    [Senate Hearing 113-888]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 113-888

                                OVERSIGHT OF THE
                        FEDERAL BUREAU OF INVESTIGATION

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  MAY 21, 2014

                                   __________

                              Serial No. J-113-61

                                   __________

             Printed for the use of the Committee on the Judiciary

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                         U.S. GOVERNMENT PUBLISHING OFFICE

    28-400 PDF                WASHINGTON : 2018

                             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

                                  ----------

                            MAY 21, 2014, 10:03 A.M.

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     2
        prepared statement...........................................    54
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
        prepared statement...........................................    52

                                    WITNESS

    Witness List.....................................................    35
    Comey, Hon. James B., Jr., Director, Federal Bureau of
      Investigation,
      U.S. Department of Justice, Washington, DC.....................     5
        prepared statement...........................................    36

                                   QUESTIONS

    Questions submitted to Hon. James B. Comey, Jr., by:
        Senator Blumenthal...........................................    69
        Senator Feinstein............................................    63
        Senator Flake................................................    85
        Senator Franken..............................................    68
        Senator Grassley.............................................    73
        Senator Leahy................................................    59

                                    ANSWERS

    Responses of Hon. James B. Comey, Jr., to questions submitted by:
        Senator Blumenthal...........................................   115
        Senator Feinstein............................................   100
        Senator Flake................................................   150
        Senator Franken..............................................   112
        Senator Grassley.............................................   121
        Senator Leahy................................................    87

                    MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    Acosta, Sergio, Former Assistant U.S. Attorney, Northern District
      of Illinois, et al., December 9, 2013, letter..................   161
    Association of Prosecuting Attorneys (APA), Washington, DC,
      November 25, 2013, letter......................................   159
    Barr, William P., Former U.S. Attorney General, et al., May 12,
      2014, letter...................................................   257
    Horowitz, Michael E., Inspector General, U.S. Department of
      Justice, Washington, DC, May 13, 2014, letter and documents--
      redacted.......................................................   199
    International Union of Police Associations, AFL-CIO (IUPA),
      Sarasota, Florida, December 9, 2013, letter....................   171
    Judicial Conference of the United States, Washington, DC,
      December 19, 2013, letter......................................   172
    United States Sentencing Commission, Washington, DC, November 26,
      2013, letter...................................................   184

                                OVERSIGHT OF THE
                        FEDERAL BUREAU OF INVESTIGATION

                                  ----------

                            WEDNESDAY, MAY 21, 2014

                                  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, Schumer, Durbin, Whitehouse,
    Klobuchar, Coons, Blumenthal, Grassley, Hatch, Sessions,
    Graham, Cornyn, Lee, Cruz, and Flake.

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

        Chairman Leahy. Good morning, everybody. Today the
    Judiciary Committee welcomes James Comey for his first
    appearance before this panel as Director of the Federal Bureau
    of Investigation.
        Director Comey, it is good to have you here. You have had a
    very busy time since your confirmation last year. And I
    remember you said last year at your confirmation hearing that
    your wife told you she did not think you were going to be
    chosen for this job. But now you are 8 months into the job, and
    I hope both you and she are happy with the choice.
        One of the challenges I have long observed is the FBI's
    need to balance its focus on counterterrorism with its
    commitment to longstanding law enforcement functions--the kind
    of law enforcement functions most of us grew up knowing. And,
    Director Comey, I urge you to make sure that the investigations
    and prosecutions are targeted and fair, and that respect for
    civil rights and civil liberties is upheld.
        A critical tool in successful and fair prosecutions is
    forensic evidence. Now, we see on reruns of ``Law and Order''
    that the DNA is automatically there and that solves the case.
    Well, as you know from your own experience in law enforcement,
    DNA analysis is not widely available, and its application does
    not solve the crime within the 60 minutes allotted to a
    television program.
        There are two bipartisan bills, the Justice for All
    Reauthorization Act and the Criminal Justice and Forensic
    Science Reform Act, that would help prosecutors identify and
    prosecute the guilty.
        While advanced technology presents the FBI with new
    opportunities to bring criminals to justice, it can also raise
    significant civil liberties challenges. Drones, for example,
    offer new capabilities as a domestic investigative tool, but
    they also raise some serious privacy concerns. And Vermonters
    remind me every day, especially on weekends like this past one
    when I was home, of my responsibility to ensure that we protect
    our national security and our civil liberties. I think,
    Director, from having known you for years, you believe in
    both--protecting our national security and our civil liberties.
        You are no stranger to this struggle. It was before this
    very Committee, in 2007, that you described a hospital bedside
    confrontation with senior White House officials who were urging
    an ailing Attorney General John Ashcroft to reauthorize an NSA
    surveillance program that the Justice Department had concluded
    was illegal. As Deputy Attorney General, you showed
    independence by standing firm against this attempt to
    circumvent the law.
        Right now Congress is still dealing with the surveillance
    programs begun during the last administration, including a bulk
    collection program that acquires Americans' phone records on an
    unprecedented scale. I am glad the House of Representatives is
    poised to act on a revised version of the USA FREEDOM Act. But
    I remain concerned that some important reforms in that Act were
    removed, and I hope you will work with me as the Senate takes
    up this important issue and also as we look at ways to address
    the critical cybersecurity concerns facing our Nation.
        Although we face many threats from abroad, the FBI has a
    key role in preventing and punishing extremist violence here at
    home. In 2009, I was proud to offer the Matthew Shepard and
    James Byrd, Jr., Hate Crimes Prevention Act as an amendment to
    the defense authorization bill. The FBI's implementation of
    that law has involved collaboration with the Anti-Defamation
    League to train State and local law enforcement agencies to
    protect the civil rights of all Americans, and I applaud the
    FBI for doing that.
        So I look forward to learning more about those efforts and
    other priorities of the Bureau during today's hearing. I thank
    Director Comey for joining us for his first oversight hearing.
    I thank the men and women who work hard every day to keep us
    safe.
        We can talk later, but you are also about to have in your
    training program one of the Capitol Police whom I have gotten
    to know because he has been part of the President Pro Tem
    protective detail, an excellent person.
        [The prepared statement of Chairman Leahy appears as a
    submission for the record.]
        With that, I will yield to Senator Grassley.

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

        Senator Grassley. Welcome to your first oversight hearing,
    and I know you have been in office 10 months, and obviously a
    lot of things I talk about precede your takeover, and my hope
    is that you can help us get to the bottom of some of these
    things.
        But, first of all, I thank you and your organization for
    helping us and protecting the American people from so many
    different threats.
        Unfortunately, I must start, as I often do when the FBI
    Director is before this body, by pointing out that it was only
    on Monday that we received answers to our questions for the
    record from our last FBI oversight hearing 11 months ago. In
    addition, the answers we received are marked current as of
    August 26, 2013, so that means they have been laying around the
    big black hole of the Justice Department after the FBI
    forwarded them, I presume for approval. And I do not know why
    it takes so long when the FBI had gotten them there on August
    26th that we just now received them.
        I told the Attorney General in January when he appeared for
    oversight without having responses to the previous year's
    hearing questions that that is not acceptable.
        In addition, when we met before Director Comey's
    confirmation, I provided the Director, the new Director, with a
    binder of all the letters and questions for the record still
    pending with his predecessor. The FBI has a pretty dismal
    record of responding to questions.
        I wish I could say that all of those unanswered issues have
    been fully dealt with, but they have not. However, I would like
    to commend Director Comey for recently beginning to make an
    effort to improve the FBI's level of communication with my
    office and, for that matter, I hope all offices that contact
    you. Ignoring my questions does not make them go away. They
    need to be answered fully and completely, and in good faith.
        Now, as we turn to FBI priorities, counterterrorism
    rightfully remains at the top. Since the September 11 attacks,
    the wall between intelligence and criminal cases has come down,
    and I think it is fair to say our country is safer as a result.
    Does more need to be done? I am not prepared to discuss that,
    but I assume that there can be improvement.
        I am glad Congress is now in the process of considering
    reforms to some of the national security legal authorities,
    even as the President keeps changing his view about what is
    needed to keep us safe. However, Director Comey pointed out in
    the press a few months ago that some of these reforms would
    actually make it harder for the FBI to do terrorism
    investigations than even bank fraud investigations. I hope we
    will have the opportunity to discuss that topic today. At least
    those types of reforms seem unwise.
        Of course, the threats to our Nation are broader than just
    terrorism. Cybercrime of all types is on the rise, as last
    week's events illustrate. I applaud the FBI's efforts to hold
    the Chinese Government accountable for stealing the trade
    secrets of U.S. companies and, consequently, American jobs.
        I also congratulate the FBI on its work to hold the
    developers of Blackshades accountable for unleashing a computer
    program that can steal users' passwords and files, as well as
    activate their webcams, all without that person's knowledge.
    Crimes are increasingly high-tech, and the tools available to
    the FBI to combat them must be as high-tech as well. In many
    cases, these tools have at least the potential for misuse that
    could jeopardize the privacy of innocent Americans.
        I hope to discuss the Department of Justice Inspector
    General's recommendation that the FBI develop special privacy
    guidelines concerning drones. I would also like to inquire
    about a proposal by the Department of Justice that would make
    it easier for the FBI to hack into computers for investigative
    purposes.
        Despite the FBI's external successes, I find its internal
    lack of cooperation with the Inspector General troubling.
    According to the Inspector General, the FBI has significantly
    delayed his office's work by refusing to turn over grand jury
    and wiretap information when he deems it necessary for one of
    his reviews. As you know, the Inspector General Act--it is very
    clear--authorizes the Inspector General to access these
    records.
        However, the Inspector General informed me just last week,
    and I quote, ``All of the Department's components provided . .
    . full access to the material sought, with the notable
    exception of the FBI.'' According to the IG, ``the FBI's
    position with respect to production of grand jury material . .
    . is a change from its longstanding practice.''
        As a fact, from 2001 through 2009, the FBI routinely
    provided this information to the Inspector General. So I would
    like to know why the FBI has been stonewalling the IG and what
    changed after 2009 to cutoff the flow of information from the
    FBI.
        In addition, I have questions about the status of the
    Justice Department's report on the FBI's whistleblower and
    anti-retaliation procedures. Nineteen months ago, President
    Obama issued a Presidential Directive related to the FBI's
    whistleblower procedures. It directed that the Attorney General
    produce a report within 6 months on how well the FBI follows
    its own whistleblower and anti-retaliation procedures. That
    report was also to examine the effectiveness of the procedures
    themselves and whether they could be improved.
        The AG's report is now more than a year overdue, which,
    once again, I have to say is unacceptable. The FBI is in dire
    need of an update to these provisions. For years, I have asked
    the Bureau about specific whistleblowers who came to my office,
    going back to Fred Whitehurst in the 1990s. Time and again, I
    have heard from whistleblowers that the FBI procedures are an
    ineffective protection against retaliation.
        When the Attorney General's report did not come out at the
    6-month mark, I also asked the Government Accountability Office
    to look at this same issue. The FBI needs to cooperate with the
    GAO on its review.
        Finally, as Director Comey points out in his testimony, the
    FBI is actively investigating wrongdoing and getting results
    every day. That is why it is so perplexing to hear nothing at
    all from the FBI concerning its investigation into the
    targeting of Tea Party groups by the Internal Revenue Service.
        It has been just about a year since that investigation was
    opened. I hope we will have the time today to talk about the
    status of that investigation.
        Thank you very much, Director Comey, for coming, and thank
    you, Mr. Chairman, for the hearing.
        [The prepared statement of Senator Grassley appears as a
    submission for the record.]
        Chairman Leahy. Thank you.
        Director Comey was sworn in as the seventh Director of the
    FBI on September 4, 2013. He has also served as Deputy Attorney
    General at the Department of Justice, as U.S. Attorney for the
    Southern District of New York.
        Director Comey, I am delighted to have you here.
        Please go ahead, sir.

            STATEMENT OF HON. JAMES B. COMEY, JR., DIRECTOR,
     FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE,
                             WASHINGTON, DC

        Director Comey. Thank you, Mr. Chairman, Senator Grassley,
    Senators. Let me start by thanking you for your support of the
    people of the FBI. When I became Director, one of the great
    stresses on the organization was the impact of sequestration,
    and especially the vacancies that was leaving around the
    country. And thanks to you, we now have the resources to rehire
    to fill those positions to be the national security and law
    enforcement organization that we need to be.
        Mr. Chairman, as you noted, national security remains our
    top priority, counterterrorism and counterintelligence, for
    reasons that make good sense. I want to start, though, today by
    offering just a few thoughts about cyber because it has been
    much in the news, and it is something that touches everything
    the FBI is responsible for.
        I try to explain to folks that cyber is not a thing, it is
    a vector; that is, because we as Americans have connected our
    entire lives to the Internet--it is where our children play, it
    is where our banking is, it is where our health care is, it is
    where our critical infrastructure is, it is where our Nation's
    secrets are, and soon it will be where your refrigerator is and
    where things you wear are and your car is. Because we have
    connected our whole lives there, the people who would do us
    harm in all aspects of our lives, that is where they come--for
    our children, for our secrets, for our money, for our
    identities, for our infrastructure. And so it cuts across every
    responsibility the FBI has.
        I was in Indiana recently, and someone was reminding me of
    the great vector change of the last century that changed the
    FBI, and it was the combination of asphalt and the automobile
    that introduced a new kind of crime to this country where
    criminals could travel very quickly great distances and do a
    lot of bad things in the same day. So it was very important to
    have a national resource to respond to that. I was reminded of
    it while the Hoosiers were talking to me about John Dillinger,
    and I said in response that John Dillinger could not do a
    thousand robberies in the same day in all 50 States in his
    pajamas halfway around the world.
        That is the challenge we now face with the Internet. It is
    a challenge that we in the FBI are trying very hard to respond
    to, to attract, retain, and train great people, to give them
    the technology they need, to build the relationships with the
    private sector that are vital to us respond to this threat, and
    to help our partners in State and local law enforcement get the
    training and equipment they need to respond because it touches
    all their responsibilities.
        You saw this week two of the products of that work that
    both illustrate the hard work being done and the scope of the
    challenge we face with the indictment of the five Chinese
    hackers and the charging of people all over the world in
    collaboration with 18 different law enforcement organizations.
    The challenge we face through cyber is that it blows away
    normal concepts of time and space and venue and requires us to
    shrink the world just the way the bad guys have. Both of these
    cases illustrate our commitment to reach around the world to
    make clear to people that we are not going to put up with this;
    that although this cyber neighborhood has become dangerous, we
    are going to treat these burglaries for what they are, we are
    going to treat them as seriously as we would someone kicking in
    your door to steal your stuff, to steal your ideas, to steal
    your identity. So we are working very, very hard to make sure
    that is a priority and that we work across the Government to
    respond to that.
        I will mention just briefly counterterrorism is something
    that I know this Committee knows very well. I continue to focus
    a great deal of attention on al Qaeda and especially the
    offspring of al Qaeda. Its progeny throughout the Middle East
    and Africa are virulent and bent on doing great harm to
    Americans abroad and here at home.
        I am particularly concerned about the confluence of that
    virulence among the progeny of al Qaeda and Syria, an
    opportunity that is attracting droves of jihadis to come to
    Syria to learn new things, build new relationships, and then
    most dangerously of all, at some point to flow out of Syria.
    There will be a terrorist diaspora out of Syria, and those of
    us--and I know everyone on this Committee remembers well the
    diaspora that we faced out of Afghanistan after the jihadi
    involvement with the Soviets there in the 1980s, a diaspora
    that you can connect directly to 9/11. We in law enforcement,
    national security, and the intelligence community are
    determined not to allow lines to be drawn between an outflow
    from Syria and future 9/11s.
        And, of course, one of the big changes that I have
    encountered coming back to Government after nearly a decade
    away is the emergence of the homegrown violent extremists in
    the United States, those people who can be inspired by al Qaeda
    to kill innocents without having to be directed because the
    Internet, again, offers them access to poisonous information
    both to inspire them and to tell them how to carry out the
    attacks they wish to carry out.
        In this forum I cannot say much about counterintelligence.
    It remains a huge part of our work, largely in the shadows. You
    saw a reflection of it, though, in the work we did to produce
    the indictments this week. Our counterintelligence mission
    remains at the forefront of our work, again, because we face
    nation states that are determined to steal our information and
    because they are able to do it through the vector that I
    mentioned.
        And, of course, as I said, we are a national security and
    law enforcement organization, a combination that makes very
    good sense to me. And so on the criminal side we are working
    public corruption and white-collar crime and protecting kids
    and fighting gangs and violence all over this country and all
    over the world to great effect.
        The last thing I will say is I worry a bit in the wake of
    recent disclosures and conversation over the last year about
    Government surveillance, that it is hard for me sometimes to
    find the space and time to talk about what I do and why I do
    it. I believe people should be suspicious of Government power.
    I am. I think this country was founded by people who were
    worried about Government power, and so they divided it among
    three branches.
        I think people should ask me: ``What are you doing and
    why?'' And I hope I can find the space and time to talk about
    it, to explain why I need the ability to execute lawful court
    orders to intercept communications, why, for example, I need
    the ability to track a bad guy through the cell phone, cell
    tower locations, because it helps me save children, rescue
    kidnap victims, and a number of other things.
        There is an angel in those details involving the courts and
    Congress and tremendous amounts of oversight and responsible
    use of authorities. It is hard for us sometimes in the current
    wind storm to find that space and time, but I am determined to
    do that.
        And let me close, again, just by thanking you. The magic of
    the FBI is its people. We do not have a lot of stuff. We do not
    have aircraft carriers, planes, satellites. We have got amazing
    folks working national security and criminal work all over this
    world 24 hours a day. That is the great joy of my work, to be
    able to see them and touch the work that they do. And I know
    you feel the same way, and we are very grateful for the
    support. And I look forward to answering your questions.
        [The prepared statement of Director Comey appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much. And listening to you,
    I was struck by a number of things that I would like to ask you
    that I can only ask when we are briefed on in classified
    sessions. And it may make sense not so much as a hearing, but
    it is just a general briefing, to find a time when you and
    those Senators on both sides of the aisle that are interested
    could meet in a secure room and go over some of these issues.
    Would you be open to that?
        Director Comey. I certainly would.
        Chairman Leahy. Thank you.
        Now, you also talked about cybersecurity, which is
    something that has worried me and others considerably. There is
    no question your example of a Dillinger today could be sitting
    offshore, in fact, and steal huge amounts of money.
        Earlier this week the Department of Justice indicted five
    Chinese military operatives for stealing trade secrets from
    American companies. Several of us were at the White House last
    night and discussed that, among other things. But the landmark
    case highlights the increasing threat that American businesses
    face from trade secret theft. We have seen the articles in the
    paper of everything from our steel companies to our high-tech
    companies.
        We are trying to figure out a way to improve our trade
    secret laws. Last week the Subcommittee on Crime and Terrorism
    held a hearing in which the FBI testified. Several of our
    Members, from both sides of the aisle, are working on a
    legislative proposal. Can you elaborate a little bit on your
    efforts to curb trade secret thefts? And tell us, the tools
    that you now have, are they adequate?
        Director Comey. Thank you, Mr. Chairman. Yes, I agree very
    much with what you said. We face an enormous challenge, which
    was illustrated well on Monday by the indictment of the five
    Chinese hackers, with a nation state engaging in theft. Why
    build it when you can steal it? And as I have learned both from
    my life in the private sector and from talking to the private
    sector in my time on this job, there are two kinds of big
    companies in the United States: those who have been hacked by
    the Chinese and those who do not yet know they have been hacked
    by the Chinese. So it is a problem that we are responding to
    with a lot of energy, working with a lot of partners across the
    Government.
        I think in terms of statutory tools, as far as I can tell,
    I have the authorities that I need. The challenge of these
    cases is they are very resource intensive; they require
    expertise and technology and training, which is why I stress
    that I am focusing on those things.
        Chairman Leahy. The Committee discussed at length the
    National Security Agency's use of Section 215. We actually had
    hearings on that, when we considered the USA PATRIOT Act. So
    putting aside NSA's use of Section 215, the national security
    letters that you can use are based on the same relevance
    standard in Section 215, but they do not require judicial
    approval.
        I would hope that national security letters are not being
    engaged in bulk collection. Can you confirm that the FBI does
    not use national security letters for bulk collections?
        Director Comey. Yes, sir, I can confirm that. We use them
    for the basic building block records of our most important
    investigations, counterintelligence and counterterrorism, but
    they are not used to collect records in bulk.
        Chairman Leahy. Do you have any intention of changing that
    and using them for bulk collections?
        Director Comey. None.
        Chairman Leahy. Thank you.
        I understand you are planning to move the FBI's Directorate
    of Intelligence out of the National Security Branch and give
    intelligence and analysis to the Bureau as a whole, not just
    national security investigators. The only question I raise,
    these intelligence investigations, as you know, are often
    broader in scope. They may rely on expansive data collection.
    And so I am concerned about whether there are privacy and civil
    liberty questions if you use the intelligence-based approach to
    all investigations. Traditional domestic crime fighting may not
    benefit from such a shift. You acknowledge the agency's focus
    on national security has meant that some newer agents have not
    developed the basic criminal investigation skills necessary for
    more traditional crime solving.
        So two steps. One, are you addressing civil liberties
    concerns in the process of this reorganization? And are you
    ensuring that this emphasis will not come at the expense of
    training agents to fulfill basic law enforcement?
        Director Comey. Yes, I can assure you of that on both
    counts. To start with the second piece first, I intend, now
    that I am able to hire new agents again, to ask--to direct that
    all new agents do criminal work at the beginning of their
    careers so they develop both the tools and techniques of law
    enforcement and also the mind-set. One of the great gifts of
    the FBI is that at our core is a respect for the rule of law
    and the Fourth Amendment and the Fifth Amendment and the Sixth
    Amendment. And there is nothing like criminal work to drive
    that into the fiber of an agent, so I intend to continue that.
        And absolutely, with respect to what I intend to do on the
    intelligence side, what I intend to do simply is just to make
    sure that we are using intelligence, whether it is criminal
    intelligence collected through interviewing informants or
    national security intelligence, in the appropriate way, with
    due regard, in fact, careful regard for civil liberties and the
    protections that we are so passionate about. To me, it is
    really about trying to make sure that my criminal investigators
    and my cyber investigators are being thoughtful and taking
    advantage of the same smart people and my intelligence analysts
    to be thoughtful about the work they do and to see what they
    might be missing in that work.
        Chairman Leahy. One last question, and I realize I have
    gone over time, but I mentioned this to Senator Grassley. Since
    9/11, Federal prosecutors have successfully convicted more than
    500 terrorism suspects in Article III courts. This week, Abu
    Hamza al-Masri was convicted in New York on terrorism charges.
    That is 500. We have had a small handful in our military
    commission system at Guantanamo, and that has been mired in all
    kinds of controversy.
        The concern that came to my attention last month that
    military commission defense lawyers that are defending somebody
    at Guantanamo alleged that FBI agents interviewed a defense
    security officer who was part of the legal team representing
    one of the September 11th defendants and asked them questions
    about the defense team. I have a very serious concern, whether
    it is there or anywhere else, that the FBI would try to recruit
    somebody on a defense team.
        Do you have anything you can tell me about this?
        Director Comey. It is a matter that I am aware of. I do not
    mean to hurt the feelings of my friends in the press, but their
    reporting is not always accurate. But----
        Chairman Leahy. No. Really?
        Director Comey. But because it is a pending matter, I
    cannot comment on it other than to assure you that we are being
    careful to make sure that the Commission, the judge in charge
    of the Commission is fully aware of the circumstances.
        Chairman Leahy. Okay. Well, let me suggest this: As this
    goes on, keep in touch with me, because--you were a prosecutor,
    I was a prosecutor. You know that if the prosecutor or any
    aspect of the prosecution team tried to infiltrate a defense
    team, that crosses a barrier that never should be crossed.
        Director Comey. The issue is one that I have dealt with
    throughout my career and take it as seriously as you do.
    Unfortunately, I cannot comment on the matter in particular.
        Chairman Leahy. Thank you.
        Chuck.
        Senator Grassley. The first issue I am going to bring up
    probably goes back a long time before you were Director, but it
    happens that just last month I was approached by several female
    whistleblowers from the FBI. Each previously worked as a
    supervisor in FBI offices where the rest of her colleagues were
    male. These women allege that they suffered gender
    discrimination after obtaining these positions and that they
    were retaliated against when they tried to report these abuses
    through the EEO process or other means.
        One whistleblower claims that she was disciplined for
    allegedly being ``emotionally unstable'' and ``unable to work
    with others'' because she pointed out that her men's size 40
    hazardous material suit did not fit her.
        Another whistleblower claims that she was denied a job for
    which she was ranked first out of six candidates because her
    male supervisors claimed that she was ``emotionally fragile''
    following a divorce.
        I am referring these whistleblowers to the Inspector
    General and asking him to determine whether these cases might
    be part of a pattern that the FBI needs to address.
        So a very general question that I do not expect a long
    answer to: Will you make sure that the FBI fully cooperates
    with any IG review and that there is no further retaliation as
    a result of these allegations?
        Director Comey. Yes, absolutely. I am not familiar with the
    allegations, but yes is the answer.
        Senator Grassley. My next question, I want to ask you about
    terrorism and FISA, and I ask it because you are someone with a
    history of rigorous questioning of the constitutionality of the
    Government's counterterrorism programs. So, Director Comey, in
    the debate over the reform of FISA, some are calling for
    changes to Section 702. This is the FISA provision that targets
    the electronic communications of foreigners outside the United
    States.
        How valuable is Section 702 to the FBI's counterterrorism
    mission? And do you have any concerns about whether it is legal
    and constitutional?
        Director Comey. It is extraordinarily valuable--and in this
    setting I cannot go beyond that--extraordinarily valuable to
    keeping the American people safe. And, second, I do not have
    concerns about its legality or constitutionality.
        Senator Grassley. My next question gets back to something I
    brought up in my testimony about the Inspector Generals Act
    that entitles that person to access to all Department records.
    That would be governmentwide. And then particularly relating to
    your Department, the PATRIOT Act requires the IG to review
    these records to ensure that the Department is not violating
    civil liberties of those being detained.
        So leading up to my question, last November the Inspector
    General testified at a Senate hearing that the Department of
    Justice impeded his access to grand jury and wiretap
    information. In March I requested documents concerning this
    dispute. Last week the Inspector General provided documents
    showing that the FBI resisted providing records even though six
    other components within the DOJ have provided access to records
    when requested.
        And, Mr. Chairman, I would like to have these IG things put
    in the record, if I could.
        Chairman Leahy. Without objection.
        [The information referred to appears as a submission for
    the record.]
        Senator Grassley. It seems clear, Mr. Comey, from these
    documents that the FBI's refusal to cooperate started around
    2010, obviously before you became Director. We do feel very
    strongly that from 2001 through 2009 the FBI provided the IG
    with routine access to these records. So I have three
    questions.
        Obviously, this predates your time, but do you know what
    prompted this policy change back in 2010?
        Director Comey. I do not. In fact, I am not even aware that
    there was a policy change at this point.
        Senator Grassley. Okay. Second question: According to the
    Inspector General's office, the FBI's refusal to cooperate
    delayed his office's access to key information about Operation
    Fast and Furious for about 14 months. So, just generally, do
    you think that kind of delay is consistent with the IG's legal
    right to have access to records?
        Director Comey. I do not know the particular, but on its
    face it strikes me as far too long. I meet on a regular basis
    with the Inspector General because I think what he does is
    very, very important for all of us. And I am not aware of that
    particular issue. I remember him raising an issue with me about
    that we were cumbersome in our approval process for producing
    records, and I have asked the new General Counsel to make that
    much faster. But I do not know enough to comment on the
    particular.
        Senator Grassley. Okay. Well, the bottom line here is I am
    hoping that you could commit that the FBI will stop
    stonewalling the Inspector General. And, again, I know you have
    only been there 10 months. You do not know why it was changed,
    if it was changed. I think it was changed. And we just need
    this kind of cooperation both from the standpoint of the
    general IG statute as well as the protection of people's rights
    under the PATRIOT Act.
        Director Comey. Yes, I can commit we are not going to do
    any stonewalling while I am Director. I can commit to you I
    will find out more about this so that I can follow up on that.
        Senator Grassley. Thank you.
        I have about 2 minutes left because the Chairman always
    gives me equal time. I understand that the Department of
    Justice is seeking to change the rules of criminal procedure to
    make it easier for the FBI to break into computers for
    evidence, especially in cases where the computer's physical
    location is unknown. I think that that is extraordinary power
    that I am not sure many Americans understand, and it creates
    concerns. I am at this point not saying it is wrong, but it
    ought to raise concerns.
        So could you explain what this change would mean for the
    FBI, why it is necessary, and what safeguards are in place to
    make sure that the FBI is not unlawfully intruding in computers
    of innocent Americans?
        Director Comey. Yes, Senator, thank you. I will do my best.
    The most important thing for folks to realize is that the
    proposed change to this rule of Federal criminal procedure has
    nothing to do with changing the standard the FBI must meet
    before it can get a court order, a warrant to be able to search
    a computer. It still requires us to make a showing under oath
    to establish probable cause to believe that that device
    contains the evidence of a crime. Nothing changes that bedrock
    protection, and nothing will. This is about which judge you
    have to go to. Given the nature of the challenge we face, as I
    said, that kind of does away with traditional notions of space
    and time, this is about trying to respond to the Internet
    threat by allowing judges in one jurisdiction to pass on that
    and to issue a warrant if the computer may not be in that
    jurisdiction at the time, may be in an adjoining jurisdiction.
        So it is simply about what is, frankly, an arcane question
    of venue and not about the substantive protection that is so
    important to the American people.
        Senator Grassley. My time is up, but I would like to ask--I
    am going to submit a question on the EB-5 program and the FBI's
    investigation of it and also on a report on the need for drone
    privacy guidelines. And I would appreciate it if maybe you
    could put these questions ahead of the others that the
    Department has not answered yet.
        Director Comey. Okay.
        [The questions of Senator Grassley appears as a submission
    for the record.]
        Senator Grassley. I yield.
        Senator Whitehouse [presiding]. Mr. Comey, welcome. Thank
    you very much for being here, and congratulations on a banner
    day for the FBI and the Department of Justice yesterday,
    between the Credit Suisse plea for facilitating tax cheating,
    the strong conviction of Abu Hamza in a Federal civilian court
    in New York City, and for the indictment of the Chinese Army
    officials, the PLA officials, on the cyber charges,
    particularly in light of the Blackshades takedown as well. Not
    every day is a great day in that line of work. Yesterday was a
    great day for you, for Attorney General Holder, for the Federal
    Bureau of Investigation, and for the Department of Justice. So
    congratulations to you, and congratulations particularly on the
    indictment of the Chinese military officials.
        As you know, I have repeatedly pestered and hectored
    Department of Justice and FBI witnesses about why the score was
    zero in terms of indictments on this issue while the
    administration was telling us that we were on the losing end of
    the biggest transfer of wealth through illicit means in
    history. And you have just put some very good points up on the
    board. There is predictable squawking from the Chinese that
    everybody spies on everybody and why should this be different.
    Could you explain why this is different?
        Director Comey. Yes, I have heard some of that same
    commentary, and I push back on the notion that this can somehow
    be dressed up as a national security matter. This is stealing,
    this is theft. This is not about one nation state trying to
    understand the actions of another nation state. This is about
    enterprise that does not have something, rather than building
    it, stealing it from somebody who devoted millions and millions
    of dollars to building it, and that employs lots and lots of
    people in this country to make those things. So rather than
    design it yourself or invent it yourself, it is being stolen.
    So to me, it is burglary. It is no different than if someone
    kicked in Alcoa's front door and marched out with file
    cabinets. It is the same thing.
        Senator Whitehouse. Thank you.
        The other question I have been pursuing is how well
    organized we are for this cyber effort, which, as you have
    said, is a new vector of danger for the American public, and
    that we need to be adaptive in responding to.
        You mentioned John Dillinger and the highway system
    provoking a change in the way we had to go at traditional
    crime, particularly the bank robberies that were the
    specialties of the gangsters of that era. It required more than
    just new attitudes. It actually required new structures. And
    you are now the head of one of those new structures, the
    Federal Bureau of Investigation that was stood up because
    highway patrols were being left at the State borders as
    Dillinger shot over the border and into another State.
        Similarly, when aviation came to the world as a new science
    and as a new industry, the military had to change its
    structure. What began as a subset of the Signal Corps of the
    United States Army ultimately grew into the United States Air
    Force, an institution we are very proud of.
        As I look at the Department of Justice and the FBI and I
    see CCIPS and CHIP, I see the National Security Division and
    Criminal, I see counterintelligence and criminal and cyber all
    working in this area, I appreciate the assurances that we have
    recently received--let me see if I can quote them here--that,
    ``To better manage its ability to address cyber threats, DOJ
    has integrated its activities, responsibilities, and functions
    focused on countering cyber threats into a cohesive effort that
    fuses DOJ's legal authorities, tools, and assets into
    coordinated action.'' That a little bit begs the question of
    whether we are structured right, and there is a group called
    the Department of Justice Cyber Advisory Council that the FBI
    serves on. I am interested in the question of how we should
    structure ourselves looking forward to this continued vector
    being a continued danger, whether that is a topic that is being
    analyzed and discussed by that Department of Justice Cyber
    Advisory Council.
        Director Comey. I do not think I can speak to the Council
    because I cannot remember, sitting here, the details of it. I
    know it is being discussed an awful lot throughout the
    Government, and especially by me, because I am trying to figure
    out, given that it touches everything I am responsible for,
    from protecting kids to protecting infrastructure and our
    secrets, am I deployed and organized in the right way? And the
    answer is I think so, but it is one that I do not know enough
    about to give you a high-confidence answer right now.
        Senator Whitehouse. And conceivably even a high-confidence
    answer right now would not be the right answer 5 years from now
    or 10 years from now.
        Director Comey. That is right. The most important thing we
    can do is the kind of thing we are trying to do at the National
    Cyber Task Force, which is to get everybody who is touching
    this threat together at a table to share information and to
    make sure we are reacting in the right way to the different
    dimensions of this threat coming through the cyber vector.
        Senator Whitehouse. Thank you.
        Next is Senator Cornyn.
        Senator Cornyn. Director Comey, thank you for your service
    to the country, and thank you for your commitment to cooperate
    with this Committee and Congress as part of our
    responsibilities to conduct oversight. And that has not always
    been the case with the administration, but I appreciate the
    approach that you bring to it.
        In your opening statement, you mentioned al Qaeda-inspired
    terrorism, and I know you are familiar, if not specifically,
    generally with the facts of the 2009 attack at Fort Hood,
    Texas, when Major Nidal Hasan shot and killed 13 people,
    injured a couple dozen-plus more. Do you agree with the
    intelligence community's assessment that Hasan was inspired by
    al Qaeda to conduct that attack?
        Director Comey. Yes, sir, based on everything I have read.
    Again, I was not in office at the time, but I have read about
    it since, and I do.
        Senator Cornyn. I appreciate that straightforward answer.
    It seems almost obvious, but for some reason people want to
    call it ``workplace violence'' or other things that just strike
    me as flat wrong and misleading and a little bit of Orwellian
    talk.
        Let me turn to the VA. I know we have all been shocked with
    the unfolding of revelations starting with, I guess, the
    Phoenix VA hospital with its secret waiting list that Senator
    Flake and Senator McCain have spoken out about their shock and
    dismay and concern.
        There is a story today in the newspaper that says that the
    number of veterans' facilities being investigated for problems
    has more than doubled now to 26. In other words, each day that
    goes by, it seems like there is another revelation: allegations
    of destroying evidence, perhaps these secret waiting lists,
    people dying because they have not received the treatment that
    they are entitled to.
        I know you agree with me that, to live up to our commitment
    to our Nation's veterans, we have got to do everything we can
    to get to the bottom of this and solve the systemic and perhaps
    cultural problems underlying the crisis. But to start with, we
    have got to get to the facts and get to the serious allegations
    and reports that have been made.
        The VA's Acting Inspector General testified last week that
    his office was cooperating with Federal prosecutors in Arizona
    and the Public Integrity Section of the Justice Department to
    determine if any of this conduct warrants criminal prosecution.
    However, the gravity and growing scope of these allegations
    demands the expertise of your agency, of the FBI, obviously has
    to be part of that.
        So let me just ask you--I would like to ask you three
    questions, and they are all related. So you can respond to each
    of them.
        Are you willing to support the VA Inspector General's
    investigation? What assets does the FBI have that can be
    brought to bear in a matter of this nature? And some
    whistleblowers have come forward to report that evidence is
    being destroyed at VA facilities in spite of a request from
    Congress and an order by the VA to preserve that evidence. What
    can the FBI do to make sure that the evidence is not destroyed
    and that it is preserved for an appropriate investigation and
    perhaps further proceedings?
        Director Comey. Thank you, Senator. As of this morning, the
    FBI has not been asked to assist in any part of that
    investigation. Obviously, if we were asked, either by the VA or
    the Justice Department, to assist, what we bring to bear are
    great people with experience in document-intensive, complex
    investigations. And as a former prosecutor and as Director of
    the FBI, I am always focused on making sure that evidence is
    preserved so there can be a fair evaluation of it. So
    destruction of evidence is something in a host of cases we take
    very seriously. But this particular matter we have not yet been
    asked to be involved with.
        Senator Cornyn. And who would that request come from? From
    the Attorney General or from the VA or from the President?
        Director Comey. In my experience, it would typically come
    from, in this case, the VA IG to my special agent in charge in
    Phoenix, would be the usual route, could come from prosecutors
    at the Department of Justice asking us to help. And, obviously,
    if we are asked, we will do everything we can to assist.
        Senator Cornyn. Well, I am sure you would agree with me we
    do not want to get too snarled up in the red tape and
    bureaucracy. The point is if you are asked by an appropriate
    authority, you will respond.
        Director Comey. Of course.
        Senator Cornyn. Thank you very much.
        Thank you, Mr. Chairman.
        Senator Coons [presiding]. Thank you, Senator Cornyn.
        Director Comey, thank you so much for your testimony today
    and welcome to your first oversight hearing with the Judiciary
    Committee.
        Upon your review of FBI operations after taking the helm in
    September, I would be interested in your findings regarding the
    partnership between the FBI and State and local law
    enforcement. As the Co-Chair of the Law Enforcement Caucus with
    Senator Blunt, I have focused some of our conversation and
    efforts on the vital and valuable partnership between the FBI
    and between Federal law enforcement more broadly and State and
    local, and you both in prepared testimony and in your work I
    think have highlighted those valuable areas.
        I would be interested in what you think are the most
    critical resources and programs that help advance that
    partnership and what you think we can do to better support that
    partnership with State and local law enforcement here in
    Congress.
        Director Comey. Great. Thank you, Senator. Yes, I agree
    very much the partnership we have with State and local law
    enforcement is vital to everything the FBI does and the
    country. There is nothing we do alone. That is one of the ways
    in which law enforcement has gotten so much better over my
    career. So from terrorism to protecting children to cyber, the
    task forces we have with State and locals are essential, and I
    have been making it my business in my 9 months on this job to
    travel the country and in I guess now about 30 different cities
    to speak to State and local law enforcement and say thank you,
    because we form these task forces and they give us their stars.
    Most people who do not know State and local law enforcement
    would think it might be like the expansion draft in football.
    You would cover your stars and send us people who are less than
    stars? No. They send us their stars. And so the partnership is
    vital across my responsibilities.
        One thing I am hearing about consistently is a crying need
    for digital literacy training, cyber training for State and
    local law enforcement. It used to be you would execute a search
    warrant and actually find paper in a drug case or an assault
    case. Now you find a thumb drive, an iPad, and some device.
    They need help in becoming better cyber investigators.
        So one of the things I am working on a lot is to try to get
    with the Secret Service, who does a terrific job on training,
    to see if we together can push training out to State and local
    law enforcement to help the 17,000 departments around the
    country whose folks are calling them for assistance and it
    needs digital literacy to respond.
        Senator Coons. Well, thank you. And, Director, as you work
    your way around the country, if the 30 cities grow to 40 or 50
    and Wilmington, Delaware, ever finds its way on to your list, I
    would be grateful. Federal law enforcement is playing an
    important role in helping us stand up an effective State and
    local response to what has been a dramatic increase in violent
    crime in my home community.
        I also want to applaud your focus on intellectual property
    theft and on trade secret theft, both in your spoken and
    written testimony. I want to applaud the Bureau for securing
    five indictments against Chinese actors that stole trade
    secrets from four companies and a union, and I do think it is
    important. This is the first pure cyber trade secret case
    brought by the Department. The scope of the threat is enormous,
    hundreds of billions of dollars lost a year. I would be
    interested in hearing from you how many agents are assigned to
    investigate trade secret theft and what you view as the
    challenges the FBI is facing in working effectively with other
    countries in prosecuting IP theft. And before you get to your
    answer, I simply want to thank Senator Hatch for his real
    leadership in cosponsoring with me the Defend Trade Secrets
    Act, which we welcome cosponsors to from this Committee.
        So if you would, Director, the number of agents and the
    challenges you are facing in working internationally to enforce
    trade secret theft.
        Director Comey. Yes, thank you, Senator. I think the number
    of agents that we have specifically designated as intellectual
    property/trade secret-focused is something between 50 and 100.
    I cannot remember the exact number here. But the number
    actually working this threat is much larger than this because
    it touches my counterintelligence responsibilities and the
    entire Cyber Division. So I have addressing this problem
    hundreds of people.
        The challenge we face is that the world is as small as a
    pinhead when you are facing a cyber challenge. Shanghai is next
    door to Wilmington on the Internet because the photon travels
    at the speed of light. So we need to get better at
    understanding that threat here in the United States, working
    well with each other, and building the relationships with
    foreign partners to get that done. Because the bad guys have
    shrunk the world, we have got to shrink the world, which is why
    I am looking to see if I can even expand the FBI's footprint
    internationally to put more cyber agents abroad to build those
    relationships, because the bad guys do not recognize the
    borders.
        Senator Coons. I think that is a great idea, and I look
    forward to working with you in close partnership. And I am
    grateful for the partnership of Senator Hatch, and I think that
    together, if we are able to pass our bill and if we are able to
    strengthen your resources, we can do a stronger job of
    defending America's innovation.
        Senator Hatch.
        Senator Whitehouse. Senator Sessions was next.
        Senator Coons. I am sorry. Senator Sessions was next.
    Forgive me.
        Senator Sessions. Thank you.
        Mr. Comey, you are a very talented and knowledgeable leader
    of the FBI, and we have to expect a lot of you. You know this
    business, and you know how to do it. And I think the complex
    cases that have been discussed today, you do deserve--you and
    the Bureau deserve credit for. The FBI is the greatest law
    enforcement agency I guess there is, certainly one of the best
    in the whole world. And I have known and respected agents for
    many, many years.
        But you are a national leader, and I am concerned about a
    few things, and I want you to get a little perspective here. I
    was very disappointed at a Wall Street Journal article May 20th
    in which you seem to make light of marijuana use by those who
    would like to work for the FBI. You say, ``I have to hire a
    great workforce to compete with those cybercriminals, and some
    of those kids want to smoke weed on the way to the interview.''
    You say you have got to loosen up your no-tolerance policy,
    which is just a 3-year--have not used marijuana in 3 years.
        Do you understand that that could be interpreted as one
    more example of leadership in America dismissing the
    seriousness of marijuana use and that could undermine our
    ability to convince young people not to go down a dangerous
    path?
        Director Comey. Very much, Senator. I am determined not to
    lose my sense of humor, but, unfortunately, there I was trying
    to be both serious and funny. I was asked a question by a guy
    who said, ``I have a great candidate for the FBI. His problem
    is he smoked marijuana within the last 5 years.'' And I said,
    ``I am not going to discuss a particular case but apply.'' And
    then I waxed philosophic and funny to say, look, one of our
    challenges that we face is getting a good workforce at the same
    time when young people's attitudes about marijuana and our
    States' attitudes about marijuana are leading more and more of
    them to try it.
        I am absolutely dead set against using marijuana. I do not
    want young people to use marijuana. It is against the law. We
    have a 3-year ban on marijuana. I did not say that I am going
    to change that ban. I said I have to grapple with the change in
    my work force. How do I reconcile my need----
        Senator Sessions. Well, I think that is--I appreciate that.
    I think you should understand your words can have ramifications
    out there. The American Medical Association just last October
    said, ``Heavy cannabis use in adolescents causes persistent
    impairments in neurocognitive performance and IQ, and use is
    associated with increased rates of anxiety, mood, and psychotic
    thought disorders.'' That is the AMA, and I think--and I am
    very concerned that the leak that was used against the
    Administrator of DEA who expressed some concerns about some of
    the policies emanating around the country and in the White
    House on drug enforcement was used to attack her and the DEA
    and even indicated they could close DEA or move it under your
    leadership into the FBI. That article said that.
        Did you have anything to do with that?
        Director Comey. No.
        Senator Sessions. Well, thank you. Some high official,
    according to the article, probably in the Department of
    Justice, attempted to attack her and discipline her, in my
    opinion, having watched these things for years.
        With regard to Senator Grassley's written question--and I
    have joined with him in a number of questions--about the
    D'Souza campaign contribution case, I see there was a
    conviction. He pled guilty to the account, I think, that it
    appeared from the beginning he probably violated. And he gave
    money to a campaign above the limits by moving money through
    other persons. I do not think he really ever fully denied that.
    Neither did his lawyer.
        But my question is--we would like some specific answers
    about that case, because looking at the data that we have seen
    from 2004 through 2006, not a single charge was made under that
    statute. And from 2007 to 2013, only 24 were charged under that
    statute, which roughly is about three a year over the last 7
    years. And this was--I have never seen his movie, but this was
    an individual known to challenge the President. There seemed to
    be no corrupt financial dealings involved in this contribution,
    and I want to know more about how he turned out to be the one
    that got charged.
        Did you personally review that indictment before it was--
    review the referral of that case for indictment before it
    occurred?
        Director Comey. No.
        Senator Sessions. Well, that was a pretty prominent public
    defendant. Wouldn't you normally know if your FBI is working on
    a case and going to bring that kind of indictment?
        Director Comey. No. I mean, not necessarily.
        Senator Sessions. Well, the Department--you are in the
    Department of Justice. You know the guidelines say you have to
    ask Washington's approval or even at the local level involving
    someone of high profile, don't you?
        Director Comey. I cannot remember exactly, but it is not
    about profile. It is about members of the media, elected
    officials, that sort of thing. My understanding is this fellow
    is----
        Senator Sessions. Well, I think it is high profile, too, if
    you read the Department of Justice thing.
        I also just will wrap up and say I am not of the belief
    that prosecution of fraud has increased, as you have indicated,
    by 65 percent of corporate cases. Bank embezzlements in 2009--
    --
        Chairman Leahy [presiding]. Senator, we can have another
    round if you would like.
        Senator Sessions. Thank you.
        Chairman Leahy. Senator Blumenthal.
        Senator Sessions. I will raise that. And I apologize, Mr.
    Chairman. You are right. You are right. I am over time.
        Chairman Leahy. It is okay, but we have some Senators who
    have to go to other hearings.
        Senator Sessions. Fair enough.
        Chairman Leahy. Senator Blumenthal.
        Senator Blumenthal. Thank you, Mr. Chairman, and my
    apologies, Senator Sessions.
        Thank you for being here, and thank you for your service to
    our Nation. Thank you also to your family and most particularly
    your wife for her service to our State of Connecticut. I do not
    know whether you or your family are still residents of
    Connecticut, but hopefully at least for a couple more months
    you will be, and thank you for the great work that you have
    done so far in your current position.
        You have one of the best jobs in the Nation not only
    because of its mission but because of the great people who work
    for you. And I want to thank them through you for all they do
    to keep our Nation safe.
        Focusing on the subject that was raised by Senator Cornyn,
    I have been dismayed and outraged by some of the revelations
    about the secret records, destruction of records, false
    statements. These are allegations now, but they may have caused
    injuries or deaths among our veterans in Phoenix and in more
    than 20 locations around the country.
        I know that you have not yet been asked, but would you
    agree with me that the alleged criminality that has been raised
    so far--I stress ``alleged''--would provide a predicate for FBI
    investigation?
        Director Comey. Senator, I do not know more about it beyond
    what I have read in the newspaper, so it is hard to say just
    based on newspaper accounts. It looks to be a significant
    matter, but, again, we have not been asked even to take a look
    at it, so I cannot say at this point.
        Senator Blumenthal. Would you agree with me that if there
    are credible and reliable indications of false statements to
    Federal officials, destruction of Federal records, obstruction
    of Federal investigation--all of them have been alleged, and
    they are publicly reported--that there would be sufficient
    predicate for an FBI investigation?
        Director Comey. Yes.
        Senator Blumenthal. I know that you have not been asked.
    Would your involvement depend on your being asked by either
    Department of Justice attorneys or by the Inspector General?
        Director Comey. Yes. In nearly every circumstance, if
    another agency or another IG is already looking at something,
    we will not jump on it without being asked to be involved by
    either the prosecutors or that agency.
        Senator Blumenthal. My view, for what it is worth, is that
    only the FBI has the resources, expertise, and authority to do
    the kind of prompt and effective investigation that is
    absolutely vital to restore and sustain the trust and
    confidence of the American public and our Nation's veterans,
    our Nation's heroes in the integrity of the Veterans
    Administration. So I will be making that view known to the
    Attorney General of the United States, already have informally
    and indirectly, and hope that you will be involved as Director
    of the FBI and that you will devote your personal attention to
    this matter.
        Director Comey. Thank you, Senator.
        Senator Blumenthal. Let me turn to another matter that I
    know is close to the heart of the administration, the
    President, and the Attorney General, which is gun violence in
    our country. The FBI is responsible for enforcing laws to try
    to make our Nation safer from gun violence. Would it be helpful
    to the FBI and investigation and prosecutorial duties to have a
    specific prohibition against illegal trafficking such as I and
    others have proposed?
        Director Comey. Illegal in trafficking in drugs--I mean
    guns?
        Senator Blumenthal. Of guns that are stolen or otherwise
    illegally possessed.
        Director Comey. I do not think I know--my reaction is a
    criminal prohibition on gun trafficking would be useful, but
    sitting here today, I am trying to remember. I think I have
    done cases involving straw purchasing and illegal transport and
    trafficking in guns under 922 series. So I guess I cannot
    answer it specifically sitting here.
        Senator Blumenthal. Enhanced penalties might be helpful
    to----
        Director Comey. Oh, I see. Yes.
        Senator Blumenthal. And I am sorry for the imprecise
    question. Let me just close, and my time is limited. I
    apologize. The National Instant Criminal Background Check
    System as well as the Uniform Crime Reporting System are both
    critically important sources of information, and I hope that
    they could be developed to provide more reliable and accurate
    data about gun violence that is involved in the commission of
    other crimes. Right now they are hampered by a lack of
    participation by local agencies as well as the breakdown of
    data within those systems. And I hope that perhaps the FBI can
    do more to make them more useful as sources of data on gun
    violence.
        Director Comey. Thank you, sir.
        Senator Blumenthal. Thank you.
        Thank you, Mr. Chairman.
        Chairman Leahy. Thank you.
        Senator Hatch.
        Senator Hatch. Well, thank you, Mr. Chairman.
        Mr. Comey, I am a big fan of yours and I always have been.
    You are a good man who has the ability and the capacity to be
    able to do what needs to be done in this area. But it is an
    overwhelming job, and we do not always provide you with the
    facilities and the capacity to be able to do it as well as I
    know you can do it. So let us know what we can to help you more
    in this work, because it is really important. And there is no
    bigger supporter than I of your organization.
        Your prepared testimony or statement identifies human
    trafficking as a priority issue. Now, trafficking victims often
    end up as prostitutes or part of the pornography trade,
    including child pornography. Last month the Supreme Court held
    that the current statute requiring restitution to victims is
    not suited for the kind of child pornography crimes that we see
    today.
        So 2 weeks ago, I introduced a bill to amend the
    restitution statute so that it works for child pornography
    victims. Seven other Members of this Committee on both sides of
    the aisle are among the cosponsors, and I hope more will join
    us. I hope that investigators, prosecutors, and judges will
    better understand the unique nature of the crime and the way it
    harms these young victims especially.
        With the Internet, that harm really literally never ends,
    and you have made a pretty good case here today of how
    complicated it is because of the Internet in so many areas of
    anti-crime.
        Do you see the connection between crimes such as
    trafficking in child pornography?
        Director Comey. Yes, sir, very much.
        Senator Hatch. Okay. The computer hacking collective called
    ``Anonymous'' is best known for denial-of-service attacks on
    Government, religious, and corporate websites. The collective
    announced last month a renewed effort to obtain and release
    personal identifying information of law enforcement officers.
    Now, since much of this information is legally accessible,
    targets of such hackers cannot prevent their personal
    information from being obtained by members of the public.
    However, the malicious actors can use such information to craft
    highly sophisticated computer attacks online and again through
    social media.
        How is the FBI addressing these types of cyber actors? You
    have approached it a little bit here today. I would just like
    to hear more.
        Director Comey. We see that kind of behavior. The trick for
    the bad guy is to get you--an email is like a knock on your
    door. The trick is for them to get you to open the door, and so
    they are trying to use false information about their identity,
    something they know about you to get you to click on a link and
    open the door and let them in. And so we see it in hactivist
    behavior, we see it in the Chinese cyber actors, we see it in
    criminals of all kinds are using that same effort to hijack an
    identity so that innocent people open the door and let them in.
    So it touches everything we do.
        Senator Hatch. I am sure you a following the current debate
    about sentencing reform, especially the push to lower sentences
    for drug offenders. Now, this was one of the issues addressed
    last month be DEA Administrator Michele Leonhart in a hearing
    before this Committee. And based on her personal background and
    law enforcement experience and her current leadership at the
    DEA, she said that mandatory minimum sentences ``have been very
    important to our investigations.''
        Then we received a letter last week opposing the Smarter
    Sentencing Act. Signatories included two former U.S. Attorneys
    General, two former U.S. Deputy Attorneys General, two
    Directors of the Office of National Drug Control Policy, three
    former DEA Administrators, and 21 former U.S. Attorneys. Now,
    the list includes officials from both Republicans and Democrats
    and from both Republican and Democrat administrations.
        Now, Mr. Chairman, I ask that that letter be placed in the
    record at this point.
        Chairman Leahy. Without objection.
        [The letter appears as a submission for the record.]
        Chairman Leahy. And I would also place in the record a
    rebuttal of criticisms about the Smarter Sentencing Act.
        Senator Hatch. Fine.
        [The information referred to appears as a submission for
    the record.]
        Senator Hatch. The letter states, ``We fear that lowering
    the minimums will make it harder for prosecutors to build cases
    against the leaders of narcotics organizations and gangs.''
        Now, you also served as Deputy Attorney General and U.S.
    Attorney. Do you agree with Administrator Leonhart and these
    former DOJ officials, or do you take another position?
        Director Comey. Similar to Michele, throughout my career as
    a prosecutor, mandatory minimums were an important tool both to
    incapacitate bad actors and, maybe as importantly, to develop
    information and create incentives to cooperate. And so I have
    used them extensively. They were a valuable tool.
        Senator Hatch. My time is up, Mr. Chairman.
        Chairman Leahy. Do you have any concern about the fact--and
    this is somewhat related--that if you are a lawyer,
    stockbroker, whatever, well respected, Wall Street or anywhere
    else, that Friday afternoons, regular routine where somebody
    comes in with their $200 worth of powder cocaine, and if you
    are caught, you are going to get a slap on the wrist--you are
    going to be told, ``My goodness gracious, terrible somebody so
    prominent as you doing that, we are going to give you a week
    doing some kind of public service, helping clean up the local
    park,'' or something? And if you are a kid, a minority in the
    inner city and you buy $200 worth of crack cocaine, you are
    going to get a mandatory minimum, you are going to go to
    prison, you are never going to get a job when you come out? Do
    you see any problem with that?
        Director Comey. It concerns me both because throughout my
    career I have been concerned about disparate treatment of
    people and people's perception that the criminal justice system
    is not fair. So I think it is important that both be taken very
    seriously.
        Chairman Leahy. Thank you.
        Senator Graham.
        Senator Graham. Thank you, Mr. Chairman.
        Thank you for coming today. I really appreciate the
    leadership you are providing to the FBI at a very difficult
    time.
        Are you familiar with the case of, I think, Abu Gaith, bin
    Laden's son-in-law?
        Director Comey. Abu Gaith, yes.
        Senator Graham. How long was he interrogated before he was
    read his Miranda rights?
        Director Comey. I do not know, sitting here, Senator.
        Senator Graham. Can you just get back with me on that?
        Director Comey. Yes.
        Senator Graham. Is it the policy of the Obama
    administration, as far as you know, to--do we have enemy
    combatant interrogations available to us as a Nation under the
    Law of War?
        Director Comey. Do we as a matter of law?
        Senator Graham. Well, as a matter of policy. I think as a
    matter of law, someone like him could be held as an enemy
    combatant. Do you agree with that?
        Director Comey. I do.
        Senator Graham. Did we choose to hold him as an enemy
    combatant?
        Director Comey. No.
        Senator Graham. Do you believe that one good way to
    prevent--to defend the Nation is intelligence gathering from
    high-value targets like this gentleman?
        Director Comey. Very much.
        Senator Graham. So I would just suggest to Attorney General
    Holder that we, in my view are abandoning enemy combatant
    interrogations under the Law of War which would allow you to
    gather intelligence because we are at war, and I hope we will
    reconsider that policy.
        Sequestration, very briefly, if we do not change
    sequestration, what will it do to the FBI?
        Director Comey. It will return us to where we were when I
    became Director, to being unable to fill vacancies, unable to
    train, unable to spend money on gas to go interview people. So
    it is a big problem for us.
        Senator Graham. It would really reduce your capabilities at
    a time when we need them the most. Would you agree with that?
        Director Comey. Yes, I would.
        Senator Graham. You mentioned Syria as a potential al Qaeda
    presence in Syria. Do you agree with Director Clapper that it
    represents a direct threat to the homeland, the al Qaeda safe
    haven in Syria?
        Director Comey. Yes.
        Senator Graham. Okay. Do we have a plan to deal with that
    as a Nation?
        Director Comey. Yes.
        Senator Graham. Is that classified?
        Director Comey. Yes.
        Senator Graham. Okay. I would like for you to brief me
    about that, because I think one of the likely next attacks is
    going to come from somebody who is trained in Syria.
        Chairman Leahy. Excuse me, and on my time. The Senator was
    not here earlier when Mr. Comey agreed to set up a time for a
    briefing, classified briefing.
        Senator Graham. Thank you. I think that will be very
    helpful to the Committee.
        On Benghazi, how close are we to catching someone who
    attacked our consulate in Benghazi?
        Director Comey. I am not in a position to say.
        Senator Graham. Okay.
        Director Comey. I know the answer, but I am not in a
    position to say.
        Senator Graham. Fair enough. Abu Khattala is widely known
    to be one of the ring leaders, and I do not know if you can say
    if he has been charged or not. But this person who we believe
    to be one of the ring leaders of the attack has been
    interviewed on CNN, Times of London, and Reuters in the
    Benghazi area. If the press can have access to this person, why
    can't we capture him?
        Director Comey. I am limited in what I can say about the
    matter, and as you said, I cannot----
        Senator Graham. Fair enough.
        Director Comey. Comment on the charges. Sometimes the
    media, international media, can get access to people easier
    than law enforcement or the military can.
        Senator Graham. Would someone like Sufian bin Qumu, a
    former GITMO detainee, who we believe is one of the respected
    members or maybe the founder of Ansar al-Sharia, would he be an
    enemy combatant in our eyes? Would Mr. Khattala fall into the
    category of enemy combatant?
        Director Comey. I do not think I can say at this point.
        Senator Graham. You can get back with me. Do you know if it
    is the policy of the United States to read them their Miranda
    rights if they are captured, or could we hold them as enemy
    combatants? If you could just get back with me on that and
    whether or not, if we found them, could we use a drone to take
    them out? I would like for you to comment on that at a more
    appropriate time.
        Do you believe that based on certain actions a U.S. citizen
    could become an enemy combatant under the Law of War?
        Director Comey. I do not think I am expert enough to answer
    that, sitting here.
        Senator Graham. Okay. Fair enough. If you could get back
    with me about that. My view is that they can. In every other
    war you have had Americans side with the enemy, and they have
    been treated as enemy----
        Director Comey. The reason for my hesitation is when I was
    Deputy Attorney General, I know there were at least one or two
    who were held under that authority. But I do not know the
    current state of the law on that.
        Senator Graham. That is good. That is fine. If you could
    just get back with me. I think these are big policy issues.
        [The information referred to appears as a submission for
    the record.]
        Senator Graham. Do you agree that homegrown terrorism is
    one of the things that keep you up at night?
        Director Comey. Yes.
        Senator Graham. And that the enemy is actively trying to
    penetrate our backyard, recruiting American citizens?
        Director Comey. Yes.
        Senator Graham. And an American citizen could be a very
    valuable asset to al Qaeda. Is that correct?
        Director Comey. Extremely.
        Senator Graham. Yes, and they are up to--they are trying to
    recruit people in our backyard, just like every enemy has.
        Very quickly, is General Petraeus still under investigation
    regarding classified information?
        Director Comey. That is something else I cannot comment on.
        Senator Graham. Okay. Thank you very much for your service,
    and I really appreciate what you are trying to do for the FBI
    at a very difficult time. All your agents out there who are
    fighting on multiple fronts, you do represent, in my view, the
    front lines of defense, so thank you.
        Director Comey. Thank you.
        Chairman Leahy. Thank you very much.
        Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chairman.
        Good to see you again, Director Comey. I still think of you
    as my law school classmate, but I will try to suspend belief,
    and I am very glad you are the Director and am pleased with the
    work you are doing.
        I know that you brought up human trafficking in your
    testimony. I was actually over chairing a hearing on retirement
    at the Joint Economic Committee, but I wanted to come over to
    ask you specifically about this. It is a horrendous crime that
    gets overlooked. It has been overlooked for too long, and I
    think we are finding some startling statistics in our own
    country where we have learned that 83 percent of the victims
    actually are from our own country. Of course, we still see
    women being trafficked in from other places, and predominantly
    Mexico, where I actually was a few weeks ago leading a trip
    with Senator Heitkamp and Cindy McCain, who has been very
    focused on this issue. And we met with your counterparts, with
    the Federal police, as well as the attorney general of Mexico,
    and others. And I know they are starting to engage in this
    issue and have passed some legislation and have worked with our
    law enforcement on some significant prosecutions in Atlanta and
    in New York.
        And I wanted to know what the FBI is focused on with this
    issue. I know there are some prosecutions that have been
    brought federally. You should know that Senator Cornyn and I
    are leading a bill, a version of which passed the House
    yesterday, along with four other sex-trafficking bills through
    the House after getting through their Committee there. And the
    bill that we have focuses on younger victims. Many of the
    victims--I think average age is 13--are under 18, and what the
    bill that I drafted does is create incentives for States to
    create safe harbors in their State law so they are not
    prosecuting the young victims. Instead, they are giving them
    help, but then also by doing that, getting them to testify
    against the johns and the pimps, which I think for too long we
    have been neglecting that part of the equation.
        And I wondered if you would comment on this issue when we
    are seeing prosecutions in places like the North Dakota oil
    patch, which I know is Federal prosecution, and other places,
    what you see as trends and what you think is how we should best
    deal with it. Thank you.
        Director Comey. Thank you, Senator. As you said, this is a
    scourge that has many, many dimensions to it involving
    children, people trafficked within the United States, people
    trafficked by drug-trafficking organizations, Americans
    traveling overseas with so-called sex tourism. And so we are
    attacking it through our Civil Rights Program, through Violent
    Crimes Against Children Program. We are in about 100 task
    forces and working groups around the country to try and send
    the messages you just talked about, especially that being a
    pimp or exploiter of these--of young people or women in sex
    trafficking is a very, very serious offense, and we have got to
    bang these people hard. It is not just some social nuisance
    type offense. We have got to treat the victims for what they
    are, which is victims, and get them help and elicit their help
    in trying to prosecute the pimps and the exploiters.
        And so it touches across a wide spectrum of our work in all
    56 field offices, and it is something we take very seriously.
        Senator Klobuchar. Thank you very much. I also wanted to
    thank you--I know you have been of help in some cases in
    Minnesota, and also of help in a major drug bust that we had in
    our State involving heroin. We have a new U.S. Attorney now
    that Todd Jones is head of our ATF, and he has taken this on,
    working with law enforcement, primarily DEA but also local law
    enforcement and, of course, the FBI. I wanted to thank you for
    that and just ask you, knowing that DEA is primarily
    responsible for this, but what you see in terms of the heroin
    increases, another subject we talked a lot about in Mexico and
    the correlation with prescription drug abuse and those kinds of
    cases as well.
        Director Comey. Thank you, Senator. I hear about it
    everywhere I go. I have been to 27 of our field offices, and I
    am going to visit the rest before the end of the year, and I
    will be in Minneapolis in just a few weeks.
        Everywhere I go, State and local law enforcement raise this
    question with me, and I have seen analysis from the
    intelligence community and DEA that the country is awash in
    highly pure, cheap heroin that is crowding out the traditional
    pill abuse, in some places methamphetamine, with deadly
    consequences. Overdoses are up explosively around the country.
        So as you said, it is a DEA lead from the Federal level,
    but I have told all of my SACs across the country, ``Ask what
    you can do. Taxpayers pay our salaries. If we have resources or
    technology or something we can contribute to this fight, let us
    contribute to it.''
        Senator Klobuchar. Well, I appreciate that. And, again,
    with U.S. Attorney Luger and the coordinated work that when on
    on the Federal side, it was quite an impressive day, and a
    number of drug busts, and I think it sends a clear message
    where our State is on this issue. And we appreciate the help
    that you gave.
        The last thing that I wanted to mention is just that I am
    going to the floor, I hope today, to continue pursuing my
    effort with Senator Graham and Senator Hoeven and Senator
    Schumer to get a Federal metal theft bill passed. I think I
    have raised this with you in the past, but we are again seeing
    metal theft spreading throughout our country because of the
    price of copper and other precious metals. Veterans' graves,
    the stars on veterans' graves, as we approach Memorial Day,
    electric companies broken into many, many times. We have seen
    houses explode because people go in and steal the pipe. And all
    this bill does--I assume most scrap metal dealers are honest
    people that are doing good work, but all this bill does is take
    what many States have done and says that you have to write a
    check if you are going to get scrap metal for over a hundred
    bucks, and that way it is easier for law enforcement on either
    the local or Federal basis to track down who these people are
    and so we do not have a situation like we have now where they
    are stealing metal in Minnesota, because we have stricter laws,
    and then bringing it somewhere else to sell it.
        And we have not seen a decrease in the number of thefts,
    and we believe part of this is that this is a Federal and a
    national issue. And I just wanted to again raise it to your
    attention and to continue to have you watch over these cases. I
    think at some point we are going to have some major break into
    Federal infrastructure, and then maybe everyone will look back
    and wonder why they were listening to the scrap metal dealers
    instead of every law enforcement group in our country and every
    single business that deals, from beer wholesalers and
    distribution--because the kegs are being stolen--to veterans
    groups, to the electric companies who are getting broken into
    all the time.
        That is my last speech on this for now, but I am sure you
    will hear about it again. Thank you very much.
        Director Comey. Thank you, Senator.
        Chairman Leahy. Senator Lee.
        Senator Lee. Thank you, Mr. Chairman, and thank you, Mr.
    Comey, for being here and for your service on behalf of our
    country. What you do is very important and affects a lot of
    Americans, and I believe there is a lot that you do that
    protects a lot of Americans from harm.
        I want to talk to you for a minute about the Electronic
    Communications Privacy Act. This is a law that, as you know,
    was enacted in 1986. There are some interesting ramifications
    that this law has. It is something of an anachronism in our
    legal system in the sense that it allows the Government to
    access the contents of email once a particular email has
    ripened to the age of 180 days old.
        Now, this was in 1986. I think I was in ninth grade at the
    time it was enacted. I do not think I had ever even heard the
    word ``email.'' I do not think most Americans had. It was a
    transitory form of communication. It was not a means by which
    anyone stored information at the time. People primarily
    communicated through it and then deleted the email, or if they
    wanted to keep it, they would print it off. A paper record
    perhaps would be--would have certainly been treated
    differently, but the electronic remnant of the email itself
    would be subject to subpoena by the Government and could be
    obtained, the content of it could be obtained without a warrant
    once it ripened to the age of 180 days old.
        I do not think too many people raised or even had or even
    imagined too many concerns with it at the time, partly because
    most people had never even heard of email. There was no such
    thing as cloud computing, at least nothing like what we know
    now.
        But nowadays, of course, people communicate a lot of
    information by email. They transmit a lot of information into
    the cloud, and we live in a different world in which I think
    there is a reasonable expectation of privacy and one in which
    most Americans would not draw a real distinction between their
    expectation of privacy in their papers, houses, effects, and
    persons on the one hand, and their email on the other. Most
    people would probably consider their emails to be part of their
    papers or part of their effects.
        So to that end, recognizing this anachronism in the law,
    recognizing the potential for abuse, my friend Chairman Leahy
    and I have introduced legislation, the ECPA Amendments Act, S.
    607, that would get rid of this anachronism in the law and that
    would require the Government to obtain a warrant before it
    wants to go after someone's email, would not allow them to
    access it by means of a subpoena simply because it was 180 days
    old.
        There is a report that was released just a few weeks ago by
    the White House calling for updates to ECPA, and it recognized
    the increasing role of technology in our private
    communications. And it suggested that, ``email, text messages,
    and the cloud should receive commensurate protections.''
        So I would like to ask you, What is the FBI's current
    policy and practice regarding the use of subpoenas to go after
    the contents of email and cloud storage?
        Director Comey. Thank you, Senator. We do not do it, is my
    understanding. We treat it as I believe it is, which is
    information which people have a reasonable expectation of
    privacy, and so we obtain a warrant without regard to its age.
    That is our policy. The statute may be outdated, but I think we
    are doing it in the right way.
        Senator Lee. Okay. So to your knowledge, there are no
    circumstances in which the FBI would choose to take the
    subpoena route even though they could read ECPA to allow that?
        Director Comey. I think that is right. I think our
    procedures require by policy we obtain a probable cause-based
    warrant from a judge to get that content of an email, no matter
    how old it is, from the storage facility. If I am wrong, I
    will--I do not sit here knowing I am wrong, and I will correct
    it, but I am pretty sure that is our policy.
        Senator Lee. Okay. Would you see any distinction between
    how you would treat email and how you would treat something on
    the cloud or text messages or anything like that?
        Director Comey. No.
        Senator Lee. So you are not aware of any reason why--you
    are not aware of any instance in which the FBI uses subpoenas
    to go after data on the cloud?
        Director Comey. I am not aware of any. I think we treat it
    like the content--whether it is in email form or text form or
    cloud form, the stored content of a communication is something
    we treat through a warrant if we have the basis to get it.
        Senator Lee. Okay. I see that my time has expired. I have
    got more questions that I would like to ask you about, and
    perhaps we will communicate those in writing. I would like to
    echo, among other things, the concern raised by Senator
    Sessions regarding the Dinesh D'Souza case. Anytime something
    like this, something that is ordinarily not prosecuted as a
    primary offense, happens to be brought against a very vocal
    critic of the current administration, obviously that raises
    eyebrows, and a lot of us have questions about whether the
    appropriate levels of approval were requested from Washington
    and to what degree Washington was involved in that decision.
        Chairman Leahy. Thank you.
        Senator Lee. Thank you very much, Director Comey, and thank
    you, Mr. Chairman.
        Director Comey. Thank you, Senator.
        Chairman Leahy. Senator Durbin.
        Senator Durbin. Thank you, Mr. Chairman. Director Comey,
    thanks for coming. I am sorry I came a little late. We had a
    hearing in my Defense Subcommittee at the same time.
        I understand Senator Hatch raised the issue of sentencing.
        Director Comey. Yes.
        Senator Durbin. And I would like to ask for a couple
    observations or comments from you on this subject. Senator Lee
    and I have cosponsored a bipartisan bill called ``The Smarter
    Sentencing Act.'' It is in response to the fact that over the
    last 30 years we have seen a 500-percent increase in Federal
    incarceration, an 1,100-percent increase in cost. We are now
    estimating our Federal prisons are 40 percent overcrowded. We,
    unfortunately, as we pay more for incarceration, have fewer
    dollars for law enforcement, prevention, treatment of drug
    addiction. We, sadly, have the highest rate of incarceration of
    any country on Earth. And what we are trying to address is the
    question of making the individual decision.
        The bill that Senator Lee and I have introduced, which has
    passed out of this Committee, does not eliminate mandatory
    minimums. In fact, for all crimes it maintains the top level in
    terms of mandatory minimum. For a specified category of
    crimes--drug offenses not involving violence, guns, or gangs--
    we reduce the low end of the mandatory minimum to give
    discretion to the judge. We think that this is a way to address
    a body of offenses which are not a serious violent threat to
    America, but need to be dealt with in a much more specific and
    personal way.
        Again, it is within the discretion of the judge to impose
    the sentence, and neither Senator Lee nor any of us who
    cosponsor this want to in any way lessen our concern about
    drugs in our society. But we want to try to do this, as we say
    in the bill, with a smart approach.
        What is your response to that kind of approach?
        Director Comey. Thank you, Senator. And I did not mean by
    my answer to Senator Hatch to be criticizing any particular
    piece of legislation. He asked me whether mandatory minimums
    had been a valuable tool in my career, and the answer is yes. I
    do not have a particular view on what the exact mandatory
    should be and what the incentives that will flow from that will
    be.
        What you are saying makes sense to me in principle. I think
    it is always important to look at our justice system and say,
    ``Can we be smarter about the way we approach things without
    watering down the deterrent effect that is the benefit of the
    work we do?''
        Senator Durbin. One of the aspects of the bill addresses an
    issue which I plead congressional guilt when it comes to, and
    that was the decision to increase the Sentencing Guidelines on
    crack cocaine over powder cocaine 100:1. At the time we did it,
    it was a full-scale congressional panic over the arrival of
    this new, cheap, on-the-street, addictive narcotic that
    destroyed lives and babies that mothers were carrying. And we
    said, ``Hit it, and hit it hard.'' And we did, with 100:1
    disparity between powder cocaine and crack cocaine. Whether it
    should be 100:1--which I do not think it should--or 1:1--which
    I happen to endorse--we have reached a congressional compromise
    at 18:1. Our bill addresses the 8,800 people still serving
    prison sentences under the old 100:1 Sentencing Guidelines for
    crack cocaine, but it does not treat them as a class. It only
    allows each individual to petition for reconsideration of their
    sentencing.
        I had a man in my office yesterday. At the age of 17, in
    Rockford, Illinois, he was convicted of drug conspiracy and
    sentenced to a life sentence plus 10 years. He served over 20
    years in the Federal prison system, average cost $29,000 a
    year, before he sentence was commuted by President Obama. It is
    an example of a serious mistake made by a teenager, paid for
    with a major part of his life.
        What is your thought about those still serving under the
    100:1 guideline?
        Director Comey. I do not think I have thought about it
    carefully enough to offer you a good answer, again, because
    drug enforcement is not a big focus of the job I am in now. As
    I said, I think as prosecutors and as investigators, it is
    always important we look back and try to see are there ways to
    do the things we have done better and smarter. But that is
    really all I have at this point.
        Senator Durbin. Last question. Your predecessor and I
    worked for years on something that came as a shock to me. On 9/
    11, the Federal Bureau of Investigation computer system, as it
    was, was totally inadequate, did not have access to the
    Internet, did not have ways to reference and search, and had no
    capacity to transmit documents or photographs online. When the
    suspects from 9/11 were identified, photographs of those
    suspects were sent to the FBI offices in overnight mail, could
    not be sent by the computer system. Your predecessor labored
    long and hard to bring that computer system into the 20th
    century, let alone 21st century. Where are you today?
        Director Comey. Thank you, Senator. One of the many gifts I
    inherited from Bob Mueller is the investment in that kind of
    thing, that technology. We are dramatically better. I worked on
    the 9/11 investigation as an Assistant U.S. Attorney in
    Virginia, so I know what you are talking about, so thank you
    for the support of that.
        We have made great progress. We are not good enough yet.
    And the bad guys are investing in technology. We have got to
    keep up with them. So I have got to attract great people, and I
    have got to equip them and train them on the best stuff. We
    have made great strides, but the legacy of neglecting it for so
    long is we are not as good as we need to be yet.
        Senator Durbin. Thanks, Director. Thanks, Mr. Chairman.
        Chairman Leahy. I remember that time very well. In fact, I
    made an offer to the FBI, instead of having to ship these
    things, my 12-year-old neighbor could email them, and that
    would be helpful. And I am glad there have been improvements
    since then.
        Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman.
        Mr. Comey, welcome. Thank you for your service. I want to
    talk to you about the IRS targeting of American citizens and
    what I view as a persistent stonewalling from the
    administration on this matter.
        It has been 372 days, just over a year, since President
    Obama and Attorney General Holder both publicly stated that
    they were outraged at the IRS' improper targeting of
    conservative groups and individuals. Indeed, President Obama
    said at the time he was angry and the American people have a
    right to be angry. Well, if he was telling the truth that the
    American people had a right to be angry 372 days ago, the
    stonewalling and lack of action that has occurred for over a
    year gives the American people a right to be even more than
    angry.
        One year ago tomorrow, Lois Lerner, the senior official who
    led this targeting, pleaded the Fifth in front of the House of
    Representatives. And yet, despite the passage of time, very
    little has happened.
        Nearly a year ago, when you were before this Committee for
    your confirmation, I asked you about this investigation, and
    you stated at the time it was ``a very high priority'' for the
    FBI. I would like to ask you, to date, how many victims or
    alleged victims of improper targeting have been interviewed by
    the FBI?
        Director Comey. Thank you, Senator. Because it is a pending
    investigation--and my description of it 10 months ago remains
    accurate and a great deal of work has been done by the FBI, but
    because it is pending I cannot talk about the particulars of
    the interviews we have done.
        Senator Cruz. Have you interviewed more or less than ten
    alleged victims?
        Director Comey. I cannot say, sir.
        Senator Cruz. Well, you could say. That has been the
    consistent answer of the administration. I can tell you the
    victims of the targeting keep telling us they have not been
    interviewed. And the answer--the pattern we see, when the
    President of the United States stands up and says, ``The
    American people have a right to be angry,'' one, we have a
    reason to expect that an investigation will be thorough and
    there will be some accountability. The answer for over a year
    from the FBI and Justice has been, ``It is a pending
    investigation, and we will tell you nothing about it.''
        Let me ask you a second question. In over a year has a
    single person been indicted?
        Director Comey. I guess I could answer that because it
    would be public. There have been no indictments.
        Senator Cruz. There have been no indictments.
        Now, you also pledged, sitting in that chair, to personally
    lead vigorously this investigation, personally, regardless of
    the political consequences. Look, I understand you have a
    difficult job. There is a reason your job has a 10-year tenure:
    to give your position meaningful independence from the
    pressures of politics. Can you tell this Committee, to date,
    how many White House employees the FBI has interviewed in this
    investigation?
        Director Comey. And for the reasons I said, I cannot tell
    you who has been interviewed at all.
        Senator Cruz. So the American people have no right to know
    what is happening other than nothing has happened.
        Chairman Leahy. Let us be fair. That is not what he
    answered. He answered very appropriately, in the same way that
    similarly appropriate answers have been given during Republican
    administrations, and we accepted them.
        Senator Cruz. Mr. Chairman, you are welcome to accept them,
    and I would note that this IRS targeting correspondence has
    come out, came in significant request--in significant regard at
    the written behest of Democratic Members of this body. So I
    understand that there is not an interest among some Members of
    this body in learning what happened.
        Chairman Leahy. Again, you are not responding to what I
    said at all. I am just saying that what Mr. Comey has said was
    an appropriate answer based on the reason he did it. It has
    nothing to do with how we feel. I do not like the targeting of
    anybody, but what Mr. Comey said was a correct and appropriate
    answer.
        Senator Cruz. I would note for the record that when I
    introduced an amendment before this Committee to make it a
    criminal offense to willfully target American citizens based on
    their political views, the Chairman and every Democratic Member
    of this Committee voted against it.
        Mr. Comey, the Attorney General has appointed to lead this
    investigation a major Obama donor who has given President Obama
    and Democrats over $6,000. Do you see any actual or apparent
    conflict of interest in that?
        Director Comey. I do not--I do not think that is something
    else I can comment on.
        Senator Cruz. Do you think it would have been appropriate
    to trust John Mitchell to investigate Richard Nixon?
        Director Comey. I think that is an impossible one for me to
    answer at this point.
        Senator Cruz. Well, it is an easy question to answer. It
    would not have been. And the Attorney General has repeatedly
    been called on to appoint a special counsel with meaningful
    independence, and I would encourage you to join that call,
    because the integrity of the Department and the FBI matters,
    and it matters beyond the political urgencies of the moment.
        Let me ask one final question. Both you and the Attorney
    General have repeatedly told this Committee that the
    investigation is a vigorous investigation, despite the fact
    that no one has been indicted, despite the fact that many of
    the victims have not been interviewed.
        Four days after Attorney General Holder sat in that seat
    and told this Committee it was a vigorous investigation, the
    President of the United States went on national television and
    told the American people, categorically, there was ``not a
    smidgeon of corruption in the IRS.'' Now, the President's
    statement and the Attorney General's statement 4 days earlier
    that there was an ongoing vigorous investigation are facially
    inconsistent. I would ask you as the head of the FBI, which of
    those statements was true and which of those statements was
    false?
        Director Comey. One thing I can assure you is that the FBI
    does not care about anybody's characterizations of a matter. We
    care only about the facts, and we are passionate about the
    facts and our independence.
        Senator Cruz. But, Mr. Comey, you have been a lawyer long
    enough to know when an answer is nonresponsive.
        Chairman Leahy. Thank you very much, Mr. Comey.
        Director Comey. Yes, sir.
        Senator Cruz. And you have not answered the question that I
    asked.
        Chairman Leahy. The Senator's time has expired, and I
    appreciate the Director being here. I understand we have votes
    on the floor in a few minutes, and if others have questions for
    the record, they can be submitted.
        Thank you very much, Mr. Comey. As I told you when you
    accepted this job, I appreciate the fact of your sterling
    record in both Republican and Democratic administrations. I
    appreciate the fact that you are willing to step forward in
    this position. Also, as one of those who pushed for the bill
    that made the term of the Director of the FBI a nonpartisan
    one, exceeding that of the President who might appoint him, I
    think it was a good move for law enforcement.
        We stand in recess. Thank you.
        Director Comey. Thank you, sir.
        [Whereupon, at 11:47 a.m., the Committee was adjourned.]
        [Additional material submitted for the record follows.]

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