[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

 
 
 
 
 
 
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                     U.S. GOVERNMENT PUBLISHING OFFICE 
		 
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                         COMMITTEE ON THE JUDICIARY

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





















                            C O N T E N T S

                              ----------                              

                        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.]

                            A P P E N D I X

              Additional Material Submitted for the Record

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