A Higher Loyalty

by James Comey

  There were two additional opinions that needed to follow Levin’s general opinion. First, each of the CIA’s techniques needed to be evaluated individually under the standards Levin had announced. That would be fairly straightforward, because a single technique, viewed in isolation, was unlikely to cause severe physical pain or severe mental suffering. The second opinion would be the whole ball game. In that one, the CIA and White House wanted to apply Levin’s standards to the “combined effects” of all the techniques. They needed this because nobody was interrogated using just one technique. At actual black sites, they did a whole lot of brutal stuff to their subjects. Those actions could add up very quickly to the prohibited severe mental suffering. It was going to be difficult to sustain the program once Justice was asked to evaluate combined effects.

  Levin worked long hours trying to document exactly what was going on at these black-site interrogations. To support the 2002 legal opinion, the interrogations had been presented to the Department of Justice as if they were highly regulated and conducted in almost surgical, clinical environments. Although Levin had moved heaven and earth in 2004 to nail down exactly what was going on, it was still like nailing Jell-O to the wall; he got it up there, but it sure looked shaky.

  I never asked Dan Levin this, but I suspect he shared my hope that the entire CIA interrogation program would crater under the weight of these requirements. But this, of course, was not what we were asked to do. Justice Department lawyers were only being asked to provide legal opinions based on factual representations from the CIA. Although our internal voices screamed that this was terrible stuff and was based on inflated claims of success, those voices had to stay trapped inside us. But I heard one voice many times. “Don’t be the torture guy,” it said.

  * * *

  After George W. Bush won reelection in 2004, John Ashcroft had gone through the motions, like all cabinet officers, of tendering his resignation letter to the president. The tradition allowed the president flexibility to change his administration for a new term. But the hope was that cabinet officers who performed well would be asked to stay. To Ashcroft’s surprise, the president accepted his resignation. To add to the sting, Bush gave Ashcroft just a few hours’ notice before publicly announcing his successor. The person he had in mind as a replacement was another slap at all of us at Justice.

  On November 10, 2004, President Bush announced that his pick to be the next attorney general of the United States was Alberto Gonzales. I was getting a new boss who had actively opposed what I viewed as the department’s responsibility to enforce the law as it was written, not as the administration wanted it to be. One who seemed to prefer satisfying his boss more than focusing on hard truths. I don’t know why Bush picked Gonzales, but I suspect it was the age-old presidential mistake I would try, years later, to warn Donald Trump about—because “problems” often come from Justice, some presidents think they will benefit from a close relationship with the attorney general. It almost always makes things worse.

  Later that day, I was home for Patrice’s birthday when my cell phone rang. To my surprise, Gonzales was on the line. He said he was calling to tell me he really looked forward to working with me and hoped I would stay because he would need the help. I congratulated him on his appointment and said I looked forward to working with him. It seemed like the right thing to say, and I had nothing against Gonzales personally, despite the challenges we had been through. If he was going to be attorney general, I wanted to help him succeed. My main concern was not that he was evil, but that he was weak and would easily be overmatched by Addington and Cheney and their view that the war on terrorism justified stretching, if not breaking, the written law.

  I found out later that President Bush called Gonzales immediately after the announcement and suggested that he call me. I didn’t realize it at the time, but after what I knew—and had not talked about—from the Ashcroft hospital scene, I was something of a loaded gun in the Bush administration’s eyes, one that could go off at any moment. Because I was a loaded weapon, they handled me with care, but it was obvious to me that serving as Gonzales’s deputy was not the right thing for me. In the spring of 2005, I announced I would be leaving that August. We had a new attorney general who needed his own deputy, I reasoned. I was tired and disappointed with the choice of my new boss. Without the support of Ashcroft, I didn’t have the stomach for what were certain to be more losing battles within the administration. More important, my financial situation had not improved and our oldest was headed to college. It was time to leave. I sent the president my resignation letter, making it effective in August to ensure a responsible transition.

  Just as I was preparing to leave the Department of Justice, Vice President Cheney began leaning on Gonzales to produce the two remaining opinions he needed on interrogation policies. In addition to a new attorney general, the Justice Department also had a new acting leader of the Office of Legal Counsel, a bright and affable lawyer named Stephen Bradbury. Steve, who had no background in national security matters, wanted to be formally nominated for the job and he was being pushed to produce the two opinions the way Cheney’s tribe wanted. Patrick Philbin and I were disappointed to see that his opinions were overbroad, untethered to an actual case, and, to our minds, deeply irresponsible.

  We had suggested Bradbury consider the actual, recent case of someone who had been interrogated by the CIA. We knew of a terrorist who had recently been in CIA custody and whose interrogation was finished. We suggested he describe precisely what had been done to that captive, and then offer an opinion as to whether that actual, real-world combination of actions crossed the legal threshold. That was the only way to responsibly give an opinion. And, as it happened, this actual case was one where, given what we understood had been done to that guy, we did not think it would add up to severe pain or suffering as the statute defined it and the Department of Justice interpreted that statute, even though anyone in their right mind would say the man had been tortured. But even though the opinion would likely approve what had been done to that prisoner, that wasn’t what the vice president wanted. He wanted Bradbury to rule on the legality of a hypothetical scenario—a “typical” interrogation—not what the CIA actually was doing to a real human being.

  I met with Attorney General Gonzales to explain to him why I thought it was so irresponsible to write a hypothetical opinion that way—and immediately saw the difference between the attorney general I knew and respected, John Ashcroft, and his replacement. Wearily, Gonzales complained that the vice president was putting enormous pressure on him and that Cheney had even prompted the president to ask when the opinions would be ready. I said that I understood the pressure, but there were no prototypical interrogations. They all involved real interrogators reacting to real subjects, slapping them, chilling them, cramping them, and on and on, in permutations and combinations that were all unique. It was impossible to write a forward-looking opinion without making it look like Justice was writing a blank check. Someday when all this came out, I warned him, it would look like the attorney general had just caved in response to White House pressure and done something we would all deeply regret.

  If one thing motivates people in Washington, it’s being on the receiving end of bad headlines. And on that thought, Gonzales paused. It wasn’t clear to me that this had ever occurred to him. “I agree with you, Jim,” he said. He instructed me to work with Bradbury to try to fix the approach.

  My relief proved short-lived. The next evening, I spoke by telephone with Gonzales’s chief of staff. He told me the interrogation opinions were to be formalized and sent the next day. There was no more time. I reminded him that the attorney general had told me the opposite only the day before. His chief of staff told me things had changed.

  Bradbury finalized and signed both opinions, as he and the White House wanted it. A week after that, the White House began the background check process to formally nominate him as assistant attorney general. The legal battle was over.

  No
w that we were no longer acting as lawyers on the torture question, I felt free to do what I hadn’t done before. I went to the attorney general to seek permission to request a policy review of the entire program by the National Security Council. Typically this would lead to a full review by what is called the NSC’s Deputies Committee, of which I was a member, along with the deputies of the other relevant departments and agencies in the Bush administration. The deputies would frequently hash out policy issues and tough questions before their bosses grasped the issues personally. I knew I could make my case in that setting. We would have an honest, administration-wide discussion of whether we should be doing this stuff to human beings. Unfortunately, I never got that chance.

  The next thing I knew, strangely, the policy discussion on torture was elevated from the Deputies Committee to the Principals Committee, comprised only of the top leadership of the major defense and intelligence agencies—such as the secretary of defense, secretary of state, CIA director, and attorney general. That meant my team and I would have to prepare Gonzales to voice our concerns for us—because nobody else from Justice was allowed to go with him. Oh boy.

  As Pat Philbin and I sat down to prepare Gonzales for the May 31, 2005, White House policy discussion, the attorney general began by showing us the writing on the wall. He said Condi Rice, who had been national security adviser when the interrogation program was conceived and was now the secretary of state, replacing Colin Powell, “was not interested in discussing the details.” He added that Rice believed, “If Justice says it’s legal and CIA says it’s effective, that ends it. There is no need for a detailed policy discussion.”

  Knowing I’d never be able to plead the case to others on the National Security Council, Philbin and I did our best to buck up Gonzales to make the case on the department’s behalf. We protested that just because something was deemed to be legal—based on an opinion we disagreed with—and allegedly effective did not mean it was appropriate. I again reminded him, and hoped he would remind the others in the cabinet, that someday the interrogation methods used, and the shaky legal support for them, would all become public—adding that I had heard there was a videotape of one of these CIA interrogations—and this would reflect very poorly on the president and the country.

  Then I showed Gonzales a heavy-stock, cream-colored three-by-five card I’d compiled. On it I had written a list of the things that could be done to another human being under the CIA program as currently written and authorized by the Gonzales Justice Department. Reading from the card, I painted a picture for him of a human being standing naked for days in a cold room with hands chained overhead to the ceiling, defecating and urinating in his diaper, engulfed in deafening heavy metal music, and spending hours under a constant bright light. He is then unchained to be slapped in the face and abdomen, slammed against a wall, sprayed with cold water, and then, even though weak from a severely reduced-calorie liquid diet, made to stand and squat in positions that put extreme stress on his muscles and tendons. When he can’t move any longer, he will be put in a coffin-sized box for hours before being returned to the ceiling chain. And, of course, in special cases, he may be made to believe he is drowning on the waterboard.

  “That’s what this is,” I told the attorney general, holding the card aloft. “The details matter.” I urged him to make sure that all of the principals on the National Security Council stared at those details while deciding our country’s future interrogation policy.

  Gonzales paused for a long time, as he often did. He then thanked me for coming to him with this and asked whether he could keep my card with the handwritten list, so he could use it at the meeting. I handed it to him and left, praying that I had made a difference.

  I heard nothing immediately after the Principals Committee meeting. Late in the afternoon, I attended a meeting on sentencing policy with the attorney general and others. In front of the others, unprompted, the attorney general told me the White House meeting had gone very well, that he had told them just what I had asked, but all the principals were entirely supportive of the current interrogation policy and all parts of it.

  No policy changes were made. CIA enhanced interrogations could continue. Human beings in the custody of the United States government would be subjected to harsh and horrible treatment. And I never got my card back. I left government service two months later. I was never going to return.

  CHAPTER 8

  IN HOOVER’S SHADOW

  The supreme quality for leadership is unquestionably integrity. Without it, no real success is possible, whether it is on a section gang, a football field, in an army, or in an office.

  —DWIGHT D. EISENHOWER

  ON THE FIRST DAY of summer in 2013, I found myself where I never thought I’d be again.

  On the bright day when President Barack Obama announced my nomination in the Rose Garden to replace FBI Director Bob Mueller, the president, Mueller, and I stood alone in the Oval Office, waiting to walk out the glass door and into the garden, where the White House press pool already had gathered.

  As we turned to step into view of the cameras, the president stopped us. With a serious look on his face, Obama turned to me and said, “Jim, there’s one thing I forgot to talk to you about.”

  While I looked confused, the president nodded toward Mueller. “Bob long ago made a commitment to me, and I need you to honor it.” What could this possibly be? The president had assured me of my independence. Now I was being asked for secret assurances?

  The president paused to signal the gravity of the moment. Then he went on. “Bob has always allowed me to use the FBI gym to play basketball, and I need you to commit to continuing that.”

  I laughed. “Of course, Mr. President. It is your gym, in a way.”

  Though I love basketball, I knew I would never join him in the FBI gym. I also love golf, but knew we would never play. FBI directors can’t be that way with presidents. Everybody knows why. Or at least I thought they did.

  After leaving the Bush Justice Department in August 2005, I worked in the private sector. With five kids approaching college at about two-year intervals and fifteen years of government salary that hadn’t exactly been conducive to saving, it was time to save some money. I went to work as the chief lawyer—general counsel—at the defense contractor Lockheed Martin for five years, and then at an investment firm called Bridgewater Associates in Connecticut for three years. In early 2013, I left Bridgewater and joined the faculty at Columbia Law School as a fellow focused on national security, because I have always found teaching deeply rewarding.

  That March, Attorney General Eric Holder called out of the blue to ask whether I would interview for FBI director. He wasn’t guaranteeing me the job, but said he wouldn’t be calling personally if I wasn’t going to be very seriously considered.

  I was surprised. Maybe it was because I had become so hardened to the tribal loyalties of Washington, D.C., that it was difficult to believe a Democrat would choose someone who had been a political appointee of his Republican predecessor for such an important post. I also was on record as having financially contributed to President Obama’s political opponents.

  I was cold to the idea. It would be too much for my family. I didn’t tell him why I said that, but Patrice was in graduate school and working as a counselor at a walk-in mental health clinic in Bridgeport; one of our kids was a senior in high school; and we were foster parents with continuing connections and obligations to young people who had been in our home. Holder asked me to think about it. I told him I would sleep on it, but the answer was likely to be no.

  I woke up the next morning and Patrice was missing from our bedroom. I went downstairs and found her in the kitchen on her laptop. She was looking at houses for sale in the Washington, D.C., area.

  “What are you doing?” I asked.

  “I’ve known you since you were nineteen. This is who you are, this is what you love. So go down there and do your best.” Then she paused and added, “But they’re not going to pick
you anyway.” She liked President Obama and had voted for him, but she still thought this was just an exercise. Her interest, she later confessed, was in not having my sad face moping around for years afterward talking about what might have been. She, like me, doubted he’d pick someone who’d worked in the Bush administration.

  After preliminary interviews with his staff, I met President Obama in the Oval Office. He sat in the same position President Bush always had—in an armchair with his back to the fireplace, on the side closest to the grandfather clock. I sat on the couch to his left, on the cushion closest to him. We were joined by the White House counsel, Kathy Ruemmler, who sat across from me.

  I had never met President Obama before and was struck by two things: how much thinner he appeared in person and his ability to focus. As Ruemmler and I stood just outside the Oval Office waiting for the meeting to begin, I could see the president standing at his desk holding the phone. Kathy said he was talking with the governor of Oklahoma about the historic tornadoes that had torn through that state, killing two dozen people and injuring hundreds. Obama hung up the phone, waved me into the room, spoke briefly about the terrible tragedy in Oklahoma, and then shifted entirely to the new subject—the FBI.

  The president was almost grave in explaining why he took the selection of the FBI director so seriously. “In a way, this and the Supreme Court are the two most important personnel decisions a president makes, because I’m choosing for the future,” he said. “You will be here after I’m gone.” He said he thought there was great value in that long tenure and hoped that if I were the director, I could help a new president. For example, he said he had been pushed to make military decisions as a new and inexperienced president and under great pressure from military leaders. Without saying so, he seemed to be expressing regret that he didn’t have the experienced counsel around him that he needed at the time. He thought it was good that I would be around to help a future, perhaps similarly inexperienced leader think about national security decisions better.