Jim Comey, who President Obama will reportedly nominate to run the Federal Bureau of Investigation, is best known for a singular act of courage: When the Bush administration wanted to act like the rule of law was inconvenient, he said no. In doing so, he pissed off the White House, many of his own colleagues, made an enemy of Dick Cheney for life, and earned plaudits from civil libertarians as a liberal-minded man of the people.
All true. But Comey also helped to institutionalize the very program — the National Security Agency's orderless domestic collection — that his refusal to sanction had put the breaks on. He did not object to the part of the program declassified by the Bush administration. He believed that the president's Article II power did in fact provide enough cover for the NSA to collect call records from subscribers who were reasonably believed to be connected to overseas terrorists or their associates.
When then-Attorney General John Ashcroft was very ill and temporarily made Comey the acting A.G., Comey was read into the full NSA program. He was shocked to discover that dozens of U.S. companies were turning over significant amounts of raw data to the NSA based solely on their request and on the signature authorizing such collection of the attorney general. But Comey's understanding of the law (or laws, because there were several, including the Foreign Intelligence Surveillance Act and the Stored Communications Act) did not jibe with what was happening. Here's what happened, as co-author D.B. Grady and I recount in Deep State: Inside the Government Secrecy Industry:
The takeaway is this: At a critical moment, when his career was on the line, Comey's instinct was to narrow, and not enlarge, the scope of executive power. As FBI director, he is essentially untouchable by the White House. This may — may — mean that Comey will rein in the excesses of FBI surveillance authority. Or, he may be more open with Congress about ways to codify it into law. As a prosecutor, he has a bias in favor of building cases. Building cases means asking for subpoenas. I have no reason to be believe that Comey would be any more friendly or any less friendly to journalists than his predecessor. He will probably follow the lead of his boss, the Attorney General.
A few other points about him:
1. He is an expert in securities law.
2. He is very, very tall.
3. He has never been an FBI agent.
4. His adult life until he joined the Bush administration was spent largely as a prosecutor of major crimes, ranging from terrorism to the break-up of the Gambino crime family.
5. He supports the President's approach to domestic terrorism and its prosecution. He signed the amicus brief on same-sex marrige.
6. He left the Bush administration and made a bucket full of money at Bridgewater and Associates in Connecticut, has served on several financial crimes task forces, and in January of this year became a senior research scholar at Columbia University law school.
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