Civil libertarians have long objected to the continuation (and in some cases the expansion) of Bush policies in the national security areas by President Barack Obama. Obama has blocked the investigation and prosecution of Bush officials for torture, renewed the military tribunal system, extinguished dozens of public interest lawsuits against telecommunication companies and agencies as well as other controversial moves. Now, two former Bush officials are considered leading contenders to take over the FBI despite their involvement in some of the worst abuses during the Bush Administration. They are James Comey and Kenneth Wainstein. As discussed below, they are a case of the coronation of the one-eyed man as King of the land of the blind.

FBI Director Robert Mueller’s 10-year term expires on September 4th.

What is disturbing is how Comey has been embraced as a hero of civil liberties because he opposed Bush’s warrantless wiretapping program and threatened to resign. It is part of the relativism that set in during the Bush Administration. Before the Bush Administration, it would have been obvious and expected for all Justice Department attorneys to oppose a clearly unconstitutional program. However, in the Bush Administration, even the objection to unconstitutional acts suddenly transformed officials into instant civil libertarians despite their involvement in other abuses. This is an example of how, in the land of the blind, the one-eyed man is King. Comey was the one-eyed man.

Of course, Comey did not object to other aspects of the surveillance program deemed unconstitutional by civil libertarians. Moreover, while objecting to the surveillance program, Comey was the deputy attorney general involved in other abuses without a peep of protest. The most obvious was the case of Jose Padilla. Comey was personally involved in that case that shocked the world. Padilla was subjected to cruel treatment and was moved around the country to avoid judicial review. Comey and his staff adopted a series of conflicting arguments in court designed to avoid judicial review. Then, on the eve of a review by the Supreme Court, Comey dropped the prior charges and moved Padilla into the federal system on different claims. If you recall, Padilla was originally arrested under a claim by former Attorney General John Ashcroft that the Justice Department had stopped a nuclear attack on a major city. That claim was later denied by the White House. Yet, the Justice Department continued to hold and abuse Padilla.

In prior testimony, Comey made clear that he supported Padilla being denied access to the federal courts because he might win his release and take advantage of his constitutional rights:

Had we tried to make a case against Jose Padilla through our criminal justice system, something that I as the United States attorney in New York could not do at that time without jeopardizing intelligence sources, he would very likely have followed his lawyer’s advice and said nothing, which would have been his constitutional right. 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.

Of course, he was ultimately charged with a federal crime and convicted. This occurred only after the Justice Department succeeded (under Comey’s direction) in evading review of his mistreatment and long confinement without access to counsel or the courts. Is this the model that we want for FBI Director?

For his part, Kenneth Wainstein was Assistant to the President for Homeland Security and Counterterrorism and held various national security positions with President Bush during the periods of greatest abuse of detainees and civil liberties. Wainstein did not resign in the face of those abuses but continued to advance the policies. Since leaving, he has shown the same casual view of constitutional claims, such as his view that Wikileaks can and should be prosecuted: ““By clearly showing how WikiLeaks is fundamentally different, the government should be able to demonstrate that any prosecution here is the exception and is not the sign of a more aggressive prosecution effort against the press.” Most scholars and civil libertarians see a far more difficult case over Wikileaks that threaten first amendment rights. In his testimony, Wainstein continued the Bush-era approach of avoiding the constitutional question by attacking the defendant. Wainstein cited public statements by Julian Assange and assured Congress that this is not a concern over free speech or free press because the disclosures were “more personal rather than simply a public-minded agenda.” It is a dangerous argument since you could take the same tact for any reporter and seeks to avoid the constitutional analysis by engaging in an ad hominem attack.

Wainstein and Comey did raise concerns over the torture of detainees but notably did not threaten to resign over such abuses. They continued to advance policies that were condemned by civil libertarians around the world.

I cannot say that I am optimistic given Obama’s record. He continues to court the conservative base on the theory that liberals have to vote for him in the next election. Indeed, objections from civil libertarians are most likely to increase the attraction to these nominees.

Jonathan Turley