On Wednesday, the Senate Judiciary Committee will examine the qualifications of Christopher Wray to serve as the eighth director of the Federal Bureau of Investigation. It is a unique and consequential position in our government, given the broad responsibilities and awesome powers we assign to the FBI. Even under normal circumstances, it is essential that Congress takes a hard look at the character and experience of someone who would hold such power. These are not normal circumstances.
The FBI has the responsibility to protect Americans from all manner of criminal activity, from bank robbery and drug dealing to corporate fraud and government corruption. We grant it powers to defend the nation’s security from hostile foreign spies and terrorists, and the latitude to exercise them under a thick cloak of secrecy. At the same time, we expect it not just to strictly adhere to constitutional limits on its own activities, but also to police the police — reinforcing the rule of law by holding other federal, state and local law enforcement officers to account when they violate the rights of the citizenry. It’s a big job.
And the kicker is we expect this powerful government agency to act completely independently of partisan politics, while still holding itself accountable to democratic controls. To assist in this balancing act, the FBI director, unique in government, is given a 10-year term of office during which he can only be fired by the president. So far, two of the seven directors were so relieved, one resigned in disgrace, two voluntarily left office early. Adding J. Edgar Hoover, who died in office just as his abuses of power were being uncovered, and the record for FBI directors successfully navigating these competing duties isn’t good. Only one has served his full term, and even had it extended two years (which raises a different problem, as I’ve written about before).
Recent events only make the job harder. The FBI’s last director, James Comey, thrust the Bureau into partisan political affairs in a way no previous director has. First, he ran roughshod over longstanding Justice Department policies to publicly criticize Democratic candidate Hillary Clinton in the months before the presidential election and, according to some experts, may have influenced the outcome by announcing he re-opened the investigation in the final days of campaigning. Then he met alone with then President-elect Donald Trump to discuss lurid allegations against him by a former British intelligence agent hired by Trump’s Democratic and Republican opponents to examine his possible compromise by the Russian government. This led to another series of policy-violating one-on-one meetings in which Comey testified that President Trump demanded a pledge of loyalty and pressured him to “lift the cloud” over his presidency by ending the investigation into Russian campaign interference. Trump fired him when he did not.
Given this history, lawmakers will undoubtedly focus on making sure that Wray has given no pledges of loyalty nor made any promises about who or what he will or will not investigate in order to win this nomination. But there are other critical areas of inquiry that need to be covered as well.
Wray served in key positions in the Bush Administration’s Justice Department after the September 11, 2001, terrorist attacks. He needs to be asked whether and how he was involved in some of its most controversial policy decisions, including his role in decisions regarding the torture memos and resulting detainee abuse in Iraq, Afghanistan and Guantanamo Bay, Cuba, and the warrantless wiretapping of Americans’ communications in violation of the Foreign Intelligence Surveillance Act.
At the time Wray was employed there, the Justice Department also engaged in a number of discriminatory actions targeting Muslim immigrants and citizens, including the arrests of over 1,200 Muslim immigrants who were detained, often under harsh conditions and without informing their family or attorneys, until the FBI cleared them of ties to terrorism. None were charged with terrorist offenses. Dozens of others — immigrants and citizens alike — were arrested and held under material witness warrants, without any allegation of wrongdoing. The Justice and Treasury Departments also worked together to raid and freeze the assets of at least seven Muslim charities in the United States, using a broad application of anti-terrorism financing laws and secret evidence. Many of these charities were effectively put out of business without ever being charged with a crime. Given the Trump Administration’s open animosity toward Muslims and rising levels of animosity and attacks, how can Wray assure lawmakers that the FBI will defend Muslim Americans’ civil rights?
Wray also led the Justice Department’s Criminal Division during a period in which a task force determined that flawed scientific testimony provided by FBI lab officials adversely affected hundreds of convicted defendants. The problems at the FBI lab had festered for decades and prosecutors knew of them, but the Justice Department decided to let local prosecutors decide whether to notify defendants in the cases it identified as tainted by unreliable forensic evidence. What role did Wray play in these decisions, and how will he ensure these problems are not repeated in the future?
Wray should also be questioned about how he intends to solve other endemic problems affecting the FBI. For instance, the FBI has long struggled to hire and maintain a diverse workforce, and statistics are trending in the wrong direction. The FBI’s special agent population is now less racially diverse that it was twenty years ago, with whites making up 83% of the workforce, and women holding only 12% of leadership roles. What would Wray do to remedy this problem?
Finally, in 2015 the Government Accountability Office found the Justice Department’s rules and regulations established to protect FBI whistleblowers inadequate to protect against retaliation for reporting internal wrongdoing. The vast majority of cases that went through the labyrinthine process were dismissed for technicalities, and those few that did see relief waited as long as a decade for a final adjudication. Yet the Justice Department and FBI opposed legislation that would have improved protections for FBI employees. What would Wray do to establish a culture that encourages employees to report internal wrongdoing at the FBI in a responsible manner?
Ensuring that the FBI director is not beholden to the President is a crucial task facing the Judiciary Committee. But members must also ensure that Wray addresses the range of substantive issues he will need to resolve as FBI director no matter who is the country’s chief executive.