But nominee James Comey told the Senate Judiciary Committee despite his personal feeling about the practice its legal status was more complicated. Asked whether he thought water-boarding is illegal, Comey said, "Yes."
"When I first learned about water-boarding when I became deputy attorney general [in 2003], my reaction as a citizen and a leader was, 'This is torture,'" Comey said. "It's still what I think. And to his great credit, [outgoing FBI Director] Bob Mueller made sure the FBI had nothing to do with that business. And if I were FBI director, it would never have anything to do with that."
Comey said he "made that argument as forcefully as I could to [Attorney General John Ashcroft]. He ... actually literally took my notes with him to a meeting at the White House and told me he made my argument in full, and that the principals were fully on-board with the policy. And so my argument was rejected."
As for a legal opinion from the Justice Department's Office of Legal Counsel in 2005 that said waterboarding would not violate U.S. law, Comey said despite his personal opinion, "I discovered that it's actually a much harder question to interpret this 1994 statute, which I found very vague, and apply that statute to the individual techniques."
As deputy attorney general Comey said he tried to "withdraw some terrible opinions that had been written before my tenure, and then to commission the drafting of a new analysis of this particular 1994 statute. And that resulted in an opinion at the end of 2004 ... I thought much more responsibly written. And then in the spring of 2005, after I'd already announced my resignation, it resulted in two opinions that applied to the individual techniques that the CIA wanted to use, and to the combination of those techniques."
Comey said he thought one 2005 OLC opinion was "a serious and reasonable interpretation of a very vague statute. I read the second and thought it was terrible. I thought it was irresponsible both as a policy matter and as a legal matter, and so I objected to it and took that directly to the attorney general and made my case that that was wrong. He disagreed with me and overruled me."
Comey also said he would not retaliate against FBI whistle-blowers.
"I think whistle-blowers are also a critical element of a functioning democracy. Folks have to feel free to raise their concerns and if they are not addressed up their chain of command to take them to an appropriate place."