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Who’s Afraid of Big Brother?

Memo to Ray Kelly: Just because you’ve built your own intelligence arm doesn’t mean you have to use all of the Bush administration’s tactics.


Illustration by Sean McCabe  

Jim Comey had recently started a new job. So I called to congratulate him. I’d written a profile of Comey in October 2003, when he was on the verge of another job change—moving from New York, where he was U.S. Attorney for the Southern District, to Washington, where Comey would become the second-most-powerful official in the Justice Department, as deputy attorney general to John Ashcroft. When Comey called back, he got my answering machine. The tone of his reply indicated he hadn’t changed in the two years since we’d last spoken—there was laughter in his voice—and his short message seemed to be a joking reference to my old story. Yet, two months later, Comey’s words seem ominous.

Comey has always been an intriguing bundle of conflicting characteristics. He’s been a deeply conservative Republican since college, yet he cites liberal theologian Reinhold Niebuhr as a formative influence. In New York, Comey relentlessly prosecuted Martha Stewart; in Washington, he publicly apologized for the prosecutorial misconduct that caused two terrorism convictions to be overturned. There are two thoroughly consistent threads in Comey’s life, however: his love of jokes and his unswerving moral compass. It was those two traits I highlighted two years ago when Comey was about to become Ashcroft’s aide, writing that “there’s little risk Comey will lose his sense of humor in his new job. It’s only his soul that’s up for grabs.” And I figured it was merely that second sentence Comey was referring to in his November voice mail, after he’d quit the Justice Department to become head lawyer at Lockheed Martin. “Well,” Comey said with a chuckle, “I didn’t lose my soul.”

I didn’t get around to calling him back. Then, on New Year’s Day, the Times arrived on my doorstep with a big front-page story about the brave Justice Department official who’d objected to the Bush administration’s secretly spying on Americans: Jim Comey.

Maybe the only reason he left Justice was to make some real money. Comey isn’t returning calls from reporters at the moment, so it’s impossible to clarify the meaning of his phone message, and it’s premature to cast him as a civil-liberties martyr.

What’s certain, however, is that Comey is no soft-on-terrorism pantywaist; a man doesn’t become No. 2 to John Ashcroft without swearing allegiance to the Patriot Act. Yet some combination of conscience and respect for the rule of law led him to say no when the White House, in March 2004, expected him to rubber-stamp an extension of the National Security Agency’s warrantless wiretapping program. (Comey was not exactly high on the Bush family’s Christmas-card list anyway: Charged with appointing a special prosecutor to look into the Valerie Plame leak, Comey picked his former New York U.S. Attorney colleague and close friend Pat Fitzgerald, who has also proved to be something more than an administration patsy.)

Whatever the motivations, Comey’s objection is a stark, disturbing sign of just how badly the Bushies have botched the counterterrorism intelligence agenda. The true scandal here isn’t that Americans are having their privacy invaded; it’s that the Bush administration is crippling a key intelligence agency by entangling it in this mess. Because we need good spying.

For an example of its importance, look no further than the Brooklyn Bridge: Wiretaps helped foil a plot by Iyman Faris to destroy it. But now the patented Bush administration combination of arrogance and sloppiness is once again doing more damage to a useful intelligence tool than any congressional oversight would have. Faris’s conviction could be in jeopardy if it relied on illegal NSA intercepts instead of legal FBI snooping. (Comey, by the way, was worrying about such inadmissable-evidence problems years ago.)

Ever since September 11, of course, there’s been increased tension between protecting civil liberties and ensuring the nation’s safety. The Republicans have shifted the balance toward more intrusive law-enforcement tactics by playing the fear card. In a time of instantaneous electronic communication and ferociously lethal enemies, it seems an uneasy bargain worth striking.

And the threat hasn’t disappeared. Electronic spying is going to be a crucial component of any sophisticated, effective counterterrorism arsenal. “I have no doubts whatsoever about NSA’s crucial role in the war on terror, none whatsoever,” says Daniel Benjamin, a National Security Council staffer for five years in the Clinton administration and a co-author of The Next Attack: The Failure of the War on Terror and a Strategy for Getting It Right. “Its capabilities are vital, absolutely essential. I don’t think there’s an argument against what the government’s been doing on grounds of relevance. The question is going to be legality and legitimacy. Using signal intelligence this way undermines the public sense of legitimacy of the war on terror. If you’re fighting a war in the dark, you need as much public support as possible. You shouldn’t be raising additional questions about your goals and methods by doing things that are of questionable legality.”

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