Marc Ambinder

Jim Comey's shining moment

The would-be FBI director's telling decision on surveillance

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:

To quickly acquire communications inside the United States, the NSA needed the cooperation of U.S. telecommunications companies. The Stored Communications Act of 1986 (SCA) would not allow the provision of historical data without an order or warrant. The Electronic Crimes and Privacy Act (EPCA) banned real-time monitoring without an order or warrant. Furthermore, because the types of communications that the NSA wanted were considered "consumer proprietary information," telecoms couldn't turn them over to a third party for profit, law enforcement, or at the government's request. (This latter point the NSA's lawyers rejected, saying that the FCC, which enforced it, misread the statute.) But the SCA had language that seemed pretty clear:

(3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service... to any governmental entity.

The rest of the act basically adds: "without a warrant." So assuming that citizens of the United States count as customers, telecom companies are forbidden from voluntarily turning over records to the federal government. But what counts as a "record"? Anything the telecom keeps in storage; anything involving the customer's communication that happened in the past. In other words: everything it knows.

One of the Other Intelligence Activities authorized by President Bush seemed to provide a blanket feel-free-to-ignore-the-Stored-Communications-Act-and-ECPA card to telecom companies, in the form of a certification signed by the Attorney General and attesting that the government would not criminally prosecute them for doing so.

So what did the telecoms turn over to the NSA?* Millions of transaction records that included millions of instances of domestic telephones dialing other domestic telephones. Other companies sent over tranches of email messages. The volume itself is material; the NSA would ask for telephone logs from a certain time, at a certain place —that is: a company, a neighborhood, a mosque. Telecoms would transmit these records upon request.

By law, the NSA had no right to do anything with such data at that point other than try to deduce their significance without reading them. (Again, reading them would be both illegal and time-consuming.) It used several computer programs to scan the pen register logs (i.e. the lists of phone numbers that called other numbers) and the metadata associated with emails—To; From; subject lines; IP addresses; lengths; frequencies, and so on. If a group of people associated with an entity (like an Islamic charity) that had (or appeared to have) a connection with an entity connected to foreign terrorism, all three were subject to the interception protocols. At no point, so far as the authors can tell, did the NSA ever perform link analysis on a data set without having a specific target in mind. They did not use the data sets to discover "both" ends of a communication. In all instances—and the NSA's inspector general would certify this—the NSA had a specific thing—a person a telephone number, an address—and used the data provided by the telecoms to figure out whether the thing was significant enough to warrant actual interception. Maybe two flashing red lights were linked; maybe several numbers were associated with one person; without the analysis, it was hard to tell.

Comey refused to put his signature on the authorization for these activities. The Stored Communications Act and the Electronic Crimes and Privacy Act had exceptions, but Comey didn't think they applied.

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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