FBI Director nominee Christopher Wray sits during a meeting with Senate Judiciary Committee Chairman Chuck Grassley (R-IA) on Capitol Hill in Washington D.C., June 29, 2017. © 2017 Reuters

(Washington) – The US Senate Judiciary Committee should vigorously question Christopher Wray, the nominee for director of the Federal Bureau of Investigation (FBI), on ensuring the bureau’s independence and his role in post-September 11, 2001 detainee policy, Human Rights Watch said today. Wray’s confirmation hearing is slated for July 12, 2017.

President Donald Trump nominated Wray after firing James Comey as FBI director in the midst of the FBI’s investigation into possible collusion between the Trump presidential campaign and Russia to intervene in the 2016 US presidential election.

“Christopher Wray needs to demonstrate to the Senate that he will uphold the FBI’s independence, which is critical for the bureau being an impartial law enforcement agency,” said Maria McFarland Sanchez-Moreno, US program co-director at Human Rights Watch. “Senators also need clarity from Wray about his role in abusive detainee policies after 9/11 and his positions on surveillance, protest movements, and other issues affecting basic rights.”

As FBI director, Wray would be in charge of all federal investigations aimed at enforcing federal law and would play an important role in counterintelligence operations. The FBI conducts investigations in a range of areas including terrorism, cyber-crime, federal civil rights violations, corporate and banking fraud, and public corruption.

As a lawyer, Wray has alternated between working for the Justice Department, including heading the criminal division and handling corporate fraud cases, and private practice, representing corporate interests in criminal and regulatory actions. More recently he was the personal attorney for Trump’s former transition director, New Jersey Governor Chris Christie. The firm where he currently works also advises the Trump family business, media reports say.

Senators should question Wray about his involvement in US detainee policy after the attacks of September 11, 2001, Human Rights Watch said. As head of the Justice Department’s criminal division, Wray may have had information about the mistreatment of detainees amounting to criminal conduct by members of the Central Intelligence Agency (CIA), civilian contractors and other personnel.

However, in 2004 after reports surfaced of detainee abuse at Abu Ghraib prison in Iraq, Wray suggested at a public hearing that he had no knowledge of the abuses before they were reported by the media. Days later, the media reported that the Justice Department had already been investigating allegations of detainee abuse by the CIA, prompting Senator Patrick Leahy to write a letter to the attorney general urging him to clarify Wray’s testimony.

Documents since made public as part of a Freedom of Information Act request by the American Civil Liberties Union indicate that the CIA Office of Inspector General had sent Wray a memo three months earlier referring the case of Manadal al-Jamadi to Wray for “possible violations of criminal law.” Jamadi died due to “blunt force injuries complicated by compromised respiration,” according to the memo, shortly after his arrest and detention in CIA and then military custody in Iraq. By that time, at least six detainees had died in CIA or Defense Department custody in Iraq and Afghanistan, including at least two and perhaps three, whom the Justice Department had known about and were investigating.

“Wray needs to explain what and when he knew about CIA detainee abuse and his response,” McFarland Sanchez-Moreno said. “The issue gets to the heart of whether Wray will use his powers to carry out criminal investigations in the face of enormous political opposition.”

Wray also played a key role in the FBI PENTTBOMB investigation following the 9/11 attacks, during which more than 750 mostly Arab or Muslim men who had violated US immigration law were detained, ostensibly for ties to terrorism. Many of these men, deemed “special interest” detainees, were held for prolonged periods, averaging 80 days, without knowledge of, or the ability to contest, the terrorism allegations. Though many had overstayed their visas or entered the US illegally, as Human Rights Watch and Inspector General’s reports found, the men normally would not have been detained or would have been held in immigrant detention centers with access to visitors and attorneys.

Instead, they were held under a “hold until cleared” policy even if there was no basis for the terrorism allegations, and even in some cases after judges had ordered their release on bond or deportation orders and they could be returned to their home countries. Both reports found that these measures were not justified on national security grounds.

Many of these detainees were put in maximum-security prisons under what the inspector general’s report described as a “communications blackout,” that in some cases lasted for weeks. During that time, the detainees’ families and lawyers didn’t know where they were or why they had been locked up. Wray, who was then Principal Associate Deputy Attorney General, supported these measures, according to the Inspector General’s report. The report says that he and a colleague told the Bureau of Prisons (BOP) director, Kathy Hawk Sawyer, “to ‘not be in a hurry’ to provide the September 11 detainees with access to communications – including legal and social calls or visits – as long as the BOP remained within the reasonable bounds of its lawful discretion.”

Incommunicado detention can facilitate serious human rights violations, including torture and ill-treatment, and violates US obligations under international law. In addition to being denied access to lawyers and families and arbitrarily detained, many of the PENTTBOM detainees subject to the communication blackout were physically abused, slammed into walls, kicked, dragged by handcuffs, and verbally harassed, according to the report.

Senators should question Wray about areas of FBI work that directly affect the rights of Americans, Human Rights Watch said. Little is known about Wray’s views on communications surveillance, but as with then-Deputy Attorney General Comey and others, he reportedly was willing to resign in protest in 2004 over the prospective re-authorization of a large-scale secret monitoring program.

It’s up to the Senate to ensure that its next director will uphold the bureau’s independence and respect rights.

Maria McFarland Sanchez-Moreno

Co-Director of US Program

However, the FBI has access to enormous troves of information assembled using electronic surveillance powers greatly expanded since 9/11. Therefore, it will be important for Senators to question Wray about how he would use US communications surveillance authorities. They should also question whether he, like Comey, would support the creation of “encryption backdoors” for law enforcement. Human Rights Watch, digital security experts, and privacy groups have opposed this because it would create vulnerabilities that criminals and others could exploit, broadly undermine cybersecurity, and give rise to a risk of rights abuses by unscrupulous governments and officials.

A related area of concern is the FBI’s practice, documented by Human Rights Watch, of targeting for investigation American Muslims and particularly vulnerable people, including those with intellectual and mental disabilities and the indigent, who were not involved in terrorist activity and may never have been were it not for the FBI’s involvement and encouragement.

Senators should question Wray about his response to emerging protest movements, such as Black Lives Matter, whose motives President Trump has criticized. The FBI has a history of abuses against domestic dissenters, notably the COINTELPRO investigations, aimed at carrying out surveillance on, smearing, and discrediting anti-war and civil rights groups between 1956 and 1971.

Questions should focus on the FBI’s ability to safeguard the rights of protesters. Senators should also seek a firm commitment from Wray to continue the FBI’s investigations into civil rights violations by local police departments, despite Attorney General Jeff Sessions’ moves towards reducing the Justice Department’s role in civil rights enforcement.

“The FBI has broad powers and plays a critical role as the chief federal law enforcement agency in the United States,” McFarland Sanchez-Moreno said. “It’s up to the Senate to ensure that its next director will uphold the bureau’s independence and respect rights.”