[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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