[Senate Hearing 113-850]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 113-850
 
                 CONFIRMATION HEARING ON THE NOMINATION
                 OF JAMES B. COMEY, JR., TO BE DIRECTOR
                 OF THE FEDERAL BUREAU OF INVESTIGATION

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              JULY 9, 2013

                               __________

                          Serial No. J-113-19

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         
         
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
           Kristine Lucius, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
        
        
                            C O N T E N T S

                              ----------                              

                        JULY 9, 2013, 10:03 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    87

                               PRESENTER

Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................     6

                        STATEMENT OF THE NOMINEE

Witness List.....................................................    49
Comey, James B., Jr., of Connecticut, Nominee to be Director of 
  the Federal Bureau of Investigation............................     8
    Questionnaire and Biographical Information...................    50

                               QUESTIONS

Questions submitted to James B. Comey, Jr., by:
    Senator Feinstein............................................    89
    Senator Franken..............................................    92
    Senator Grassley.............................................    94
    Senator Klobuchar............................................    99
    Senator Whitehouse...........................................   100

                                ANSWERS

Responses of James B. Comey, Jr., to questions submitted by:
    Senator Feinstein............................................   102
    Senator Franken..............................................   110
    Senator Grassley.............................................   113
    Senator Klobuchar............................................   108
    Senator Whitehouse...........................................   105

           LETTERS RECEIVED WITH REGARD TO THE NOMINATION OF
       JAMES B. COMEY, JR., TO BE DIRECTOR OF THE FEDERAL BUREAU
                            OF INVESTIGATION

American Civil Liberties Union (ACLU) et al., July 1, 2013, 
  letter.........................................................   122
Constitution Project, The, July 2, 2013, letter..................   125
Federal Bureau of Investigation Agents Association (FBIAA), July 
  8, 2013, letter................................................   145
Federal Bureau of Investigation National Academy Associates 
  (FBINAA), July 9, 2013, letter.................................   146
Federal Law Enforcement Officers Association (FLEOA), July 8, 
  2013, letter...................................................   141
Former Senior Department of Justice Officials, July 8, 2013, 
  letter.........................................................   143
Former Senior Department of Justice Officials, July 10, 2013, 
  letter.........................................................   147
Former United States Attorneys, July 3, 2013, letter.............   133
International Association of Chiefs of Police (IACP), June 21, 
  2013, letter...................................................   120
Major Cities Chiefs Association, June 28, 2013, letter...........   121
National Association of Police Organizations (NAPO), July 3, 
  2013, letter...................................................   138
Police Executive Research Forum, July 5, 2013, letter............   139


                      CONFIRMATION HEARING ON THE



                   NOMINATION OF JAMES B. COMEY, JR.,



                     TO BE DIRECTOR OF THE FEDERAL



                         BUREAU OF INVESTIGATION

                              ----------                              


                         TUESDAY, JULY 9, 2013,

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Schumer, Durbin, 
Whitehouse, Klobuchar, Franken, Coons, Blumenthal, Hirono, 
Grassley, Hatch, Sessions, Cornyn, Lee, and Cruz.
    Chairman Leahy. The hearing will come to order. And before 
we start, just so everybody understands, I want everyone to be 
able to watch this hearing. I do not want anybody in the 
audience to be blocked by anyone for any reason whatsoever. I 
want everybody to be able to watch it comfortably. I am 
directing the police, if anybody stands up and blocks the view 
of anybody in this hearing, that person will be removed. 
Whether they are demonstrating either for or against any 
position I might take, for or against any position Senator 
Grassley or any other Senator might take, or for or against a 
position that Mr. Comey might take, that person will be 
removed. I do not think it is going to be necessary. I am sure 
everybody is going to want decorum, but I thought just so 
everybody would understand what the ground rules are, those are 
the ground rules. I have no idea how Senators will vote. More 
important, I want the American public to have a chance to be 
heard.

          OPENING STATEMENT OF HON. PATRICK J. LEAHY,
            A U.S. SENATOR FROM THE STATE OF VERMONT

    Chairman Leahy. Today, as we know, we will consider the 
nomination of James Comey, Jr., to be the seventh Director of 
the Federal Bureau of Investigation. The current Director, 
Robert Mueller, started just a week before the terrorist 
attacks of September 11th. We know our world has changed 
dramatically in that time. We have often debated how best to 
ensure our national security while protecting the freedom and 
the liberty and the privacy rights--the privacy rights--that 
define us as a great Nation. That debate is alive today, and 
this confirmation hearing provides us another opportunity to 
evaluate existing policy and to correct our course. Few 
positions have as much impact on our liberty and our national 
security as the Director of the FBI. And as the body that 
considers the President's nominee, the Senate has an important 
role in this debate, and that debate, of course, begins here in 
this Committee.
    I welcome Mr. Comey and his family here today, and they 
will be introduced in a moment. He has had an outstanding 
career in law enforcement. He served as Deputy Attorney 
General. He has served as the U.S. Attorney for the Southern 
District of New York under President George W. Bush. He has 
worked in the private sector with Lockheed Martin, Bridgewater 
Associates, and at the law firm of McGuireWoods.
    When Mr. Comey appeared before this Committee in 2007, he 
described a dramatic hospital bedside confrontation with senior 
White House officials who were trying to get an ailing John 
Ashcroft, who was in the hospital, about to have serious 
surgery--or he had had it--to reauthorize an NSA surveillance 
program--a program that the Justice Department had concluded 
was illegal. As Deputy Attorney General, Mr. Comey showed 
courage and independence by standing firm against this attempt 
to circumvent the rule of law. I would want him to continue to 
demonstrate the same strength of character if he is confirmed 
as Director.
    Since the terrorist attacks of September 11th, the FBI has 
dramatically increased its national security and 
counterterrorism efforts, but that is a transition that has not 
been without problems. From National Security Letters to the 
latest revelations about the use of PATRIOT Act surveillance 
authorities, I remain concerned that we have not yet struck the 
right balance between the intelligence-gathering needs of the 
FBI and the privacy rights of Americans. We all agree that the 
FBI must have the tools necessary to help keep us safe from 
terrorism, but I hope that we can agree that this should not 
come at the expense of our constitutional rights. It is these 
constitutional rights that make us unique and great as a 
Nation.
    In recent weeks, Americans have become aware of the 
expansive scope of surveillance authorities granted to the FBI 
by the PATRIOT Act and other laws. We have heard administration 
officials defend these programs by saying that they are 
critical to identifying and connecting the so-called dots. But 
there are always going to be more dots to analyze and collect 
and try to connect, and when the Government is collecting data 
on millions of totally innocent Americans on a daily basis, 
when is enough, enough? Just because we have the ability to 
collect huge amounts of data does not mean that we should be 
doing it.
    Last month, I introduced the FISA Accountability and 
Privacy Protection Act to ensure that there are proper limits 
on the Government's surveillance activities, along with strong 
privacy protections and oversight. But as the head of our 
premier law enforcement agency, the FBI Director bears a 
special responsibility for ensuring that domestic Government 
surveillance does not unduly infringe upon our freedoms. I have 
long said that protecting our national security and protecting 
Americans' fundamental rights are not and should not be 
mutually exclusive. We can and must do both, and I look forward 
to Mr. Comey's testimony about how we achieve both goals.
    I also have concerns about the Justice Department's 
treatment of journalists. As the son of Vermont printers and 
publishers, the First Amendment is in my blood. The burden 
falls to the Federal Government to ensure that freedom of 
speech and of the press is being protected. I am very concerned 
by allegations regarding the broad collection of the Associated 
Press' phone records. Again, if confirmed, Mr. Comey is going 
to be tasked with balancing the Government's law enforcement 
interests with First Amendment rights.
    I am concerned, as others have been here, that during Mr. 
Comey's tenure as Deputy Attorney General, he approved a legal 
memo that authorized the use of waterboarding and other 
techniques long recognized as torture under both domestic and 
international law. I have conducted oversight on this issue for 
years out of my belief that these memos led to the treatment of 
detainees that was contrary to our laws and our values and 
actually made us less safe, not more safe. It is critical that 
whoever takes over as Director of the FBI has a keen sense of 
history and an understanding that we must never repeat these 
mistakes because they leave a permanent stain on this great 
Nation.
    If we learned nothing else from those years following the 
September 11th attacks, we learned that it matters who leads 
our Nation--at all levels of Government. We need strong, 
ethical leaders who will steadfastly adhere to the rule of law.
    The next Director has to face the challenge of how to 
sustain the FBI's increased focus on counterterrorism while 
upholding the FBI's commitment to its historic law enforcement 
functions. So, of course, we want to hear what you feel are the 
priorities for the next decade. It is a 10-year term.
    As Director Mueller noted--and I applauded him on the floor 
with a speech--he noted on the 100th anniversary of the FBI, 
the rule of law, civil liberties, and civil rights are not 
burdens for the FBI; they are what have made the FBI better for 
more than a century. So we will look forward to see how Mr. 
Comey, if confirmed, would lead the FBI during these 
challenging times.
    [The prepared statement of Chairman Patrick J. Leahy 
appears as a submission for the record.]
    I yield to Senator Grassley.

           OPENING STATEMENT OF HON. CHUCK GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. Thank you, Mr. Chairman.
    Thank you, Mr. Comey, for wanting to re-enter public 
service again. The Director of the Federal Bureau of 
Investigation is charged with running a vast agency with 
tremendous powers. This power, if used inappropriately, could 
threaten civil liberties of every American. However, when used 
appropriately, and subject to rigorous oversight by the 
Congress, it protects the Nation from terrorists, spies, and 
hardened criminals.
    The Attorney General is commonly referred to as the ``top 
law enforcement officer in the country.'' The FBI Director 
serves the Attorney General and the American people as the top 
cop on the street. It is a demanding job that requires a keen 
understanding of the law, sound management skills, calm under 
significant pressure, and a level head.
    Director Mueller learned this soon after arriving at FBI 
headquarters when the United States was attacked by terrorists 
on September 11, 2001. As a result of those terrible attacks, 
Director Mueller's mission as FBI Director changed very 
instantly and significantly. Instead of managing a law 
enforcement agency, he was immediately thrust into the role of 
reinventing a storied law enforcement agency into a national 
security agency. This is not the sort of change that happens 
overnight. Fortunately, Director Mueller rose to the challenge 
and changed the face of the FBI for this new age and new 
threat.
    The threats our country is facing are great and 
multifaceted. Terrorism is an unfortunate reality the FBI must 
face. In addition to serving as a law enforcement agency and 
the lead counterintelligence agency, the next Director of the 
FBI must be prepared to continue the transition. He must also 
be prepared to manage the FBI through the next challenge.
    Despite the successes Director Mueller had in transforming 
the FBI to deal with national security threats, challenges 
remain for the next FBI Director. For example, legacy problems 
such as developing a working case management computer system; a 
working--effectively managing agent rotations to Washington, 
DC, headquarters; managing linguists; and dealing with aging 
infrastructure such as the FBI headquarters building.
    Additionally, management concerns remain about the proper 
personnel balance between special agents and analysts, the 
perceived double standard of discipline between line agents and 
management, as well as the issues dealing with whistleblower 
retaliation. These matters must be addressed as they threaten 
to undermine the hard work of all the faithful employees at the 
FBI.
    The position of FBI Director is unique in that it is a 10-
year appointment, subject to the advise and consent of the 
Senate. This 10-year term was extended 2 years ago on a one-
time basis only. The extension allowed Director Mueller to 
serve an additional timeframe as the President failed to 
nominate a replacement. At the time we held a special hearing 
to discuss the importance of the term limit for the FBI 
Director. One of the reasons Congress created a 10-year term 
was to ensure accountability of the FBI.
    This confirmation hearing is part of that accountability. 
We have a responsibility to ensure that the Director will be 
able to balance the duties of the FBI Director against the 
civil liberties of Americans.
    Before us today is the President's choice for the next FBI 
Director--you, Mr. James Comey. Mr. Comey has a distinguished 
past. He served as Senate-confirmed U.S. Attorney for the 
Southern District of New York and as Deputy Attorney General 
during the Bush administration. I would also like to add that 
he has smarts because he married an Iowan.
    [Laughter.]
    Senator Grassley. But Mr. Comey handled difficult matters--
--
    Chairman Leahy. You would do anything to get a vote up 
here.
    [Laughter.]
    Senator Grassley. Mr. Comey handled difficult matters that 
provide a solid basis for the types of matters that may come up 
as FBI Director.
    I had the opportunity to sit down with Mr. Comey yesterday. 
We talked about his Government experience and how it prepares 
him for the job. So today I want to discuss with him his 
nongovernmental employment work with Lockheed Martin, hedge 
fund Bridgewater Partners, and his position on the Board of 
Directors at HSBC.
    Having the balance of public and private sector experience 
is a very good thing, but I am openly concerned about the 
administration's failure to prosecute those involved in the 
financial crisis, including criminal wrongdoing at HSBC. I want 
to know whether Mr. Comey can look beyond his affiliations in 
the private sector and prosecute such wrongdoing.
    I also want to discuss with Mr. Comey a number of policy 
matters impacting the Director. First, I continue to have 
serious concerns with the FBI's treatment of whistleblowers. 
Mr. Comey and I discussed the important role whistleblowers 
play in bringing transparency and accountability to 
bureaucracies. Unfortunately, the FBI, in my opinion, has a 
poor history of retaliating against whistleblowers who come 
forward and report wrongdoing. This is particularly concerning 
in light of the recent leaks of classified information. While 
not necessarily an FBI matter, the recent leaks have 
highlighted an issue I have focused on for years: whistleblower 
protection for national security employees. These employees, 
including many assigned at the FBI, need a protected mechanism 
to report wrongdoing without fear of retaliation. I believe a 
significant number of national security leaks would not have 
occurred if they had a path forward.
    Unfortunately, a provision in the Whistleblower Protection 
Enhancement Act that I authored expanded protection to national 
security employees but was cut by the House of Representatives 
prior to being signed into law. I continue to believe this is 
necessary legislation. I would like to hear Mr. Comey's 
thoughts on whistleblowers, their value, and how he will handle 
whistleblower complaints. I would like an assurance from Mr. 
Comey that whistleblowers will not face retaliation. Further, I 
would like an assurance that the FBI's policy pursuing endless 
appeals against whistleblowers, even when retaliation was found 
by the Inspector General, will now come to an end.
    Second, I want to ask Mr. Comey about some recent 
developments regarding FBI use of drones within the U.S. A few 
weeks ago, we learned from Director Mueller that the FBI was 
using drones here for surveillance. While Director Mueller 
indicated that this was very limited, he also said that 
policies regarding limitations on drone use were still being 
developed. And so that is concerning as policies are of little 
use if they are developed after the FBI deploys drones here.
    Further, the FBI's use of drones calls into question the 
thoroughness of a written response I received from Attorney 
General Holder indicating the use of drones by DEA and ATF but 
only mentioning the FBI in passing. So I want to hear from Mr. 
Comey what he thinks the proper limit on domestic use of drones 
should be, whether he would delay their use until final 
regulations and policies are drafted, and how he would deploy 
drones for domestic use.
    I would also discuss with him his views on national 
security and the FBI's role. We are all painfully aware of the 
limitations that were placed on FBI agents prior to 9/11 and 
the so-called wall between intelligence and law enforcement. 
Congress and the executive branch have been successful in 
bringing down the walls between intelligence and law 
enforcement, but concerns expressed in recent years threaten to 
rebuild those walls.
    For example, advocates have opposed information sharing of 
cybersecurity threat information which could erroneously 
reconstitute a separation similar to a wall. I would like to 
hear Mr. Comey's views on national security matters such as 
cybersecurity, counterintelligence, and counterterrorism.
    I will also discuss the nuts and bolts of management 
matters with the nominee. Specifically, I want to hear his 
assurances that he will work cooperatively with Congress and 
provide forthcoming responses to inquiries. Congress has a 
constitutional duty to conduct oversight, and so given the wide 
discretion the FBI has to conduct investigations, Congress 
needs to have an open channel to obtain information relative to 
our oversight requests.
    Finally, I want to discuss some general management issues 
such as the disciplinary system which has long been criticized 
for having a double standard for management as opposed to line 
agents. Problems like this are dangerous to an agency and need 
to be managed before they bring out other problems.
    So there is a lot of ground to cover, and obviously I will 
probably have to submit some questions for answer in writing.
    Thank you very much.
    Chairman Leahy. Thank you. I would note that Senator 
Blumenthal is the senior Senator of the State in which Mr. 
Comey resides, or as we call it in Vermont, one of those 
``Southern States.''
    Senator Blumenthal, did you wish to introduce Mr. Comey?

       PRESENTATION OF JAMES B. COMEY, JR., NOMINEE TO BE
   DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, BY HON. 
     RICHARD BLUMENTHAL, A U.S. SENATOR FROM THE STATE OF 
                          CONNECTICUT

    Senator Blumenthal. Thank you, Mr. Chairman. I do, and I 
appreciate the honor of introducing Mr. Comey to the Committee 
and supporting him strongly for this new role in an 
extraordinarily distinguished career of public service. I want 
to welcome him and his family, his wife, Patrice, and I think a 
number of your children are with you today, and I will let you 
introduce them. But I look forward to saying hello to them 
later when we are done.
    I want to say how much I admire Mr. Comey's record of 
public service. He really epitomizes what is best about 
American public service. Senator Grassley mentioned that he was 
re-entering public service, but in a sense he has never left 
it, because in his private life, his life of working in the 
private sector, he has also contributed immensely to his 
community and to his State, the State of Connecticut and the 
community of Westport, where he and his wife, Patrice, really 
have devoted themselves, and his family, to serving the needs 
and interests of both their community and the State and many 
individuals who live there.
    Mr. Comey is no stranger to our civil and criminal justice 
system. In fact, his life has been about public service and 
about using the Department of Justice as an agent and a means 
to achieve greater justice in our society. He began his career 
at the Department of Justice in one of the most difficult and 
important jobs there is, as an Assistant United States Attorney 
in the Southern District of New York, and he quickly rose to 
become the Deputy Chief of the Criminal Division. As a former 
United States Attorney myself, I know how important that 
responsibility is in a practical, hands-on sense of making 
extraordinarily difficult decisions about balancing individual 
rights and also the need to prosecute and achieve greater 
security and safety for the community.
    He took on another difficult job as Managing Assistant 
United States Attorney for the Eastern District of Virginia, 
and he was recognized by his superiors there as an unusually 
skilled prosecutor who could be counted on to get results and 
get the job done. And he had personal responsibility for 
prosecuting one of the most heinous terrorist attacks in the 
history of the United States at Khobar Towers barracks in Saudi 
Arabia, and he quickly delivered 14 indictments.
    He was promoted at that time to be United States Attorney 
for the Southern District of New York, one of the major 
prosecutorial areas outside of Washington, and he showed the 
same fearlessness and tirelessness and relentlessness in his 
dedication to justice there, which have become his trademark as 
a professional prosecutor. He also pursued corporate crime in 
some of America's biggest businesses, and he was recognized for 
his performance there with the Director's Award for Superior 
Performance and the Henry L. Stimson Medal from the New York 
City Bar Association. In fact, throughout his career he has 
been recognized not only in the public sector but also by the 
private Bar.
    Mr. Comey's success led to his nomination to be Deputy 
Attorney General for the United States, the second highest 
ranking official at the Department of Justice, and a lot has 
been written and said about his tenure in that role. I had the 
privilege of working with him in a number of respects as 
Attorney General for Connecticut during that period of time. 
But I came to admire his extraordinary courage in standing up 
and speaking out to his superiors and his willingness to speak 
truth to power and defend the most fundamental liberties and 
guarantees that our Constitution provides. And I know that 
whatever the Members of this Committee think about Mr. Comey's 
views, they can count on his complete and utter integrity, his 
devotion to the rule of law, his dedication to excellence in 
the pursuit of justice and civil liberties, which he has 
demonstrated not just in words but in action throughout his 
career.
    In Westport, Connecticut, I particularly admired the work 
that his wife and he have done in the community, as I mentioned 
earlier, but I think noteworthy for this Committee and I know a 
number of my colleagues are aware that he and his wife are 
licensed foster parents in Connecticut and have cared for 
infants and toddlers in that role. They have also donated their 
time and energy and resources to create a foundation to support 
children who age out of foster care.
    So his life has been about public service. I am honored and 
pleased that he has chosen to assume this very demanding and 
challenging role. I want to thank him and his family for the 
service and sacrifices they have made, and thank you, Mr. 
Comey, for joining us today. I look forward to hearing your 
testimony.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Mr. Comey, before I swear you in, just so we can have it on 
the record for the Comey archives someday, would you introduce 
everybody who is here from your family?
    Mr. Comey. Yes, Senator. I have my----
    Chairman Leahy. Is your microphone on? There you go.
    Mr. Comey. Sorry. I forgot that.
    Behind me to my left is my wife, Patrice, whom Senator 
Blumenthal mentioned, the love of my life, and all that is good 
about me is her fault. And then my five children who are seated 
in just about the same seats they were sitting in 10 years ago 
when I was here to be confirmed as Deputy Attorney General. 
They are a little bit older.
    Chairman Leahy. I was going to say, I was here at that 
time, and they have changed.
    Mr. Comey. They have, right. The only one who has not aged 
a bit is my wife. The rest of us have gotten a little bit 
older. Maureen is 24, Kate is 23, Brian is 19, Claire is 16, 
and Abby is 13. And those are my troops.
    Chairman Leahy. Thank you. Now, would you please stand? Do 
you solemnly swear that the testimony you will give in this 
matter will be the truth, the whole truth, and nothing but the 
truth, so help you God?
    Mr. Comey. I do.
    Chairman Leahy. Please go ahead, Mr. Comey.

STATEMENT OF JAMES B. COMEY, JR., OF CONNECTICUT, NOMINEE TO BE 
        DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION

    Mr. Comey. Thank you, Mr. Chairman, Senator Grassley, and 
Members of the Committee. It is an honor to be back before you. 
The last time I sat at this table was 2 years ago or so to 
testify in favor of extending Bob Mueller's term by 2 years. 
Now I am back asking you to confirm me to replace Bob Mueller, 
which is both an amazing honor and a little bit hard to 
believe.
    I have known and loved the FBI for a very long time. My 
first major case was an FBI case. In 1987, I was assigned an 
interstate theft and fraud case in the Southern District of New 
York, and the case agent, who was actually about to retire from 
the Bureau--he had reached mandatory retirement--went back and 
reported to his supervisor that a baby prosecutor had been 
assigned to this complex case, and she said, ``I will go down 
and talk to Rudy Giuliani, and we will get somebody else 
assigned to this case.'' And he asked her to please hold off 
because he thought that this prosecutor, maybe, could be 
trained.
    And so I was trained, by him and by dozens and dozens of 
other special agents who were working the cases that I was so 
lucky to handle over the next decades.
    I came to know the FBI agents well, and I used to tell them 
the division of responsibility was clear: They would do hard, 
dangerous work, and the United States Attorney would get the 
credit.
    I was, of course, teasing, but rooted in that joke was some 
truth, that FBI agents every hour of every day did really hard, 
dangerous things, and the work was often only recognized when 
something went wrong. I came to know that they were people from 
all over the country, all walks of life, but united by a fierce 
desire to do something good for their country. I came to know 
that they embodied something that Churchill said that has stuck 
with me, that you make a living by what you get, but you make a 
life by what you give. They chose to make remarkable lives 
without getting much in return. Those people are what excite me 
most about the prospect of being confirmed to be the Director 
of the FBI.
    I also know that if I am confirmed for this position, I 
will follow a great American, one who has been clear-eyed about 
the threats facing our country, especially the metastasizing 
terrorist threat, the cyber threat that poses a risk to our 
secrets, to our commerce, to our people, and most ominously to 
the networks we depend upon as our lifeblood. I know he has 
changed the FBI, as the Chairman and the Ranking Member 
described, in fundamental and crucial ways.
    I know that this will be a hard job. I am sure that things 
will go wrong and I will make mistakes. What I pledge to you, 
though, is to follow Bob Mueller's example of staring hard at 
those mistakes, learning from those mistakes, and getting 
better as a result of those mistakes. His legacy of candor and 
straightforwardness and integrity is one that I pledge to 
continue.
    I also know that the FBI is and must be an independent 
entity in the life of America. It cannot be associated with any 
party or any interest or any group. It has to be seen as the 
good guys and good gals in this country. The FBI is and must be 
about finding the facts and only the facts in a fair, thorough, 
and objective way, and to do that with a rock solid commitment 
to our Constitution and to our laws.
    That culture of commitment to law and resistance to any 
jeopardy of our independence is at the core of the FBI. I know 
it is deep inside FBI agents. Those values are the things I 
love about the FBI.
    As you know, Mr. Chairman, as I just introduced, sitting 
behind me is my beloved wife, Patrice, and my five kids. She, 
in a very real sense, is the reason I am sitting here today. I 
am going to embarrass her by telling you a little story. When I 
was first approached about this job earlier this year, I was 
inclined to say no, that it was too much for my family and it 
was the wrong time. And she urged me to say yes, I would be 
considered, and she said that for two reasons. She said, ``This 
is who you are. You have always been happiest when you are in 
Government service. This is what you love.'' And, second, 
``They are not going to pick you anyway.''
    [Laughter.]
    Mr. Comey. ``So you might as well go through the 
interviews. Just make them sorry that they do not pick you.''
    And so here we are. I will remind her of that, if I am 
fortunate enough to be confirmed, many times, I suspect, over 
the next decade. I have been gone from Government for 8 years, 
and I have missed it nearly every day of those 8 years, the 
mission of the Department of Justice, and I am looking forward 
to answering your questions and hope very much to be confirmed 
to rejoin that mission.
    Thank you, Mr. Chairman.
    [The biographical information of James B. Comey, Jr., 
appears as a submission for the record.]
    Chairman Leahy. Thank you, Mr. Comey. And I am reluctant to 
talk about private conversations, but a few weeks before your 
name was disclosed, the President called me at home and talked 
about you and asked me my advice and what I thought about 
nominating you. And I said, ``How are you ever going to talk 
him into this?'' And then I said, second, ``How are you going 
to talk his wife into this?'' He said, ``We are going to have 
Bob Mueller's wife talk to his wife.''
    So, anyway, to be serious, let me go back to something I 
talked about earlier. Waterboarding has been recognized to be 
torture since the time of the Spanish Inquisition. We 
prosecuted American soldiers for using this technique in the 
last century. We prosecuted Japanese soldiers for using it on 
Americans during World War II. And after 9/11, when CIA 
personnel began to use harsh interrogation techniques, 
including waterboarding, Director Mueller refused to allow the 
FBI to participate in those interrogations. I have said before 
and I will say again that this was true leadership on the part 
of Director Mueller. He refused to bend to enormous pressure at 
the time.
    It is easy to say what you might have done at the time, but 
what do you think you would have done had you been FBI Director 
at that time? Would you have given the agents the same 
directive Mr. Mueller did?
    Mr. Comey. Absolutely, Senator. When I first learned about 
waterboarding, when I became Deputy Attorney General, my 
reaction as a citizen and a leader was this is torture. It is 
still what I think. And to his great credit, 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.
    Chairman Leahy. Can that be reconciled with your approval 
of--was it May 2005?--the OLC memo which concluded the 
authorized use of waterboarding would not violate the torture 
statute?
    Mr. Comey. I think so, Senator, and if I might explain to 
you my involvement with that issue.
    Chairman Leahy. Please go ahead.
    Mr. Comey. As I said, when I was first read into the 
interrogation program, my reaction was what I described. And so 
maybe the most important thing I did on this topic as Deputy 
Attorney General was force, try to force, and fight for a 
discussion about whether this was the kind of thing we ought to 
be doing as Americans. There were legal issues which I will 
talk about in a second. But I thought most important of all was 
this question about, regardless of whether the CIA says it is 
effective and regardless of whether the Office of Legal Counsel 
says it does not violate this particular 1994 statute, there is 
a critical third question, which is: Should we be doing this? 
And is it appropriate as Americans?
    And so I fought some legal fights, which I will talk about, 
but I went to the Attorney General and said, ``This is wrong. 
This is awful. You have to go to the White House and force them 
to stare at this and answer that question. I believe the answer 
is we should not be involved in this kind of stuff.''
    And so I made that argument as forcefully as I could to the 
Attorney General. He took my--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.
    Now, on the legal front, what I discovered when I became 
Deputy Attorney General is that even though I as a person, as a 
father, as a leader thought that is torture, we should not be 
doing that kind of thing, I discovered that it is actually a 
much harder question to interpret this 1994 statute, which I 
found very vague, and apply that statute to the individual 
techniques. And so one of the first things I did as Deputy 
Attorney General was drive 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, which was a 
general opinion, I thought much more responsibly written.
    And then in the spring of 2005, after I had 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. The combination 
opinion was by far the most important because no interrogation 
was done with one technique. They were always used in a group. 
And so I read the first opinion about individual techniques, 
and I thought, ``That is 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. And 
so next then I fought the policy fight that I talked about at 
the beginning.
    So, Senator, I am not sure that I did it right. That would 
be----
    Chairman Leahy. Then let us take the move forward 8 years. 
I will ask you the same question I asked Attorney General 
Mukasey when he was before this Committee for confirmation, and 
actually I found his answer unsatisfactory, but I will ask you 
the same question. Do you agree that waterboarding is torture 
and is illegal?
    Mr. Comey. Yes.
    Chairman Leahy. Thank you. And would you agree to answer 
this question the same way no matter who was President?
    Mr. Comey. Oh, certainly.
    Chairman Leahy. Thank you.
    Now, the surveillance powers of the FBI have grown. 
Americans are becoming increasingly concerned the FBI is 
becoming more of a domestic surveillance agency than a crime-
fighting, intelligence-gathering organization. With the PATRIOT 
Act and other authorities, they can get vast amounts of 
information, including the data of law-abiding Americans, 
something that creates concerns, I know, among my fellow 
Vermonters.
    So do you believe that the bulk collection of meta data for 
domestic telephone calls or emails is appropriate, even when 
the majority of individuals with whom the calls or emails are 
associated are law-abiding Americans?
    Mr. Comey. Senator, I am not familiar with the details of 
the current programs. Obviously I have not been cleared for 
anything like that, and I have been out of Government for 8 
years. I do know as a general matter that the collection of 
meta data and analysis of meta data is a valuable tool in 
counterterrorism.
    Chairman Leahy. Well, let me ask you this: We are going to 
be in this Committee very shortly reviewing again some of the 
aspects of this. If you are confirmed, will you work with me--I 
am not asking you for a commitment on a particular piece of 
legislation, but work with me to enact some commonsense 
improvements to our surveillance laws?
    Mr. Comey. Certainly, Senator, I would be happy to work 
with you.
    Chairman Leahy. I worry that, again, as I said earlier, 
just so you understand what I am thinking, just because we can 
do it, I am not sure it means we should. That is without going 
into the--well, in open session I will not go into some of the 
parts of it.
    Let me also ask you this, which is a basic question. Will 
you make sure that the FBI does not lose sight of its 
traditional crime-fighting mission--violent crime, white-collar 
crime, public corruption, forensics reform--and not just be 
seduced away by the intelligence-gathering aspects?
    Mr. Comey. Yes, Senator, and I think Director Mueller has 
tried to strike that balance, and I would as well. The FBI has 
to be both an intelligence agency and a crime-fighting agency.
    Chairman Leahy. You and I both have a background in law 
enforcement, and sometimes it is the nuts and bolts that are 
the most important to the average person, and those are the 
people that we have to protect.
    Mr. Comey. Yes, sir.
    Chairman Leahy. Thank you.
    Senator Grassley.
    Senator Grassley. As you and I discussed yesterday in my 
office how important oversight is in our checks and balances 
system of Government to make Government more transparent, 
accountable, and effective, I expect that you would be 
responsive to my constitutional duty of oversight and that my 
questions and documents will be taken seriously and answered in 
a timely and complete manner. So do I have your assurance that, 
if you are confirmed, you will assist me in my constitutional 
oversight activities, be responsive to my requests, my 
colleagues' requests, and help me make the FBI more accountable 
to the American people, which is the principle of checks and 
balances?
    Mr. Comey. I agree very much, Senator. I believe that 
oversight is a critical part of effective Government and of our 
functioning democracy. So, yes, sir.
    Senator Grassley. Okay. So would you pledge to be 
responsive to my requests for information and provide this 
information to Congress in a timely manner, that is not held up 
due to lengthy clearance processes?
    Mr. Comey. Senator, I do not know what the problems are 
that you have encountered. I pledge to do my all to accommodate 
your oversight requests.
    Senator Grassley. We also discussed the issue of 
whistleblowers. I value the candid, unfiltered information they 
provide Congress from the executive branch. Whistleblowers who 
raise concerns with management and who bring concerns to 
Congress and cooperate with congressional oversight efforts 
should be protected, not retaliated against. So to you, could 
you give me a commitment that you will not retaliate against 
FBI whistleblowers and instead work with them to address the 
concerns that they raise?
    Mr. Comey. Yes, I will give you--I would give you that 
assurance now, Senator. As I said to you when we spoke 
privately, I think whistleblowers 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.
    Senator Grassley. Now, I am not accusing you or other 
Directors of retaliation, but somewhere in organizations 
whistleblowers tend to be retaliated against in various ways by 
people within their organization. Would you assure us that 
every whistleblower is treated fairly, that those who retaliate 
against whistleblowers are held accountable?
    Mr. Comey. Yes, sir. Retaliation is just unacceptable.
    Senator Grassley. And do you believe that--this is a little 
more difficult probably for you to answer right now, but do you 
believe that whistleblowers who know of problems with matters 
of national security should be treated differently and they are 
treated differently today because the law does not apply to 
them?
    Mr. Comey. You are right, Senator. That is one I do not 
know well enough the law and regulation that governs that area. 
I commit that I will look into it to understand it better.
    Senator Grassley. I will go on to another subject. It might 
be a little more difficult because you are new to knowing you 
were going to be appointed, but sometimes a change in 
leadership can shift an organization and do it in a different 
direction while moving the organization forward. The Director 
of the FBI can set the tone for the Bureau, so the question is: 
Do you have specific goals or priorities for the FBI that, if 
you are confirmed, you would pursue?
    Mr. Comey. From this vantage point, Senator, I can only say 
with confidence that I believe it is very important for the 
next Director to continue the transformation of the FBI into an 
intelligence agency, to continue that cultural change. And I 
know, as I mentioned in my opening statement, that the cyber 
threat, both cyber espionage, cyber crime, and cyber terrorism, 
is an enormous and exponentially growing threat, and so will 
certainly be a key part of the next 10 years. Beyond that, I 
think it would be irresponsible to say more without first being 
confirmed and getting in the job to understand how things are 
going now.
    Senator Grassley. I want to go now to your public sector 
service and how that might interact with the new position if 
you are confirmed.
    In March 2010, the FBI issued a stop-work order to Lockheed 
Martin, the leading contractor working with the FBI's next-
generation case management system, Sentinel. The stop-work 
order preceded the FBI's termination of the Lockheed prime 
contractor--as being prime contractor. The development of 
Sentinel was closely watched and criticized by the Inspector 
General. Ultimately, the program development ran past the 
deadline and cost significantly more than was planned, not to 
mention the fact that the FBI got less system than originally 
thought.
    Now, because you were general counsel at Lockheed Martin at 
the time the stop order was initiated, I ask these questions: 
What, if any, involvement did you have with the Sentinel 
program?
    Mr. Comey. None. I was aware of it internally at Lockheed 
Martin just in a general way. I had no contact with the FBI 
about it. I had been Deputy Attorney General when the contract 
was first let. I did not know that at the time. And so out of 
an abundance of caution, I tried not to be involved in it and 
was not involved in it.
    Senator Grassley. Okay. The Inspector General continually 
faulted Sentinel development. Do you think the FBI and the 
American taxpayers got what they paid for in the Sentinel 
program?
    Mr. Comey. I do not know, Senator. I know----
    Senator Grassley. That is okay if you do not know.
    Mr. Comey. I do not know the answer to that.
    Senator Grassley. Following your public service, you worked 
first at a major defense company, then a well-known private 
investment manager, Bridgewater. Recently you became a director 
of the global bank HSBC. Given that the Department has entered 
into a deferred prosecution agreement with HSBC, will you have 
a conflict of interest with regard to that matter? And if you 
do, or would have, how would you resolve that conflict?
    Mr. Comey. I think it would be a conflict, and so I would 
recuse myself from any involvement in any matter relating to my 
former employers.
    Senator Grassley. Okay. Just generally, in regard to 
pursuing those matters, what assurances can you give the 
Committee that you will actively pursue securities regulation 
violations, bank fraud, money laundering, and other financial 
white-collar offenses? And will you have any reluctance of 
conducting such investigations?
    Mr. Comey. None at all, Senator. I have long thought that 
aggressive investigation and prosecution of so-called white-
collar crimes was both the right thing to do and extremely 
effective. I believe deterrence works in that area because you 
do not have people committing crimes of accounting fraud or 
securities fraud high on crack or inflamed with passion. They 
are people who think before they act, and so they can be 
deterred.
    My track record as an Assistant U.S. Attorney and as U.S. 
Attorney and Deputy Attorney General was to make those cases, 
to make them fast, and send messages to the good folks of 
reassurance that we are doing something about this, and to the 
bad people that if we catch you doing this, you are going to 
pay an enormous penalty for it, to try and change behavior.
    Senator Grassley. May I ask one more question, please?
    Chairman Leahy. Of course.
    Senator Grassley. At Bridgewater, your former employer, the 
founder of the firm embraced a philosophy called ``radical 
transparency,'' which involves recording a lot of meetings, and 
encouraged junior employees to probe senior staff with tough 
questions. As a strong supporter of transparency in Government, 
I think the FBI could use a little more radical transparency. I 
do not mean necessarily recording your meetings.
    What do you think are the benefits of radical transparency? 
And how could this philosophy apply to the FBI? That will be my 
last question.
    Mr. Comey. Actually, Senator, Bridgewater's founder 
suggested I consider taping all meetings at the FBI. I am not 
prepared to commit to that. I went to Bridgewater----
    Chairman Leahy. Do not.
    [Laughter.]
    Mr. Comey. I went to Bridgewater in part because of that 
culture of transparency. It is something that has just long 
been part of me, and so I think it is incumbent upon every 
leader to try and foster an atmosphere where people will speak 
truth to power. Bridgewater and the FBI are two different 
institutions, but I promise you I will carry those values with 
me and try to spread them as far as I can within the 
institution.
    Senator Grassley. Thank you.
    Chairman Leahy. Thank you.
    Senator Feinstein, and then it will be Senator Hatch.
    Senator Feinstein. Thank you. Thank you very much, Mr. 
Chairman, and welcome, Mr. Comey.
    As you know, in December the Senate Intelligence Committee 
adopted a 6,000-page report that provides a comprehensive 
review of the CIA's detention and interrogation program during 
the Bush administration. We are not quite ready to issue the 
findings publicly. The adoption of the report, however, is 
significant because it means the majority of the Committee has 
gone on record to declare that the so-called enhanced 
interrogation techniques should never be used--past, present, 
or future.
    If you are confirmed to be the next FBI Director, I would 
like to ask you to personally review our report. It is a big 
deal to review. It is 6,000 pages. But I think it is very 
important. You have that background, and I think it is 
important to read the actual case studies.
    I would like to focus on objections you raised with 
Attorney General Gonzales in May 2005 before he attended the 
White House principals meeting about CIA techniques. In one of 
your emails that was made public in 2009, you described telling 
Attorney General Gonzales that CIA interrogation techniques 
were ``simply awful,'' that ``there needed to be a detailed, 
factual discussion'' of how they were used before approving 
them, and that ``it simply could not be that the principals 
would be willfully blind.''
    Here is the question: Why did you believe that there was a 
danger that the principals on the National Security Council 
were unaware or willfully blind to the details of the CIA 
program?
    Mr. Comey. Thank you, Senator. Because I heard--I heard no 
one asking that third critical question. As you recall, I said 
I think there are three key questions with any counterterrorism 
technique, but especially with the interrogations: Is it 
effective? Something the CIA was talking about. Is it legal 
under Title 18, Section 2340? The legal question. And then this 
last question: Is this what we should be doing? And, instead, I 
heard nothing, and, in fact, it was reported to me that the 
White House's view was only the first two questions matter. If 
the CIA says it works and DOJ will issue a legal opinion that 
it does not violate the statute, that is the end of the 
inquiry. And as you said, Senator, I thought that was simply 
unacceptable.
    Senator Feinstein. Thank you. Now, I would like to speak 
about one other thing in my time. On June 19th, I wrote a 
letter to the Secretary of Defense Chuck Hagel on the issue of 
forced feeding of detainees at Guantanamo. A week prior, I had 
spent the day at Guantanamo with the President's Chief of Staff 
and Senator McCain, and we took a look at the forced feeding 
issue. Detainees are restrained in a chair by body, by foot, by 
hand, and twice a day a tube is inserted, perhaps covered with 
olive oil, up the nose and down into the stomach, and the 
individual is force-fed. This goes on week after week and month 
after month.
    We have 86 detainees who are cleared for transfer. They are 
no threat to this country. They have been adjudged so, and they 
have no place to go. So this is an expression of acute 
hopelessness in the forced feeding.
    The issue has recently been before the D.C. District Court, 
and this morning, the newspaper said that no court, justice, or 
judge shall have jurisdiction to hear or consider any other 
action against the United States or its agents relating to any 
aspect of the detention, transfer, treatment, trial, or 
conditions of confinement of an alien who is or was detained by 
the United States and has been determined by the United States 
to have been properly detained as an enemy combatant. So we 
have a law that has essentially taken the courts out of any 
adjudication in this issue.
    I am very curious, because you have looked at the 
combination of EITs, the manner in which they are administered, 
and you have come to the conclusion that they form torture. 
These are people now, 86 of them, who are no threat to this 
country--they have been cleared for transfer--many of whom are 
being force-fed to keep them alive. In my view, this is 
inhumane, and I am very curious as to what you would say about 
this.
    I have received no answer from my letter to Secretary 
Hagel. The President's Chief of Staff was with me. He saw what 
I saw. And I am very concerned about it because it is the wrong 
thing to do.
    I would appreciate your comment.
    Mr. Comey. Thank you, Senator. Obviously, if I were FBI 
Director, I do not think it is an area that would be within my 
job scope, but I do not know more about what you are describing 
than what you are describing. I----
    Senator Feinstein. Well, let me just say it is within all 
of our job scopes to care about how the United States of 
America acts.
    Mr. Comey. I agree very much with that, Senator. And I do 
also know that there are times in the Bureau of Prisons when 
the Federal authorities have had to force-feed someone who is 
refusing to eat, and they try to do it in the least invasive 
way. What you are describing I frankly would not want done to 
me, but I do not know the circumstances well enough to offer 
you an opinion. I do not think it would be worth much, my 
opinion, at this point.
    Senator Feinstein. Okay. Thank you very much.
    Thanks, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Feinstein. I 
must say I agree exactly with what you said.
    Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. Welcome back 
to the Committee, Mr. Comey. We are happy to have you here. I 
would be surprised if this is not the third time that you will 
be unanimously supported by the Senate, and I would hope that 
that is the case. After all, an ABC News report came back in 
May about your likely nomination and said that you are ``a folk 
hero for Democrats.'' At least in your case, I do not believe 
that is a cause for concern on this side of the aisle.
    It is also easy to forget that Director Robert Mueller 
began his service just 1 week before the 9/11 terrorist attacks 
that changed our Nation forever. He oversaw a fundamental 
reconfiguration of the FBI. Since then, Congress has provided 
significant tools for the FBI to use. But debate continues here 
in Congress about whether these tools are sufficient or 
appropriate.
    There is also a debate in the public arena sparked by 
damaging leaks by reckless individuals. But even while those 
debates continue, I hope that we have your commitment that, 
should you be confirmed, you will fully and aggressively use 
the tools that Congress has provided for your use.
    Mr. Comey. Yes, Senator, you have that commitment.
    Senator Hatch. I believe that. In that connection, I am 
concerned that the American people do not fully understand the 
rules and standards that guide how the FBI uses these tools to 
protect the country. A recent column in The Washington Post, 
for example, claimed that we are living in a time of 
``warrantless everything.''
    Please take a minute and explain some of the rules and 
standards, because our fellow citizens need confidence that the 
FBI itself respects the rule of law.
    Mr. Comey. Yes, Senator. I think that folks do not 
understand that the FBI operates under a wide variety of 
constraints, starting with the Attorney General's detailed 
guidelines on how it is to conduct intelligence investigations, 
criminal investigations, and counterintelligence 
investigations. I think sometimes folks also do not understand 
what the FISA Court is. They hear ``secret court.'' Sometimes 
they hear ``rubber stamp.''
    In my experience, which is long, with the FISA Court, folks 
do not realize that it is a group of independent Federal judges 
who sit and operate under a statutory regime to review requests 
by the Government to use certain authorities to gather 
information. And it is anything but a rubber stamp. Anyone who 
knows Federal judges and has appeared before Federal judges 
knows that calling them a ``rubber stamp'' shows you do not 
have experience before them.
    Senator Hatch. I sure agree with you.
    Mr. Comey. And so I think that sometimes folks also do not 
understand the degree to which the FBI's activities and the 
activities of the entire intelligence community are overseen by 
Congress and also overseen by independent and, in my 
experience, highly effective Inspectors General embedded within 
each of the institutions that report within the executive and 
also to the relevant oversight committee of Congress. That 
combination of judicial involvement, congressional oversight, 
IG oversight, to me results in a very effective regime of 
oversight that just took me 2 minutes to explain it. It is hard 
to get the time and space in American life to have folks 
understand that sometimes.
    Senator Hatch. Well, that is good enough for me. I know you 
could go on for a long time on that.
    On March 31, 2009, you spoke at the Humphrey Institute of 
Public Affairs at the University of Minnesota. When he 
introduced you, Vice President Walter Mondale said that you are 
a ``remarkable example of public lawyers who remember their 
function in obeying and enforcing the law.''
    I would like you to just comment briefly on that dual 
function, both obeying and enforcing the law, as it relates to 
the position to which you are appointed here.
    Mr. Comey. Yes, sir. The oath that public servants take is 
to uphold the laws and the Constitution of the United States, 
which means both to respect them in that you do not exceed the 
laws but also to ensure that they are executed and given life. 
Congress intended that they be used as tools to address crime, 
for example, or intelligence risk, for example, and so it is 
very important that you be both aggressive and respectful of 
the boundaries, and that is a balance that people sometimes 
think is impossible to strike. I do not think so. I think this 
Government is full of people who get it, that they are to do 
both: respect the law and the Constitution and ensure that they 
use the tools to protect the American people.
    Senator Hatch. One of the many things I respect about 
Director Robert Mueller--and I greatly respect him--is his 
candor with Congress in acknowledging the problems in the FBI 
that have needed fixing. He has been very straightforward about 
it. He did so, for example, when the Justice Department's 
Inspector General released a report in 2007 about the FBI's use 
of National Security Letters. That report found an intentional 
misuse of either statutes or guidelines. Nonetheless, Director 
Mueller implemented reforms to address the deficiencies in 
oversight and auditing that the IG, Inspector General, 
identified. I hope you see the value of that transparency and 
accountability and would be open and candid about anything that 
might need to be corrected. And I am quite sure that you do, 
but I just thought I would----
    Mr. Comey. Well, I agree very much that is at the core of 
Bob Mueller's being, and it is something I intend to emulate. 
Admitting mistakes and learning from mistakes is the only way 
in which an institution survives and improves.
    Senator Hatch. And I think you will.
    Senator Whitehouse and I, along with Representatives Schiff 
and Goodlatte, serve as Co-Chairmen of the Congressional 
International Anti-Piracy Caucus. For years, we have worked in 
a bipartisan manner to highlight the scope and depth of online 
piracy around the world. We lose billions and billions of 
dollars every year because of the lack of intellectual property 
protections. Now, theft of our intellectual property undercuts 
the hard work of Americans who share their talent and creations 
with us.
    Unfortunately, because of ever-changing technology, those 
charged with enforcing these laws must constantly strive to 
remain a step ahead of those who perpetuate these crimes. It is 
not an easy job, but some of the recent investigations 
underscore the progress being made in this difficult area.
    If you are confirmed, will you continue to prioritize 
intellectual property enforcement, including pursuing major 
copyright and counterfeiting enforcement actions?
    Mr. Comey. Yes, Senator. I know from my 8 years in the 
private sector that this is an enormous concern to businesses 
of all kinds. One of the things that makes this remarkable 
country great is that we are the cradle of innovation, of ideas 
that become products that become jobs that become enormous 
companies. We will lose that if we are not able to protect that 
which we invent.
    Senator Hatch. Mr. Comey, I am happy that you have accepted 
this position. I have a great deal of respect for you and 
intend to work with you, as I think every Member of this 
Committee this does. I just want you to know that for you to be 
willing to come back into the Government is, I think, a great 
service to our country, and I just want to thank you. I support 
you, and we hope we can make this a quick confirmation.
    Mr. Comey. Thank you.
    Senator Feinstein [presiding]. Thank you, Senator Hatch.
    Senator Schumer.
    Senator Schumer. Well, thank you, and welcome. And despite 
the fact that you have moved to Connecticut--and I hope Senator 
Blumenthal does not take offense--we still consider you a New 
Yorker and a Yonkers boy made good. And we have known each 
other a very long time, and I am glad you are here. And I want 
to speak a little bit about my experience with you because I 
think everyone in the Committee and elsewhere should hear that, 
and then I will ask a few questions.
    First, the job of FBI Director is one of the most important 
jobs in the Nation. It is a 10-year commitment--10 years for 
two reasons: first, because a lifetime appointment runs the 
risk of abuse of power, as we learned from J. Edgar Hoover; 
but, second, because a shorter appointment could put the head 
of the most important law enforcement body in the country in 
danger of being subjected to the whims of purely political 
appointees. So a 10-year appointment is the right amount--not 
lifetime, too removed; not shorter, too susceptible to whims.
    Now, if there is one thing I am confident of, it is that 
you are more than capable of exercising independent judgment, 
even out-and-out courage in the face of enormous political and 
professional pressure.
    Mr. Comey, it was just a little more than 6 years ago that 
you sat at that table, I sat at the dais chairing a Judiciary 
Subcommittee hearing about the overweening role of politics at 
the U.S. Department of Justice. Your testimony about this 
incident was one of the most courageous acts by a witness I 
have ever seen, and if another book were written about Profiles 
in Courage, this would certainly be a chapter.
    Having served as Deputy Attorney General from 2003 until 
2005, you came to my Subcommittee to talk about the 
Department's policies regarding appointments of U.S. Attorneys, 
and at that point the Department did not look very good.
    But my staff--Preet Bharara, who was my chief counsel at 
the time, now U.S. Attorney for the Southern District, a place 
you had worked--had discovered there was more to the story. You 
reluctantly agreed to speak to him before the hearing on this 
additional topic, and after that conversation, we knew that you 
were prepared to testify about something of central importance: 
a possible constitutional crisis, previously unbeknownst to the 
American public by an administration embroiled in, very 
possibly blinded by, the war on terror.
    And so your testimony was one of the most dramatic and 
brave moments that I have ever witnessed in my years as a 
legislator. You exhibited the wherewithal to talk about a 
different ilk of interference with law enforcement 
decisionmaking at the Department of Justice, the apparent 
attempt by two members of the President's team--Alberto 
Gonzales and Andrew Card--to attain approval of John Ashcroft 
for a warrantless domestic surveillance program while Mr. 
Ashcroft lay ill in his hospital bed. In fact, you were the 
Acting Attorney General on that night, March 10, 2004, and you 
were not willing to sign off on the full scope of the program 
that the White House wanted the Department of Justice to 
authorize.
    The history is known, but at the hospital you and FBI 
Director Mueller made sure that no approval was given for a 
program you believed had no legal authorization and, in fact, 
on threat of your resignation and that of other senior 
Department officials, it appeared the program was authorized 
only after it had been modified to your satisfaction.
    So, Mr. Comey, in 2005, you gave a speech in which you said 
that a good lawyer must be willing to say no when it matters 
most. As FBI Director, will you still be able to say no when it 
matters most, as you did on that night when you were the Acting 
Attorney General?
    Mr. Comey. Yes, Senator, I believe so.
    Senator Schumer. Okay. Good. And I have every faith that 
you will.
    Mr. Comey, the details of the program at issue in 2004 and 
your decisionmaking then are still classified. News reports 
have suggested you were reviewing information-gathering 
programs that involved large amounts of meta data from phone 
records and the Internet. The parameters of what are perhaps 
modified versions of these programs may have been authorized 
later by the FISA Court under the Foreign Intelligence 
Surveillance Act beginning in 2006. Leaks of classified 
documents also indicate that the FISA Court had approved 
gathering the content of email under certain circumstances, 
circumstances that might be broader than what most Americans 
have assumed.
    Now, there has always been an age-old struggle between 
security and liberty. This tension has never been more stark in 
the 12 years since 9/11. As a New Yorker, I realize that very 
well. You know that better than most through your many roles in 
law enforcement before and after these events. My view, when 
you have the classic conflict of liberty and security, is, 
first, the debate should be open; second, the resulting 
policies have to be governed by rules, whether they are set by 
Congress and the administration; and, third--and this is where 
my questions lead--an independent arbiter must determine 
whether these rules are being followed.
    So in order to make sure that we strike the right balance 
as a society, we need to know more about what the FISA Court's 
role is in approving these programs as they have been reported.
    My questions to you are as follows:
    First, would you be willing to support declassifying or 
releasing declassified summaries of FISA Court opinions that 
have been issued regarding these programs, as Senator Merkley 
proposes to do in a bill that I am a supporter of? Obviously 
with limitations on any security breaches.
    Mr. Comey. Senator, I agree with you that transparency is a 
critical value, especially when weighing tradeoffs between 
security and liberty. And I am also aware that the Director of 
National Intelligence is looking at that very question. Because 
I do not know what is on the--I do not know what is in the 
opinions. I also do not know what is on the other side in terms 
of concerns about classified information. It is hard for me to 
say at this point. I think it is a worthy exercise to look 
closely at it, though.
    Senator Schumer. Okay. Let me just say this. If it is true 
that none of the 18 requests for orders last year were denied--
and maybe some others on the Committee know that, but I do 
not--how can the American people be assured the FISA Court is 
exercising real oversight, as it was intended to do when it was 
established in 1978? You told Senator Hatch it is not a rubber 
stamp. But if they have approved every decision, it is awfully 
hard to think that they are really doing the job that they were 
empowered to do. Can you give me a little thought on that? And 
that is my last question.
    Mr. Comey. And I hear folks say that quite often, that the 
Government is undefeated in the FISA Court, so how can it be a 
real court? Well, I know from criminal cases that--I do not 
know of a case where a wiretap application in a criminal case 
has been rejected by a Federal judge, certainly none that I was 
involved with. And the reason for that is we do not ever want 
that to happen, and so we work like crazy to make sure we have 
our ducks in a row, we have probable cause, easily cleared, 
because if we lose that credibility with the court, we worry 
that we will have lost something that we cannot ever get back.
    And so I know that in both FISA applications and in 
criminal applications for court-ordered wiretaps, the 
Government is extremely conservative in putting together what 
it presents to the court.
    Senator Schumer. But you would work for greater 
transparency provided it does not jeopardize security.
    Mr. Comey. Yes.
    Senator Schumer. Thank you.
    Chairman Leahy [presiding]. Thank you.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman. And 
congratulations, Mr. Comey, on this very important nomination.
    I love the FBI, as you have, and I remember, as you were 
telling your first case story, I remember being trained by some 
very fine FBI agents as a young prosecutor. And I do believe it 
is a great--the greatest law enforcement agency perhaps in the 
world and dealing certainly with complex cases of all kinds. 
And it deserves and must have great leadership.
    I first consider a nominee should be able to give that 
leadership. I believe it was Rudy Giuliani when he talked about 
his successor one time who said it would be nice if he were 
able to contribute to the discussion every now and then. And 
that sounds like Rudy, I suppose. And you were able to 
contribute to the discussion.
    I was just looking at your bio. Like Bob Mueller, you have 
the kind of bio that we should look for. You were Assistant 
United States Attorney in the Southern District of New York for 
6 years; Assistant United States Attorney in the Eastern 
District of Virginia for 6 years; Deputy Attorney General, 
chairing the President's Corporate Fraud Task Force and the 
President's Board on Safeguarding America's Civil Liberties--I 
guess you were there about 3 years--in addition to being an 
attorney for some great law firms and corporate entities. So I 
think you bring the kind of background we need.
    I was looking at some of your cases. You tried the Gambino 
brothers, the Khobar Towers case involving 14 Saudi Hezbollah 
people who murdered 19 Americans. You did the WorldCom case. 
That was a huge billion-dollar fraud matter. Adelphia 
Communications, a $200 million case. You led the prosecution of 
one of the largest identity theft cases in U.S. history. The 
Martha Stewart insider trading case. Project Exile in Virginia, 
I will mention that in a minute. But those represent to me the 
experience of a highly professional, very, very rarely--a 
lawyer in the United States would very rarely be involved in so 
many intensive, high-profile cases.
    So you bring that background and worked, I suppose, on 
virtually every one of those cases with the FBI, did you not?
    Mr. Comey. Yes, sir.
    Senator Sessions. And so you know the rules that they 
operate under and the Department of Justice operates under very 
well from an intensive personal experience. I think you have 
the background for this job.
    Now, you have proven in the past you are willing to stand 
up for your convictions. Will you be prepared to pursue any 
cases that come before you involving Congress or the 
administration or Governors or other powerful forces in the 
country if you are called upon to investigate them? And will 
you complete the investigation effectively and call the 
question based on the law and the facts?
    Mr. Comey. Absolutely, Senator.
    Senator Sessions. I think that is your background, and I 
believe you can fulfill that task. I do.
    Now, I do not know--we talk about Guantanamo--exactly what 
Senator Feinstein is referring to there. I would just say that 
nobody is being tortured at Guantanamo. At Guantanamo, nobody 
was waterboarded. This was done special CIA or other people 
somewhere around the globe, but they were not done by the 
military at Guantanamo.
    Don't you agree that there are two options with regard to 
how to handle someone who attacks the United States? If they 
are an enemy combatant, they can be tried by military 
commission; they can be tried and detained in a place like 
Guantanamo by the military as a prisoner of war; and they may 
be tried if they violated the rules of war or otherwise 
committed crimes as opposed to just being a lawful enemy 
combatant. And then, of course, there are Federal court 
prosecutions that can be carried out if a person is brought to 
Federal court and they have violated Federal civil laws and 
criminal laws. Is that right, two different approaches you can 
take?
    Mr. Comey. Yes, Senator. From my experience, I think of 
them as three effective lawful and appropriate tools that can 
be used, depending upon the individual case. You have mentioned 
all three: Law of War detention, detention and trial in a 
military commission, or detention and trial in a civilian 
court, in the Article III courts. And I know all three have 
been used in both President Obama's administration and 
President Bush's administration.
    Senator Sessions. Well, if you are tried in civilian court, 
then you must be brought promptly before a United States 
magistrate judge. Is that correct?
    Mr. Comey. Yes, Rule 5 requires prompt presentment.
    Senator Sessions. And your right to have an attorney 
appointed for you if you do not have one.
    Mr. Comey. Yes, sir.
    Senator Sessions. Or the attorney you may have.
    Mr. Comey. Correct.
    Senator Sessions. Who, if it is a terrorist, could be 
associated with a terrorist organization, could they not?
    Mr. Comey. Could be.
    Senator Sessions. And then you give Miranda warnings. They 
do not have to make any statements.
    Mr. Comey. That is correct, at some point.
    Senator Sessions. And they can be brought before the judge 
at a preliminary hearing, and the Government has to lay out 
evidence revealing to the world that the individual who may be 
an enemy combatant has been captured, revealing that to his 
compatriots and enemies, our enemies. Is that right?
    Mr. Comey. Certainly when court proceedings are filed and 
on the docket, the public can know about it.
    Senator Sessions. Well, and evidence has to be presented, 
witnesses can be cross-examined, even in the early preliminary 
hearing stage. Isn't that right?
    Mr. Comey. Yes, Senator, if there is a preliminary hearing. 
I have actually never done one because I used to indict the 
cases instead. But I understand what you are saying.
    Senator Sessions. And while there are some protections for 
intelligence methods and capabilities and sources in some of 
these hearings, it does provide the possibility of revealing 
through the evidence that is presented the sources and methods 
of identifying and arresting this individual. Isn't that 
correct?
    Mr. Comey. I suppose it is possible. In my experience, 
Senator, the Federal courts are very effective at protecting 
classified sources and methods, even in prosecuted cases.
    Chairman Leahy. Thank you. Thank you, Senator Sessions.
    Senator Sessions. Isn't it true that with regard to each of 
those instances I mentioned that the trial and military 
commission provides better protections for the United States 
with regard to intelligence revealing and be able to maintain 
the individual with or without a trial and without public 
presentment?
    Mr. Comey. I think in some ways the military commission has 
an advantage. In other ways, I am not so sure. I think it 
depends on the individual case.
    Senator Sessions. My time is up, Mr. Chairman. Thank you. I 
am sorry to go over. I had a few more questions, but I 
understand.
    Chairman Leahy. We are probably getting off the subject, 
but I know we have had four or five convictions in military 
tribunals and 100 or 200 in Federal courts.
    Senator Sessions. Well, that is--if you do not try them in 
military commissions, you are not going to get convictions.
    Chairman Leahy. Senator Durbin.
    Senator Durbin. Thank you----
    Senator Sessions. And that is exactly what has been 
happening.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Let me start off, Mr. Comey, I understand your answer to 
Senator Feinstein's question about the force feeding at 
Guantanamo, particularly in light of Judge Kessler's opinion, 
but I would like to clarify for the record. I agree with 
Senator Feinstein's conclusion. We are going to join together, 
and perhaps others wish to join us, in a letter to the 
President asking him to exercise his Executive authority to end 
this force feeding in Guantanamo.
    The President, for the record, has called for the closing 
of Guantanamo. He has also raised in a speech just a few weeks 
ago this very issue. He has not been evading it. But Judge 
Kessler is calling into question whether he has the authority, 
and we are going to express our feelings that it should come to 
an end. And that will force our hand.
    I believe Congress has been complicit in the current 
complicated situation. We have not followed the President's 
lead in closing Guantanamo. We have left it in a limbo, which 
is unfair to many who are involved. I visited the Southern 
Command in Miami. I can tell you that the members of the Navy 
and Coast Guard who are part of it are at their wits' end as to 
what to do with these detainees, many of whom have been 
adjudged no threat to the United States and having held 
indefinitely. In this case, Mr. Dhiab, who raised the issue, 
has been held for 11 years and for the last 4 years has been 
judged ready for release. In his despair, he has turned to this 
black fast where he is not eating at all. So I think it is time 
for us to move the issue. I understand it puts you in a 
delicate position to have conjecture on where this goes, but we 
are going to follow through.
    Let me go specifically to a couple issues. You and I had a 
long conversation yesterday about this torture issue, and I 
thought what you said in a few words was what Attorney General 
Mukasey refused to say, that, in fact, waterboarding was 
torture. I could spend some time here--I will not--about what 
was going on within the administration, the debate over the use 
of waterboarding and other coercive techniques in 
interrogation. But I think more importantly was a point raised 
by Senator Schumer about the FISA Court.
    You said yesterday that as Deputy Attorney General you did 
your best to declassify so that there was more information 
available to the public to understand the decisionmaking in our 
Government. That is certainly consistent with our democracy, 
and although there is an obligation to keep us safe, which 
requires classified information, declassifying provides that 
information.
    Do you feel the same about these FISA Court decisions, 
that, if redacted, if carefully screened, we should be 
releasing more of the reasoning, more of the decisions to the 
public so they understand the role of the Court in this 
decision process?
    Mr. Comey. Thank you, Senator. As I said earlier, I think 
that transparency is a key value, especially when it helps the 
American people understand what the Government is doing to try 
to keep them safe, and I think if they understood more, they 
would feel better about it. It is when folks do not know things 
that people can question whether the Government is doing the 
right thing.
    But at the same time, I am not in a position to judge what 
is on the other side. I would not want to let transparency be 
the only value--and I know you do not either, Senator--and that 
I would lose some operational advantage and let the bad guys 
know something by virtue of that. I think it is important to do 
what the DNI is doing, which is look closely at it and lean 
forward to see what you can do.
    Senator Durbin. I hope you would encourage more 
transparency in the FISA Court. I think that would be helpful. 
Also, in future gathering of information, minimization is 
critical, to minimize the information gathered to protect 
innocent Americans. You and I discussed this yesterday. Instead 
of gathering all of the meta data, phone records of one area 
code, to focus on the suspects, which I have been arguing for 
for years and hope that we can move toward.
    Let me go to the point, though, that has been raised by 
Senator Sessions because it comes up time and time again. The 
minute we apprehend a terrorist, I can guarantee you within 24 
hours, if we are in session, someone will take the floor and 
say, ``Well, for goodness' sakes, do not put them through the 
Article III courts. If it is a suspected terrorist, they must 
go to military tribunals or military commissions.''
    I have always been puzzled by this, and I know you have as 
a prosecutor faced this decision, recommendation: Where will 
this person be tried?
    For the record, I believe that hundreds, literally hundreds 
since 9/11 have been accused of some form of terrorism and were 
successfully tried and prosecuted in Article III courts. During 
that same period, I believe the track record is six who have 
been successfully prosecuted before military tribunals.
    Let us go to the points raised by Senator Sessions. They 
would characterize the reading of the Miranda warnings as the 
end of the interrogation. As soon as you say you can lawyer up, 
they will shut up.
    What has been your experience as a prosecutor when it comes 
to prosecuting terrorism cases in Article III courts using 
Miranda warnings?
    Mr. Comey. My experience has been--I think we have about a 
20-year track record in handling particularly al Qaeda cases in 
Federal courts, and that the Federal courts and Federal 
prosecutors are effective at accomplishing the two goals in 
every one of these situations, getting information and 
incapacitating the terrorist.
    As I said, I believe there are a number of other tools that 
are available, but I know the track record of the criminal 
justice system, and it is highly effective.
    Senator Durbin. We discussed yesterday the role of 
attorneys and family in the Article III process in the 
interrogation and preparation for trial. Could you tell us on 
the record what your experience has been?
    Mr. Comey. Sure. One of the things I like about the Federal 
criminal justice system that I suppose some folks might not 
like is that the entire thing is designed to get information. 
We have very strong sentences in the Federal system. The only 
way to have any chance to get out from under them is to provide 
information. And in my experience, the presence in criminal 
cases of families and lawyers is often a useful lever for me as 
a prosecutor to get information, because then I have a loved 
one whispering in the ear of the person I have detained saying, 
``Look, you really need to do the right thing here. It is the 
only way you will ever see the kids again.'' That lever assists 
me as a prosecutor in getting information.
    Senator Durbin. And what about this point about taking this 
in an Article III court and prosecuting a terrorist runs the 
risk of disclosing sources and methods that could jeopardize 
the lives of friends, allies of the United States, even our 
military? What protection is there against that possibility?
    Mr. Comey. Well, as I said to Senator Sessions, my 
experience has been the Federal courts are effective at 
protecting classified information. There is something called 
CIPA, the Classified Information Procedures Act, under which a 
court scrubs source and method information to try to reduce the 
risk of disclosure. I think the track record is pretty good. 
Obviously, there always remains a risk there is going to be 
disclosure. But I think, by and large, it is effective.
    Senator Durbin. Thank you very much. I appreciate your 
testimony and visitation in my office yesterday.
    Chairman Leahy. Thank you very much.
    Senator Lee.
    Senator Lee. Thank you, Mr. Chairman, and thank you, Mr. 
Comey, for joining us. I remember distinctly meeting you 
several years ago when I was an Assistant U.S. Attorney in 
Utah. You visited our office. I still remember some of the 
counsel you gave us that day. I remember you telling us 
specifically that we as Assistant U.S. Attorneys ought to stay 
close to our families because, as you put it, you see things as 
an Assistant U.S. Attorney that sometimes no person ought to 
have to see, unpleasant things. And I cannot help but be 
reminded of that as you begin what could become a journey in 
serving as our Director of the FBI where you, too, will have to 
see things that might be unpleasant. And it is good to see your 
supportive family here with you today.
    I wanted to talk to you a little bit about some of the 
privacy interests protected by the Constitution and how those 
relate to some of the activities of the NSA and other arms of 
the Government.
    The Government maintains that it has the authority through 
the NSA to collect large amounts of meta data and to store that 
meta data on a data base basically with respect to telephone 
and email communications of pretty much every American. And it 
purports to have the authority to store that, hold it over a 
long period of time, and when necessary, perform searches to 
figure out, you know, connections based on national security 
concerns, to identify leads that it might follow up on.
    As I understand it, the searches on that data base are 
governed largely, if not entirely, by internal NSA rules. There 
is no external constraint on that, certainly no warrant 
requirement or anything really approaching it.
    Those who defend this program and this practice insist that 
under Supreme Court precedent, most notably Maryland v. Smith, 
the Government has the right to do this and there is no real 
Fourth Amendment problem with it.
    Maryland v. Smith, of course, was a case decided on a 5-4 
margin back in 1979. It was an opinion authored by Justice 
Blackmun, and it dealt not with that kind of mass data 
collection; it dealt with data collection as against a single 
suspect in a single criminal investigation using a pen 
register.
    Don't you think there might be different Fourth Amendment 
interests at play where we are dealing with a much broader 
scale where potentially, theoretically, every American is the 
target of the kind of data collection at issue with what we are 
talking about today?
    Mr. Comey. Thank you, Senator. It is a very interesting 
question. You and I spoke about this a bit privately, and I had 
not thought about it much then. I have tried to think about it 
more since and read some cases. I actually read a paper written 
by a second-year Harvard law student about this. It is a really 
interesting question as to whether the Fourth Amendment 
framework that is in part embodied in the Smith case applies as 
technology changes or whether, I think as Justice Sotomayor 
wrote in the Jones case last year, we ought to think about it 
differently where each of those pieces of meta data is allowing 
the Government to sort of put together a mosaic about you, that 
is, goes beyond what you would normally expect and intrudes 
into a reasonable expectation of privacy.
    A fascinating question. I do not think it is settled. I 
hope it is one--I am going to ask if I am confirmed--that the 
Department of Justice is thinking about. So I do not think 
there is a clear answer to it, but it is a reasonable question 
to ask.
    Senator Lee. Okay. I appreciate your willingness to keep an 
open mind on that issue. I think as you look at that and as you 
review, as the Court in Maryland v. Smith did, the precedent in 
Katz v. United States, and you asked the two questions asked in 
Katz: number one, whether there was a subjective expectation of 
privacy in the case at hand; and, number two, whether that 
expectation of privacy is one that in objective terms society 
could and should regard as reasonable. I do think you come to a 
different--I think you have to come to a different conclusion 
with regard to this. So I appreciate your willingness to 
consider that.
    Would you concede, as I suppose you would, that it would be 
different altogether--let us take in the case of email 
collection, surveillance of emails--it would be an even easier 
question with regard to collection of content of emails?
    Mr. Comey. Very much. That is the difference, to use the 
1970s analog, between reading the outside of an envelope and 
opening it and reading your letter.
    Senator Lee. Right, right. So you would not see any 
substantive distinction between the Government opening 
somebody's mail and the Government opening somebody's email to 
read the content of it?
    Mr. Comey. I do not. I have always thought of it as a 
Fourth Amendment event.
    Senator Lee. Right. And yet it is interesting, the law in 
this area, the ECPA law, there is a particular title within 
ECPA that allows Government agents simply by sending a request 
to an email provider to read the content of someone's email, 
not just the meta data but to obtain the substantive contents 
of the email communication once that email has ripened past the 
age of 180 days. That seems to me to be a problem, and it is 
one that Chairman Leahy and I have been working on together. 
This is a loophole that we are trying to close.
    But would you agree with me in concluding that, for Fourth 
Amendment purposes, there is no discernible constitutionally 
significant distinction between an email that is 179 days old 
and one that is 181 days old, with the former being entitled to 
Fourth Amendment protection and the latter being entitled to 
nothing?
    Mr. Comey. I would, Senator. I do not think the Fourth 
Amendment has--like your yogurt, it expires on--a date on it. I 
was unaware as a prosecutor of that 180-day. I always thought 
of it all as content that I would need probable cause to get. 
So I am aware of that, and I think the Department is also 
working to see if that cannot be fixed. It sounds like an 
anachronism to me.
    Senator Lee. Yes, I think it certainly is. It was 
anachronistic even at the time in the sense that I think it was 
incompatible with the Fourth Amendment. But it is easier to 
understand why it did not raise eyebrows then because people 
typically did not store emails any longer than that. And so 
maybe one could have made an argument back then that nobody was 
concerned about it, therefore no reasonable expectation of 
privacy could develop. I certainly do not think the same 
argument can be made today, and I am pleased that you as a 
prosecutor never went down that road. I know I certainly did 
not. But there have been some within the Government who have 
suggested that this is an appropriate option for Government 
agents to pursue, and I hope you will stand with me in 
recognizing that there is an important Fourth Amendment 
interest at play.
    Mr. Comey. If there are, they are going to be unhappy with 
me, but I see it as you do.
    Senator Lee. Okay. Thank you very much.
    And thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, and we will continue 
to work on the legislation you discussed.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman. Welcome back, Mr. 
Comey.
    Let me pick up where Chairman Leahy left off. You were 
describing the two Office of Legal Counsel torture opinions 
that addressed 18 United States Code Section 2340 and 2340(a), 
and there was one that related to certain techniques, and then 
there was a second one that related to combined techniques. You 
indicated that you focused on the combined techniques one 
because you knew that the techniques were being applied in 
combined fashion, and so that is what really mattered. But you 
concede that if the combined techniques memo were to fall, 
under the certain techniques memo the Government, the CIA, 
would have been able to go ahead and waterboard as long as that 
was their technique, as long as they left the other ones aside. 
And in that sense, you clearly authorized waterboarding by 
approving that memo. Correct?
    Mr. Comey. I think that is right. I do not want to quibble 
and say I authorized waterboarding. I found that opinion, which 
I think in its text has a very difficult and close question, 
was a serious and reasonable effort to interpret that statute. 
So that is what I thought. That is why I did not object to that 
one and objected to the second one.
    Senator Whitehouse. Looking backward, I would contend that 
it was not serious and not reasonable and that it left out 
things that you as a supervisor were not necessarily in a 
position to know about. But when it leaves out the history that 
the Chairman referred to of the United States having been the 
prosecutor of waterboarders in the past, prosecuting Japanese 
soldiers as war criminals for doing that during World War II, 
prosecuting our own soldiers for doing that during the 
Philippines uprising, prosecuting an American sheriff for doing 
it--there is actually a file somewhere in the Department of 
Justice about a criminal prosecution of an American for 
waterboarding at the time that that memo came out, and nobody 
bothered to bring that up or put that in the opinion. And it is 
not something you had to go through the files of the Department 
to find out about because that decision ended in an appeal and 
a Fifth Circuit published opinion talking about waterboarding 
describing it probably ten times as torture, and that never 
made it into the opinion.
    So I cannot blame you for that, but I do not want to let 
the record of the hearing go forward with the thought that 
these actually are serious and responsible opinions, because I 
do not think they actually do meet that standard.
    You also said that you were concerned that they were very 
narrow. It was a very specific question that was being 
answered, and so that kind of was a reason to let it go.
    There was a third opinion dated May--these two were dated 
May 10th. The third opinion was dated May 30th. It is on the 
same letterhead from the U.S. Department of Justice Office of 
Legal Counsel. It is from the same office, the Office of the 
Principal Deputy Attorney General. It is signed by the same 
lawyer, Steven Bradbury. It is directed to the same recipient, 
John Rizzo, the counsel at the CIA. It discusses the same 
topic, waterboarding. But it is not specific to 2340 or 
2340(a). It is the general opinion. It discusses the 
constitutional requirements. It discusses our obligations under 
the Convention Against Torture.
    What of that opinion? It came out 20 days later.
    Mr. Comey. I did not see it at the time. I do not know why 
they--well, I guess I can guess why they did not show it to me 
at that point. I fought on both policy and legal grounds. So I 
did not see it. I have read it since, but I did not know about 
it.
    Senator Whitehouse. That is somewhat remarkable, isn't it? 
Didn't you ask Steve Bradbury to write the first two opinions, 
to review the previous opinions that you had said were not up 
to the standards of the Department of Justice?
    Mr. Comey. I asked the then head of Office of Legal 
Counsel--we call it ``OLC.''
    Senator Whitehouse. OLC, yes.
    Mr. Comey. There was a fellow named Dan Levin--to undertake 
the completion of Jack Goldsmith's work, to finish the general 
opinion. I did not ask Steve Bradbury to do the two May 10 
opinions. I think that came from elsewhere, probably the CIA.
    Senator Whitehouse. So you were made aware of the two May 
10 opinions.
    Mr. Comey. Yes.
    Senator Whitehouse. Presumably between May 10 and May 30, 
you had made your concerns about them known?
    Mr. Comey. Very much. I had made my concerns about the 
legal analysis known late April or early May, and then late May 
is when I went to the Attorney General and said we have to 
address why we are doing this as Americans. And then I----
    Senator Whitehouse. So the response was that by the time of 
the May 30 opinion, they wrote another and broader opinion on 
the same subject and simply cut you out of the loop.
    Mr. Comey. Yes, unless I am completely losing my mind, I do 
not remember----
    Senator Whitehouse. I doubt that.
    Mr. Comey [continuing]. Ever seeing that opinion. And so 
that opinion is about, as I recall from reading it recently, 
Article XVI and interpreting whether it is cruel, inhuman, and 
degrading treatment.
    Senator Whitehouse. Yes, and applying a Fifth Amendment 
standard to that determination.
    Mr. Comey. Yes, I do not know what--so, anyhow, I did not 
see that opinion.
    Senator Whitehouse. When you said that you thought that the 
latter two opinions were more responsibly written than the 
first two, what effort had you made to put a foundation under 
that determination? More responsibly written in terms of what 
did you----
    Mr. Comey. Both the people involved--and by that I mean I 
had great confidence in both Jack Goldsmith and in Dan Levin, 
serious, balanced people--and the process they went through 
involving many more bright lawyers from around the Government--
State Department, for example--to poke at their ideas to try 
and pressure test them in a way that I do not think was done in 
the early opinions.
    Senator Whitehouse. So would it be fair to summarize it as 
saying you did not pressure test them yourself, but you saw to 
it that they were subjected to a much broader array of comment 
and, therefore, received pressure testing from multiple 
agencies and you also had considerably more confidence in the 
principals involved in writing--principals, P-A-L-S--the 
individuals involved in writing the opinion than you had in 
their predecessors. Correct?
    Mr. Comey. That is fair. Yes, sir.
    Senator Whitehouse. Okay. One thing I think I would like to 
emphasize to you, I think it would be very, very wise and 
helpful for you to take Senator Feinstein's advice and spend 
some time with the Intelligence Committee report on the torture 
program. I was heavily involved in that, and if you look at 
particularly the third one, they make assertions specifically--
a lot of the stuff is classified, so it is hard for me to 
debunk it here because it is classified. But I had a hearing in 
this Committee on the interrogation of Abu Zubaydah, and the 
FBI participated in that, and it was from the FBI's humane 
interrogation that we got the news that Khalid Sheikh Mohammed, 
the 9/11 guy, was from the FBI's humane interrogation that we 
got the information about the Jose Padilla dirty bomb plot. The 
CIA contractors, not the CIA agents, the contractors came in 
and started to apply the abusive techniques. At that point the 
information completely shut down, did not get anything more out 
of the guy that was of any significance, certainly nothing 
compared to what had been achieved by the FBI agent, who was a 
very gifted interrogator.
    My apologies. My time is up. But take a look at page 10 in 
the May 30 report and compare that to the facts, and I think 
you will see that the Department was pretty gravely misled.
    Chairman Leahy. I am sorry to be so tough on the clock.
    Senator Whitehouse. No, no. I appreciate that you did that, 
Chairman.
    Chairman Leahy. I know we have a vote coming.
    Senator Whitehouse. You did the right thing.
    Chairman Leahy. Senator Cornyn.
    Senator Cornyn. Mr. Comey, congratulations on your 
nomination, and I am glad that your family is able to be here 
today. None of us could do these jobs without the support and 
love of our families, and thank you for your willingness to 
continue to serve the United States.
    I wanted to ask you, first of all--and I know you will 
agree with this. One of the great things that is unique about 
the American system is that no person, whether you be President 
of the United States or an average citizen on the street, no 
person is above the law.
    Mr. Comey. Yes, that is one of many great things about this 
country.
    Senator Cornyn. But it is hard when you are a member of an 
administration sometimes to do what you have recounted that you 
did during the Bush administration, and that is, be a voice of 
independence and perhaps go against the grain.
    Are you going to be as equally committed as a member of the 
Obama administration as you were as a member of the Bush 
administration to go against the grain and to be that 
independent voice where you feel that that is the appropriate 
course of action?
    Mr. Comey. Yes, I am, Senator.
    Senator Cornyn. And for all the differences that have been 
discussed here over enhanced interrogation, my impression is 
that the counterterrorism policies of the Obama administration 
in large part bear a lot of similarity to the counterterrorism 
policies of the Bush administration. Would you agree with that?
    Mr. Comey. I think that is fair.
    Senator Cornyn. I am thinking, for example, about the role 
of the Foreign Intelligence Court, the National Security 
Agency's role in collecting meta data, their use of unmanned 
aerial vehicles to kill terrorists, members of al Qaeda. There 
seems to me to be a lot of continuity here, with some notable 
differences.
    I do have a question about the enhanced interrogation 
techniques that you talked about earlier. As I understood it, 
you said there were three questions: one is was it effective, 
which is a question, I suppose, for the intelligence agencies; 
second, was it legal, which is a question for the Office of 
Legal Counsel, the primary law firm, so to speak, for the 
United States Government; and then there is the prudential 
question about should we be doing this stuff, and I think you 
made clear that on the third issue you thought we should not.
    Mr. Comey. Correct.
    Senator Cornyn. And does that apply to all of the enhanced 
interrogation techniques that were used to interrogate members 
of al Qaeda and other terrorists or just waterboarding?
    Mr. Comey. I was particularly concerned with waterboarding 
and sleep deprivation in particular. I think those are the two 
I focused on the most, Senator.
    Senator Cornyn. Just to be clear, you think sleep 
deprivation is torture?
    Mr. Comey. I was concerned, Senator, that particularly in 
aggregation, the use of 6-1/2 days of sleep deprivation plus 
these other things was very problematic under the Office of 
Legal Counsel's interpretation of the statute.
    Senator Cornyn. Well, one of the consequences of the Obama 
administration's decision to shutter the enhanced 
interrogation--and there are, of course, a number of practices, 
as you know, that do not include the ones that you object to. 
But by virtue of their decision not to question members of al 
Qaeda and other terrorist organizations, we do not have a lot 
of information that we might otherwise be able to get from an 
intelligence-gathering perspective, and that strikes me as 
problematic. And instead we have an administration that has 
decided to compile kill lists for terrorists using armed drones 
and the like.
    That strikes me as problematic as well because if you are 
just going to use that authority to kill terrorists, you 
certainly do not know anything about their networks, any of the 
other information that would be helpful from an intelligence 
perspective, and perhaps save American lives.
    Do you believe that the memos from the Office of Legal 
Counsel that have authorized the use of kill lists for armed 
drones, including American citizens, that those should be made 
public?
    Mr. Comey. I do not know, Senator. I know--as I said 
earlier, I think transparency is a very important value. I do 
not know well enough what is on the other side of the scale on 
that, the operational risk, the exposure of methods. So I am 
not in a position to say that from this vantage point.
    Senator Cornyn. But you are not differentiating in terms of 
your transparency commitment between what was revealed during 
the last administration and what should be revealed here. I 
mean, the same principles would apply.
    Mr. Comey. Oh, certainly, same values, same principles, 
should be thought of the same way.
    Senator Cornyn. And it strikes me as a lawyer's argument 
that we would really be interested in to know how--what sort of 
process would be required as a legal matter and as a prudential 
matter to protect against inadvertent or improper use of that 
kind of ultimate authority to kill an American citizen using an 
armed drone. That would be something that, if kept secret, 
would, I think, tend to undermine public confidence. If, in 
fact, there is a good lawyer's argument or one that would 
satisfy a court of law that this was necessary and it was 
properly applied, that would be something that would bolster 
public confidence, wouldn't you think?
    Mr. Comey. I think that is right as a general matter. As I 
said, I think transparency on these matters, including the 
views of the executive branch on the legal authorities, tends 
to bolster people's confidence and support for the use of those 
authorities. Again, though, there may be reasons, good reasons, 
why an opinion would need to remain confidential or classified. 
And sitting from this vantage point, I really could not say 
about the particulars.
    Senator Cornyn. Well, of course, I do not suppose you have 
seen them----
    Mr. Comey. No.
    Senator Cornyn [continuing]. and I would not ask you to 
pass judgment on something you have not seen. But certainly 
they could be redacted or otherwise protected in terms of the 
information that would need to be protected and still give some 
better understanding of the legal rationale and how the due 
process concerns could be addressed, especially when you are 
talking about killing American citizens.
    I understand the questions you were asked and you answered 
about enhanced interrogation and your objection to the use of 
enhanced interrogation while you were a member of the Bush 
administration. Why didn't you resign if you objected to those 
techniques?
    Mr. Comey. I had already resigned by the time this came up. 
I announced my resignation in mid-April, and this came up, the 
memos we are talking about, in late April and into May, toward 
the end of May. I announced in mid-April I was going to leave 
before the end of the summertime, and I decided to stay for 
those 2 months because there were a number of important things 
I needed to complete, especially on violent crime. So that is 
where I was.
    Senator Cornyn. Were those of sufficient seriousness to 
your mind that, if you had not already announced your intention 
to resign, they would be resign-worthy or justify your 
resignation, that sort of serious disagreement with 
administration policy?
    Mr. Comey. Hard to answer looking back, but I would have 
given it very serious consideration.
    Senator Cornyn. My time is up. Thank you.
    Chairman Leahy. Thank you very much.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
you, Mr. Comey. And, again, welcome to your family. They are 
very stoic behind you. I have been watching them.
    Mr. Comey. They were instructed to be stoic.
    Senator Klobuchar. Yes, and I also understand that one of 
them--we will not reveal who--actually was assigned to play 
Senator Blumenthal in a high school debate and miraculously won 
that debate.
    Mr. Comey. She swept the middle school.
    [Laughter.]
    Senator Klobuchar. Very good.
    You and I went to law school together. We were in the same 
class--and I love how you are pointing her out. We all see 
here.
    You and I were in the same class in law school, and people 
often wonder what people were like before they were shining 
lights in their face, and I can tell my colleagues and everyone 
here that you were an incredibly decent person, a smart guy, 
and a lot of fun to know. So I want to thank you for that. I 
know there are a number of law school classmates watching this 
hearing right now, and I have this urge to mention all their 
names. But I will not do that.
    And my colleagues should also know that the law school 
professors at the University of Chicago called our class ``the 
happy class,'' in part because we started the first law school 
musical and then, second, because I do not think we produced 
enough Supreme Court clerks to their liking. But I really hope 
they are watching this hearing right now and see the both of us 
up here and mostly see what a great job you are doing.
    I know most of my colleagues have focused on terrorism and 
drones and the important work you have done in the past in 
terms of upholding the law. And while I think we can all agree 
that counterterrorism and national security is a top priority 
of the FBI, I think you also know the bread-and-butter work of 
the FBI is still incredibly important to victims of crime, to 
those who are victims of complex fraud. As a former prosecutor, 
that is how I always thought of the FBI and the work that we 
did so well with them in Minnesota.
    And I know one of the things that has not come out is the 
work that you did in Richmond where you started Project Exile, 
a successful program that involved Federal, State, and local 
partnership. We copied that program, actually, in Minneapolis 
years later, and when the effort began, I know it was supported 
both by the NRA and the Brady Campaign, and the result of the 
successes, again, it spread across the country. Can you talk 
about that work and how that will inform your work as head of 
the FBI and what you have learned from that that you think 
would be helpful to what we are facing now in street crime?
    Mr. Comey. Yes, Senator, thank you very much. That was some 
of the most rewarding work I ever did. Richmond, Virginia, had 
a horrific violent crime problem, isolated especially in the 
minority community, and the idea behind Project Exile was what 
if we used the Federal penalties that came with gun possession 
offenses, possession by a felon, possession by a drug user, 
drug dealer, stiff penalties, what if we used those to try and 
change criminal behavior and make the gun a liability in the 
eye of a criminal?
    In Richmond, the situation we had was the average criminal 
got dressed for the evening and put on shoes, socks, pants, 
belt, gun--with equal amounts of reflection. So the idea was, 
What if we can change that dressing practice so they are afraid 
to have that gun?
    And so the first part of Project Exile was really 
aggressive prosecution of gun possession crimes, and the magic, 
I think, of Project Exile, which was not my idea--it was the 
idea of one of my Assistant U.S. Attorneys--was: What if we 
went into the public markets and hired an advertising agency--
and they worked for free; ``hiring'' is in quotation marks--to 
sell deterrence to the bad guys? And so these geniuses at the 
advertising agency created a brand and bought billboards in bad 
neighborhoods and buses and TV commercials, and they printed 
little cards with our slogan, and cops gave out thousands of 
them so that--because advertising works, and actually the 
criminals became more afraid of us maybe than they should have 
been, because advertising works. There was a brand, there was a 
criminal actually--our slogan said, ``An illegal gun gets you 5 
years in Federal prison.'' We locked one guy up, and he got 7 
years. He actually sent us a letter saying, ``The damn ad says 
5.''
    [Laughter.]
    Mr. Comey. An unhappy consumer I guess was our goal. And so 
that aggression plus the magnification that came from 
advertising changed that community and changed behavior.
    Senator Klobuchar. Well, I also do not think it has come 
up, but you and your brother were actually held hostage by an 
armed burglar when you were young, and you were able to escape 
captivity. And in an interview, you once said that experience 
gave you ``a keen sense of what victims of crime feel.''
    Could you talk about the current FBI and how you see the 
FBI's role with violent crime, understanding most of it is 
headed upon the local level, how you can coordinate with that? 
And then I would add onto that, on those really complicated 
white-collar cases which are increasingly hard for local law 
enforcement to handle.
    Mr. Comey. As we talked about earlier in response to other 
questions, the FBI has a vital role to play in criminal 
enforcement, and I know Bob Mueller has explained to this 
Committee that is a challenge for him, given all the things on 
the FBI's plate. But at least from the outside, it looks to me 
like he has been smart and used leverage to achieve the 
objectives by forming good task force relationships, on violent 
crime in particular, with State and local law enforcement. The 
FBI has long been accused of not playing well with others. I 
think that is a bit of a myth in general, and I know that Bob 
Mueller has pushed to change that in both perception and 
reality. So that is critical.
    And as I said in response to earlier questions, the FBI's 
role in white collar is also indispensable, because you need an 
agency that can devote the time, the resources, and has the 
expertise to plow through stacks of Excel spread sheets to find 
the evidence of the fraud. That is very hard for overworked 
local enforcers to do, so it is ground you cannot surrender.
    Senator Klobuchar. Very good. I am the daughter of a 
reporter, so I am asking this for my dad, but I also have seen 
both sides of this, the balance of the importance of a free 
press and then as a prosecutor the importance of moving forward 
with cases and keeping information so that you can do a good 
job and protect the public safety. And I am cosponsor of the 
Free Flow of Information Act--I was the first time it was 
introduced, and I am now--to protect the freedom of the press.
    Can you talk about your views on how law enforcement should 
balance one of our Nation's most cherished rights, that is, 
freedom of the press, and the investigations of classified 
information leaks?
    Mr. Comey. Law enforcement can balance it most importantly 
by keeping front of mind both of those values. There are 
secrets we must keep, and so we have to investigate their loss, 
and that may lead to bumping into the media. But when we do 
those bumps, we have to understand that essential to what a 
remarkable country this is is that aggressive, sometimes pain-
in-the-neck press. They are a great pain in the neck. And so an 
enforcer has to keep both of those front of mind, and then in 
each case try to work it so you preserve both of those values.
    You are going to make mistakes, but if you keep both front 
of mind, I think in the main you will get it right. And I am 
aware of the shield legislation. I testified about a different 
shield bill when I was still in the Government that did not 
have a carveout for national security, which was very 
concerning to us. I gather this is different.
    Senator Klobuchar. Okay. Well, we look forward to working 
with you on that. I have a question I will just put on the 
record about the Human Trafficking Report Act that I have 
introduced with Senator Cornyn.
    [The question of Senator Amy Klobuchar appears as a 
submission for the record.]
    Senator Klobuchar. And I know there are a lot of my 
colleagues that have been waiting for a while, so thank you 
very much.
    Chairman Leahy. I am just worried about this vote coming 
up. The record will stay open until noon on Friday for any 
questions to be submitted to Mr. Comey, and his nomination will 
be on the agenda a week from Thursday.
    Senator Cruz.
    Senator Cruz. Thank you, Mr. Chairman.
    Mr. Comey, welcome. Thank you for your testimony this 
morning, and thank you for your long public service as well.
    I have a number of topics that I would like to discuss. I 
want to start by talking about the IRS. As you know, as you and 
I discussed in my office, there has been multiple reports and 
admissions of the IRS improperly targeting groups based on 
political speech, based on their espousing conservative views, 
their espousing pro-Israel views. There is an ongoing 
investigation of the FBI into what exactly the IRS has done. 
And your predecessor, whom I like and respect, has received 
some amount of criticism for not appropriately prioritizing 
that investigation. Indeed, there have been multiple reports 
that even to date many of the groups that were unfairly 
targeted by the IRS, or at least that believe they were 
unfairly targeted, have yet to be interviewed by the Bureau.
    What level priority in your judgment should the 
investigation into the allegations of misconduct and political 
targeting by the IRS, what level priority do you believe that 
should hold at the Bureau?
    Mr. Comey. I think--and I think I have seen Director 
Mueller say a similar thing--it should be a very high priority.
    Senator Cruz. Well, I appreciate that commitment, and I 
would also--you know, anytime the Bureau is asked or the 
Department is asked to investigate allegations of wrongdoing by 
the administration, and in particular, wrongdoing that raises 
at least some concerns about infusing partisan politics in what 
should be the fair and impartial administration of justice, 
that puts the Bureau in a delicate position. We saw that during 
the Nixon administration when President Nixon attempted to use 
the IRS to target his political enemies. And there have been 
similar concerns raised here.
    Can we have your commitment that this investigation, if you 
are confirmed, you will pursue every lead vigorously, 
regardless of the political consequences?
    Mr. Comey. Absolutely, in this and all other 
investigations.
    Senator Cruz. Let us shift to a different topic, which is I 
have been concerned about the current administration's balance 
of the rights of law-abiding citizens on the one hand and the 
willingness to pursue serious terrorist threats on the other. 
And in my view, the balance has been wrong on the one hand, not 
fully respecting the constitutional rights of United States 
citizens, and on the other hand not vigorously going after 
radical Islamic terrorists and not acting to stop terrorism 
before it occurs.
    On the first piece, one of the aspects where I think the 
administration has been less than fully protective of the 
constitutional rights of U.S. citizens deals with drones. So I 
would like to ask your view as a lawyer, which is, do you 
believe that the Constitution allows the U.S. Government to use 
a drone to target with lethal force a U.S. citizen on U.S. soil 
if that individual does not pose an imminent threat?
    Mr. Comey. No, Senator.
    Senator Cruz. Thank you for that answer. I agree with that 
answer, and the current administration has not always been so 
forthcoming in providing that answer.
    I want to talk about the other half of the balance, 
stopping terrorism, because, ironically, I think although the 
administration has been willing to sweep law-abiding citizens 
into the ambit of surveillance, the administration and, 
unfortunately, the Bureau has been less than vigorous tracking 
down hard leads and intelligence. And we see in instance after 
instance, we see in Benghazi, where there were multiple reports 
about the need for additional security that were not followed 
up on.
    We see with the Boston bombing--the Boston bombing I think 
is a very distressing pattern where the U.S. Government dropped 
the ball. We had the Government of Russia that notified us 
directly about the concerns about the Tsarnaev brothers, that 
told us that he was a follower of radical Islam and they had 
fears of terrorist activity on his behalf.
    The Bureau interviewed him, interviewed his family, 
concluded they did not find any terrorist activity, and it 
appears dropped the ball after that. After that interview, we 
now know that he traveled to Chechnya without any apparent 
follow-up from the Bureau or other U.S. national securities. We 
know that in August 2012 he published a YouTube page with 
jihadist propaganda on it, and by all appearances, the Bureau 
missed that, law enforcement missed that. We know he was also 
affiliated with Abdurahman Alamoudi, who pleaded guilty to 
illegal transactions with the Libyan Government and a role in a 
conspiracy to assassinate Saudi Crown Prince Abdullah.
    And yet it appears with all of these warning signs, the 
Bureau did not follow up on the credible information it had 
and, tragically, because the dots were not connected, we saw a 
horrific bombing occur in Boston.
    Similarly, in Fort Hood--I was just in Fort Hood last 
week--the murder that occurred there, the FBI was aware that 
Major Hasan had been emailing with al Qaeda cleric Anwar al-
Awlaki, asking about the permissibility of killing his fellow 
soldiers. The FBI was aware of that. Major Hasan had made a 
presentation espousing jihadist views, and yet it appears in 
both of those instances the Bureau dropped the ball. And I have 
a real concern that fears of political correctness are----
    Chairman Leahy. I would advise the Senator that his time is 
up, and there is a vote on. Did you have a question here or 
just a speech?
    Senator Cruz. I did have a question, Mr. Chairman. I 
apologize for, when you gaveled, being a few seconds over. If I 
may ask the question? Do you share the concerns about the 
Bureau being either unwilling or unable to connect those dots 
and, as a result, to prevent terrorist attacks that have been 
carried out?
    Mr. Comey. I do not know enough from this vantage point, 
Senator, to comment on the particular cases. Obviously I think 
it is always important to connect the dots as best you can. But 
I do not know enough to give you a responsible answer at this 
point.
    Senator Cruz. Do we have your commitment that you would not 
let political correctness impede efforts to connect the dots 
and to prevent terrorism?
    Mr. Comey. Certainly.
    Chairman Leahy. Senator Franken.
    Senator Franken. Thank you. Mr. Comey, thank you for coming 
to my office yesterday. I enjoyed our conversation. You have 
had a very impressive career, and if you are confirmed, you 
have a hard act to follow. Bob Mueller is really amazing.
    We touched on a number of subjects yesterday when we 
talked, and one of them was the right of Americans, American 
citizens, to counsel. We talked about Jose Padilla, the 
American citizen who was accused and has since been convicted 
of providing material support to terrorists. He was arrested on 
American soil but was subsequently transferred, with your 
support, to military custody. While in military custody, Mr. 
Padilla went almost 2 years without having any access to an 
attorney.
    I abhor the beliefs and the actions of Mr. Padilla. He 
deserves to be punished. But I have to say that I was dismayed 
by the principle that an American can be detained in his own 
country for almost 2 years without having any contact with an 
attorney.
    I asked you this question in our meeting yesterday, and to 
be honest, I think that--I was not satisfied totally with your 
answer, so I just want to ask this head on. Do American 
citizens always have the right to talk to an attorney when they 
are detained by their own Government on American soil?
    Mr. Comey. I suppose one of the reasons you may not have 
been satisfied is I am not sure I was expert enough, or still 
am, to give you a really good answer to that. I think the 
answer is yes, except when that person is detained as a 
prisoner of war in an ongoing armed conflict; that as a 
prisoner of war, the person does not have a constitutional 
right to counsel. I think that was the position that the 
Justice Department took in Mr. Padilla's case, and so I think 
that is the position----
    Senator Franken. And who determines whether that person is 
a prisoner of war, an American citizen on American soil, is 
arrested on American soil, who makes that determination? And 
doesn't that person have--an American citizen now--have a right 
to an attorney to make the case that, ``I am not a prisoner of 
war''?
    Mr. Comey. Well, they certainly have a right to access to 
the courts, as was done in that case, to file a habeas corpus 
petition to challenge the President's decision and designation 
that that person is involved in an armed conflict with the 
United States. So that is a different question from whether 
they have a constitutional right to have a lawyer. I think the 
district judge in that case said that, as a matter of his 
ability to oversee habeas corpus petitions, he thought the 
person ought to have a lawyer to assist him in the preparation 
of that petition. I do not think the judge found he had a 
constitutional right to counsel.
    Senator Franken. Okay.
    Mr. Comey. And as you said, it is a one-off horrific case 
that was a very difficult one. So it is obviously not a settled 
area, because I do not know that it has ever happened other 
than Padilla's case.
    Senator Franken. Okay. Well, I want to move to the 
warrantless wiretaps. By the way, a number of my colleagues 
have remarked on your courageous act--Senator Schumer referred 
to it--coming to that hospital room, when you were Acting 
Attorney General, and I commend you for those actions.
    At the same time, last month the New York Times reported 
that you did not object to ``the key element of the Bush 
administration's program, the wiretapping of American citizens 
inside the United States without warrants.'' The Times reported 
in December 2005 that, under this program, the NSA could 
eavesdrop on up to 500 people in the U.S. at any time as long 
as one party to the call was abroad.
    According to a public letter from then-Attorney General 
Gonzales in 2007, the surveillance was subsequently approved by 
the FISA Court and, therefore, continued under the supervision 
of the Court, as it is now. But until then, this wiretapping 
program had not been reviewed by the Court.
    How do you respond to the Times' allegation that you did 
not object to this warrantless wiretapping program?
    Mr. Comey. I have to be cautious in the way I answer simply 
because I do not know what is still classified and not. I think 
a lot of the things that I was exposed to in that connection in 
2004 is still classified. I do not think the Times story is 
accurate. Maybe I should just leave it at that. I do not think 
it is accurate.
    Senator Franken. Can you say in what way it is accurate 
without----
    Mr. Comey. Maybe I can say, Senator, while I was Deputy 
Attorney General, the Office of Legal Counsel headed by Jack 
Goldsmith concluded that the President could lawfully, relying 
upon the Authorization for the Use of Military Force, target 
the international communications of members of al Qaeda and 
associated forces. And the Office of Legal Counsel issued a 
written legal opinion that that could be done, that targeted 
collection of content of international communications of al 
Qaeda members and associated forces.
    So I think that is public, but I do not want to get into 
what I objected to because I think it is different than that.
    Senator Franken. Okay. Let me move on to sleep deprivation. 
You talked about how sleep deprivation can be torture, and I 
think you said in combination with other methods. This is what 
the Bradbury memo says about sleep deprivation: ``In this 
method, the detainee is standing and is handcuffed, and the 
handcuffs are attached by a length of chain to the ceiling. The 
detainee's hands are shackled in front of his body, so that the 
detainee has approximately a 2- to 3-foot diameter of movement. 
The detainee's feet are shackled to a bolt in the floor.''
    The memo also says that the detainee wears diapers and that 
sleep deprivation can cause swelling in the lower extremities. 
The memo goes on to say that none of this amounts to torture, 
and it authorized sleep deprivation for up to 180 hours. That 
is 7\1/2\ days.
    That is torture, isn't it?
    Mr. Comey. That was my reaction, and I remember that 
description vividly, Senator. That is one of the things that 
led me to ask who are we as Americans, and we have to have that 
conversation about even if someone says it is effective, 
someone says it does not violate this vague statute, there is 
this third question that that description cries out for us to 
answer.
    Senator Franken. Okay. I am out of time, but I would say--
that was a memo that you approved. That was one of separate 
methods that was talked about in that one. That was the first 
Bradbury memo.
    Mr. Comey. Correct.
    Senator Franken. Thank you, Mr. Chairman, and thank you, 
Mr. Comey.
    Chairman Leahy. Thank you.
    I see Senator Hirono is back, and I will yield to her, and 
then Senator Blumenthal is on his way back. I am going to leave 
to vote. I will not be back as they finish up. It is not out of 
disinterest in your hearing, Mr. Comey. You and I have known 
each other for a long time. I also, though, just want to take a 
moment to compliment Mrs. Comey and all your children. Senators 
can kind of go in and out and check other notes and whisper 
back and forth, and I am sure they hear their father and 
husband a lot, and they have to stay riveted--riveted with 
interest on everything you are saying. And they are probably 
thinking, ``Wait until we get him home and tell him what we 
really think.'' But I do want to compliment your family.
    And I would say the same thing I said to Director Mueller 
and to Ann Mueller. It does mean a big sacrifice on the part of 
the family, and I just want you to know that those of us who 
spend time in Government realize that, and I compliment you on 
that, too.
    We will go to Senator Hirono, and then from her to Senator 
Blumenthal, and then after that, the Committee will stand in 
recess, and the record will be kept open until noon on Friday 
for further questions. Thank you.
    Senator Hirono [presiding]. Thank you very much, Mr. 
Chairman. I do apologize for having to leave the hearing, but I 
know that I am going to have an opportunity to chat with you 
further this afternoon, so thank you for that.
    I also apologize if some of the questions have already been 
covered by my colleagues. I note that the questions regarding 
waterboarding--and you acknowledged that while you had 
advocated--you were in disagreement on the use of waterboarding 
by CIA, but you were overruled in terms of your perspective, 
but now that potentially you would become the head of the FBI, 
the FBI does not utilize those forms of interrogation, and you 
would continue that policy, would you not?
    Mr. Comey. I absolutely would, Senator. The FBI does not 
use any abusive interrogation techniques, and if I were 
confirmed, the effort--that would stay the same.
    Senator Hirono. I think that is very important in the 
context of other agencies using some of these so-called 
enhanced interrogation techniques that we have an agency, the 
FBI, which will draw the line on the use of those kinds of 
techniques.
    There has been a lot of discussion around the surveillance 
programs and the collection of trillions, literally trillions 
millions of pieces of information in this program. So I wanted 
to ask you, regardless of the legality or constitutionality of 
a given surveillance program, do you believe that Government 
surveillance of U.S. citizens can go too far?
    Mr. Comey. I am certain that there are circumstances in 
which it could, Senator.
    Senator Hirono. It seems as though in a program where meta 
data, millions of pieces of information, where do we draw the 
line at going too far?
    Mr. Comey. Hard for me to answer from this vantage point. I 
do not know--I am a private citizen at this point. I do not 
know the details of the programs involving meta data, for 
example, that are going on now. I have watched testimony from 
this table by Director Mueller about, for example, the 
safeguards around the meta data collection, the oversight of 
Congress, the involvement of the FISA Court, the IG's 
involvement. All of those sounded reasonable to me from this 
distance, but I do not know enough to say at this point.
    Senator Hirono. Well, Director Mueller, when he testified, 
also said that the collection of this kind of information is 
very important. He used the description of ``connecting the 
dots,'' and you never know where that important connecting dot 
is going to come from, whether from the collection of millions 
of this kind of information or not. And if that is the answer, 
then if you start thinking about what the parameters may be, it 
seems as though there would not be any parameters because how 
could you define when that particular dot, critical dot of 
information, when that would arise? So that troubles a number 
of us.
    So I hope that you will give some thought to what the 
parameters might be, when can Government go too far in 
collecting data from millions and millions of U.S. citizens who 
have done nothing wrong.
    I think you also mentioned that you are engaged in--the FBI 
needs to now engage in a cultural change, acknowledging the 
threat to us from cyber threats. At the same time, though, the 
FBI has a very strong mission to go after white-collar and 
other criminals. So I think there might be some concerns in the 
law enforcement community as to where the FBI's priorities will 
be and what percentage of your mission will involve the kind of 
intelligence gathering versus the traditional crime-fighting 
role that the FBI undertakes.
    Where do you see that balance? You can respond in terms of 
the percentage of your resources that will go toward this new 
kind of crime versus the traditional white-collar and other 
kinds of crime.
    Mr. Comey. Thank you, Senator. I do not think I can 
responsibly be too specific from this vantage point. I know 
that it is essential that the FBI do both, be an intelligence 
agency and a counterterrorism agency and a counterespionage 
agency, and also address those vital criminal needs, especially 
things like public corruption and white-collar crime. But from 
this vantage point, I would hope to be confirmed and then to 
get into the job to understand what is going on now before I 
can make any prescriptions about how I would strike the 
balance. I know it is a constant challenge of Director Mueller, 
and I am sure it will be mine, but that is about all I could 
say from here.
    Senator Hirono. So should you get confirmed, then you would 
be responsive to questions that we would have that would follow 
up, and in your role as Director, should you be confirmed, you 
would be in a much better position to provide us with timely 
responses to these kinds of questions.
    Mr. Comey. Yes, Senator. If I am confirmed, I suspect you 
will see a lot of me.
    Senator Hirono. And you would make the commitment to do 
that?
    Mr. Comey. Yes.
    Senator Hirono. Thank you. I do not know if there have been 
questions relating to the civilian use of drones. That is a 
burgeoning area of concern for us. And with the expansion of 
civilian use of drones, do you have any security concerns about 
criminals of terrorists using drones to conduct surveillance of 
potential targets?
    Mr. Comey. I do. I know from just the time even as a 
private citizen reading about the increasing availability of 
drones, I watched what to me was a sobering video of someone 
who had put a firearm on a drone and fired it remotely while 
flying one of these cheaply acquired drones, a $100 drone. So 
it is certainly something that lies in our future, if not in 
our present.
    Senator Hirono. Do we already have laws that would allow 
the FBI to go after these kinds of use of drones?
    Mr. Comey. I think so, Senator, but I do not know enough to 
give you a definitive answer. That is something I would need to 
understand if I became the Director. But I think that the FBI 
has authorities that it can--for example, if someone tried to 
shoot someone using a drone, there would be firearms or 
attempted homicide statutes that could be available. I do not 
know if there are any that are specific to drones, though.
    Senator Hirono. I think that is another area that I would 
ask that you review, because when Director Mueller was here and 
I asked him other kinds of questions, he said that perhaps this 
is a good time for us to review whether or not we have very 
specific laws that address the use of drones by the civilian 
community, private use of drones.
    Mr. Comey. I will do that, and I will urge the Department 
of Justice to do it as well.
    Senator Hirono. Thank you. My time is up. Thank you.
    Senator Blumenthal [presiding]. Thank you for your patience 
and for your excellent testimony, and let me begin by thanking 
you for bringing Claire to the hearing today.
    [Laughter.]
    Senator Blumenthal. Just to embarrass her.
    As a father of a Claire--my daughter is named Claire--I am 
particularly partial to the name. So you can be me anytime you 
want, Claire.
    [Laughter.]
    Senator Blumenthal. And I want to just say that the fact 
that I am able to joke about one of your children I think 
reflects the very solid support and the lack of any need to, as 
they say, ``rehabilitate the witness.'' But I think that you 
have done an excellent job today, and I am looking forward to 
your confirmation.
    I do have a few questions, and first, beginning with one of 
the topics that has been covered today, the interrogation 
procedures and waterboarding and so forth, I take it not only 
that you would oppose the use of such enhanced interrogation 
like waterboarding or other forms of interrogation that could 
be regarded as torture, but also that you would use the FBI's 
resources to investigate those kinds of violations of law if 
you found reason to think they were occurring.
    Mr. Comey. Correct.
    Senator Blumenthal. And there is no question that you would 
oppose those kinds of procedures within the administration and 
recommend to the President that prosecution be undertaken if an 
official of the administration or the military or anyone in the 
Federal Government engaged in such practices.
    Mr. Comey. That is correct, Senator. I think that would be 
without lawful authority, so it would be a violation of law.
    Senator Blumenthal. Let me turn to another subject that is 
close to my heart and I think close to anyone who, like 
yourself, lives in Connecticut--gun violence. And the answer to 
this question may be self-evident, but I take it that you would 
support with great vigor and zeal the position of the 
administration in support of background checks, a ban in 
illegal trafficking, assault weapons, high-capacity magazines, 
in other words, the position and proposals of the 
administration to combat gun violence.
    Mr. Comey. Yes, Senator. I think you will find that I 
approach that just as Bob Mueller did.
    Senator Blumenthal. Thank you. And using the resources of 
the FBI to investigate violations of our gun laws, as you did 
in Virginia, not only for their own sake but also because so 
many of those gun violations are related to other kinds of 
crime, whether drug dealing or extortion, can you talk a little 
bit about the importance that you would bring to violations of 
our gun violence prevention laws as the Director of the FBI?
    Mr. Comey. Yes, Senator. I think in general the enforcement 
of those laws is essential to crime reduction, especially 
violent crime. I have always believed that a gun in the 
possession of a felon or a drug dealer or drug user is a 
homicide that has not happened yet. And so I think it is 
important that the Government as a whole approach that very 
aggressively.
    I think the FBI's role in addressing those particular 
offenses is more in the context of complex violent crime cases, 
gang cases, things of that sort, and the essential work on the 
possession and trafficking is more of an ATF responsibility. 
But I have a passion for this across the board, and I will 
ensure that we continue to do what Director Mueller has done, 
look at those seriously in the context of this complex gang 
case stuff.
    Senator Blumenthal. I welcome that passion. I think it is 
tremendously important because, as you know, one of the 
arguments made against the improvement of these kinds of laws 
is that not enough prosecutions are undertaken under existing 
laws, and I strongly support stronger and more frequent 
prosecutions under existing laws, even as we move forward to 
improve those laws. And I take it that you would agree.
    Mr. Comey. Yes.
    Senator Blumenthal. Let me turn to an area that I think is 
very important. You have addressed it in part. I circulated a 
letter yesterday to my colleagues on the issue of NSA 
surveillance, and in particular the FISA Court. And I take your 
point and agree with it that any Assistant United States 
Attorney or United States Attorney or Department of Justice 
official who in effect failed to respect a district court judge 
in seeking a warrant where there was no reasonable suspicion or 
probable cause to do so would soon lose credibility and would 
undermine not only his or her credibility but also the 
office's, and so would be rigorous, as you have been, and I 
think all of us are who have been Federal prosecutors in that 
ex parte process.
    But in the context of the Federal criminal procedure, there 
is ultimately a public proceeding when evidence is sought to be 
introduced in court, and there are challenges to admissibility 
and law is made in an adversarial process.
    There is no such adversarial process in the FISA Court, and 
so I propose that there be some special advocate, in effect a 
defender of constitutional principles, to make sure that the 
other side is heard, if there is another side. I support 
declassifying and disclosing some of the opinions and rulings 
where possible, and so I have joined in supporting the measure 
that Senator Schumer and Senator Durbin mentioned.
    But put aside the disclosure and declassification issue. 
Isn't there a role for the adversarial process in some form 
when law is made in the FISA Court, whether it is on the 
meaning of relevant or other kinds of key legal standards and 
criteria for the issuance of warrants or other kinds of means 
of surveillance, search, seizure, where constitutional 
protections of privacy and liberty are implicated.
    Mr. Comey. My honest answer is I do not know, but I think 
it is a very good question. I have not thought about it well 
enough to give you a good answer. I would hope that the 
Department of Justice would take seriously that kind of 
suggestion and think it through in a way that I cannot sitting 
here.
    Senator Blumenthal. Well, I welcome your receptiveness to 
thinking more seriously about some kind of adversarial process 
in the FISA Court so that, in effect, law is the result of 
litigation rather than simply fiat. And I know that that 
characterization may strike some as unfair, but I would hope to 
work with you and I hope you will work with me and other 
colleagues on trying to reform the FISA Court in that way.
    I also, by the way, think that you have raised a very 
important point that the American public does not fully 
understand the way the FISA Court works, has no inkling, in 
fact, in many ways of the way it works. And one of the aspects 
of the FISA Court unknown to a lot of people is that the Chief 
Justice acting alone appoints members of the Court. And I think 
strictly from an appearance standpoint, that could be regarded 
as raising questions about the accountability as well as the 
transparency of that procedure. There is no other court, 
specialized court, that operates in that way, and I understand 
that the FISA Court is different from the Court of Claims or 
other similar specialized courts where judges are appointed for 
a term of years with the advice and consent of the Senate. But 
I would invite your thinking about that issue as well. I 
recognize it may not be within your direct purview as the 
Director of the FBI, but I think in light of your experience as 
a Federal prosecutor and litigator, I would hope perhaps you 
would work with us on that issue as well.
    Mr. Comey. Okay.
    Senator Blumenthal. Finally, and maybe most important, I 
join you--I share with you a tremendous admiration and love for 
the FBI as an institution that has done great good for the 
country and has some of the most talented and dedicated public 
servants in America. And I wonder if you have given thought to 
how the FBI can continue to attract the very best talent, both 
women and men, to its ranks.
    Mr. Comey. Some, Senator; enough to know that it is 
something I am keen to learn about, and not just because I have 
four beautiful, talented daughters sitting behind me, but I 
know that diversity in all institutions, public and private, is 
essential to excellence. Especially if you are going to enforce 
the myriad of laws the FBI has to enforce, you have got to look 
like America. And so I am keen to know--and I know this is a 
passion of Bob Mueller's--how they are approaching that. As 
boring as it sounds for a chief executive, the two most 
important underlings I think are your head of H.R. and your 
head of technology. I am eager to learn how they are 
approaching recruitment, promoting, training people of all 
stripes. So from this vantage point, that is the best I can 
say, but I am sure you will hear more from me about it.
    Senator Blumenthal. I hope to hear more from you about it, 
and I hope that you will let us know whenever we can support or 
help you in that effort, because it is, in my view, with all 
humility, one of the most important tasks and challenges that 
you will have as Director of the FBI.
    Thank you very much, and, again, my thanks to you and your 
family. And I am going to ask Senator Coons now to ask whatever 
questions he may have.
    Senator Coons. Thank you. Thank you, Senator Blumenthal, 
and thank you, Mr. Comey. Thank you for your service to date to 
the people of the United States, and thank you for the task you 
are about to take on. I was moved by your comments earlier 
about Patrice, about the children you have raised together, and 
about the foster children you have cared for together, and I am 
grateful for your service. And I think the task you are about 
to take on as FBI Director is central to the security of the 
United States, to the enduring vitality of our constitutional 
liberties, and to the fate of our Nation. So this is a very 
important task, and I take this confirmation seriously as a 
result, and I appreciate how seriously you have taken it and 
the answers you have given so far.
    As many of my colleagues have noted previously, your record 
and prior service during the Bush administration gives you 
significant familiarity with and some responsibility for some 
very controversial decisions, in particular with regard to 
enhanced interrogation techniques. And in my view, in the last 
administration, legal opinions were improperly used to 
facilitate acts of what is now broadly understood to be 
torture. And I appreciate your answers previously in response 
to the Chairman and will rely on them in my support for your 
nomination. I think Americans will rely on you to defend their 
civil liberties in what are difficult times.
    Your prior involvement in also addressing the proper scope 
of surveillance authority is also deeply relevant once again, 
and here it is my hope you will be a force for openness and 
transparency as you have committed to this panel today. 
Particularly with regard to clarifying the legal rules of the 
road, as Senator Blumenthal was just saying, transparency and 
openness at this time in particular I think is essential to the 
role you will be undertaking.
    If I might then, could you comment on how you plan to 
address the current classification standards and whether you 
would consider loosening them? In response to Senator Durbin 
earlier, you said that transparency is a key value and that 
people would be better off if they knew more rather than less. 
How will you take an affirmative effort to ensure that 
classification is as minimal as is necessary?
    Mr. Comey. Thank you, Senator. First, as FBI Director, I 
would try to understand how are we approaching it at the FBI 
when the FBI is the classifying authority. I have a sense from 
my time in Government that there is a reflex to classify and to 
up the classification. But from this vantage point, I do not 
know how the Bureau is approaching that. And with respect to 
the broader questions, to the extent I am involved with those 
issues about FISA Court opinions or other opinions, I would 
simply be a voice, as I hope I was here, for the importance of 
the value of transparency, obviously balancing the other things 
I have to worry about. But in, for example, taking the FISA 
Court opinions, I think that is largely a question for the 
Director of National Intelligence, but I would be, I would 
hope, involved in discussions about that as the Director of the 
FBI. So I would bring with me that commitment to that value.
    Senator Coons. I think Director Mueller has laid out a long 
and important record on both of these issues, in particular on 
standing up against torture, and as well, standing for openness 
and transparency. And it is my hope you will continue in that 
tradition.
    You just mentioned, I think, to Senator Blumenthal that two 
of the most important folks you will be looking to are your 
head of H.R. and your head of technology. I am sure you are 
familiar with Director Mueller's assessment that the FBI is 
somewhat behind the curve when it comes to countering cyber 
crime, and a piece of that is not having the personnel needed. 
And in a time of sequestration, that may be particularly 
difficult.
    How do you plan to ensure the FBI catches up, is current, 
and is fully participatory in what I think is one of our most 
important fronts against crime?
    Mr. Comey. I agree very much that it is one of our most 
important fronts, and you spoke about being behind the curve, 
and it is a curve that is moving away from us at great speed. 
The first thing I intend to do is to understand what is going 
on now, what shortfalls there are. I come in with, I think, Bob 
Mueller's sense that this is a vital area to be addressed, and 
to understand where we are falling short, and then to make 
appropriate tradeoffs if I cannot get the money and resources 
or to shout to the heavens that I need the money and resources. 
From this vantage point, I do not know, but it will be 
something I will focus on very early.
    Senator Coons. One of the things I am concerned about and 
that we spoke about earlier is the amount of both 
counterfeiting that is coming out of the People's Republic of 
China--there was a report that Mark Turnage just put out 
suggesting 70 percent of counterfeit goods worldwide are of 
Chinese origin; 87 percent of seized goods in the United States 
are of Chinese origin. And there is a great deal of trade 
secret theft and of hacking, yet DOJ trade secret cases are 
relatively rare, between 10 and 20 a year over the last 5 
years.
    I was wondering what you think U.S. law enforcement could 
do to be a better partner with companies that are facing either 
loss of intellectual property or that have become victims of 
industrial espionage or hacking in some way or have lost trade 
secrets. How could we be better partners between U.S. law 
enforcement and the private sector in this area?
    Mr. Comey. I think key to working together better is 
talking more. I think that coordination, which I know the 
Bureau has been pushing, to understand the threats--I just 
spent 8 years in the private sector, two different companies, 
that were keenly focused on this threat of someone stealing 
their intellectual property. I think it is vitally important 
that Government and the private sector speak together very, 
very closely because the information about the threat often 
lies in our wonderful balkanized private enterprise system, but 
it is in those little pockets at all those companies. And so to 
be able to address it, especially on a global basis, the Bureau 
needs to find out what is going on in each of those pockets of 
industry, and that requires conversation, a lot of 
conversation.
    Senator Coons. Last question. I was responsible for a 
county police agency, and so I am particularly passionate about 
State and local law enforcement. As the Co-Chair of the Senate 
Law Enforcement Caucus, I am trying to encourage closer working 
relationships between Federal, State, and local law 
enforcement.
    In your own experience as U.S. Attorney and other roles in 
the Department, you have had some real exposure to how it works 
well when it works well and how it breaks down when it does 
not. Tell me something about your plans as FBI Director to 
fully engage with State and local law enforcement, particularly 
with regard to emerging threats like cyber crime or IP theft, 
as well as terrorism and other threats to our national 
security.
    Mr. Comey. I think most importantly I approach it with an 
understanding born of decades of experience that nobody can do 
it alone, that Federal, State, and local enforcers in a 
particular jurisdiction and across jurisdictions have to 
cooperate and work together. Especially true for the FBI, with 
so many things on its plate, it has to find the leverage to 
achieve its goals, and that leverage lies in the amazing people 
of State and local law enforcement.
    So I will understand better once I am in the job, if I am 
confirmed, but my long practice has been we have got to build 
those relationships.
    Senator Coons. Well, thank you. I appreciate your testimony 
today. I appreciate your willingness to serve. I note the 
visible relief on the faces of your family that this hearing is 
at last coming to an end.
    Senator Blumenthal, did you have the closing announcement 
to make, or should I?
    Senator Blumenthal. I am happy to close the hearing, and 
the record will remain open until Friday at noon. Seeing no 
other questions, this hearing is adjourned. Thank you very 
much.
    Mr. Comey. Thank you.
    [Whereupon, at 12:43 p.m., the Committee was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record

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 Questionnaire and Biographical Information of James B. Comey, Jr.



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            Prepared Statement of Chairman Patrick J. Leahy
            
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              Questions Submitted to James B. Comey, Jr.,
                      by Senator Dianne Feinstein
                      
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              Questions Submitted to James B. Comey, Jr.,
                         by Senator Al Franken
                         
                         
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              Questions Submitted to James B. Comey, Jr.,
                    by Ranking Member Chuck Grassley

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              Questions Submitted to James B. Comey, Jr.,
                        by Senator Amy Klobuchar

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              Questions Submitted to James B. Comey, Jr.,
                     by Senator Sheldon Whitehouse

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        Responses of James B. Comey, Jr., to Questions Submitted
                      by Senator Dianne Feinstein

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        Responses of James B. Comey, Jr., to Questions Submitted
                     by Senator Sheldon Whitehouse

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        Responses of James B. Comey, Jr., to Questions Submitted
                        by Senator Amy Klobuchar

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        Responses of James B. Comey, Jr., to Questions Submitted
                         by Senator Al Franken

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        Responses of James B. Comey, Jr., to Questions Submitted
                    by Ranking Member Chuck Grassley

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 Letters Received With Regard to the Nomination of James B. Comey, Jr.,
         To Be Director of the Federal Bureau of Investigation
         

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