What We Learned From Wray’s Confirmation Hearing

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Yesterday, the Senate Judiciary Committee held its confirmation hearing for Christopher Wray, Trump’s nominee to run the Federal Bureau of Investigation. Two things seem clear after the hearing.

First, Wray, barring an unforeseen event, will most likely be confirmed.

Second, Wray gave no indication that his tenure at the FBI would mark a departure from the serial abuses of civil liberties that have defined the bureau for its entire existence.

During his opening, Wray pledged his loyalty to the Constitution and the rule of law, a reoccurring theme throughout the hearing, as Senator after Senator asked if anyone else had asked him for an oath of loyalty. Evidence of this fealty to the Constitution lies in the fact that Wray, like his predecessor James Comey, allegedly would have resigned over a particular unconstitutional surveillance program (note: both Comey and Wray’s objections were extremely narrow and they seemed just fine with a number of other anti-civil libertarian programs). Wray continuously asserted that if given an illegal or unethical order, he would attempt to talk the President out of it and if that failed, resign. He insisted that he was willing to resign or be fired in order to do the right thing.

On several occasions, the dark legacy of the Hoover years was evoked. While it is important that the FBI be placed in the context of the agency’s own history, many of these questions implied that such abuses were consigned to the past, with no recognition of ongoing abuses against political activists. Senators evoked Hoover to ascertain Wray’s willingness to investigate Russian intervention in our elections, not to gain assurances that our right to political expression would be free from FBI interference.

Wray’s loyalty to only the Constitution comes in the context of Comey’s claim that Trump requested his loyalty. His fidelity to the rule of law is less about civil liberties, then it is about  whether he would snuff the Russian investigation at Trump’s prodding. Still, these claims do have potential implications about how Wray might respond to unconstitutional directives from Trump. As I explained in The Nation, before today’s hearing

Just as we should expect that Wray would assert his independence should Trump try to squash investigations into him or his associates, we must demand that Wray also affirm he would refuse to violate the constitutional rights of the people.

 

Senator Mazie Hirono (D-HI) asked Wray if he would implement Trump’s Muslim Registry. Unfortunately, Wray responded that he would need to know more about the proposed program before he could respond. Senators Dianne Feinstein (D-CA), Patrick Leahy (D-VT), and Dick Durbin (D-IL) all asked Wray about his role with the Bush-era torture program, when he served as Assistant Attorney General in the Department of Justice. Wray told Leahy that waterboarding was torture and thus illegal, but purported to having no memory of having approved, or even read, any of John Yoo’s infamous torture memos. Senator Chuck Grassley (R-IA) brought up the issue of whistleblower protections and §702 of the Foreign Intelligence Surveillance Act, the reauthorization of which Comey considered a top priority. A priority Wray, apparently shares. In one of the more surprising moments during the hearing Senator Orrin G. Hatch expressed his support for encryption and opposition to Comey’s attempts to get a backdoor into our devices.

Wray made no particularly shocking utterances. However, given the history of the FBI spying on dissent, which continues to this day, that doesn’t exactly warrant confidence. The FBI’s history of infiltrating the Muslim community and deploying agent provocateurs coupled with the Trump Administration’s Islamophobia raises even further concerns.

Many of the Senators were concerned with the eroding of public trust in the FBI and how to restore business as usual to the agency. But it is precisely business as usual at the FBI we should be concerned about.