The Coronation of the One-Eyed Men: Two Former Bush Officials Are Reportedly Leading Contenders For Next FBI Director

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

132 thoughts on “The Coronation of the One-Eyed Men: Two Former Bush Officials Are Reportedly Leading Contenders For Next FBI Director”

  1. Unkie,

    I am all for Free Markets as you are aware. What we disagree upon is should one business control to the predatory practices another. I say no, there is no competition. The other night you were discussing on another thread about the AT&T-T-Mobil merger you saw it as good. I disagreed with you because that does limit competition. You should be able to recall the phone company that did not want competition in the early part of the 80s? When you have competition in practice rather than just theory you have real competition.

    In Cape Coral gas prices were 3.38 last night. This morning, I went to get gas and it went up .10 to 3.48 can you tell me why? What happened. The price of crude went down. We don’t depend upon Libya for oil. In the petro markets there is very little competition, just like when Rockefeller was the Oil Tycoon, Robber Barron, you get the point.

  2. Gyges:

    “As an aside, I wonder how much of the Tea Party movement can be explained as the anti-authoritarianism of culture during the Baby Boomers’ formative years combined with their relative naivety when it comes to mass marketing and the ability of advertising to effect perception of reality.”

    I think you will find that most Tea Partiers are not aged hippies but the generation that graduated college sometime between 1975 and 1990. Our formative years were during the Reagan Administration. So I think you are way off base as is the person who thinks this has anything to do with advertising.

    It is about the nature and scope of government and the relation of the government to the people and the people to the government. Do we believe “The best government is that government which governs least” or do we believe government needs to do all things for all people?

    Tea Partiers want limited government and free markets, not some ancient hippie’s wet dream of anarchy and free love.

  3. Bdaman 1, March 24, 2011 at 7:33 am

    I like to mess with ya Gyges, I think O is doing good. He and me are black. Well off to go wash my momma.

    We’ll We’ll who do we have here.

  4. but who knows if it can be worked out?

    Mike, you know who worked everything else out. The rest is up to you 🙂 thanks for ALL the kind words. How is it that after all the hatefulness you and I have experienced towards one another we can now exchange those. How is it that after Gabby Gifford was shot in the head, there was a call for civility and now the volatility IMHO is worse than before. I do not like what I’m feeling and have a sick gut about the direction the country is headed. The hot card right now is this Steven Lerner guy. I keep dreaming of a brighter future only to awake and see it’s getting very dark outside.

  5. I like to mess with ya Gyges, I think O is doing good. He and me are black. Well off to go wash my momma.

  6. Gyges can you tell us which one or is it personal?

    “I just happen to think that Obama’s broken several laws,one of which is important enough to me that I refuse to vote for anyone who has broken it.”

    I ask because of Buddha’s reply, in which his is.

  7. “As an aside, I wonder how much of the Tea Party movement can be explained as the anti-authoritarianism of culture during the Baby Boomers’ formative years combined with their relative naivety when it comes to mass marketing and the ability of advertising to effect perception of reality.”

    I vote “quite a bit”, Gyges.

    Advertising is a great evil upon the world and its negative impact is greatly underestimated by most. It is the kissing cousin of propaganda too, but it’s Big Lie isn’t that “killing citizens without due process is okay if the President does it”. Advertising’s Big Lie is “you NEED this thing or service” when 95% of what is bought and sold technically falls into the category of “want”, not “need”.

  8. Buckeye et al,

    After a bath and a beer I realized I should explain that the aged hippy in question was in the acid dropper and the Tea-Bagger (and 2 of the 3 people I know that have participated in Tea Parties are former hippies), not anyone present.

    I apologize for my poor wording and imagery. I respect the lifetime of work and political involvement that many here have given. While experience doesn’t necessarily make one wise, it sure helps the process along.

    As an aside, I wonder how much of the Tea Party movement can be explained as the anti-authoritarianism of culture during the Baby Boomers’ formative years combined with their relative naivety when it comes to mass marketing and the ability of advertising to effect perception of reality.

  9. Buckeye,

    I’m glad you don’t include me with the “the government is illegitimate” crowd, that’s Bob and Buddha. I just happen to think that Obama’s broken several laws, one of which is important enough to me that I refuse to vote for anyone who has broken it. I also happen to believe (as does the noted Constitutional Scholar who happens to run this blog), that President Obama supports and enacts several policies that run counter to the U.S. Constitution. It’s happened before, and it’ll probably happen again. The question is, what do the people around at the time do about it?

    I make no judgement about the worth of your motivations. To be honest with you, if you’ll enjoy life more without participating in the discussions here, I’m glad you are self aware enough to realize it. I hate to see you go, you’re a great conversationalist and you always think through your positions.

    I just wanted to set the record straight about the difference between some of us here and the tea-baggers. To wit: It does make a difference if I think the sky is red because I’m dropping acid, or because I’m watching a sunset and my own reason should be judged on its worth, not on its relationship to some aged hippy’s opinion.

  10. bdaman,

    Yes I have, but it was for a personal off camera request for Bob. He asked for a private reply. He’s already gotten it.

  11. Mike S.
    .
    As you will see from my comments to Gyges, this isn’t really as much about Obama or Democrats as it is about the influence we have on others by the rhetoric we use. Yours has always been moderate and reasoned which is why I respect you so very much.

    You are among those I will miss the most, here, and indeed your views are very much like mine. Because we’re no longer “young turks”, we see things from a different perspective. Which is probably as it should be.

    Any time I pop in to see what’s going on, your comments (and Mike Appleton’s who also seems to have decamped) are those I will zero in on. I’ve enjoyed so many – Blouise and Elaine M., especially and Gyges – he never failed to keep me on the straight and narrow. Really it’s been a pleasure. Best wishes to you and I hope your health continues to improve.

  12. Gyges

    Not that I was referring to physicians, but they might argue with you that it’s becoming ever more difficult to define what is “harmful” to the human body.

    I was referring to the body politic and concerned that the continuous assertions that the government is wholly corrupt, all authority figures are venal, and Obama is worse than Bush/Cheney whether coming from the right or the left is harmful to the political process if it isn’t true, which I don’t think it is. If anyone here thinks all that is true, they are certainly free to say so but the influence on others of saying so is also a responsibility.

    My concern is that the general public, which I think are being adversely influenced by the radical right, is in the same danger from the radical left when I hear the same statements here or in more popular sites. Just in this thread Buddha has stated that he considers the current government non legitimate. This is exactly what is heard on radical right sites – constantly. The fact that he, and maybe you, and they reach that conclusion for different reasons makes little difference to those who hear only the refrain – the government is not legitimate.

    It’s not that I’m concerned because it’s Obama or because he’s a Democrat. I would be just as concerned if the same comments were made about any president or any of our governments past or present. It’s not my view and while I won’t say I’m as uncomfortable here as I would be at a Tea Party site, I am uncomfortable enough to no longer wish to participate. I’m too old to enjoy discord so am doing something about it. That may seem quaint to you, a young man, but so it is.

    You might also consider the general aspects of those of us who have decided to no longer participate. We seem to have some things in common.

    Best wishes to you and yours and the newest one. Enjoy them all while you can.

  13. OS

    That’s a load off. I thought I’d reached my “level of incompetency”. 🙂 Thanks!

  14. Buckeye, the search function is broken right now. The admins are working on it around the clock. When they redesigned the site, it turned out to have more bugs than an African termite mound. Everyone is on a learning curve. When you find a bug, use the Bug Report Form at the top right of the page to report it.

  15. “I think for my mother it is embarrassment that one, her son has to see her naked and two, is shame that she can not or getting to the point where she can no longer do certain things by herself.”

    Exactly my point. When I was 17 and my mother had the debilitating stroke that finally killed her, my father and Ihad to take turns on the Midnight to 8:00am shift because there was no special nursing available for that shift. I was in my HS Senior Year and many mornings would go to school right after one of those shifts. I needed to pick up my mother (she was down to 85 lbs.), put her on the toilet and wipe her down when she was through. She wept in embarrassment as to what her youngest son had to do for her. I was embarrassed myself, but not for me, for her. I saw this as my duty and never resented having to do it. Since in many ways I had been a spoiled child, this helped me to grow up and to be able to live on my own when my father died the following year.

    I see that this is not your first experience with the illness of a loved one and the provision of care. It says much for you and your family that you all take your duty seriously. This is as it should be, but all to often isn’t.

    As for fishing I leave that to my big brother who loves it. While I love to be in or on the water, I never developed the love for it that so many have. I’m still in Fla but would love to move back to NY, to watch my kids and grandkids grow. It’s
    something we’re exploring, now that I think I could withstand winter, but who knows if it can be worked out?

  16. Buckeye,

    Yes, but who defines harm? It’s pretty easy for a physician to “do no harm,” harm on a human body is pretty well defined, and fairly easy to create objective standards for. On the other hand, “harm” for a society is both amorphous and subjective. If it were otherwise, a social anarchy would be sufficient organization.

    Not to mention harm to who? Society? Individual liberties? Government interests? Party interests? Specific reformations?

    I’d also ask you to start treating those you disagree with as individuals rather than a whole class. You’re treading dangerously close to “if you’re not for us, you’re against us.” If you’ll remember both Buddha and I have been passionate defenders of the government’s role in a free society and economy. That hardly lines up with your characterization of our rhetoric. Politics is much more complex than the “right -> Left” Continuum we’ve been trained to think in in this country. The enemy of my enemy is no more my friend than the friend of my enemy is my enemy. In short, those that criticize Obama on this site have made it more than clear that we in no way support the Tea-Party.

    One final thought, anyone who complains about the blind partisanship of the other side should welcome well thought out criticism. Otherwise, they’re support will become just as blind their opposites opposition.

  17. “I am able to swim now and do just about anything.”

    That’s great, I know you enjoy the water as much as I do. I bet the first time back in for you had to be like a first all over again. Especially the first time you came up and took your first breath from returning to the surface. One of the greatest moments for me is when you enter the ocean and paddle out at sunrise, which I haven’t done yet in 2011. It’s like a cleansing of the soul.

    “It is unpleasant to be sure, for both parties, but is represents another way of our paying back to those who gave us life and in that respect duty becomes an honor.”

    I think for my mother it is embarrassment that one, her son has to see her naked and two, is shame that she can not or getting to the point where she can no longer do certain things by herself. From what I’m told just the mere fact that my mother gets a loving touch from a hand on her skin does wonders. So many of the elderly are basically put away in a nursing home only to make sure they are just fed and rarely visited. We took care of my dad at home after a stroke for a year and a half. Looking back it was the cruelest thing we could have done. He was bed ridden with a feeding tube shoved up his nose. He would pull it out and we would have to tie his hands down to keep him from doing it again. 15 years prior we had done the same for an uncle. I hope my mom will not have to suffer a prolong period of non quality of life.

    Don’t know if your still in Florida but the weather we’ve been having in NE Florida has been nothing short of spectacular. I just got back from the dock I normally fish and It looks like it’s time to start again. Fished last week at the mouth of the St Johns and caught several nice sheeps head. Do you fish?

  18. Buckeye,

    As I’ve said I am really sorry to see you go. However, there are comments that seem to say (please correct me if I’ve misunderstood)
    the cause of your leaving is due to the totality of the attacks on the President by regulars here. If this is so, then I think you misconstrue many of the opinions here, although I agree that there are a few that have historically gone way over the top and basically criticized the man for everything he has done.

    To me this is to be expected, excluding cons like Maury/Tootie where we could at this point write their rote critiques ourselves and do a better job of it. I say it is to be expected because in my life I’ve found people that were of a generally similar political persuasion to me, that were nevertheless caught up in their own brand of left wing dogmatism. People who are dogmatic in anything political, I find as distasteful as
    any of the Teabaggers and ilk, who I loathe.

    I’ve personally said that I will vote for Obama in 2012, although
    I’m quite angry and many of his policies and in the weak way he’s used his office. Even with my many critiques he stands far above anyone with a chance of winning, who’s likely to run against him. Now there are those here, who I differentiate from
    those I find distasteful above, who will not vote for Obama and yet I understand and respect their point of view. They are thoughtful people, who have reached a conclusion that may differ from mine, but has been honestly and logically reached by them.
    I met and knew too many “party line leftists,” however, in the 60’s and felt at odds with them because to me one who follows any “party line” (using the term broadly)has pre-judged is issue they come across.

    My particular party line is this:

    All humans should have adequate food, shelter, education, healthcare, freedom and equal justice under the law. The methodology for achieving this is open to discussion as long as it gets done. Many here who may disagree with me about voting for Obqama in 2012, nevertheless agree with that formulation of human rights. My sense is that to create a world meeting those criteria will require a broad consensus and that will mean disagreements as to the means for achieving those ends, until
    consensus is achieved.

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