FBI Nominee Agrees: Waterboarding Is 'Torture' And 'Illegal'

By Carrie Johnson

Published July 9, 2013 at 7:51 PM EDT

FBI Director nominee James Comey prepares to testify on Capitol Hill in Washington on Tuesday, before the Senate Judiciary Committee hearing on his nomination. Comey spent 15 years as a federal prosecutor before serving in the George W. Bush administration, where he is best-known for facing down the White House over a warrantless surveillance program.

In a confirmation hearing Tuesday for James Comey to lead the FBI, the most memorable exchange FBI lasted just six seconds.

"Do you agree that waterboarding is torture and is illegal?" asked Senate Judiciary Committee Chairman Patrick Leahy of Vermont.

"Yes," Comey replied.

But Comey wasn't directly asked to square that position with his approval, as deputy attorney general in the Bush years, of a 2005 Justice Department memo that concluded waterboarding detainees did not violate a U.S. anti-terrorism statute.

A few things have changed since then, national security lawyers say. In one of his first official actions, President Obama put an end to the practice of waterboarding. The White House and Attorney General Eric Holder withdrew the 2005 memo and several other war on terrorism legal analyses.

Late in 2005 — long before Obama's election — Congress passed the Detainee Treatment Act, which prohibited cruel treatment of terrorism suspects and gave immunity from prosecution to interrogators who acted on the early legal advice.

Comey would replace Robert Mueller, who is retiring in September, and administration officials say they see few major obstacles in his way. While Republican Sen. Rand Paul of Kentucky has vowed to block the nomination until he gets answers about the way the FBI uses domestic surveillance drones, a federal source tells NPR the bureau is preparing a response to try to satisfy Paul.