AMY GOODMAN: In our next segment, we’ll be looking at the trial of Bradley Manning. I’m Amy Goodman, with Nermeen Shaikh.

NERMEEN SHAIKH: We turn now to the confirmation hearing of James Comey, President Obama’s nominee to run the FBI for the next 10 years, replacing Robert Mueller. Comey served as deputy attorney general under John Ashcroft in the Bush administration. In this role, Comey signed off on a controversial legal memo authorizing waterboarding of prisoners and approved of the indefinite detention of José Padilla, a U.S. citizen who was held on a military brig for three years without charge. During his confirmation hearing before the Senate Judiciary Committee, Comey was questioned about these issues as well as his views on domestic surveillance. This is committee chair Senator Patrick Leahy of Vermont.

SEN. PATRICK LEAHY: I’ll ask you the same question I asked Attorney General Mukasey when he was before this committee for confirmation. I found—actually, I found his answer unsatisfactory, but I’ll ask you the same question. Do you agree that waterboarding is torture and is illegal?

JAMES COMEY: Yes.

SEN. PATRICK LEAHY: Thank you. And would you agree to answer this question the same way no matter who is president?

JAMES COMEY: Oh, certainly.

SEN. PATRICK LEAHY: Thank you. Now, the surveillance powers of the FBI have grown. Americans are becoming increasingly concerned the FBI is becoming more of a domestic surveillance agency than a crime-fighting, intelligence-gathering organization. The PATRIOT Act, other authorities, they can get vast amounts of information, including the data of law-abiding Americans, something that creates concerns, I know, among my fellow Vermonters. So, do you believe the bulk collection of metadata for domestic telephone calls or emails is appropriate, even when the majority of individuals with whom the calls or emails are associated are law-abiding Americans?

JAMES COMEY: Senator, I am not familiar with the details of the current programs. Obviously, I haven’t been cleared for anything like that, and I’ve been out of government for eight years. I do know, as a general matter, that the collection of metadata and analysis of metadata is a valuable tool in counterterrorism.

NERMEEN SHAIKH: That was FBI nominee James Comey. While Comey described waterboarding as torture and illegal, he acknowledged signing a memo authorizing its use when he was in the Bush Justice Department. Comey did not say why his view on waterboarding had changed since 2005.

During the hearing, senators repeatedly praised Comey for refusing to reauthorize the Bush administration’s warrantless spy program while serving as acting attorney general in the place of John Ashcroft, who was recovering from surgery. Comey alerted Ashcroft after top White House aides rushed to Ashcroft’s hospital bed in a failed bid to win his approval for the spying. According to news reports, the surveillance program later resumed under a similar legal framework, and senior Bush administration officials have said Comey raised few objections to other surveillance programs.

AMY GOODMAN: Well, for more on the nomination of James Comey, we’re joined now by former FBI special agent Coleen Rowley. She was with the FBI from 1981 to 2004. She was a division legal counsel for 13 years and taught constitutional rights to FBI agents and police. In 2002, Time magazine named her and two other women whistleblowers as _Time_’s “Person of the Year” after she testified before Congress about the FBI’s failure to help prevent the 9/11 attacks. Her latest article, “Questions for the FBI Nominee,” appeared in The New York Times.

Were those questions asked yesterday, Coleen Rowley? What do you think it’s significant for us to understand about who Comey is?

COLEEN ROWLEY: Well, to their credit, the senators did ask some of the questions, especially the ones that focused on James Comey’s authorization of waterboarding and sleep deprivation, and especially that question, I think, was asked and answered. It wasn’t answered very well, but it was—because James Comey claimed now that it’s illegal. It’s progress over Mukasey, who denied that waterboarding is torture. But he could not really explain why he had signed off on these authorities for CIA that included sleep deprivation and waterboarding. So the senators did an OK job of asking some of the questions. James Comey hedged on most of those; he did not answer those. He would claim that he did not know or the information was classified. Especially that hospital standoff question, he claimed that that is still classified, and he could not explain what changed and why he objected to the warrantless monitoring beforehand, but then went along with it afterwards.

NERMEEN SHAIKH: Well, during Tuesday’s confirmation hearing for the FBI director nominee, James Comey, he was asked about his approval in 2004 of a legal memo that authorized torture techniques designed to inflict pain or terror during the interrogation of detainees. Comey was deputy attorney general at the time. The memo was known as the Bradbury memo.

SEN. AL FRANKEN: You talked about how sleep deprivation can be torture, and I think you said in combination with other methods. This is what the Bradbury memo says about a sleep deprivation: “In this method, the detainee is standing and is handcuffed, and the handcuffs are attached by a length of chain to the ceiling. The detainee’s hands are shackled in front of his body, so that the detainee has approximately a two- to three-foot diameter of movement. The detainee’s feet are shackled to a bolt in the floor,” end-quote. The memo also says that the detainee wears diapers and that sleep deprivation can cause swelling in the lower extremities. The memo goes on to say that none of this amounts to torture, and it authorized sleep deprivation for up to 180 hours. That’s seven-and-a-half days. That is torture, isn’t it?

JAMES COMEY: That was my reaction. And I remember that description vividly, Senator. That’s one of the things that led me to ask, “Who are we as Americans?” And we have to have that conversation about—even if someone says it’s effective, someone says it doesn’t violate this vague statute, there’s this third question that that description cries out for us to answer.

SEN. AL FRANKEN: OK, I’m out of time, but I would say that was a memo that you—that you approved. Now, that was one of separate—separate methods that was talked about in that one. That was the first Bradbury.

NERMEEN SHAIKH: That was James Comey being questioned by Senator Al Franken. Coleen Rowley, could you respond to that?

COLEEN ROWLEY: Well, the senators generally lauded James Comey for obeying and upholding the law, and they claimed that he had spoken truth to power. But this episode where he signed off on waterboarding and sleep deprivation—and I will just interject that I’m very proud that Minnesota Senator Al Franken gave the graphic, gruesome description of what sleep deprivation actually is, because maybe if some of these officials had understood that, they would not have signed off as this being legal. James Comey also claimed that the statute, the 1994 statute prohibiting torture in the United States, is vague. In fact, there’s a convention against torture that the United States has signed, and almost all experts claim—say that that statute is very clear. And so, there is a real strong irony here that the new—probably the new FBI director actually signed off on a completely illegal method of interrogating prisoners.

AMY GOODMAN: Talking to former FBI agent Coleen Rowley, named by Time magazine as “Person of the Year,” I wanted to go back to the Comey hearing and back to the questioning of Senator Al Franken, this about the case of José Padilla—José Padilla pronounces his name in that way, as opposed to José Padilla; he had changed his name—the U.S. citizen who was held as an enemy combatant by the George W. Bush administration. For over three years, Padilla was held without charge in solitary confinement on a military brig in South Carolina.

SEN. AL FRANKEN: Do American citizens always have the right to talk to an attorney when they are entained—when they are detained by their own government on American soil?

JAMES COMEY: I suppose one of the reasons you may not have been satisfied is I’m not sure I was expert enough, or still am, to give you a really good answer to that. I think the answer is, yes, except when that person is detained as a prisoner of war in an ongoing armed conflict. That is, a prisoner of war, the person does not have a constitutional right to counsel. I think that was the position that the Justice Department took in Mr. Padilla or Padilla’s case. And so, I think that is the position.

SEN. AL FRANKEN: And who determines whether that person is a prisoner of war, an American citizen—

JAMES COMEY: Right.

SEN. AL FRANKEN: —on American soil, who’s arrested on American soil? Who makes that determination? And doesn’t that person have a—an American citizen now—

JAMES COMEY: Mm-hmm.

SEN. AL FRANKEN: —have a right to an attorney to make the case that “I’m not a prisoner of war”?

JAMES COMEY: Well, they certainly have a right to access to the courts, as was done in that case, to file a habeas corpus petition to challenge the president’s decision that—and designation that person is involved in an armed conflict with United States. But that’s a different question from whether they have a constitutional right to have a lawyer. I think the district judge in that case said that as a matter of his ability to oversee habeas corpus petitions, he thought the person ought to have a lawyer to assist him in the preparation of that petition. I don’t think the judge found he had a constitutional right to counsel.

SEN. AL FRANKEN: OK, I’m—

JAMES COMEY: And as you said, it’s a one-off, horrific case, that was a very difficult one, so it’s—it’s obviously not a settled area, because I don’t know that it’s ever happened other than in Padilla’s case.

AMY GOODMAN: That’s the FBI director nominee James Comey being questioned again by Senator Al Franken of Minnesota. Coleen Rowley, you taught the FBI and police Constitution—the Constitution, and you were an agent for years. Your response to what he said, and what else you feel we should know about James Comey?

COLEEN ROWLEY: Well, James Comey was the official that held a press conference and strongly defended the ability of the United States to use this law of war and to hold enemy combatants incommunicado. Of course, in Padilla’s case, he was held for nearly three years, and I think two years without an attorney. So—and, actually, because James Comey spoke once in Minnesota with Walter Mondale, and Walter Mondale asked him about that case, James Comey went a step further in 2009—and this was in my questions in the New York Times op-ed. He actually said that we have to have an ability to incapacitate suspects when there is not adequate evidence to use in court or a foreign government gives the United States evidence that needs to be secret. So, he’s—in 2009, which came quite a long time afterwards, he is still defending this concept of indefinite detention without the right—not only the right to attorney, but even the right to be adjudicated in a criminal court.

NERMEEN SHAIKH: And what exactly did he mean by “incapacitate”?

COLEEN ROWLEY: Well, he made a reference to the way that we can hold mentally ill people through a different process rather than adjudicating criminal guilt. And he said if there’s a way to hold the mentally dangerous in—without—so that they’re not—so that we can maintain safety, there must be a way to do this with dangerous terrorist suspects.

NERMEEN SHAIKH: During Tuesday’s Senate confirmation hearing, FBI director nominee James Comey was also asked about domestic surveillance. He insisted that the secret Foreign Service Intelligence Act, or FISA, court provided effective congressional oversight.

JAMES COMEY: I think that folks don’t understand that the FBI operates under a wide variety of constraints, starting with the attorney general’s detailed guidelines on how it’s to conduct intelligence investigations, criminal investigations and counterintelligence investigations. I think sometimes folks also don’t understand what the FISA court is. They hear “secret court.” Sometimes they hear “rubber stamp.” In my experience, which is long, with the FISA court, folks don’t realize that it’s a group of independent federal judges who sit and operate under a statutory regime to review requests by the government to use certain authorities to gather information, and it is anything but a rubber stamp. Anyone who knows federal judges and has appeared before federal judges knows that calling them a rubber stamp is—shows you don’t have experience before them.

NERMEEN SHAIKH: That was FBI nominee James Comey. The FISA court issued almost 1,800 surveillance orders last year. Every single government request was approved. Coleen Rowley, your response to what Comey said?

COLEEN ROWLEY: Yes, and this number of FISA court orders is at over double what it was before 9/11. There’s a huge difference between when a criminal court carefully analyzes probable cause for purposes of monitoring and what the FISA court does.

I will go back to that hospital room standoff, because I think there’s a piece that the public does not understand about James Comey’s famous hospital standoff. He was not objecting to the massive data collection as much as he was just objecting to the legal footing of what had—what was probably John Yoo’s theory of unbridled executive power and the ability to override the FISA statute, to override Congress. It looks like there was a period of time before the FISA court got this blanket authority under the FISA Amendments Act to give—to rubber-stamp orders for—blanket orders for everyone’s telephone and email data. It looks like there was a period of time where James Comey authorized, went along with Bush’s massive data collection under a new theory. Goldsmith’s theory was that it was pegged to the Authorization to Use Military Force. And when they used that Authorization to Use Military Force, of course, to repeal parts of the FISA, none of the Congress would have understood that when they voted back in October 2001 to authorize the United States to go to war in Afghanistan, that they were also repealing a part of solid Foreign Intelligence Surveillance Act law.

AMY GOODMAN: FBI nominee James Comey also discussed his position on whistleblowing.

JAMES COMEY: I think whistleblowers are also a critical element of a functioning democracy. Folks have to feel free to raise their concerns and, if they’re not addressed up their chain of command, to take them to an appropriate place.

AMY GOODMAN: I mean, it’s interesting, Coleen Rowley. Here we are talking about this as Edward Snowden is, we believe, still in the Russian airport applying for political asylum in many different countries. The Democratic senators congratulating Comey for his questioning of the wireless wiretapping—of warrantless wiretapping, and yet you don’t see anything like their same response when it comes to questioning what President Obama has been doing with the NSA.

COLEEN ROWLEY: That’s right. They did ask Comey some good questions about the law that allows the government to read emails after six months, and they asked some questions about pending legislation to fix the NSA. Comey kind of hedged on those questions and said he could not really offer an opinion. The key thing here is that Comey did not really oppose warrantless monitoring, and actually looks like he just wanted the legal underpinnings to be adjusted.

And as far as whistleblowers, of course, in the FBI and as well as many of these other intelligence agencies, there is no recourse in court. You never get your day in court. So, of course—Senator Grassley mentioned this—there’s no other option for people who witness true illegality, as Edward Snowden did. What do you do when you’re witnessing violations of the Constitution and there is no internal chain of command or mechanism to get that information out? And Comey, of course, I don’t think, is—is not going to answer that, because he doesn’t want to prejudice the situation right now of the government prosecuting Edward Snowden.

AMY GOODMAN: Do you believe she should be confirmed?

COLEEN ROWLEY: Well, it’s a sad—

AMY GOODMAN: He should be confirmed?

COLEEN ROWLEY: Yeah, you know what’s really sad here is that it looks like the next FBI director will be someone who signed off on illegal torture, can’t really explain why. But yet it’s sadder still that amongst the pool out there that they consider to be appropriate candidates for FBI director, Comey actually might be one of the better ones. I mean, this is a very sad state of affairs right now.

AMY GOODMAN: I want to thank you very much, Coleen Rowley, and point out that, if confirmed, he serves a 10-year term. Coleen Rowley was a special agent for the FBI from 1981 to 2004, division legal counsel for 13 years, teaching constitutional rights to FBI agents and police, also testified before Congress about the FBI’s failure to help prevent the 9/11 attacks and was named Person of the Year by Time magazine.

This is Democracy Now! When we come back, the Bradley Manning trial.