Senate Set to Confirm New FBI Head Who OK’d Waterboarding, Defends Mass Spying, Indefinite Detention
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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.