorney general of the United States. A month earlier, Comey, apparently for the first time, had learned of a highly secret program code-named “Stellar Wind,” which Bush had approved in 2002 at the recommendation of Vice President Dick Cheney and his legal counsel David Addington, on the basis of memos written by the Justice Department’s Office of Legal Counsel (OLC). Under Stellar Wind, for over two years, the National Security Agency had conducted surveillance activities in the United States against suspected terrorists and US citizens without any judicial warrants.
Based on the independent review conducted by the new head of the OLC, Jack Goldsmith, who had inherited the memos justifying Stellar Wind, Comey concluded that, as written and as implemented, the program was “clearly unlawful” and that for over two years the NSA had been engaged in surveillance “that had no legal basis because it didn’t comply with a law Congress had passed a generation earlier, which governed electronic surveillance inside the United States.” Consequently, Bush “was violating that statute in ordering the surveillance.” And the NSA was engaged in additional activities beyond the president’s order, “so nobody had authorized it at all.”
Roughly every six weeks, with Ashcroft’s certification, Bush had reauthorized the program. The latest presidential order was set to expire on March 11, but on March 4 Ashcroft collapsed and was rushed to the hospital. On March 9, Comey was summoned to a meeting at the White House presided over by Cheney to convince him to drop his opposition and approve the next reauthorization.
The vice president looked at me gravely and said that, as I could plainly see, the program was very important. In fact, he said, “Thousands of people are going to die because of what you are doing.”
“That’s not helping me,” I said. “That makes me feel bad, but it doesn’t change the legal analysis. I accept what you say about how important it is. Our job is to say what the law can support, and it can’t support the program as it is.”
Cheney reacted with anger and frustration. Attorney General Ashcroft had certified the program for the last two and a half years! Comey sympathized with him but told the group that the 2001 OLC opinion was so bad it was “facially invalid.” He added that: “No lawyer reading [that] could reasonably rely on it.” Addington cut in, “I’m a lawyer and I did.” Comey shot back, “No good lawyer.” The meeting was over.
According to Comey, the very next day Andy Card, White House chief of staff, and Alberto Gonzales, White House counsel, tried to do an end run around him by going to Ashcroft’s bedside in the hospital to get him to recertify the program. But Comey got there first and was waiting for them when they arrived. Heavily medicated and looking gray, Ashcroft was able to pull himself up on the bed with his elbows. He told Card and Gonzales that he had been misled about the scope of the surveillance program and now had serious concerns about its legal basis. Spent, he fell back on his pillow. “‘But that doesn’t matter now,’ he said, ‘because I’m not the attorney general.’” With a finger extended from his trembling left hand, he pointed at Comey. “There is the attorney general.” As Card and Gonzales were leaving the room, when their heads were turned, according to Comey, Ashcroft’s wife, Janet, who had witnessed the whole scene, “scrunched her face and stuck her tongue out at them.”
A few days later the president reauthorized an expanded version of Stellar Wind covering activities beyond the original presidential order. And instead of a place for the attorney general to sign, it was approved by Gonzales. Knowing that he “could not continue to serve in an administration that was going to direct the FBI to participate in activity that had no lawful basis,” Comey prepared his letter of resignation.
The next day, Comey attended the weekly intelligence briefing with the president. At the end of the meeting, when Bush took him aside, Comey told the president he felt “a tremendous burden.” The president asked why. “Because we simply can’t find a reasonable argument to support parts of the Stellar Wind program.” They discussed the details, and Comey said, “We just can’t certify to its legality.” The president replied, “But I say what the law is for the executive branch.” Comey said, “You do, sir,” adding, “But only I can say what the Justice Department can certify as lawful. And we can’t here. We have done our best, but as Martin Luther said, ‘Here I stand. I can do no other.’”
The audacity of Bush assuming he had the power to “say what the law is” is only exceeded by the abject subservience (and inaccuracy) of Comey’s reply, “You do, sir.” Comey should have reminded Bush that largely because Richard Nixon believed when “the president does it, that means it is not illegal,” he was forced to resign to avoid impeachment and removal from office. That this flawed vision of presidential power is still kicking around is demonstrated by the fact that one of Trump’s lawyers recently claimed that “the president cannot obstruct justice because he is the chief law enforcement officer (under the Constitution’s Article II) and has every right to express his view of any case.”
At least Comey told Bush the Justice Department could not certify the program as lawful, prompting the president to ask for two months to try to get a “legislative fix.” But to his credit, Comey refused. “The American people,” he said “are going to freak when they find out what we have been doing.” And he added that Robert Mueller, then-director of the FBI, was going to resign over this.
Bush asked to see Mueller. Ten minutes later, Mueller rejoined Comey and reported that the president had issued a directive: “Tell Jim to do what needs to be done to get this to a place where Justice is comfortable.” Comey and his team worked all weekend drafting a new presidential order that narrowed the scope of the NSA’s authority and delivered it to the White House Sunday night. On Tuesday, Gonzales told Comey the memo was being sent back and asked him not to “overreact.” Overreact? Comey called it “a big middle finger, clearly written by Addington,” saying how Comey was wrong about everything and was usurping presidential authority. He rejected all of Comey’s proposed changes. “It said nothing about our mothers being whores, but it might as well have. I pulled out my resignation letter and changed the date to March 16. Screw these people.”
But two days later, without notice, the president signed a new order that Comey says incorporated all of the changes he and his team had requested. We have to take his word for it, because Comey offers no details. And he remains silent about the fact that, for over two years, the Bush administration had been conducting a widespread program of surveillance of US citizens that Comey knew was “clearly unlawful.” What happened to Comey’s dedication to “ethical leadership” based on the values of “truth, integrity, and respect for others,” without which “our justice system cannot function and a society based on the rule of law begins to dissolve”?
According to Comey, in June 2004 Jack Goldsmith told him that, six months earlier, he had spotted serious problems with the legal basis on which the CIA since 2002 had been conducting a clandestine program of beating, starving, humiliating, and waterboarding detainees at secret “black sites” around the world.
In 1994, the United States ratified the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, under which torture was defined as the intentional infliction of severe mental or physical pain or suffering. As Comey saw it, in 2002, after the 9/11 attacks, the CIA wanted to use coercive physical tactics to get information from suspected al-Qaeda terrorists and asked the OLC whether various tactics, including waterboarding, sleep deprivation, and cramped confinement, would violate the law against torture. Instead of simply responding, “Are you kidding? Yes!” OLC lawyers John Yoo and Jay Bybee (whom Comey declines to name in his book, even though they have been publicly identified for many years) issued a series of memos purporting to approve the use of the full menu of “enhanced interrogation techniques” requested by the CIA.
Curiously, for a man who insists on ethical leadership, Comey exhibits great sympathy for the Bush lawyers. He says they were making decisions during “a time of crisis” when they “feared” that more attacks were coming, believing that physically abusive interrogations were “not only effective but essential to saving countless innocent lives.” It was under “this kind of pressure” that the memos authorizing torture were written.
Regrettably, the high-minded Comey seems oblivious of the fact that at “a time of crisis,” lawyers are expected to steel themselves against the pressures of the moment so that they can offer sober and dispassionate legal advice, solidly grounded in the law. Comey himself has repeatedly preached the fundamental principle of the rule of law, and claims he decided to study law because “[l]awyers participate much more directly in the search for justice.” He writes that the “credibility of the Department of Justice is its bedrock,” that the administration of justice must remain independent of politics, and that lawyers at the Justice Department had to do everything they could to “protect the department’s reputation for fairness and impartiality, its reservoir of trust and credibility.” Comey assures us that “nobody needed to tell me how hard we needed to fight terrorism, but I also understood we had to do it the right way. Under the law.” But despite these deeply held principles, this prominent lawyer with over 33 years of experience in criminal law and government service, excuses the Justice Department and White House lawyers who failed every one of these tests.
To his credit, Comey reports that since he agreed with Goldsmith “that the legal opinion about torture was just wrong,” he told Attorney General Ashcroft he needed “to take the dramatic step of withdrawing the Justice Department’s earlier opinion on the legality of these actions,” and Ashcroft agreed. For Comey, the “Constitution and the rule of law are not partisan political tools. Lady Justice wears a blindfold. She is not supposed to peek out to see how her political master wishes her to weigh a matter.”
Inspiring words, but not once in his book, nor apparently at any time in his career, has Comey recommended that any official in the Bush administration who authorized and conducted torture and other forms of cruel, inhuman, or degrading treatment should be investigated and, if warranted, prosecuted for violations of US and international law.
Instead, he to expresses sympathy for CIA agents who tortured detainees in their custody. He knows full well what these agents were doing:
Taking a naked, cold, severely sleep-deprived and calorie-deprived person, slamming him against a wall, putting him in stress positions, slapping him around, waterboarding him, and then sticking him in a small box could easily produce great mental suffering, especially if the CIA did those things more than once.
In the face of all this and the other evidence of the CIA engaging in systematic and repeated torture, Comey excuses the torturers because “they had a right to rely on the advice of government counsel.”
This is an extraordinary and deeply flawed statement. The claim of a “right” to rely on government counsel is reminiscent of the Nazi era defense that “I was just following orders.” In the wake of the Nuremberg Trials, the UN International Law Commission confirmed that “the fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible for him.” The UN Convention Against Torture makes it clear that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” It’s appalling that Comey, in the face of these highly relevant legal constraints, would argue that the torturers had a “right” to follow orders.
In June 2004, Goldsmith, with Comey’s support, withdrew the torture memos. Shortly thereafter Goldsmith resigned as acting head of the OLC and he was replaced by Daniel Levin. By December, Levin and his team had completed a new interrogation opinion. As part of that process, Levin himself had undergone supervised waterboarding. He told Comey it was “the worst experience of his life.”
By then, Bush had replaced Ashcroft with Alberto Gonzales as attorney general. Comey decided that he could not serve as Gonzales’s deputy. In the spring of 2005, he announced he would be leaving in August. Comey writes that he didn’t have the “stomach” for what would be more “losing battles” within the administration, and “more important,” he felt he needed more than his government salary — his oldest child was headed to college.
Meanwhile, Steven Bradbury replaced Levin as the head of the OLC. Bradbury issued new memos authorizing aggressive interrogation techniques, which Comey believed amounted to torture. He protested to Gonzales to no avail. “No policy changes were made. CIA enhanced interrogations could continue. Human beings in the custody of the United States government would be subjected to harsh and horrible treatment.” Comey left the Justice Department two months later. The torture program would continue for two more years.
Comey conveniently skips ahead eight years to 2013 when President Barack Obama appointed him to a 10-year term as director of the FBI. But observant readers will want to know: How could you leave the Justice Department knowing the CIA torture program was still going on? Once you left, why didn’t you blow the whistle? While you remained silent knowing what you knew, the torture program continued for two more years? You were in a unique position to speak out, but you did nothing. Didn’t you want to “participate much more directly in the search for justice”? Aren’t you the one who told us that lawyers at the Justice Department had to do everything they could to protect the department’s reputation, its “reservoir of trust and credibility”? Didn’t you say that even in the context of 9/11, “we had to do it the right way. Under the law”? So much for “ethical leadership.”
Of course, A Higher Loyalty is best known for Comey’s famous confrontations with President Trump. The president’s demand for Comey’s “loyalty” (“I need loyalty. I expect loyalty,” Comey claims Trump told him). The president’s request that Comey go easy on the prosecution of National Security Advisor Mike Flynn (“I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”) The president’s request that Comey go public with the fact that he was not personally investigating Trump (“We need to get that fact out”). And eventually, the president’s firing of Comey.
Comey describes these incidents in an engaging and cinematic style. His reporting is filled with vivid details and direct quotes attributed to both Trump and himself which make these accounts convincing and credible. But all the attention devoted to these shiny objects, should not obscure the rest of Comey’s book. Unintentionally, A Higher Loyalty teaches more about “ethical leadership” by studying not what Comey has done in his career but by what he has failed to do. Not only has our government failed to hold any officials accountable for torture and illegal surveillance, but those very officials have been rewarded with high positions, book deals, prominent speaking tours, and, most recently, the May 17 confirmation of Gina Haspel as director of the CIA.
Stephen Rohde is a constitutional lawyer, lecturer, writer, and political activist.