President Obama's nominee for F.B.I. director, James Comey, faced a mostly friendly Senate Judiciary Committee on Tuesday, and he is almost assured confirmation given strong bipartisan support. But his tenure as deputy attorney general in the George W. Bush administration raises important questions about his commitment to civil liberties and his independence in an office that demands unstinting devotion to both principles. As has been made all too clear in recent weeks, the relationship between American citizens and the government's law-enforcement and intelligence agencies remains deeply damaged.
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A short version of Mr. Comey's work in the Bush administration might run like this: He did several highly questionable things and one unquestionably good thing — his effort in 2004 to stop President Bush's chief of staff and the White House counsel, who had skulked into the hospital room of the ailing attorney general, John Ashcroft, to wrest his signoff on the administration's warrantless data collection program.
As Mr. Comey sat before the committee, that remarkable incident was never far from mind. Even if the full story was not as heroic as it first seemed (Mr. Comey and Robert Mueller III, the current F.B.I. director, eventually backed down when President Bush "modified" the program), it has served a more symbolic purpose: In the face of what many saw as a lawless administration, Mr. Comey's stand asserted the rule of law.
The White House said that episode was "an important factor" in his selection; President Obama himself praised Mr. Comey's "fierce independence."
Much of Mr. Comey's testimony before the committee was encouraging — particularly his unequivocal rejection of waterboarding as a form of torture, his acknowledgment that whistle-blowers are a "critical" part of a functioning democracy, and his openness to the idea that summaries of certain rulings by the Foreign Intelligence Surveillance Court should be declassified.
But his apparent support for the indiscriminate phone and Internet sweeps by the National Security Agency that have come to light over the past month is troubling. Mr. Comey referred to the collection and analysis of metadata as a "valuable tool" in the fight against terrorism, and he defended the surveillance court, which hears requests for such data collection, against charges that it is a "rubber stamp" for the government.
Nor can we forget that while Mr. Comey nearly resigned over the Bush wiretap program, he stayed on until 2005, and he remains implicated in many of the administration's most repugnant acts, including the indefinite detention of an American citizen, Jose Padilla, who for two years was not allowed to contact even his lawyers.
Mr. Comey has taken pains over the years to distance himself from the Bush White House. But the Obama administration has made its own significant missteps in balancing liberty and security. "I'm sure that things will go wrong, and I will make mistakes," Mr. Comey told the committee. We can only hope that this time around, Mr. Comey will demonstrate more of the independence that Mr. Obama prizes in him and defend the Constitution as forcefully as he did that night in 2004.
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