[Senate Hearing 114-878]
[From the U.S. Government Publishing Office]
S. Hrg. 114-878
OVERSIGHT OF THE FEDERAL BUREAU
OF INVESTIGATION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
DECEMBER 9, 2015
__________
Serial No. J-114-45
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
52-546 WASHINGTON : 2025
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COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont, Ranking
JEFF SESSIONS, Alabama Member
LINDSEY O. GRAHAM, South Carolina DIANNE FEINSTEIN, California
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah RICHARD J. DURBIN, Illinois
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana AL FRANKEN, Minnesota
DAVID PERDUE, Georgia CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
Kolan L. Davis, Republican Chief Counsel and Staff Director
Kristine Lucius, Democratic Chief Counsel and Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Grassley, Hon. Charles E......................................... 1
Prepared statement........................................... 53
Leahy, Hon. Patrick J............................................ 4
Prepared statement........................................... 58
WITNESS
Comey, James B................................................... 6
Prepared statement........................................... 60
Questions submitted, classified responses received........... 79
OVERSIGHT OF THE FEDERAL BUREAU
OF INVESTIGATION
----------
WEDNESDAY, DECEMBER 9, 2015
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:01 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley [presiding], Hatch, Sessions,
Graham, Cornyn, Lee, Flake, Perdue, Tillis, Leahy, Feinstein,
Schumer, Durbin, Whitehouse, Klobuchar, Franken, Coons, and
Blumenthal.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. Before I give my opening remarks and
Senator Leahy gives his opening remarks--and my opening remarks
are a little longer than normal--I would like to say that there
is a vote at 10:45, and I hope that between the Republicans and
Democrats that we can keep the meeting going while we go over
to vote at 10:45. That's my intention. And we'll have 7-minute
rounds--7-minute questions for at least the first round. And if
people want a second round, that is permissible.
Director Comey, we welcome you and thank you for coming.
The FBI's mission is to protect us from the most dangerous
threats facing our Nation. The deadly attacks in Paris last
week--last month and in California last week confirmed that the
radical Islamic terrorism continues to be such a threat,
regardless of whether that's politically correct or convenient
for our President.
ISIS is a determined enemy executing a plan to gain and
hold territory, enrich itself, inspire followers worldwide, and
launch deadly attacks against the West. And the American people
are very worried--not just about terrorism, but about our
President's inability or unwillingness to rally the country, to
lead our international partners, to develop a credible strategy
to destroy ISIS, and to execute that strategy. We are now
paying a price for that weakness.
At almost every turn, events have proven the President
wrong about ISIS. In August 2012, he drew a ``red line,''
warning the Assad regime not to use chemical weapons in Syria.
But the President backed down after Assad gassed his own
people, and ISIS blossomed in the chaos that followed. In
January 2012, the President referred to ISIS as a ``JV,'' or
junior varsity. It promptly spent the next 6 months conquering
territory across Syria and Iraq. In August of that same day,
our President conceded that he didn't have a strategy to defeat
ISIS. A year and a half later, he remains without a coherent
one. Even former Secretary Clinton admitted the other day that
we're not winning the fight.
The President has been hoping that ISIS will go away
because its existence does not fit a preferred political
narrative. But hope is not a strategy. Hope is not a plan. And
hope is not action. And all the while, the drumbeat of attacks
on the United States continued. In May, there was an attack on
a convention center in Garland, Texas. In June, police were
forced to shoot a knife-wielding ISIS supporter on the streets
of Boston. In July, we had the attack on military facilities in
Chattanooga.
Director Comey, has, as of October, reported that the FBI
was engaged in approximately 500-900 active domestic
investigations against suspected ISIS-inspired operatives and
other radicalized extremists. And he estimated that
approximately 250 Americans have left the United States and
traveled to Syria to fight with ISIS, or tried to do so.
Nonetheless, in November, the President assured us that
ISIS was ``contained.'' But the very next day, it inflicted the
deadliest Islamic terrorist attacks in Europe in over a decade,
a coordinated assault across Paris that killed 130 and injured
over 350. A few weeks later, in San Bernardino, two of its
apparent supporters executed the deadliest such attacks on the
homeland since September 11th.
Unfortunately, our President has responded to this crisis
by trying to divide us, deride us, and distract us. In fact, he
is doubling down on his strategy.
After reports suggested that one of the Paris terrorists
possessed a Syrian passport and had entered Europe as a
refugee, many expressed concern about the procedures used to
screen refugees coming to the United States from Syria.
Director Comey expressed similar concerns in October. He warned
that there are ``gaps'' in the information we have to vet
people coming out of a war zone. And he warned that letting
anyone come to the United States carries some risk. We can
point to the brothers who bombed the Boston Marathon as an
example of terrorists who were granted asylum here.
Our President responded to the concerns expressed by many
Americans by mocking them for being afraid of ``widows and
orphans.''
But events continued to prove our President spectacularly
wrong. As it turns out, women are radical Islamic terrorists,
too, apparently to the President's surprise. We now know that
Ms. Malik, one of the San Bernardino attackers, arrived in the
United States on a fiance visa. This is yet another example of
the failure of the screening process for those entering the
United States. Our Government apparently didn't catch the false
address in Pakistan that she listed on her application.
To top it all off, earlier this week we learned that the
National Counterterrorism Center has identified individuals
with ties to terrorists in Syria who are attempting to enter
the United States through the refugee program. I guess that was
one intelligence report the administration couldn't shade to
fit its preferred conclusions.
Now, it always bears repeating, legitimately so, that Islam
is not our enemy. Radical Islamic terrorists are our enemy,
however. The vast majority of Muslims in this country and
around the world are nonviolent and law-abiding. We all should
oppose, in no uncertain terms, any violence or intimidation
against Muslims for practicing their religion. But I fear that
one of the reasons for the regrettable backlash against Muslims
in this country is the public's frustration with the
President's repeated failure to acknowledge the actual nature
of the threat that we face, his reluctance to utter the words
``radical Islamic terrorism.''
Our President has also continued to divide us, deride us,
and distract us with the issue of gun control. To the
President, radical Islamic terrorism is never to blame. But the
constitutional right to own guns always is. But terrorists are
not deterred by gun control. Strict European gun control laws
did not stop the Paris attacks. California's assault weapons
ban didn't stop the San Bernardino massacre.
Now, the Obama administration argues that allowing
foreigners to buy guns who enter the United States through the
Visa Waiver Program is a problem. I agree. But at the same
time, the administration is apparently fine--fine--the
outstanding is apparently fine with allowing refugees, asylees,
and people on deferred action, and other noncitizens who are
not legal permanent residents to buy guns. That makes no sense.
With a few exceptions, we need to prevent all of these people
from buying guns.
The administration's current fixation on guns and the Visa
Waiver Program can be explained, though, because it is another
area where the administration's actions have made Americans
less safe. In fact, an opinion from Obama Justice Department
required the Bureau of Alcohol, Tobacco, and Firearms to change
its policies to permit persons arriving from visa waiver
countries to buy guns, and the administrations removed the
longstanding requirement that noncitizens at least establish
residency for 90 days in the State where they want to purchase
guns. These 90 days could be crucial in a terrorism
investigation.
So, when we address the issue of foreigners in the United
States buying guns, we need to be comprehensive about it, not
just clean up the mess--not just clean up the mess that this
administration created. Finally, our friends on the other side
of the aisle have attempted to divide us, deride us, and
distract us with proposals to deny the right to purchase
firearms to those on various terrorist watchlists, including
the No Fly List.
The incident in California and the terrorists connected
with it were apparently not on any terrorist watchlist, so such
a proposal wouldn't have stopped that attack. In addition, the
President's claim that, quote, ``people we do not allow to fly
could go into a store right now in the United States and buy a
firearm and there is nothing we can do to stop them,'' end of
quote, just is not true. The FBI is notified when somebody on
the No Fly List attempts to purchase a gun and can take steps
to ensure that a gun doesn't fall into the wrong hands. So, the
President and others have been misleading the American people
on that matter.
But the more fundamental point is: While these lists are
useful in keeping us safe, they are the result of the Executive
Branch's unilateral decisions to put people on them without any
notice or opportunity to be heard. As a result, they can be
unreliable. And it isn't just constitutional to condition the
fundamental right to keep and bear arms on an administrative
list that lacks that kind of due process.
We would not consider conditioning any other constitutional
right--such as the freedoms of speech or religion, or
unreasonable searches and seizures--on such a process. That's
why it is so surprising that this President, a former
constitutional law professor, and so many of his political
party would support such a scheme.
The fact is law enforcement hasn't raised gun purchases by
people on terrorist watchlists as a huge problem. And I know
Director Comey knows that how to tell us when you have to
confront a serious obstacle to keeping us safe. At our hearing
in July, we heard all of the talk from Director Comey about the
``Going Dark'' problem and the increasing use of encrypted
communications by terrorists. After these most recent attacks
will be, I will be interested in hearing our discussions with
technology companies on that issue are proceeding.
I also look forward to discussing a range of other issues
with the Director today. One is the FBI's treatment of
whistleblowers. I hope I have the support of the Director in
strengthening the whistleblower law for the FBI. I also have
questions about the FBI's investigation into former Secretary
Clinton's email arrangement, the FBI's potential role in
facilitating ransom payments, its use of spyware, and the
ongoing efforts to correct injustices that result from flawed
forensic work.
I apologize for a longer statement, but I also think that
these are things that we don't discuss enough, and we have the
opportunity today to discuss them. Now, it is Senator Leahy's
turn, please. Take all the time you need, and I know you will,
anyway.
[Laughter.]
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Senator Leahy. The Federal Bureau of Investigation, as we
know, is entrusted with the enormous responsibility of not only
enforcing our laws but protecting the Nation. No matter what
the threat, and no matter what the motivation of those
threatening us, the FBI is told to keep us safe. On any given
day, FBI agents around the country are investigating cases
involving not only terrorism, but violent crime, gangs, cyber
crime, identity theft, fraud, human trafficking, hate crimes,
and child exploitation. And they know there is no simple
answer.
For example, one of the greatest terrorist attacks ever in
this country by Timothy McVeigh, none of us said after that,
``Well, we have got to start excluding people who served in the
military or people of Timothy McVeigh's religion.'' Instead, we
went and found out what he had done and how we might stop
others from doing the same thing.
The events of the past 6 months have underscored the varied
nature of the threats the FBI faces. This past June, 9 African
American churchgoers were murdered by a white supremacist
during a Bible study in Charleston. The day after Thanksgiving,
3 individuals--including a police officer--were shot to death
inside a women's health clinic in Colorado Springs. Last week,
14 county workers in San Bernardino were murdered in a shooting
rampage. None of these seem related. All of them had different
causes and motivations among those shooting. The Director may
not be able to share all of the details about these
investigations today, but I believe we can agree that there is
one common motivating factor behind each of these heinous
crimes, and that is, hateful extremism. The one in--the
churchgoers who were murdered, the women--people in the women's
health clinic, and the people in San Bernardino, it was hateful
extremism coming from different directions.
So, I think it reminds us to be vigilant against all forms
of violent extremism. And I would hope that nobody
underestimates the incredibly difficult job of protecting the
country from terrorist threats. We can try to put all the blame
on any one person, and that's fine. But it's not any one
person. It's all of us. We have to support the law enforcement
and intelligence officials who work to protect our Nation by
giving them the tools and resources they need to do their jobs
effectively. And as we've heard from many law enforcement
officials, we have to continue the very hard work sometimes of
building trust in our communities among neighbors and with law
enforcement so that we can all share in the responsibility of
keeping our communities safe.
At the same time, I wish we would all categorically reject
the divisive and corrosive rhetoric of fear that only serves to
undermine us as a Nation. We know what happens when leaders
succumb to the politics of fear and lose sight of our
fundamental American values. Fear is what drove the Government
to violate the Constitution and imprison thousands of Americans
of Japanese descent during World War II. Fear is what fueled
the justification for torture by the CIA, which, Director
Comey, you objected to when you were at the Bush Justice
Department, and I applaud you for that. And I know the Director
reminds all of his new agents that the rhetoric of fear led J.
Edgar Hoover to target Martin Luther King, Jr., and others
during the 1960s.
And if we give in to this sort of fear, then that way the
terrorists and extremists win. They want us to be afraid; they
want us to be a Nation divided. Groups like ISIS, for example,
actively promote the narrative around the world that Muslims
are not welcome in the United States. And certainly some of
the--what I would call reprehensible and even unconstitutional
comments by some allow them to spread that false notion around
the world. When there is talk about rounding up all Muslim
Americans or creating a registry based on religious beliefs or
shutting our borders to all Muslims, that is the sort of
xenophobic, hateful rhetoric that just plays into our enemies'
hands. It also demeans us as a democratic Nation founded on the
principles of freedom, equality, and liberty. We Americans are
better than that. Let's not succumb to fear and give an image
that is not the great country that brought my grandparents and
my great-grandparents here.
We are a courageous and strong country. And our strength
comes from our commitment to the morals and principles that
continue to keep our country great--and a beacon of democracy
to the rest of the world. The Senate at its best can be the
conscience of the Nation, and recent events demand that we
start trying to be at our very best. We are not afraid of
terrorists, and we not--should not let our country be defined
by irresponsible fear-mongering.
While the focus of today's hearing will naturally be on the
recent terrorist attacks, and justifiably, we should continue
the Committee's bipartisan oversight of the FBI in other areas.
Three years ago, the FBI learned that flawed microscopic hair
comparison analysis was used in thousands of criminal
prosecutions. Now, frankly, I am not satisfied by the FBI's
efforts to even notify those defendants who might be affected
by the faulty evidence. The FBI should be sending agents out to
gather the relevant information. The lives of potentially
innocent Americans, including some on death row, depend on
this. In addition, I'll continue to work with Senator Grassley
to ensure that whistleblowers at the FBI are afforded adequate
protections.
I thank Director Comey for coming before the Committee
today. I have known the Director for years. I know he shares my
respect for the Constitution and my faith in the American
people that we can rise above the divisive rhetoric of fear,
because we are Americans. We should be better than that. And I
believe we are. Thank you.
Chairman Grassley. Since this is an oversight hearing, I
would like to swear in Director ComeyDirector. Do you affirm
that the testimony you are about to give the Committee--let me
start over again. Do you affirm that the testimony you are
about to give before the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Director Comey. I do.
[Witness is sworn in.]
Chairman Grassley. Thank you. I assume the Director of the
FBI needs no introduction, but I would like to read a short
introduction. It's a pleasure to introduce you to the
Committee.
Director Comey became the Director of the FBI in 2013. He
previously served as Deputy Attorney General and a U.S.
attorney in New York and an assistant U.S. attorney in
Virginia. He is a graduate of William and Mary and the
University of Chicago Law School.
Welcome. Proceed with your testimony however long you want
to take.
STATEMENT OF THE HONORABLE JAMES B. COMEY,
DIRECTOR, FEDERAL BUREAU OF INVESTIGATION,
WASHINGTON, DC
Director Comey. Thank you, Mr. Chairman, Members of the
Committee. It's good to be back before you. As every Member of
this Committee knows, the FBI has a very broad array of
responsibilities to address a staggering array of threats that
face our country in terrorism, in counterintelligence, and in
criminal matters. The key to us doing that well is the great
people of the FBI, and I so appreciate your support for them.
They are the magic of the FBI. The best part of my job is to
get to know those people and to watch them work. And so, I'm
very grateful for the support of this Committee for those good
folks.
What I thought I would do is start with our top priority,
which is counterterrorism, and tell you how we're thinking
about it and tell you a little bit more about how we are
approaching the attack in San Bernardino.
The Members of this Committee know very well that the
terrorist threat we face today comes at us from a number of
groups, most prominently today from the group that calls itself
the ``Islamic State.'' The threat from the Islamic State has
three dimensions.
One, they--they aspire to send operatives to attack the
United States and its allies. Second, they aspire to attract
people to come to their so-called caliphate to fight and
achieve glory somehow from being in that savage place. And,
last, where they can't send operatives or attract travelers,
they hope to inspire or direct--and the two terms bleed
together--people to engage in acts of violence in their home,
to radicalize in their home, and to kill innocent people on
behalf of these terrorist groups.
In Paris, we saw one dimension of that threat, which was
the sending of operatives to attack and kill innocent people.
In San Bernardino, we saw last week a different dimension of
the threat, which is the homegrown violent extremist, the
radicalizing in place in order to kill innocent people on
behalf of a foreign terrorist organization, to claim a foreign
terrorist organization and try to give it credit for acts of
violence.
To find homegrown violent extremists, to find those that
are radicalizing and being inspired by these terrorist groups
is a very, very hard thing. All of you know from overseeing our
work, we work at it every single day, and we use all the lawful
tools that you've given us on behalf of the American people.
Critical to our finding those people who are radicalizing in
their homes is tips from the community. We have worked very,
very hard to develop good relationships in communities all
across the country, especially in Muslim communities, where we
have terrific relationships, and those good people so often
tell us when they see something that does not make sense. We
are very grateful for that help.
We also want those folks to know that one of our
responsibilities is to investigate civil rights cases and hate
crimes, and we want people to know, if you think someone is
terrorizing you or threatening you based on your national
origin or your religion, please tell us so that we can
investigate that. We are all in this together.
San Bernardino involved two killers who were radicalized
for quite a long time before their attack. In fact, our
investigation to date, which I can only say so much about at
this point, indicates that they were actually radicalized
before they started courting or dating each other online, and
online, as late as--early as the end of 2013, they were talking
to each other about jihad and martyrdom before they became
engaged and then married and lived together in the United
States.
We also believe they were inspired by foreign terrorist
organizations. We're working very hard to understand exactly
their association and the source of their inspiration. We're
also working very hard to understand whether there was anybody
else involved with assisting them, with supporting them, with
equipping them. And we are working very, very hard to
understand did they have other plans, either for that day or
earlier, and that work continues.
Critical to that work is the support we get from State and
local law enforcement through our Joint Terrorism Task Forces.
Those 100 or so task forces are the backbone of this country's
counterterrorism response. We are extremely grateful for the
help from State and local law enforcement, and if you needed
any confirmation of the quality and talent of the people in
local law enforcement, you saw it that day in San Bernardino
when highly professional officers stopped what might have been
more tragedy, more violence.
As you mentioned, Mr. Chairman, I do want to give you a
very brief report in my opening about where we are with respect
to the challenge of encryption to our hardest work, to our
counterterrorism work and to our criminal work. As you said,
since we were last together, we have had good conversations
with the folks in the tech sector in lots of different parts of
this great country of ours, and those conversations have
convinced me of two things, which are both good news.
The first is, we care about the same things. The tech
companies and the FBI and everybody else involved in this
discussion both care about safety on the internet. We
understand that encryption is a very important part of being
secure on the internet. We also all care about public safety.
We also all see a collision between those things right now. We
see that encryption is getting in the way of our ability to
have court orders effective to gather information we need in
our most important work, and we all agree we have to figure out
whether we can maximize both of those values--safety and
security on the internet and public safety. That's good news.
We are not at war. We are about the same things.
The second piece of good news is all those conversations
have actually convinced me it's not a technical issue. There
are lots of folks who have said over the last year or so we are
going to break the internet or we will have unacceptable
insecurity if we try to get to a place where court orders are
complied with. I actually think it's not a technical issue.
There're plenty of companies today that provide secure services
to their customers and still comply with court orders. There
are plenty of folks who make good phones and are able to unlock
them in response to a court order. In fact, the makers of
phones that today cannot be unlocked, a year ago they could be
unlocked. So, I really don't think it is a technical issue.
And people also, I think, better understand today the
Government doesn't want a back door. The Government hopes to
get to a place where, if a judge issues an order, the company
figures out how to supply that information to the judge and
figures out on its own what would be the best way to do that.
The Government shouldn't be telling people how to operate their
systems.
So, we are in a good place in terms of what we understand
about our values. We are in a good place, I think, where we
realize it is actually not a technical issue. It is a business
model question. Lots of good people have designed their systems
and their devices so that judges' orders cannot be complied
with for reasons that I understand. I'm not questioning their
motivations. The question we have to ask is, should they change
their business model? That is a very, very hard question, lots
of implications to that. We have to wrestle with it because of
what's at stake.
I am limited in what I can say at this point about Paris
and about San Bernardino, but let me give you a recent example.
In May, when two terrorists attempted to kill a whole lot
of people in Garland, Texas, and were stopped by the action of
great local law enforcement again, that morning, before one of
those terrorists left to try and commit mass murder, he
exchanged 109 messages with an overseas terrorist. We have no
idea what he said because those messages were encrypted. And to
this day, I can't tell you what he said with that terrorist 109
times the morning of that attack. That is a big problem. We
have to grapple with it. And I very much appreciate this
Committee's support for grappling with the hard questions
around this. We must resolve the collision of those two values.
Then I will finish, Mr. Chairman--and I apologize for
running over my time--with a word to the folks who may be
watching us at home. I know, and the Members of this Committee
know, how unsettling seeing this violence in Paris and in San
Bernardino is to the good people of this country. My hope is
that they will not allow themselves to be paralyzed by fear,
but instead to channel that fear into something healthy, which
is an awareness of your surroundings. In case after case after
case, we see that when someone radicalized, somebody saw
something, either online or in a school or at home, and didn't
tell us about it. We hope that what people will do is not
imagine these savages of ISIL or of al Qaeda as something
bigger than they are, not imagine them in the shadows. That is
exactly what these savages want. But, instead, simply be aware
of your surroundings. If you see something, just tell us. We
investigate in secret so that we do not smear innocent people.
We will not race next door and bang on your neighbor's door. If
no harm was there, no harm will be done. But if it was
something, we may be able to stop something significant.
So, my request of the American people is don't let these
savages paralyze you. If you see something that seems out of
place, tell one of us. Thanks to the work of this Committee and
a whole lot of people in our Government, we are better
organized today than we were on September 11th. If you tell a
police officer, if you tell a deputy sheriff you saw something
that doesn't make sense, we will get it to the right place. We
will check it out. We will see whether it was something.
You, I hope, will go on with your lives. You pay us to do
counterterrorism. We are not perfect. We are good at this. We
cannot allow ourselves to be paralyzed by what these people are
hoping to achieve. That is what I hope the American people will
take from the unsettling experience of watching what goes on in
San Bernardino and Paris.
With that, I apologize for going over my time, and I look
forward to our questioning.
[The prepared statement of Director Comey appears as a
submission for the record.]
Chairman Grassley. No need to apologize for going over your
time. And your reputation in both Republican and Democrat
administrations is to call it like it is, and the American
people are lucky to have a person like you particularly because
you have a 10-year term to really do your job right.
Director Comey, earlier this week we learned that the
National Counterterrorism Center has identified individuals
with ties to terrorists in Syria who are attempting to enter
the United States through the refugee program. You have
acknowledged that there are gaps in the information that we--in
screening Syrian refugees. But isn't it true that it's not just
a lack of information that we have to worry about with people
coming from Syria? After all, ISIS controls a large part of the
country, including former Syrian government offices and
facilities. Presumably, it has the personal information of many
innocent Syrians. It has virtually unlimited funds.
So, now my question. Are you concerned that ISIS has the
ability to create fraudulent passports or other identification
documents for its operatives that has a practical--as a
practical matter it would be almost impossible to detect?
Director Comey. Yes, Mr. Chairman. The Intelligence
Community is concerned that they have the ability, the
capability to manufacture fraudulent passports, which is a
concern in any setting.
Chairman Grassley. Okay. The next point dealing with
terrorists and the purchase of firearms, last week our
President stated that there are individuals who can't get on
planes, but they can go to a gun shop and buy a firearm, and
there--and, quote, he said ``nothing we can do to stop them.''
But--and correct me if I'm wrong--the FBI is notified when
someone on the terrorist watchlist attempts to purchase a
firearm and a NICS check is requested, and the FBI has multiple
avenues that they can pursue. These are some of these avenues.
Delay the firearms transaction, and if the person is actually a
terrorist, the FBI can arrest them for any crime for which
there is probable cause; and, in addition, the FBI can
intervene and directly confront the individual; the FBI can
also put the suspect on what is called ``around-the-clock
surveillance.''
My question: Aren't these some of the tools available to
the FBI to stop a suspected terrorist from buying a gun?
Director Comey. Mr. Chairman, you are right, there are a
variety of things that we do when we are notified that someone
on our known or suspected terrorist data base is attempting to
buy a firearm. The FBI is alerted when that is triggered, and
then we do investigation to understand are there disqualifiers
that we're aware of that could stop the transaction. And if the
transaction goes through, the agents who are assigned to that
case, to that subject, are alerted to it so they can
investigate.
Chairman Grassley. I thank you very much for that
clarification. So, there are, then, actually many things that
can be done, done right now, to stop someone on the No Fly List
from buying a gun, and then that leads me to say that our
President is misrepresenting the facts and misleading the
American people on that point.
Next question. In July, you testified before this Committee
about ``Going Dark''--and you've already commented on some of
this, but I want to be more specific--and Members from both
political parties expressed serious concerns about the use of
strong encryption by terrorists and criminals. I followed up
with questions for the record, and I asked for data about the
scope of the problem. At that time the administration declined
to ask for a legislative solution and I asked for time to work
with technology companies. But the attacks in Paris and
California have generated increased alarm about the problem.
So, question. When is the FBI going to respond to my
questions relating to that hearing? And that's not the most
important point that I am trying to bring out here. Could you
update us about what is known about the role encryption may
have played in these attacks? And I know you have already said
that you are limited in what you can say, but whatever you can
tell us, do it. And, finally, what is the state of your
conversations with the technology companies to address that
problem? And you may have expressed that in your opening
statement, the last part.
Director Comey. Thank you, Mr. Chairman. At your request
and the request of other Senators, we are collecting data
concerning the ways in which encryption is affecting our
ability to implement court orders for data in motion--that is,
emails or phone calls--and data at rest that is sitting on
devices. And I don't know exactly when we are going to get that
to you, but that work is in progress, and it will show there is
a significant impact, and growing, across our work, both
terrorism and in criminal cases.
With respect to our conversations with the--well, first of
all, the second piece. With respect to its role in cases, I
don't want to talk about Paris yet or San Bernardino because we
are doing a lot of work with respect to those now. There is no
doubt that the use of encryption is part of terrorist
tradecraft now, because they understand the problems we have
getting court orders to be effective when they are using these
mobile messaging apps, especially that are end-to-end
encrypted. We see them talking about that all over the world.
It is a feature especially of ISIL's tradecraft.
Last, the conversations with the companies have been good.
Like I said, they really have made clear to me that we are not
at war with each other; we care about the same things. It's
also made clear to me that it is really not a technological
problem. We are not going to break the internet or expose us to
tremendous insecurities of different kinds by requiring--
getting to a place where companies comply with court orders,
because lots of good companies do today. It's a business model
question. Good people have made a decision to design products
and sell products where court orders are ineffective. And I'm
not impugning their motives. I understand they see it as a
competitive issue or they think it is just the right thing to
do.
The question we have to ask ourselves is. Is there a way to
get folks to change their business model so that judges' orders
will be complied with? And if that can't be done voluntarily,
what are the other alternatives? And these conversations
continue within the executive branch and with our private
sector partners.
Chairman Grassley. I could start another question now, but
it would take too long for you maybe to answer, so I think I
will go to Senator Leahy so we can kind of keep on time here.
Senator Leahy. Thank you, Mr. Chairman.
I just want to follow-up on a question that Senator
Grassley asked you about the FBI being notified if somebody on
a No Fly List or that type of list was buying a weapon. If they
buy it at a gun show where there is no reporting of it, you are
not notified, are you?
Director Comey. That's correct.
Senator Leahy. And if they buy it on an internet sale, you
are not notified, are you?
Director Comey. Correct.
Senator Leahy. And even if they go to a gun dealer who has
to notify you, you are notified, but there is not an awful lot
you can do about it. Is that correct?
Director Comey. Unless, as I said, we find some
disqualifier under the law. But if we do not find one of those
things, there is nothing we can do to stop it.
Senator Leahy. So, the President's statement that somebody
on a No Fly List or on these watchlists can go and buy weapons
in the United States is correct.
Director Comey. There is no prohibition connected to the No
Fly List. That's correct.
Senator Leahy. Thank you very much. I just wanted to make
sure that was--that was clear.
Now, right after you were confirmed, you spoke about the
detrimental impact of sequestration and the hiring freeze on
criminal and counterterrorism investigations. I happen to agree
very much with what you said. I understand you are still in the
process of trying to replace all the agents that were lost due
to sequestration. Is that correct?
Director Comey. That is correct. We are still trying to dig
out of that hole.
Senator Leahy. So, when you can finally hire, you have got
to train them. Then you have got to get them into
investigations. So, this sequestration--I don't want to put
words in your mouth, but is that having a long-term effect on
the FBI's ability to fight crime and terrorism?
Director Comey. Yes.
Senator Leahy. And what would be the impact on the FBI if
Congress could not come to an agreement on an omnibus
appropriation bill and instead just passed another long-term
spending resolution?
Director Comey. Well, if we return to the impacts of
sequestration that were kicking in when I started this job, it
would be a disaster because we are just digging out of the
hole. To return to a place where we have to ration gas and shut
down Quantico and choose which people to interview based on how
much gasoline we have in our tanks, that doesn't make any sense
to me. So, it would be a big, big deal.
Senator Leahy. Without going into them here, I remember
some of the worst-case scenarios you described to me privately,
and they are chilling.
Now, we have had a lot of talk about our refugee system. I
just want to clarify a few facts. The refugee program presents
the longest and most complicated path for entering the United
States, and refugees do not get to pick which country they are
sent to. They are vetted more intensely than any other category
of traveler. The vetting is conducted before any refugee can
get on an airplane to come here. The process can take years.
That's why I agree with former national security leaders like
General Petraeus and Secretary Hagel and General Brent
Scowcroft, who wrote to Congress that turning our backs on
refugees would be contrary to our Nation's tradition of
openness and inclusivity and would undermine our core objective
of combating terrorism.
Now, the House has just passed a bill that would require
you to personally review, along with the Secretary of Homeland
Security and the Director of National Intelligence, each and
every refugee application. Is that really feasible?
Director Comey. Well, first of all, if the intention is for
me to do it personally, that would be very, very hard. But even
as I understood the ask, it was, could I certify to there being
no risk associated with an individual. And, again, the Bureau
does not take positions on legislation, and we do not get
involved in policy decisions. But that practically would be
impossible.
Senator Leahy. So, it would make our refugee program
impossible also.
Director Comey. Logically, if someone could only come into
the country if I were to certify to that, it would--it would.
Senator Leahy. Thank you. We often hear from law
enforcement that hateful and ignorant anti-immigrant rhetoric
undermines community trust and ultimately harms the ability of
law enforcement to do its job. I have the same concern when we
hear some say we should close our borders to all people of a
certain religious faith or track people because they have
certain religious beliefs.
I worry that these kinds of proposals feed what are the
real lies that ISIS spreads, that the U.S. is anti-Muslim, and
they use that as a tool to recruit new members. Is that
correct?
Director Comey. The notion that the U.S. is anti-Muslim is
part of ISIL's narrative and al Qaeda's narrative and other
terrorist groups.
Senator Leahy. Thank you. Earlier this year, this Committee
in a bipartisan fashion approved a sentencing reform bill that
reduces--it does not eliminate but reduces some mandatory
minimum sentences. As I have said oftentimes publicly, I would
like to see an end to all mandatory minimums, but at least this
is a good step in reforming our criminal justice system.
Attorney General Lynch, Deputy Attorney General Yates,
former Attorney General Michael Mukasey, and other law
enforcement leaders have stated their support for this
compromise bill. Do you agree that it strikes a reasonable
balance?
Director Comey. Well, Senator, as you know, we don't take
positions on legislation, but because I spent my career as a
prosecutor, that's an area of interest of mine. I actually read
the bill, and my reaction was it's reasonable; the things that
are discussed in there are reasonable. I have found mandatory
minimums--and we may disagree on this. I have found mandatory
minimums to be an important part of making some of the most
important cases I was involved with. But I think that the
reform, as I understand it, seems reasonable to me.
Senator Leahy. The Fraternal Order of Police has strongly
opposed adding a mens rea provision to this. We don't have one
in the bipartisan bill which was negotiated, Republicans and
Democrats. They say such a provision in this bill--it doesn't
mean we can't look at mens rea in other criminal bills, but in
this one, it would be a poison pill. Do you have any views on
that?
Director Comey. I don't. I know it is a subject of
interest. I do not know it well enough to comment. In fact, I
was racking my brain. I don't think I ever prosecuted a case
that did not involve a mens rea requirement, so I don't know
enough to say.
Senator Leahy. And, last, I keep pushing for the
bulletproof vest partnership bill, which Senator Campbell of
Colorado and I started. You have the resources to equip your
agents with body armor, but would you agree that it is really
important that local law enforcement have body armor?
Director Comey. Very much.
Senator Leahy. Thank you. Thank you, Mr. Chairman.
Chairman Grassley. Senator Leahy, you probably asked the
right question and the Director answered it right, but also the
Director answered my question right about whether the President
was misleading, and that's because in the President's televised
address--and I think it was thoroughly vetted--he stated that
someone on the No Fly List could walk into a gun store and buy
a gun and there was nothing that could be done about it. So,
the President said nothing about going to a gun show or the
internet to buy a gun, and the Director agreed with what I said
about that at that time.
Now, the order is going to be----
Director Comey. Mr. Chairman, could I----
Chairman Grassley. Yes.
Director Comey. I just want to make sure that I was not
heard to be saying I think the President was misleading. I am
not trying to take shots at anybody. I was trying to answer the
questions about what are our capabilities in that regard.
Chairman Grassley. Thank you very much. I made the
statement. You didn't make it.
The order at the fall of the gavel is going to be Graham,
Cornyn, and Lee, and then after the gavel came down, Hatch,
Flake, Perdue, and Sessions. And then I will have Senator Leahy
tell me who the next Democrat will be.
Senator Leahy. That would be Senator Feinstein.
Chairman Grassley. Senator Feinstein after Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
I want to echo what the Chairman said about your service as
FBI Director. I think we are lucky to have you. If I buy a gun
on the internet, is it delivered to my home?
Director Comey. If you buy a gun on the internet?
Senator Graham. If I try to buy a gun on the internet,
where do I pick it up?
Director Comey. I assume it is shipped to you, but I don't
know for sure, actually.
Senator Graham. Okay. Well, let's find out the answer to
that.
Okay. Do you agree with the following statement. There are
more terrorist organizations with men, equipment, and safe
havens along with desire to attack the American homeland any
time since 9/11?
Director Comey. I agree.
Senator Graham. So, do you agree that the budget cuts that
Congress has imposed in the past has reduced your ability to
defend this Nation?
Director Comey. I agree.
Senator Graham. Do you believe that the budget cuts that
will go back into effect in 2 years will dramatically harm your
ability and your agents' ability to defend this Nation if
sequestration kicks back in?
Director Comey. I agree.
Senator Graham. Thank you. All right. Do you agree that
rhetoric coming from political candidates running for President
wanting to shut America down based on someone's religion
empowers the enemy?
Director Comey. I'm trying to avoid taking shots at anyone,
as I said. I----
Senator Graham. Well, just strike ``Presidential
candidates'' and put a widget.
Director Comey. I do believe that our ability to get
cooperation in the United States, which is my primary
responsibility, our primary responsibility, depends upon people
trusting us and having a level of comfort with us. And
estrangement gets in the way of that.
Senator Graham. Do you agree with me that if you are a
soldier, diplomat, or FBI agent serving in the Mideast right
now, the fiery rhetoric from here at home can put you in
jeopardy?
Director Comey. People who know better than I have said
that, and so I credit that.
Senator Graham. Was the woman shooter in San Bernardino
radicalized before she came to America?
Director Comey. It looks like she was. So, far the data we
have collected, the intelligence indicates that she was before
she connected with the other killer and came here.
Senator Graham. Is there any evidence that this marriage
was arranged by a terrorist organization or terrorist
operative? Or was it just a meeting on the internet?
Director Comey. I do not know the answer to that yet.
Senator Graham. Do you agree with me that if it was
arranged by a terrorist operative or organization, that is a
game changer?
Director Comey. It would be a very, very important thing to
know. That is why we are working so hard to understand it.
Senator Graham. Well, that is the biggest focus, I think,
of how it would change the game, that they could actually
arrange a marriage of two like-minded individuals, use the
fiance visa system to get into the country. So, that is a good
answer. ISIL--is it their goal to strike the American homeland?
Director Comey. One of their goals, yes.
Senator Graham. Yes, not their only goal, but it is one of
their goals. Is that correct?
Director Comey. That's correct.
Senator Graham. Do you believe ISIL cells are already here
in America?
Director Comey. I don't have reason to believe that. It's
something that we constantly look for, and----
Senator Graham. Do you have any doubt they are trying to
create one if they do not have one today?
Director Comey. No. They are trying to do two things.
They're trying to motivate people already in the United States
to become killers on their behalf, and they would very much
like to, as they aspire to be the leader in the global jihad,
send people here to conduct attacks. It's that second piece
that we have not seen yet.
Senator Graham. And that's what you have to guard against
every day. I mean, they have to be right only once. You have to
be right every day.
Director Comey. That is right.
Senator Graham. And the less resources you have and the
harder time, the longer it takes you to find out what is going
on. If you can't listen to the conversations in a
constitutionally appropriate way, then the enemy has an
advantage over you, is that correct?
Director Comey. Correct.
Senator Graham. Is it fair to say that they wake up every
day in Iraq and Syria thinking about ways to hit us here?
Director Comey. Some of them do for sure.
Senator Graham. Is it fair to say that the Paris attack was
a very sophisticated, well-planned attack that came from Syria?
Director Comey. Yes.
Senator Graham. Is it fair to say that those people who
planned the terrorist attack would hit us here at home if they
could?
Director Comey. Yes.
Senator Graham. How many countries does ISIL have a
presence in?
Director Comey. Sitting here, I can't give you a precise
count, but it is----
Senator Graham. More than Syria and Iraq?
Director Comey. Oh, certainly.
Senator Graham. I think there are a couple thousand now in
Libya that took Qaddafi's hometown.
Director Comey. They claim branches in more than five,
between five and ten. And the question of whether they have a
presence is obviously something we're focused on here. But it
is more than five.
Senator Graham. Can you give us any time period of when you
think ISIL will be destroyed?
Director Comey. I cannot.
Senator Graham. Can you think of any means that we should
take off the table that is constitutional in terms of fighting
ISIL? Is there anything you want to take off the table in terms
of fighting ISIL as long as it meets our constitutional
requirements?
Director Comey. I think I am only qualified to speak about
the world that the FBI sits in, and we use all lawful tools
that Congress gives us to try and meet this threat. So, I would
not take any tool off the table that is lawful.
Senator Graham. Right. And when it comes to tools, you are
using all the ones you have because this is a very
consequential fight.
Director Comey. Yes.
Senator Graham. What do you think the likelihood of another
9/11 against the homeland will be if we don't destroy the
caliphate in Syria and Iraq in the next year?
Director Comey. That's certainly a hard question for me to
answer. Their ability to have a safe haven from which to gather
resources, people, and plan and plot increases the risk of
their ability to mount a sophisticated attack against the
homeland.
Senator Graham. So, the best strategy would be, at least in
the short term--they are large, they are rich, they are
entrenched--is to make them small, poor, and on the run. Would
that be a good approach to ISIL?
Director Comey. That makes sense, and my understanding is
that is the aim.
Senator Graham. Is it fair to say that other countries want
to help America in this fight, we don't need to go it alone?
Director Comey. Certainly in dealing with the FBI, we get
tremendous cooperation from a whole lot of countries. So, yes,
they are like-minded.
Senator Graham. What country has the most gun control
laws--France or the United States?
Director Comey. I don't know.
Senator Graham. Would you check into that?
Director Comey. Sure.
Senator Graham. Because I just want everybody to know that
gun control is as legitimate debate here at home. It is not
part of a strategy to destroy ISIL, that the laws in France are
very robust, but terrorists got the weapons. Don't mix the two.
Thank you very much, Mr. Director.
Senator Hatch [presiding]. Senator Feinstein.
Senator Feinstein. Thank you very much, Senator Hatch, and
welcome, Director Comey, and thank you very much for your good
work.
I was just reading a report, ``ISIS in America,'' Program
on Extremism from George Washington, where they say that 71
individuals have been arrested on charges related to the
Islamic State since March 2014 and 56 of them this year alone.
Is that correct?
Director Comey. I do not know whether the precise numbers
are right, but roughly, that strikes me as correct.
Senator Feinstein. Okay. The last time you were here, you
mentioned that you have an investigation going in every FBI
field office on this--in the country. Is that correct today?
Director Comey. Yes.
Senator Feinstein. Okay. I wanted to ask you--I was at home
and I was watching on television when I saw press and others
going through the apartment of the couple in San Bernardino
that committed this terrible act. And I was appalled that it
was not taped off because, from an intelligence point of view,
it immediately compromised any future intelligence gathering
from any trace materials or anything else. How did that happen?
Director Comey. A lot of folks, I think, found that
confusing. That is our--our, what I believe, great criminal
justice system in action in part. The way it works is we get a
search warrant that allows us to enter someone's residence. Our
forensic experts and agents were in that residence for over 24
hours and combed through it and took everything that we could
take under the search warrant and that was appropriate to take
and recorded that which we needed to record.
Once we have exhausted that examination, we board the place
up and make it secure. We have to post under the law an
inventory of what was taken--that is part of American law--and
then leave the residence. That part makes good sense to me. The
part I cannot explain is why the landlord for the place allowed
the boards to be pried off and folks to go through.
Senator Feinstein. Well, let me stop you. Wasn't it
important enough to have some law enforcement officer there to
see that that did not happen? I mean, after all, you know, 14
people were killed and 21 were injured. It seems to me that
protecting that scene is really important. So, I hope that
there is some procedure whereby that doesn't happen again.
Director Comey. Well, the judgment of the investigators and
our forensic experts was we were done with that scene. There
was nothing else to be gained from that scene, which is why it
was boarded up, and then the inventory was left. What happened
next was strange and it struck me as strange on the TV that the
landlord allowed the media to go through. But we had done our
work in a careful, responsible way. Twenty-four hours is a
long----
Senator Feinstein. Does it go back to local police
jurisdiction?
Director Comey. No. It goes back to the owner and lawful
occupant of the residence.
Senator Feinstein. So, you relinquish the premises
regardless of whether somebody finds something that they want
to come back and look for?
Director Comey. No. If there is a need for the
investigation to continue to have access to the place, we will
preserve the scene. We will put up crime scene tape. We will
post a guard on it. But if we are done with someone's residence
that we have searched, under the law we return it, and we post
an inventory inside as to what was taken.
Senator Feinstein. Oh, boy. Well, maybe we can talk a
little bit about that, because from an intelligence point of
view, I could see things in an investigation that would crop up
that you might want to come back and look behind the picture
frame on the wall because there is some message behind the
picture that you do not know about when you went through the
apartment initially, or some document. So, it just does not
seem to me to be smart, but let me go on.
With respect to encryption, Senator Burr and I on
Intelligence are working on this issue. I can tell you that
when I went and visited with the chief counsels of the big tech
companies in my State about trying to get a bomb-making
portfolio of 15 pages off the internet--this was the bomb that
goes through a magnetometer, and I pointed that out, and I
pointed out it had been tested. And there was no interest in
taking it down. One company said, Twitter, ``If we find
something, we take it down, but we don't report it.'' In the
intelligence bill which passed the Senate, this was taken out
later and a need to pass the bill by unanimous consent.
We also had legislation that said that if you find
terrorist information, you must report it to law enforcement.
Would you support that?
Director Comey. I know the administration, the Justice
Department, is formulating a view on that, and so that's for
them to do. Operationally, it wouldn't have any bad impact on
the FBI, and so I guess I have got to wait----
Senator Feinstein. Well, the FBI would not want law
enforcement to know what is being said on the internet that is
terrorist-related or has complicity to commit an act--I should
say conspiracy to commit an act?
Director Comey. No, the more we know, the better.
Senator Feinstein. I would think so.
Director Comey. But I'm not in a position to offer a view
on whether the Justice Department will support the legislation
itself, I guess is what I am trying to say.
Senator Feinstein. Okay--okay, fine. With respect to what
you said on encryption, that you don't want a back door, you
don't want keys, it seems to me that the probable cause warrant
process is the best process. You said here today enough to
indicate that you would support that. Is that correct?
Director Comey. I am sorry. Support? I am not following--
support.
Senator Feinstein. Legislation which enabled a warrant with
probable cause to be able to look into an encrypted web, which
you said the companies told you was possible.
Director Comey. Right. It's possible lots of companies do
it today, provide secure services and comply with court orders.
There are others who built their business models so that they
say, ``Even if we want to, we can't.'' But the question of
whether the answer is compelling them to do that by legislation
is one that I can't answer sitting here. I think that is
something the administration a couple months ago decided not to
seek legislation now, but I also know there is continuing to be
conversations inside the administration.
Senator Feinstein. Well, I am going to seek legislation, if
nobody else is, and I think--I know Senator Burr thinks
somewhat similarly. I'm very concerned about it because when I
met with high tech, what they told me was there are parts now--
when you talk to us about the dark web, which is listened to
very carefully--that they cannot unencrypt. And I can give you
the names of the companies that said that to me. And I have
real concern about that. You know, I have concern about a
Playstation which my grandchildren might use and a predator
getting on the other end talking to them, and it is all
encrypted.
And so, I think there really is reason to have the ability
with a court order to be able to--and if you have cause to
believe that criminality may be going on, to be able to get
into that. I suspect what happened was in the aftermath of
Snowden, particularly Europe got very conservative with respect
to encryption, and the companies back away. Now, that's
changing with Paris and, God forbid, what might happen in the
future.
So, what I'm trying to say is, I think, this world is
really changing in terms of people wanting the protection and
wanting law enforcement, if there is conspiracy going on over
the internet, that that encryption ought to be able to be
pierced. Do you agree?
Director Comey. I agree. I would very much like to get to a
world where if a judge issues an order, companies are able to
comply with it, either to unlock a device or to provide the
communications between terrorists or between drug dealers or
kidnappers. I very much would like to see that.
Senator Feinstein. Good. Thank you very much. Thank you,
Senator.
Senator Sessions. Thank you, Senator Feinstein.
Director Comey, thank you for your leadership. I believe
you are a person that is well qualified for this job and
understand the seriousness of your role and have the background
and experience to do it well.
You know, you testified before the House Committee on
October 22nd, and you said, dealing with prisons and
punishment, you struggle with the term ``mass incarceration,''
quote, ``because it conveys a sense that people are locked up
en masse, but in reality, every case is individual. Everyone
has a lawyer, everyone has a judge, everyone had to be proven
guilty.'' And isn't it amazingly true that we now over 95
percent of criminal defendants plead guilty in Federal court?
Director Comey. The days of trials seem to be bygone.
Senator Sessions. So, I think that's a testament, don't
you, to good investigation and solid cases that are being
brought?
Director Comey. I think at least, in part, that is driving
it.
Senator Sessions. I think so, too.
Now, since I was prosecuting, maybe since you were
prosecuting, the Guidelines--Sentencing Guidelines under the
Supreme Court have become advisory, not binding. Attorney
General Holder has altered traditional Department of Justice
policy and declared that prosecutors don't have to charge the
most serious offense. The Sentencing Commission has reduced the
guidelines that were in their power to do so. Senator Durbin
and I worked together on legislation that reduced the penalties
for crack cocaine rather significantly, more than a lot of
people understand. And now we are considering additional reform
in sentencing.
You said, I thought wisely, that--you expressed concern
about the increase in violent crime and murders around the
country. Instead, it would prompt you to be, quote,
``thoughtful'' about criminal justice reform proposals and
noted, quote, ``We have hit historic lows in violent crime
recently, and if we let it slide back, we will need to explain
to those that come after us what we did or did not do to let
that happen,'' close quote.
Would you explain the trends in crime and punishment and
why you shared those words?
Director Comey. What I was getting at, Senator, is our
world, with respect to violent crime, is a world that was hard
to imagine 25 years ago, and a whole lot of hard work went into
getting us to historically peaceful America. And a big part of
that, I believe, was law enforcement's work, and I also believe
every sentencing I ever went to in a way was a tragedy because
a life was being wasted. But that work had to be done to
protect those neighborhoods. And what I was urging folks to
do--I think Harry Truman said, ``The only thing new is the
history you do not know''--is for folks just to remember we
used to be in a very different place, and there are reasonable
reforms, as I said earlier, we can--we can put into place. But
we have to remember where we once were, and I would not want to
do anything without understanding the history that lets us
slide back to that place. And I was saying that in the context
of a worrisome spike in homicide in over 30 of the Nation's top
50 cities that has occurred this year that is hard to explain,
but it is very worrisome. And I was simply sounding an alarm
saying we have to talk about this, because we have gotten to a
great place in this country, and this is worrisome, and it
drives us to need to be even more thoughtful about how we
change our criminal justice system.
Senator Sessions. Well said. I think this is--I was there
when the crime rate was high, and I have seen it decline as a
prosecutor and subsequent to my time, and we have made real
progress. I have a chart that shows the Federal prison
population and how it has been developing, and I hope my
colleagues will look at this chart, because we have the
perception that the Federal prison population is surging. But,
in fact, it peaked around 2013 or so, and it has been declining
steadily ever since. And according to the Bureau of Prisons,
they project the population in Federal prisons this year to
drop by nearly 15,000 additional. So, we are just not on a
trend to mass incarceration and a surging Federal prison
population.
[Poster is displayed.]
What about State prisons? There are many, many more in
State prison than in Federal prison, maybe 10 times or more.
Let's see what is happening in the State systems. We have seen
a rather dramatic decrease in penalties in States, and part of
it is budget driven. And people then begin to develop theories
to justify a reducing prison population based on budgets, and
you have also a lot of people have always doubted the value of
prison. So, we've seen a substantial decrease in State prisons,
and I think that will continue. And so, I guess--and since we
know there is a pretty high recidivist rate for prisoners--and
I am not trying to put you in a big argument here, but the fact
is that more people that are released from prison, aren't they
likely--aren't we likely to see an increase in crime because
the recidivist rate--rate remains high?
[Poster is displayed.]
Director Comey. I am not an expert. As I think you said,
the logic of it would say yes, there would be--given the
recidivism rate, which is one of the things that is exciting, I
think, about the legislation Senator Grassley talked about, it
tries to get us doing a better job at reducing recidivism. But
the math would say sure.
Senator Sessions. Here the Association of Assistant United
States Attorneys wrote a letter and said this: ``Every
incremental weakening''--questioning plans to further reduce
sentencing, ``Every incremental weakening of those mandatory
minimum penalties will have a corresponding impact on the
ability to successfully investigate and prosecute drug
trafficking. The current proposal will significantly weaken the
mandatory penalties and significantly deprive law enforcement
authorities and prosecutors of the tools they need to
successfully address drug trafficking.''
Now, you said you could accept the changes, but that's a
statement that is worthy of serious evaluation. Would you
agree?
Director Comey. Sure.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Grassley [presiding]. I have been told by Democrat
staff that Senator Whitehouse is next.
Senator Whitehouse. Then I will go next. Thank you, Mr.
Chairman. Welcome, Director Comey. As the author with Senator
Cornyn of the title you just said was exciting, I thank you. I
want to ask you about two things. One is botnets, and the other
is to follow-up on Chairman Grassley's and Senator Feinstein's
concerns about encryption of communications.
Botnets first. Senator Graham and I have a bill that tries
to enhance the Department's authority to pursue the civil
remedies that have allowed the Department of Justice to pull
down botnets. One of the challenges that that effort has faced
has been the legal requirement that the botnets have to be
engaged in fraud and--or wiretapping before the Department can
go and pull them down.
My sense is that a botnet is essentially like a weed. There
is no such thing as a good botnet. They are either actively
doing evil things, or they are a latent mechanism for doing
evil things later on, and that a more vigorous effort to root
them out of the internet and create better internet hygiene
against botnets would be a good thing.
Now, when--I had a vote organized, and there were various
machinations in the Senate that prevented the botnet provision
from coming to a vote. And behind that were some statements
that I'm a little bit astonished by, but basically that some
botnets are actually good and we should protect them out there.
I see you looking very surprised.
Let me ask you, could you react to that? Do you think I am
in the right place on this, that a botnet is either a latent or
an active menace on the internet and that we should be
aggressively taking them down?
Director Comey. I had that facial reaction because I don't
know of a good botnet. Botnets are armies of zombies, so
whether they are coming at you or whether they are standing
still, it is still really bad. I don't know of a good purpose
for an army of zombies.
Senator Whitehouse. Thank you very much. I appreciate it. I
am glad we are on the same wavelength.
With respect to encryption, we talk about it often as a
technical question, and let me be the first to say I don't want
a Government back door either. Nobody wants a Government back
door. But as you say, when it's the business model of a
particular company to disable its own ability to comply with a
properly authorized subpoena or search warrant under our laws,
that is a very different proposition, and it is that
proposition that I want to speak to. And I would like to ask
you to talk about two things.
The first is, from the FBI's perspective, what do you think
are going to be the worst and most dangerous consequences of
that encryption propagating and criminal use of it or terrorist
use of it? And less from the FBI's perspective but more
generally, since the FBI is a leadership organization within
law enforcement, what do you think regular police departments
and law enforcement officials around the country are most
likely to see as the hazards of this encryption in their
efforts to protect the public? So, first the FBI, and then more
general law enforcement concerns.
Director Comey. From the FBI's perspective, we are
increasingly seeing, inevitably we'll see entirely that
criminals and terrorists and spies have an unparalleled ability
to communicate with each other worldwide. Increasingly, we are
unable to see what they say, which gives them a tremendous
advantage as against us.
In the good old days, it was harder for them to communicate
with each other. Today they have a tremendous ability. Our
ability to monitor them has not kept pace; in fact, it is going
in the wrong direction. So, our ability to find people hiding
in the United States looking to do bad things to root out all
kinds of organized criminal actors is steadily being impaired.
That's the problem.
State and local law enforcement, the impact is for them
almost entirely devices that cannot be opened with a search
warrant. And I do very much agree it is a business model
choice, because the folks who are today selling those phones, a
year ago their phones did not have that capability. I do not
remember anybody saying, ``I am not buying their phones because
they are insecure.'' It is not a security issue. It is a
business model issue, and there are good motivations behind
that. But we have to talk about those, and so they are
encountering increasingly, in kids missing cases, in drug
cases, in violence cases, devices that are a brick to them that
hold all of the evidence that might help them figure out where
a child is, untangle a kidnapping, or figure out where a drug
gang is operating. That's their problem, less the data in
motion problem for the State and local, but increasingly this
it cannot reach the evidence that a judge would otherwise
authorize them to get.
Senator Whitehouse. That's very compelling testimony, and I
can share with you that the Chief of Staff to the President of
the United States has said that to me that one of the things
that keeps him up nights is this encryption problem. My concern
is if these companies have already made the decision that it's
their business model to prevent law enforcement from using
subpoenas and search warrants in the traditional way, then they
have a business justification in their minds for doing it. And
if that's their position, how is talking to them going to
change that. Where is the leverage point? What is the
administration's process for trying to solve this problem?
Director Comey. I don't know that there is a leverage point
that is going to flip it from one side to the other. I do think
that all businesses are making trade-off decisions, and at
least, in part, what has motivated some of the companies to
switch to this default encryption is they believe--and I'm not
questioning their good-faith belief--that it's a competitive
imperative, that customers want this. And so, the conversations
are useful because I think we can show them there is tremendous
harm associated with this, and the customers increasingly see
that, and so my hope is they will see that calculus
differently, and their customers will speak to them and say,
``No, I'll keep using your phone. It is a great phone, even if
you would allow a judge to issue an order to unlock it in a
terrorism case or in some other criminal case.''
Senator Whitehouse. And, presumably, if you could show that
but for the phone having been turned into a brick as a result
of the company's business practices and been protected from
search warrants and subpoenas, a child was--could not have been
rescued who otherwise could have been, and there is a fatality
that has resulted, presumably they would see that as something
less than great publicity for their choice.
Director Comey. Well, I actually--I mean, I wasn't just
saying this. They do care about public safety. These are good
people. What the conversations have helped them understand is
the darkness that we see. Good people don't spend all day long
worrying about the things I worry about. What the conversations
have helped them see is, ``Wow, there really is a real-life
impact to this.'' We're trying to find terrorist needles in a
haystack. When we find one, it goes invisible because they are
using end-to-end mobile messaging apps. That has real
consequences. These good people see that. That's where the
conversations have helped. Now, where that is going to lead, I
don't know yet.
Senator Whitehouse. Thank you. If we can help in any way,
please call on us.
Chairman Grassley. Senator Lee is next, but before you go,
unless Durbin and Schumer come back, it will be Klobuchar and
then the other Senator from Minnesota.
Senator Franken. That is fine. That is who I am.
[Laughter.]
Chairman Grassley. And the reason I took time to do that, I
am going to go up to Budget and ask a question, so I hope
everybody will observe the 7-minute rule we have.
Senator Lee. Thank you, Mr. Chairman. As the other Senator
from Utah, I am happy to comply with the 7-minute rule.
Thank you, Mr. Comey, for being here with us today. Thanks
for all you do to keep us safe. There has been some discussion
and a little bit of confusion lately about the USA FREEDOM Act.
In part, this has been precipitated by some of the discussions
going along with the Presidential election cycle that is in
full tilt now. But, to clarify, I have just a few questions
about the USA FREEDOM Act and how it operates.
First of all, the USA FREEDOM Act doesn't prohibit the
Government from gaining access to telephone metadata, correct?
Director Comey. Correct.
Senator Lee. It allows the Government to get metadata,
telephone records, connected to any terrorist investigation,
such that if the Government wants to gather metadata connected
to a particular phone number that it believes is connected to a
terrorist investigation, the Government can get that.
Director Comey. Correct.
Senator Lee. And the USA FREEDOM Act does not affect in any
way the Government's ability to gain access to any metadata
that either originated--as to a phone call that either
originated outside the United States or that originated here
and was directed outside the United States.
Director Comey. Correct.
Senator Lee. Did the enactment of the USA FREEDOM Act
substantially affect the Government's ability to prevent the
San Bernardino attack?
Director Comey. I'm only hesitating because I don't want to
talk about particular techniques we are using to understand
that attack. And so, I guess, Senator, I need not to talk about
it in the context of that case.
Senator Lee. Okay. I would note here only that it is
significant that only--only 4 days prior to the attack the
Government had access to all of the records that it had access
to--that it had access to for years prior to the passage of the
USA FREEDOM Act because there was a 6-month moratorium between
its passage and it kicking in. And I personally consider that
highly unlikely, some would say mathematically impossible, that
it had any difference there. And certainly the Government can
still investigate the San Bernardino attack by going after
records of the individuals suspected to be involved in that
attack.
Director Comey. Sure.
Senator Lee. Thank you. I want to talk a little bit about
this encryption issue. I was pleased to hear you say--and I
hope I understood you correct--that you're not pushing for
legislation that would mandate tech companies to put a back
door, to develop a back door and make that available.
Director Comey. Correct.
Senator Lee. What you were saying, as I understand it, is
that some companies, many companies, could choose voluntarily
to assist law enforcement in the execution of a warrant in
helping gain access to any information that they might have
access to.
Director Comey. Correct, and those are the conversation we
have been having.
Senator Lee. And so, but I assume in order to do that,
would they have to develop their own back door that they could
use internally?
Director Comey. Well, I don't know what in that context the
term ``back door'' means. They would have to figure out how,
consistent with their security requirements, they could comply
with the judge's order, as a lot of companies do today. So,
they would have to figure out under our system what would be
the best way to comply with the judge's order.
Senator Lee. Okay. Let's suppose that we have companies
doing that, perhaps some, perhaps all. Perhaps they are doing
it because they want to do it, or perhaps at some point,
assuming Congress were to pass something requiring them to
develop a back door, a universal key that could be used to
unlock the encryption. If U.S. technology companies started
doing that, perhaps some of them, perhaps most, perhaps all,
that wouldn't necessarily end the ``Going Dark'' problem, would
it? Because wouldn't we still have technology companies located
outside the United States still manufacturing devices that
wouldn't be subject to that requirement or wouldn't be subject
to the same thing that would be convincing American companies
to do that?
Director Comey. I think that's right, both--in two
respects. Devices manufactured in other places might be
different, and communications services from providers outside
the United States might be different, which is what makes this
such a hard problem. A big piece of it has to be international.
Senator Lee. Right. And so, even assuming Congress were to
enact something requiring the use of a back door, the
availability of a back door, a de-encryption key, if you will,
it still would not solve the problem because there would be
foreign manufacturers.
It also occurs to me that even assuming all U.S.-produced
devices had a back-door key of sorts, it's my understanding
that it's still possible to design an app that there are people
all over this country and in other places throughout the world
who can, with relative ease, design an application to be used
on a smartphone, for instance, or perhaps on a computer that
could provide encryption that couldn't be unlocked through an
encryption key made by the manufacturer for the device in
question. Is that your understanding?
Director Comey. My understanding is, I think, the same,
that with respect to a device, if the manufacturer were able
to, as they were a year ago, to unlock on a judge's order the
device, there may still be apps on the phone that are strongly
encrypted, and so the content in that particular app would not
be available once you unlock the phone.
Senator Lee. Correct. And so, if U.S. manufacturers were to
start developing this back-door key and they used it, they had
it, they made it available to law enforcement under appropriate
circumstances, presumably those who were determined to go dark
could and would start using an app that would itself not be
subject to being opened by that same key.
Director Comey. Yes, I hate to keep doing this to you. I
struggle with that term, ``back-door key.'' What I am talking
about is a year ago the manufacturers of the leading phones in
the United States could unlock them if a judge ordered it. I
don't know whether it involved a key or their software. Somehow
they are able to do that. But you are right, if we return to
that world, there could still be--the sophisticated user could
still figure out how to use something like TrueCrypt to protect
other content on that device. I think there is no way we solve
this entire problem. Encryption is always going to be available
to the sophisticated user. The problem we face post-Snowden is
it has moved from being available to the sophisticated bad guy
to being the default, and so it's now affecting every criminal
investigation that folks engage in.
But I agree; there is no way to solve this entire problem.
I still think it's worth trying to solve a big chunk of it.
Senator Lee. And so, the big chunk of it here would involve
U.S. manufacturers of U.S. diversity, notwithstanding the fact
that we still would have the risk associated with apps that
couldn't be opened by means of the same methods that you are
describing.
Director Comey. Sure, and there are other parts of it that
would be difficult to solve, too. You mentioned the
international aspect of it. Part of the solution, I hope, will
involve an international set of norms somehow, because our
partners in Europe very much face the same problem we do. And
so, they are very interested in having the rule-of-law nations
figure out so what should the rules of the road be with respect
to encryption.
Senator Lee. Right. Okay. I see my time has expired. I do
want to be clear. One of the reasons I asked the question is
one thing that I think we ought to be cognizant of is that we
ought not put U.S. manufacturers in a position in which they
would be punished relative to other manufacturers, especially
if U.S. manufacturers then saw a drop in sales because people,
for whatever reason, preferred other products. And we ought to
remember the limits on what we can do legislatively. If we were
to mandate that legislatively, it would not necessarily fix the
problem.
I see my time has expired, and I believe Senator Durbin is
next in the batting lineup.
Senator Durbin. Thank you very much, Senator Lee, and thank
you, Director Comey, for being here.
I would like to speak to you for a moment about the gun
issue and terrorism. I want to know if you believe that
terrorist organizations around the world are aware of American
gun laws.
Director Comey. As I sit here, I don't--I assume that they
are, and there is probably some specific I have been told that
I can't remember sitting here, but I assume that they are.
Senator Durbin. Let me just read a quote from one. An al-
Qaeda spokesman, Adam Yahiye Gadahn, American-born, who said in
a 2011 video, and I quote, ``America is absolutely awash with
easily obtainable firearms. You can go down to a gun show at
the local convention center and come away with a fully
automatic assault rifle, without a background check, and most
likely without having to show an identification card. So, what
are you waiting for?''
That is what his quote was. Well, fully automatic weapons
are not readily available for civilian use. Semiautomatic
assaults rifles are, and technology exists to convert them.
There are reports that the San Bernardino shooters were trying
to convert semiautomatic rifles into fully automatic versions.
Can you comment on that?
Director Comey. That is something we are looking at. There
is an indication that they attempted to convert or did convert
them successfully, and I can't give you the answer sitting
right here.
Senator Durbin. I guess the point I am trying to make for
the record is that those who would do us harm know that it is
easy to obtain firearms and weapons in the United States under
our current set of laws.
I would like to ask you a question based on your opening
statement, and I think I understood what you said, is that you
have found a public--some type of utterance by the 2 killers
that they were dedicated to jihad many years ago. And, I want
to ask you whether that statement was made prior to the
granting of a fiance visa to the wife.
Director Comey. Yes. And prior, frankly, to the rise of
ISIL.
Senator Durbin. And do you see any weakness in our system
when it comes to visas or fiance visas that that sort of
information was not known to us before she was granted access
to America?
Director Comey. I don't know enough to say.
Senator Durbin. We are discussing Visa Waiver Programs now
and how we can change them to make them better. Roughly 60
million foreign visitors come to the United States each year. I
understand 20 million are from the 38 countries where a visa is
not necessary. And one of the things that is being discussed is
to require a biometric examination or investigation before the
visa waiver traveler boards the airplane. Do you have any
thoughts on whether that would help to make us safer?
Director Comey. I have not thought about it well enough to
give you a reaction.
Senator Durbin. I wish you would think about it, and I am
sure you will. And it boils down to whether or not prior to
having access to an airplane you present your fingerprints so
that they can be checked against the information systems in
Europe and in the United States.
Is there a good exchange of information, incidentally,
between our European allies and the United States when it comes
to such things as the fingerprints of suspected terrorists and
known criminals?
Director Comey. It is good. It has gotten a lot better in
the last 2 years, and there is still room to improve yet.
Senator Durbin. I hope we can. I think it is very
important. Let me ask you the question; I want to make sure
it's clear in my mind. If someone on the No Fly List walks into
a licensed firearm dealer in the United States, that in and of
itself is not a prohibition against that person buying a
firearm.
Director Comey. Correct.
Senator Durbin. So, even if that person is suspected to be
a terrorist, they could purchase the firearm and leave with it,
though your agents may then follow them or investigate them or
keep an eye on them because of that purchase.
Director Comey. That is correct. We have 3 days to review
the background and so a hit, if someone walks in and they are
on the No Fly List, we'll immediately be notified. We will have
3 days to figure out whether there is some prohibition under
the law that allows us to stop the transaction. If not, they
will walk out with a gun if the dealer transfers it.
Senator Durbin. Absent some other disqualifier, the fact
that they are on the No Fly List is not enough--a sufficient
basis to deny the sale. Is that correct?
Director Comey. That's correct. That's correct.
Senator Durbin. I would like to bring this closer to home
in terms of violence--gun violence in my State. We recently
traced the crime guns that were seized in the most violent
sections of Chicago, and we found that 40 percent of those
crime guns were coming into Chicago from gun shows in northwest
Indiana where there was no requirement for a background check
before the sale was made.
Of course, it is not just firearms. It is ammunition as
well, and we have ample evidence that those who are engaged in
this gun violence make the short trip over the border into
Indiana, secure their weaponry and their ammunition, and come
back and kill people in Chicago.
What more can we do--we've brought up the issue, and I will
not engage you on it because I think you know the debate about
extending background checks to gun shows and internet sales.
What more can we do with this knowledge, though, that these
guns are crossing State borders into the city of Chicago and
being used in the commission of crime?
Director Comey. Well, under the current legal regime, we,
but especially our colleagues at ATF, try to understand are
there straw purchasers involved in that, are there gun show
participants who know that they are selling to felons or
prohibited persons, and try and make trafficking cases based on
that. That's sort of the focus of trying to stop bad guys from
getting guns at gun shows.
Senator Durbin. Is there any surveillance of these gun
shows to see if there are out-of-State license plates or
anything of that nature?
Director Comey. I think if there is a predicated
investigation of a particular dealer within the gun show, there
is appropriate surveillance. But I am not aware that there is
surveillance generally of gun shows.
Senator Durbin. Thank you. The last point I would like to
make, in his opening statement our Chairman suggested that he
would be open to the notion of prohibiting foreigners who are
in the United States under the Visa Waiver Program to purchase
firearms. That is a provision which I have been offering, and I
would just say for the record I hope I could work with the
Chairman and get his support in making sure that this loophole
is closed. Thank you, Mr. Chairman.
Chairman Grassley. On the Visa Waiver Program and guns,
what I was trying to say is I want to go further than that.
Senator Durbin. I will be glad to work with you.
Chairman Grassley. Senator Flake.
Senator Flake. Thank you, Mr. Chairman. Thank you, Director
Comey.
Encryption has been talked about some, but let me talk
about some of the other vulnerabilities we have, and
difficulties tracking information. I think we've discussed this
maybe before, but the--the other ways for potential terrorists
or terrorists to communicate here. It is obviously not just
email, it is not just text messages. And I have asked some that
are familiar with the field, if you had an event to communicate
that you did not want anybody to follow it, how would you do
it? And some say, well, you get on an app or a game, Words with
Friends or some other game, and in the comment section there is
a way to communicate within that. That is probably--I mean,
there is no way to use encryption right now for that, but it is
just in the realm of a lot of data, a lot of communication, a
lot out there. Is that something that is concerning to the FBI?
How--and what are we doing, without revealing sources and
methods and everything else, to deal with that situation?
Director Comey. Thank you, Senator. I don't want to say too
much about it because I don't want the bad guys to get ideas
they do not already have. But we have seen a number of cases in
which subjects of investigations have communicated through
gaming channels, either through more live action games or
sometimes through app games on devices. Sometimes those do
involve encryption, though. Those communications are encrypted
in the gaming channel, which makes it as hard pressed to
intercept with a court order as another encrypted channel. So,
it's increasingly a feature of our work, I guess is what I will
say.
Senator Flake. All right. Thank you. We have seen high-
profile data breaches, obviously, with OMB. What is the FBI
doing to ensure that we don't fall victim? A lot of
information, obviously, held by the FBI is extremely sensitive.
Are we taking the measures that we need to? And how can
Congress help to ensure that that data is secure?
Director Comey. Well, we worry about this every day, and we
try not to be overconfident. I think we have very good systems,
but we can't be satisfied, because as good as your system might
be, if human beings have access to it, there is a vulnerability
there. So, the FBI, especially since Snowden, has stepped up
our game there to make sure we understand the potential insider
threat. And so, we focus on it from a technological perspective
and from a human vulnerability perspective an awful lot, is
probably the best headline I can give you.
Senator Flake. You mentioned in your testimony that one of
the areas of focus is to ensure that we deal with corruption at
the border. Can you give us an idea of what you are doing to
combat that?
Director Comey. All of our field offices along the Mexican
border have robust public corruption squads and efforts going
on there, because anytime you have human beings in a role where
there is potentially tremendous amounts of bad money, there's a
risk of people being compromised. And so, it's worked all the
way from the gulf over to the Pacific Ocean in California by
all of our field offices. We work it in partnership with DHS
because a lot of our focus is on is there corruption in the
Border Patrol work force, for example, and I think we've built
over the last couple years a pretty effective relationship
there.
Senator Flake. Back to the visa situation, K1 visas have
come under scrutiny now. You mentioned in previous testimony in
the House the difficulty in vetting refugees, for example,
because of lack of information about their background. I assume
if that's true in Syria, it may be doubly true in South Sudan
or in Somalia or elsewhere. And so, we have to rely heavily on
interviews and assessments by field staff there.
What methods do we use there--lie detector tests--to try to
vet whatever information is given? What do we have now? And
what else can we do in that regard if there's a lack of
information or data to check what they say against?
Director Comey. State and DHS would be better qualified to
answer this than I. I don't think they--in fact, I am quite
confident they don't use a polygraph in that context. It's a
problem. Where you don't have data that you can vet somebody
against, you have to rely upon a skilled interviewer in a
consular office or some other place to see if they can detect
deception. And I know we have professionals doing it, but I
don't know it well enough to tell you what particular tools
they have considered using.
Senator Flake. You mentioned and, I think, we have all seen
the professionalism of some of the State and local officials
dealing with the situation, for example, in San Bernardino.
That is not always the case elsewhere in the country where we
have local officials who maybe need training or expertise. What
is the FBI doing to ensure that our local partners are--are
doing what they can to identify or to try to prevent or deal
with these tragedies when they occur?
Director Comey. With respect to terrorism attacks or----
Senator Flake. Yes, yes.
Director Comey. Well, the bedrock of our effort is our
Joint Terrorism Task Forces and the relationships we have also
built with State Fusion Centers to make sure that we give our
local partners what they crave, which is good information about
what the threat is, how they might check it out, and good
training on how to respond when there is an incident.
We have invested a tremendous amount of effort and money
trying to make sure we equip State and local law enforcement to
be able to respond well to these threats. We have just produced
a video called ``The Coming Storm,'' which is chilling but
extraordinarily valuable, that through real-life movie actors
shows how to respond to an attack in that case on a community
college, the best way to organize yourself, the best way to
respond. I have heard great feedback from our State and local
partners. We've made tens of thousands of copies of this. I
think every university police force should have it. Anybody who
is responsible for protecting a community should have it and
look at it.
Senator Flake. Thank you, Mr. Chairman.
Chairman Grassley. Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman. First, thank you
for having the hearing, to you and Senator Leahy. And, Director
Comey, I am an admirer of yours--I was before you took this
position and more so now--and an admirer of the men and women
who work in the FBI. I think you do a great job. So, none of
these questions are intended to impugn the hard work or
integrity of all of you.
Look, we in New York, praise God, after 9/11 haven't had a
successful terrorist incident. We have had a few in the country
now. But it's because of the hard work of your folks and others
on the Joint Task Forces that you mentioned, including the
NYPD, who do a great job as well.
Here are my questions. In your testimony this morning, you
told us the San Bernardino attackers were communicating online
about jihad for some time so this raises two big questions
which I would like to pursue. The first is, how come we did not
know about these communications before the attacks? And the
second is, how did she get a visa? How did somebody who is not
an American citizen pass a visa test when they were
communicating about jihad online before, no questions asked?
So, let us go to the first one. First, how do we know when
terrorists are communicating online? And how does it sometimes
get missed? How--I know you are exploring this, and I do not
want to step on any ongoing investigations, but in general,
this is going to cause great consternation to the American
people and I think to every one of us, certainly me. Here we
have somebody who is talking about jihad--two people--for a
couple of years, and I always--you know, I think most Americans
have the assumption that we're on top of things like this.
Director Comey. And I can only answer it in general. I
don't want to talk yet, if I could, Senator, about the
particular case.
Senator Schumer. Okay. So, let's take a hypothetical. Okay?
Someone is communicating--someone talking jihad over and over
again online. Do we know of it in most cases? And what do we do
about it?
Director Comey. We will only know about it--if it's a
private communication and not posting on a public forum or on a
public facing social media site. If it's a private
communication, whether it's electronic or it's by the mail, we
are only going to know about it if we had some reason to
believe that it was going on that allowed us to get permission
from a judge to intercept those communications. That's where
the community comes in. If folks tell us, ``I think this guy is
up to no good,'' then we can start to look at it and use our
lawful tools. I know the Senators know this, but we don't
monitor, and we should not in this country----
Senator Schumer. What about non-American citizens talking
to American citizens?
Director Comey. Well, again, that is governed by the rule
of law in the United States, and so we have to have
predication, the FBI or our intelligence agencies, to be able
to intercept the communications of an American, whether they
are communicating in the United States or overseas.
Senator Schumer. Okay. And in this case was there any
public--okay. So, let me ask it more generally. Let's say there
is some public posting, okay, on a Facebook page or something
like that where either an American citizen or a non-American
citizen communicating with an American citizen mentions jihad
several times. Do we know about that? And what do we do about
it?
Director Comey. Often we know about it, either because a
source of ours or an undercover of ours or a community member
who sees it tells us about it, and then we can jump on it and
use all of the tools that----
Senator Schumer. Do we have enough people monitoring these
things so that when it is public, we know about it if no
informant or no neighbor has told us?
Director Comey. The answer is certainly not, given the size
of the communication networks we're talking about. Millions and
millions of people talking to each other and making Facebook
posts and what-not, it's impossible to monitor----
Senator Schumer. But I would imagine on public postings you
could get--we have computers, for instance, that stop child
pornography with a certain image that's on there. Could we not
get computers that spit out to us who publicly--and we don't
know if these communications were public or private, and you
haven't said, and I am not asking you to do that in this
particular case. But could we not get a computer to spit out to
us somebody who is talking about ``jihad,'' ``bombing''--you
know, some words like this--repeatedly and to a variety of
people?
Director Comey. I want to be careful what I talk about in
open setting, but there are tools, but they are limited in a
way you would want them to be. But the United States
Government, unlike some other governments in the world, does
not monitor the internet.
Senator Schumer. So, a final question: Could we be doing
more in these types of situations?
Director Comey. We can always be doing more.
Senator Schumer. Okay. And is resources a problem?
Director Comey. Resources is--I believe----
Senator Schumer. If we gave you unlimited money--you know,
we're not going to do that, but we could give you considerably
more. Would you be able, in more frequent cases, when publicly
these things are mentioned, to be able to pursue them more
thoroughly?
Director Comey. ``Maybe'' is the answer.
Senator Schumer. Okay. Well, I'd like to get a classified
briefing from you or others on the details of this because it
concerns me.
Second, the Visa Waiver--the visa program, not visa waiver.
So, let's just take a hypothetical. A non-American citizen has
communicated online and used publicly, let's say--or now
privately I guess we could intercept them, but it is hard--and
used, you know, inflammatory words, language, intention, and
they come here on a visa, and let us even assume now it's not
in a visa waiver country. How often do we catch them?
Director Comey. I don't think I can answer that sitting
here. I don't know enough about--I can't answer sitting here. I
am sure we----
Senator Schumer. Don't you think we should know that?
Director Comey. Well, I am sure somebody does. We could get
you an answer in a pretty good way in terms of numbers.
Senator Schumer. Because after this hearing today, every
American is going to be asking the question: How did this woman
come in on a visa, a fiance visa--I think it is called 1K or
K1.
Director Comey. K1, I think.
Senator Schumer. K1. If she was talking publicly--again, we
will get into privately in the classified briefing--about
jihad. Not this woman, sorry. How could a woman--strike
``this'' and use the word ``a''--or man----
Senator Franken. Hypothetical.
Senator Schumer. Hypothetical, right.
Director Comey. And, again, assuming they are talking about
it publicly.
Senator Schumer. Yes.
Director Comey. On an internet forum or something?
Senator Schumer. Yes. Should it there--shouldn't that be
somehow tied into our visa program?
Director Comey. As part of the visa vetting process.
Senator Schumer. Yes.
Director Comey. Yes. I can't give you a good answer sitting
here, frankly.
Senator Schumer. No, but shouldn't it be?
Director Comey. I don't know enough to say, because I don't
know exactly what investment would have to be made to do that
work and what would be the payoff on the other side.
Senator Schumer. Got it. Again, I will pursue this further
with you both classified and nonclassified, and I thank you. My
time is now up.
Chairman Grassley. Senator Cornyn.
Senator Cornyn. Thank you. Thank you, Mr. Director.
If the FBI had a telephone number from a known foreign
terrorist and there were people in the United States making
phone calls to that known number, there are procedures in place
through the NSA and other agencies to check against that known
terrorist number to see if there're telephone calls by
Americans to that number. Isn't that correct?
Director Comey. Correct.
Senator Cornyn. And it doesn't involve any content at that
point. Correct?
Director Comey. Correct.
Senator Cornyn. Congress just voted and the President
signed into law a piece of legislation that prohibits the
National Security Agency from maintaining the bulk telephone
records. Does that--does that development entail greater risk
or otherwise limit the tools available to the FBI to be able to
discover those sorts of communications?
Director Comey. I don't know yet because the USA FREEDOM
Act framework is sufficiently new that I can't give you a high-
confidence answer on its effectiveness compared to what we used
to have. In theory, it should work as well or better than what
we used to have, but I don't know yet.
Senator Cornyn. So, it could entail more risk or no more
risk?
Director Comey. Correct.
Senator Cornyn. You can't say.
Director Comey. It could--I just don't know at this point.
Senator Cornyn. Okay. I was shocked, as I bet a lot of
other people were, particularly about your testimony with
regard to encryption and its impact on the Garland shooting in
my home State of Texas, 109 encrypted messages that still today
the FBI cannot gain access to. Is that correct?
Director Comey. Correct.
Senator Cornyn. And the only way you would be able to gain
access to that, again, is not because you are monitoring
private messages. It would be you would go to court and show
cause, meet the legal standard in order to get a court order to
then give you access to those records.
Director Comey. Correct.
Senator Cornyn. And you said there are telecommunications--
there are phone companies or, I should say, manufacturers who
are marketing their encryption as a way to gain market share in
America, to advertise that these are private conversations that
not even courts can order access to.
Director Comey. I think there are device manufacturers who
include that in their description of why their products should
be used.
Senator Cornyn. And you said encryption is part of
terrorist tradecraft. Correct?
Director Comey. That's for sure.
Senator Cornyn. To me that is a staggering situation
because it still persists today. Correct?
Director Comey. Oh, yes, and growing.
Senator Cornyn. And so, while we are all horrified and
repelled by what we saw in San Bernardino and what we saw in
Paris, there could well be similar communications, not in those
cases but in other cases, going on today and the FBI would not
be able to gain access to those communications between
terrorists even with a court order.
Director Comey. That's correct. And strongly encrypted,
end-to-end encrypted, even if a judge issues an order, if we
intercept it, it is still encrypted and unreadable.
Senator Cornyn. Do you consider that a danger to the
American people? Does that increase the risk of terrorist
attacks that could go undetected before the carnage occurs?
Director Comey. I do, which is why we've been talking about
for the last 2 years so much.
Senator Cornyn. Well, I appreciate very much your making
this important point, but it concerns me a lot that Congress
has not acted to do anything to give you the tools that you
need. I appreciate the way you have tried to discuss this with
the various manufacturers and other entities involved, but it
strikes me is if they are gaining market share by advertising
their encryption and saying that not even the Federal
Government in a terrorist investigation can gain access to it,
that is a real problem. And so, I think you said you hoped to
get to a place where the companies can comply with a court
order, but do you think it would be useful for Congress to
actually try to do something about this? Or should we just wait
for the voluntary compliance by the industry?
Director Comey. I think it would be useful, as Congress has
done, for Congress to try to drive this conversation, to ask to
draw people into it to figure out what we can do, because I do
not want to hurt American business, but I also have a
responsibility to try and protect the American people. And all
of us care about the same thing, so I appreciate Congress
trying to drive this conversation.
Senator Cornyn. Well, I think your testimony here today
will help do that. I think it has surprised and shocked a lot
of people.
I want to just close on this line of questioning, Director
Comey. We are at a point in our Nation's history where the
public doesn't trust Government. I think a Pew poll indicated
less than 20 percent of Americans say they trust their
Government most of the time. And, unfortunately, many Americans
have lost faith in our national institutions, including our
justice system, and I know how much you care about that and how
much you've dedicated your life to making sure that people can
trust law enforcement and our justice system. That faith is
endangered when attempts are made to pervert it in favor of the
powerful who would like to create different rules for those who
rule.
I know this is a sensitive matter, and I'm not going to ask
you about the content, but I know the FBI is currently
investigating the private email server of the former Secretary
of State, and it has troubled me, and I know others, when some
people have attempted to disparage or otherwise predict the
outcome of the ongoing FBI investigation. I know the President
himself said that we don't get an impression that there was
purposely efforts to hide something or to squirrel away
information. Does the President get briefings on ongoing
investigations by the FBI like this?
Director Comey. No.
Senator Cornyn. So, he would have no way of knowing what
the status of the FBI investigation is?
Director Comey. Certainly not from briefings from the FBI.
Senator Cornyn. I know a former senior official at the FBI
and the current president of the Law Enforcement Legal Defense
Fund told the New York Times that injecting politics into what
is supposed to be a fact-finding inquiry leaves a foul taste in
the FBI's mouth and makes them fear that, no matter what they
find, the Justice Department will take the President's signal
and will not bring a case. But I just want to ask you to
perhaps repeat something you said earlier when you said that
people at the FBI, including you, don't give a rip about
politics. Is that your position?
Director Comey. That is true through and through the FBI.
Senator Cornyn. So, for politicians of whatever level,
whether it's the President of the United States or Members of
Congress or anybody else, trying to lobby or intimidate or
influence an investigation by the FBI, that does not work, at
least under your leadership.
Director Comey. It does not matter--I don't want to hurt
anybody's feelings, but it doesn't matter what anybody thinks
or feels about our work. We are competent, we are honest, and
we are independent. We are going to do our work the right way,
and we care only about the facts. That's who we are.
Senator Cornyn. Well, that is certainly consistent with the
way you have conducted yourself, I think, in your public life,
and I think that will help restore in some small part people's
confidence that there are people trying to do the right thing
for the right reasons. So, thank you very much.
Director Comey. Thank you, Senator.
Chairman Grassley. Senator Klobuchar.
Senator Klobuchar. Well, thank you very much, Mr. Chairman,
and thank you, Director Comey, for being here. I really
appreciate it.
One of the things that we haven't gone into as much is the
online recruiting of terrorists. Minnesota, as you know, has
been very aggressive--our FBI and our local law enforcement,
our U.S. Attorney Andy Luger--in going after cases of people
who have been recruited, much of it online--not all of it, but
much of it--to join ISIS or, before that, al-Shabaab. And I
have seen these recruiting techniques myself. Your agents have
shown them to me. And I wondered what is being done about that.
And, you know, it may have played a role--I know the
investigation is still going on into the tragic shooting in San
Bernardino, but what is this emerging threat? What can be done?
There has been discussion about getting the companies to take
down these sites as much as possible. Just talk a little bit
about that.
Director Comey. Thank you, Senator. ISIL tries to
crowdsource terrorism. They obviously, as we talked about,
aspire to send operatives here. We as a country have made that
very, very hard, although it is something we focus on a lot.
And so, they also try to inspire people to kill on their
behalf. They send a message in a very slick way that resonates
with troubled souls, with people who are unmoored and seeking
meaning in their life, kids a lot of times, or older people who
have struggled in some way. And it is a very, very seductive
message that, by virtue of its quality and its quantity, has a
huge impact on the troubled mind because it is buzzing all day
long that these people can consume this. And their goal is to
draw folks into this closed circle online where they are
constantly bombarded with, ``This is the way to meaning, this
is the way to meaning,'' and that shapes a troubled mind.
And so, what we try to do is make sure we are aggressively
investigating that to find those that are on that path
consuming and potentially radicalizing, and then work with a
whole lot of other folks to try to help kids who might be
vulnerable to it, and not just to their poisonous message but
to all kinds of poisonous messages that inspire people--inspire
people to violence.
So, we are about to come out with something called, ``Don't
be a puppet,'' which is--I am no judge of what is cool, but I
am told this is cool--almost like an online game for schools to
have kids learn this is the way they come after you and here is
how you resist it, whether it is al-Shabaab or ISIL or some
domestic extremist group. Those are the two ways we try to
attack it.
Senator Klobuchar. Very good. And as you know, we have one
of the sort of pilot projects, the Countering Violent Extremism
group, and it has been used with our Muslim community, which we
are very proud of in Minnesota, has been working to try to
prevent these kids from getting involved in this in the first
place. And I really appreciate the work that you are doing. I
just encourage you to do more. We need more funding. We are
hoping we can get some out of this budget for these projects to
fight Islamic extremism. So, thank you for that.
I know that Senator Flake asked you about cooperation with
local law enforcement, and I heard you bring it up in your
initial statement. Do you think they have enough resources to
deal with what we are--Senator Murkowski and I are introducing
the COPS bill again to try to increase funding there, but could
you talk about that?
Director Comey. Our State and local partners are strapped
across the country coming out of the painful cuts they have
endured over the last 8 years, and so they are still
contributing their stars to our task forces, but I know what it
costs them because they are shorthanded across the country.
I travel to our field offices. I have been to all of them
once. Now, I am almost halfway through the second time. Every
visit I talk to State and locals, and I hear this over and over
again. They are being asked to do more and more with less. They
are trying to become better at community policing. That is very
hard when you are having to have officers cover twice the
territory they used to cover. They don't have time to get out
of their cars and meet people. So, it is a constant theme I
hear from our partners.
Senator Klobuchar. Thank you. And I wanted to end--a lot of
my colleagues have you asked you about encryption, and I know
you were here before and talked about efforts to try to work
with the phone companies. I thought your testimony was very
interesting today when you talked about the fact that some of
suspect that it may not really be a technological issue as much
as it is a business model issue. But--so, if that is all the
case, what has been done to improve it since that time? Has
there really been changes except for discussions with the phone
companies? You said in answer to one of the questions that a
good chunk of it could be resolved. How would we resolve that?
Is it just simply the international norms you talked about
where you would have agreement between countries to when--that
our court orders and their court orders could be followed? I am
just trying to get to a solution here as soon as possible. I
just keep waiting for the next ticking time bomb of something
where, you know, our law enforcement is not able to access it.
And you know it is domestic as well. It is not just terrorism
investigations. Cy Vance has made this a crusade, going around
talking about the problem in gang cases and some of the others.
And I just remember as a prosecutor sitting in on wiretaps,
seeing that kind of information. These are the old days when
people were using landlines and when there were less
sophisticated cell phones, and it was a major part of our
investigations.
Director Comey. I think a big part of the problem can be
solved if folks who are currently producing and selling devices
that can't be unlocked by judges' orders or communications that
can't be intercepted by judges' orders were to change their
business model in this respect--not to give us a key. I don't
want a key. I don't want to tell them how to do their business.
But figure out how they could change their model so they comply
with judges' orders.
As I said in my testimony, I actually don't think that is a
technical problem. The folks making the phones today, they were
doing that a year ago, and nobody said their devices were
insecure so we ought not to buy them. And so, I am hopeful--I
mean, I am an optimist. I am hopeful that people, now that they
understand how big the threat is, will consider those changes
and get us to a place so we can address a big chunk of it that
way. It's not going to solve the entire problem, and I agree
very much that you don't want to just chase the problem
offshore, and so there does have to be an international
component to this. But a big start would be people
acknowledging it is actually not a technical problem; we have
chosen to operate our business this, for good reasons; but we
should stop saying you are going to break the internet if you
ask us to do this, or the Director of the FBI wants to
stockpile keys. No, I don't. I don't want the key to anybody's
house. You should figure out--when a judge says there is
something in your house that this Nation needs to be safe, you
figure out how to come out of the house, use a window, use a
door, use a slot, whatever keeps your house safe. We should not
tell you how to do it, but we should get to a place so when a
judge says this is necessary, you are able to comply.
Senator Klobuchar. And you are talking here about court
orders, and you are talking here about an international norm,
given that the world has united against ISIL and this kind of
other terrorist evil. So, some way that we can find
international agreement on when this information is given to
pursue these very important investigations.
Director Comey. Yes, I think reasonable people have said
that is a part--that should be a part of it, and I think they
are right.
Senator Klobuchar. Thank you very much.
Senator Hatch [presiding]. Thank you, Senator Klobuchar.
Mr. Director, we are really happy to have you here today,
and I want to personally express my gratitude for the work that
you are doing, the work you have done in the past, and for the
good way you approach law enforcement in this country. You are
doing a great job.
Last week's tragedy in San Bernardino was the worst
terrorist attack on American soil since 9/11. Now, the shooters
claimed allegiance to ISIS, and ISIS has called them its
followers. I think it's important to call this attack what it
is. Do you agree with me that this was an act of terrorism?
Director Comey. Yes.
Senator Hatch. Do you agree that it appears this terrorist
attack was at least inspired by ISIS?
Director Comey. We are still sorting that out, Senator. It
was definitely claimed by the killers at or about the time of
the killing that they were doing this on behalf of ISIL, and
ISIL then has embraced them as followers. There's more work to
be done to understand the motivations more clearly.
Senator Hatch. It would seem hard to not say that ISIS had
something to do with it.
Director Comey. Right, ISIL inspiration may well have been
part of this.
Senator Hatch. Sure.
Director Comey. But these two killers were starting to
radicalize toward martyrdom and jihad as early as 2013.
Senator Hatch. I agree.
Director Comey. And so that's really before ISIL became the
global jihad leader that it is.
Senator Hatch. Within 24 hours of this terrorist attack,
the Attorney General stated that her, quote, ``greatest fear,''
unquote, was the possibility that it could lead to anti-Muslim
rhetoric. And after 130 deaths by ISIS in Paris and 14 dead
Americans last week, my greatest fear is not rhetoric. I mean,
in all honesty, my greatest fear is more attacks and more dead
Americans.
If we were to put it this way, what would be your greatest
fear after last weeks' terrorist attack?
Director Comey. My fear, which is not new--it has been a
feature of my work since I started this job--is what don't we
know, what cann't we see, and that is the particular challenge
of those radicalizing online, consuming propaganda, and trying
to stay beneath our radar. This confirms to us what we have
said all along, as have many other cases. The reason we have
cases in all 50 States is a very real concern that people are
radicalizing in a way that is hard to see. That inability to
see is my biggest worry.
Senator Hatch. Well, I share that.
Let me just say this--and I would like to follow-up on
Senator Lee's line of questions regarding the so-called dark
problem. I have two questions.
First, with respect to control of encrypted data, U.S. tech
companies do not want to be the middleman between law
enforcement and technology customers. How do you--how do you
reconcile this concern with the needs of law enforcement? And
have you considered alternatives that would meet the needs of
law enforcement but not put the United States tech companies in
the awkward position of middleman?
Director Comey. I'm not sure I know exactly what they mean
by middlemen. I don't want anybody to be the middleman for law
enforcement. But everybody in the United States has, I believe,
an obligation to endeavor to comply with judicial orders in
criminal investigations, whether you are a bank or you run a
sandwich shop or you run a technology company. And so, I don't
want anyone to be the middleman, but I want everyone to be in a
position to comply with judges' orders. That's what the rule of
law is about.
Senator Hatch. Thank you. Second, U.S. tech companies are
not the only businesses that offer encryption to countries--to
customers. Businesses in other countries offer it as well. Now,
if we require U.S. tech companies to provide decryption keys,
won't users simply look to technologies from other non-U.S.
companies to conduct their activities? How do you respond to
that concern?
Director Comey. That's a serious concern. First of all, I
do not want anyone to supply encryption keys, but if we went to
a place where American companies were required to figure out a
way to comply with judicial orders, they do make a serious
argument that what that would do is chase our business
overseas. I'm not in a position to evaluate that argument. A
little part of me is skeptical that people would stop buying
the great phones we make in this country because a judge might
order access to it. But I am not really an expert on that.
So, I do think a part of this has to be an international
compact of some sort. None of us want to hurt American
business. But at the same time, there are costs to being an
American business. You cannot pollute, you cannot employ
children. There are certain things we've decided as a country
we want to govern ourselves this way. And so, in a way, I think
we have to figure out what's right for America first, and then
try and figure out how to reduce the harm that might come
competitively.
Senator Hatch. Okay. I would like to turn now to the issue
of rapid DNA. Last week I introduced bipartisan legislation
with Senators Feinstein, Lee, and Gillibrand to update our
Nation's laws to take account of this exciting new technology.
Now, rapid DNA devices are self-contained. They are fully
automated instruments that can be placed in booking stations
and that can both develop a DNA profile from a cheek swab and
compare the results against existing profiles in less than 2
hours.
Now, my bill, the Rapid DNA Act of 2015, would allow law
enforcement officials using FBI-approved rapid DNA instruments
to upload profiles generated by such devices to the FBI's
Combined DNA Index System and perform data base comparisons.
Director Comey, you have spoken in the past about rapid DNA
and how this technology will help law enforcement. Do you
believe that rapid DNA technology is important? How will it
impact law enforcement? And do you believe Congress should pass
legislation authorizing its use within standards and guidelines
promulgated by your agency?
Director Comey. That authority that's in your bill would
help us change the world in a very, very exciting way. That
would allow us in booking stations around the country, if
someone is arrested, to know instantly or near instantly
whether that person is the rapist who has been on the loose in
a particular community before they are released on bail and get
away, or to clear somebody, to show that they are not the
person.
It is very, very exciting. We are very grateful that we are
going to have the statutory authorization, if that passes, to
connect the rapid DNA technology to the national DNA data base.
Senator Hatch. Well, thank you. My bill, the Rapid DNA Act,
will not affect when or under what circumstances law
enforcement collects DNA samples. These decisions would be
governed by State or other Federal law. What it will do is
affect where samples are processed and how quickly they are
processed.
Now, Mr. Director, what would you say to individuals who
may be concerned that rapid DNA technology will raise privacy
concerns? And what would you say to individuals who may be
concerned that this technology could affect the integrity of
the FBI's Combined DNA Index System, or CODIS? And I would note
that my bill restricts access to CODIS to FBI-approved rapid
DNA instruments operated in accordance with FBI-issued
standards and procedures.
Director Comey. First, you said it well, Senator. Folks
need to understand this is not about collecting DNA from more
people. It is about the DNA that is collected when someone is
arrested, being able to be analyzed much more quickly, that can
show us in some cases this is the wrong person or can show us
in some cases this is someone we have to be very worried about.
That is good for our justice system as a whole.
And you are exactly right. The national data base, the
CODIS data base, is the gold standard. This legislation does
not make it any--water down the standards that are applied
before a DNA result can be pressed against that data base.
We're still going to have high standards. We're still going to
require that this is the gold standard for identification in
the United States.
Senator Hatch. Well, thank you, sir. Senator Franken is
next.
Senator Franken. Thank you, Mr. Chairman.
Director Comey, first I would like to thank you for
appearing today. It's good to see you again, and you do a great
job, I think as all the Members of this Committee agree.
Before I turn to my questions, I want to extend my thanks
to the Bureau and to you and to your agents for assisting in
the Federal civil rights investigation surrounding the death of
Jamar Clark in Minneapolis. I supported the decision of Mayor
Hodges and Police Chief Harteau to call for an independent
investigation. In my view, a full, thorough, and transparent
accounting of the facts is necessary to get to the bottom of
what happened in that tragic event and to restore trust between
the North Side community and the police and law enforcement.
So, I want to commend the FBI agents involved for their
professionalism and for their commitment to seeking justice.
I wanted to just--a lot of things have been discussed in
this Committee, including the ``Going Dark,'' the encryption
issue, and I just want to make sure that I have clarity on this
and maybe help other people clarify it for them.
Basically, tell me if I heard you right, that a terrorist
in the United States could--that there is--is there a
distinction between--there are two distinct but related
concerns that law enforcement has about encryption concerning
information sought by law enforcement is on an encrypted
device--we are talking about the phone--and the concern that
encrypted--that the information might exist within an encrypted
app on that phone. And so, some of these apps are available
freely online and add an extra layer of encryption.
Can you speak to the Bureau's concerns related to these
issues? You're basically saying that there sort of are two
layers, and if you get rid of the first layer, you'll have
more--I mean, you'll obviously be--it will be a great deal more
people that won't be caught up or that won't have that
encryption? Is that what you are saying?
Director Comey. I think what has changed--encryption has
always been available, always been available to the
sophisticated user, ``always'' meaning for decades. What
changed over the last 2 years is encryption went from available
to being the default, and so now, with some of the leading
phones in the United States, that phone is encrypted by
default. So, if we recover it at a crime scene, with a judge's
search warrant order we cannot open it. It has been designed
that way.
Senator Franken. And I know you are not asking for a key.
You are asking for the company to be able to follow the judge's
order.
Director Comey. Right, which they could do--2 years ago
they could do it and did it routinely, and I think their
devices were still considered pretty secure. But you're exactly
right. There may still be within that device, especially for
sophisticated users, other encryption tools that are on
particular apps, or there is actually something too
complicated----
Senator Franken. Can we get some data on this? I mean--the
last time we looked at this, this Committee looked at this, we
had Deputy Attorney General Yates, and I asked her for more
information about the scope of law enforcement's concern,
because I know there's a lot of this is about just normal crime
and not about terrorism. And I think what you're suggesting is
that a terrorist might be able to get that app, that's why--
that foreign app, and that's why we need an international
agreement on this. Right?
Director Comey. Yes, you are exactly right. This is mostly
a local law enforcement issue. But we are gathering the data
that you asked for, and I'll have to get back to you on exactly
when we are going to get it to you.
Senator Franken. And I know that you have mentioned it.
Director Comey. Yes.
Senator Franken. Okay. I want to make sure I am clear on
something else from this testimony. I'm just sort of reviewing
the whole day for myself. I understand if someone on a
terrorist--terrorist watchlist tries to buy a gun through a
licensed dealer, the FBI is alerted.
Director Comey. Correct.
Senator Franken. And it can delay the sale for 3 days?
Director Comey. Under the law, we are allowed up to 3 days.
Senator Franken. So, okay. But ultimately do you have legal
authority to deny the sale?
Director Comey. Not unless there is another prohibitor
under the law, felon or mental defective----
Senator Franken. Well, at least you have that 3 days.
Director Comey. Yes.
Senator Franken. If someone on a terrorist watchlist--this
is someone on a terrorist watchlist. In 3 days, if there is no
other indicator, they can get their gun. That to me is a
problem.
Now, if someone on a terrorist watchlist tries to buy a gun
online or at a gun show, no one is legally required to notify
the FBI.
Director Comey. I believe that is correct, yes.
Senator Franken. Okay, so I have that correct.
So, to fix this, if we're talking about keeping guns out of
the hands of terrorists, and presumably people on the No Watch
List are there for a reason, or maybe there is a false
positive, but it would seem to me that we would have to be
doing both. Having--if we are really interested in keeping guns
from terrorists, we would have to enforce both--say you can't
sell a gun to someone--or there has to be 3 days or some kind
of look at that person, and also the gun--the gun sale, the
sale at a gun show, the gun show loophole would have to be
solved, too. I mean, in other words, if we're worried about
guns falling into the hands of people on terrorist watchlists,
we also have to close up the gun show loophole as well as
cleaning up this loophole, which is the terrorist watch
loophole. In other words, this is a reason to do both in--let
me put it this way--you don't have to answer. This is the
reason to do both.
Okay. Thank you.
Chairman Grassley. Senator Perdue.
Senator Perdue. Thank you, Mr. Chairman.
Director, we are lucky to have you. Thank you for the
sacrifice you make in doing what you do. I'm glad you are on
the wall.
I would like to go back and clear up just to make sure I
understood the testimony today as well. I applaud the FBI for
being the first to call this an act of terrorism--not that I
want it to be an act of terrorism, of course, but you guys
looked at the facts and said the American public needs to know
the facts. Thank you for that.
But I am a little confused. An act of terrorism, I haven't
heard today it connected directly to ISIS. At this point, I
know in this environment you may not be able to talk about
that, and if not, that is fine. Can you talk about that? Do we
have evidence that this was directly connected to ISIS
influence in the U.S.?
Director Comey. There is some indication that they were at
least, in part, inspired by ISIL, so yes. We're trying to sort
out what other contributions might there have been to their
motivation, and we may never fully sort it out because human
motivation is hard. But at least, in part, we see an ISIL
inspiration.
Senator Perdue. And you may not want to comment on this
either, and I apologize for asking these direct questions. But
in the past, just for the American people and for Congress, the
FBI has been a stalwart in helping to protect the American
people over time. In the past and on your watch, are you aware
of planned attempts that have actually been preempted by the
FBI that we may never know about.
Director Comey. Yes, many.
Senator Perdue. Okay. Thank you.
In speaking to the increase in the latest spate of ISIS
attacks, is their planning getting better? Are their tactics
getting better? Are there networks expanding? I know that the
Malik and Farook team bought their weapons through a neighbor.
My question is, is there a network issue here? And are the
networks growing in the U.S.?
Director Comey. We are looking at, obviously, in San
Bernardino to see was there anybody else involved in assisting
them, and so separate from San Bernardino, we have not seen
this, we have not seen ISIL cells or networks in the United
States. So far as we can tell, they have not succeeded in
penetrating our borders with their operatives. That's an
aspiration of theirs. We have got to worry about it all day
every day. But, instead, what they're doing is motivating
individuals or very, very small groups of people to commit
murder on their behalf. That is the crowdsourcing phenomenon we
have been dealing with.
Senator Perdue. Thank you.
Can you confirm that ISIS adherents have attempted to gain
access through the refugee--refugee resettlement program? Do we
actually have cases where through the resettlement--I think
there are 2,200 people or so that have come in so far, and
we're trying to bring another 10,000 in the first phase of
this. Have we actually had cases where we have identified ISIS
adherents in that first group?
Director Comey. Not to my knowledge.
Senator Perdue. Are you aware that Canada is increasing
their Syrian refugee acceptance rate from less than 5,000 to
over 25,000, the latest number I saw? And with the border that
we have with Canada--we don't talk about that border much--is
the FBI aware of that, or are they paying attention to that
relative to what we need to do? To me that vetting in Canada--
and Canada is just as important as our own vetting here with
our K1 and our Visa Waiver Program.
Director Comey. And they get that. The head of the RCMP is
a friend and colleague of mine. He called me to tell me that
their government had made that decision and to explain and to
encourage us to work together to vet those people.
Senator Perdue. And what changes would you like to see in
the K1--with Malik, was she actually given an interview in the
K1 process, do you know? Or do we know that?
Director Comey. I do not know well enough to say at this
point.
Senator Perdue. Okay.
Director Comey. I know the process requires it. We are
still trying to fully understand exactly all of her contacts.
Senator Perdue. Are there changes you would like to see,
the FBI would like to see in the K1 program or in the Visa
Waiver Program?
Director Comey. I don't know enough yet to say as a result
of this case.
Senator Perdue. Okay. And the last thing, very quickly, in
the Trans-Pacific Partnership there is language in there that
would prevent national laws being implemented in countries that
would require manufacturers to provide access to products'
encryption technologies. Some critics think that that would
limit our own ability to provide legislation that would give
you a solution to the potential ``Go Dark'' solution. Does the
FBI have a point of view on that yet?
Director Comey. We don't.
Senator Perdue. Okay. Thank you, Mr. Chairman. Thank you,
Director.
Chairman Grassley. Next is Senator Blumenthal and then
Senator Coons, and if you can stand me for 7 more minutes, I
have a second round of questions.
Senator Blumenthal. Thanks, Mr. Chairman, and thank you,
Director Comey, for your excellent work and your great service
to our country. Thank you to your family and most especially to
your wife, Patrice, who has done so much for the children of
Connecticut and now for others around our country. I have just
come from----
Chairman Grassley. She is from Iowa, too.
Senator Blumenthal. Thank you, Mr. Chairman, for that
correction.
[Laughter.]
I have just come from a hearing at the Armed Services
Committee where Secretary Carter was testifying, and I want to
first make the point that we often thank our men and women in
uniform, which I do readily and repeatedly, and I do again now.
But I also want to thank the very brave men and women who work
under your command, who enforce our laws and help to keep us
safe, along with all of our law enforcement men and women
around the country, police at every level, and are in a sense
also at war.
In fact, Secretary Carter said, and I'm quoting, talking
about ISIL, ``The reality is we are at war. That's how our
troops feel about it because they are taking the fight to ISIL
every day, applying the might of the finest fighting force the
world has ever known.''
Do you feel that we are at war also within our borders
against forces of terror that are linked to those forces abroad
that our men and women in uniform are fighting?
Director Comey. Very much, Senator, and our people feel
that passionately. Our people are tired, and we are working
very, very hard. They're working very, very hard. But what
motivates them is these people want to kill our people, and we
are at war with these people. And so, stopping them is what--is
the reason we do this work.
Senator Blumenthal. And the President well identified this
new phase that perhaps is an old phase in larger scale, the
phase of ISIL and ISIS reaching outside the theaters where they
have fought so far, reaching into this country. You have
referred to crowdsourcing as the San Bernardino experience, and
outsourcing that threat to new recruits, to homegrown radicals,
may be part of the threat here. But you would agree that we
face a war every bit as dire and dangerous here at home as we
do abroad.
Director Comey. Yes. The threat obviously and the density
of these savages is less here in the United States, but the
nature of it is very similar.
Senator Blumenthal. And I know that you've responded about
the importance of cooperation in terms of information and other
kinds of assistance that is provided by members of the Muslim
community, just as cooperation and support is essential from
nations that have a majority of Muslims abroad in our fight
against ISIS and ISIL. They are our natural allies and friends
and partners in this fight against extremist terrorism and
violence abroad. And I want to ask you about some of the
statements that are made about closing borders and about
religious tests at our borders, other kinds of religious tests
that, in my view, are unconstitutional, but also strike me as
unwise because we need that cooperation.
Are the statements themselves potentially inhibiting that
kind of cooperation and support and help that we need?
Director Comey. Thank you, Senator. I don't want to comment
on anybody's statements, but I can make, I think, the point
that you are interested in. ISIL is trying to recruit--recruit
in Muslim communities. They are trying to motivate people who
may be of the Muslim faith who are unmoored in some way to
become part of their poisonous endeavor. The people who so
often tell us about people like that are other Muslims who help
us, and so we've worked so hard over the last 15 years to build
relationships of trust that allow us to find out who might be
trouble and to stop it. That's in everybody's interest. And
anything that gets in the way, that erodes that relationship of
trust, is not a good thing.
Senator Blumenthal. And Muslims who live in our Nation are
fellow Americans, many of them, equally interested in
preventing threats and violence, as any one of any religion.
Director Comey. Our experience, they are--what is wonderful
about this country is we are incredibly diverse. They are part
of that diverse polyglot, and they love our country, which is
why they help us when there is a killer in their midst or
someone on the path to being a killer in their midst. We have
to continue this. As I said at the beginning, we are all in
this together. We need each other.
Senator Blumenthal. I applaud your very clear and emphatic,
unequivocal statement about that point.
I want to shift to another terrorist act, at least one that
strikes terror, not of the same motivation but involving the
apparent racist-motivated violence in Charleston. The FBI
background system known as NICS was applied in the case of
Dylann Roof's purchase, but only too late to prevent him from
buying a gun. The 72-hour loophole that I have tried to close
enabled him to walk away with a gun that he sought to purchase.
Thanks to that loophole, after the 72-hour period, since the
background check was not completed but would have precluded him
from buying a gun, he was enabled to have that firearm. Gun
retailers have sold 15,729 guns in the last 5 years to
individuals who were not legally allowed to purchase them, and
about 5 months ago, I think, you commissioned a study that was
to last 30 days to examine how Dylann Roof was able to buy that
gun. I think that report would help us in Congress to
understand what went wrong and how to fix it, and most
especially, if the 72-hour loophole enabled him to buy that
gun, as appears to be from the facts that we have been told so
far, the report would be very helpful.
So, my question is: Can you update us as to the status of
that report?
Director Comey. Certainly, Senator, and we would be happy
to get you a detailed briefing on it, because the work was
done, as I asked, in 30 days, and it did two things: It
confirmed the facts as we understood them close to the murders
in Charleston, that there was a mistake made by our processing
clerks that was compounded by a mistake in the records of the
South Carolina jurisdiction where he would have been--where the
prohibitor came from. And so that confirmed what we knew. What
it most importantly told us is how can we get better.
The law is what the law is. We have 3 days to process these
thousands and thousands and thousands of them, and so we are
working on a number of things to get better: one, to improve
the records that are put in by State and locals, to improve our
technology, and to surge resources. The number of gun purchases
continues to climb. It has climbed dramatically in the last
week. We have got to make sure we have enough folks--if all we
have is 3 days, we have got to make sure we have enough folks
to do that. And so, those are the three buckets: better
records, better technology, and more importantly, more human
beings on the phones to process them more quickly.
Senator Blumenthal. So, resources are really important,
resources in technology, resources in people, and resources in
records that you depend on because many of them come from State
and local authorities as well.
Director Comey. Correct.
Senator Blumenthal. My time has expired. This whole area is
tremendously important. I want to thank you for being here
today, and just to clarify, racial and religious supremacists
often use terrorist-type tactics, even though we would not call
them ``terrorists'' today. But I appreciate the attention that
you are giving to the potentially white supremacist-motivated
acts of violence in that church in Charleston. Thank you.
Chairman Grassley. Senator Coons.
Senator Coons. Thank you, Chairman Grassley, and thank you,
Director Comey, for your service and for your testimony before
this Committee today.
I was very pleased to see in your testimony before the
Committee a focus on the Violence Reduction Network, a
Department of Justice initiative that is truly helping a group
of now ten smaller cities, like my home town of Wilmington,
Delaware, that have seen a dramatic rise in violent crime and
in homicides. We are, sadly, on track for a record year of
shootings and homicides, and I am grateful for your focus and
for the FBI's focus on providing technical and investigatory
resources to help State and local law enforcement deal with
this rise in violent crime in a few cities and to learn from
the policing examples of other communities and Federal agencies
that have real knowledge about how to better deploy
investigatory resources.
So, tell me, if you would, how we can better support
valuable programs like the VRN and how, in your view, it's been
most effective in connecting FBI resources to cities like
Wilmington, Delaware.
Director Comey. I will start with the effectiveness point
first. I think what makes it special is we bring together in a
place like Wilmington everybody who cares about this issue or
might have a specialty that is useful, and where I think we can
bring a lot to bear is our understanding of technology and our
analytic resources so that we help a local jurisdiction
understand what is the pattern, what is the trend, and what are
the pieces of information that we can lawfully gather that
would be useful to you in focusing on, because it is almost
always small groups of predators, finding them and ripping them
out of the community. And that is a--it's not rocket science,
but it often brings rocket science--rocket scientists to the
fight in a really important way.
I think the way you can support it is, as you just did,
talking about its value and making sure that appropriators and
others understand that when the Department talks about this, it
is making a difference.
Senator Coons. Thank you. I am an appropriator on the
relevant Subcommittee and have advocated for it with the head
of OMB and the Attorney General, but would be grateful for any
other advice or insight you would care to offer about how we
can sustain it, make it more effective. Certainly, the work to
reduce violent crime is far from over in my home town and in
the 9 other cities around the country, and I am hopeful we will
sustain this program until we see some significant reduction in
violent crime.
I would like to mention another issue, if I could, about
cybersecurity. The Senate recently passed the Cybersecurity
Sharing Information Act which permits DHS to scrub personally
identifying information it receives from private entities, but
only after it secures the approval of a number of agency heads,
including yourself in your role as Director of the FBI.
Have you had any communications with other agencies yet
about how this process will work? And are you committed to
ensuring that DHS can actually conduct a robust scrubbing of
personally identifying information?
Director Comey. I haven't had any conversations about that,
but the second part is easy. We'll do everything possible to
make sure that it works and works the way Congress designed it.
Senator Coons. Well, thank you. I would urge you to engage
in those conversations. I think this process is going to move
relatively quickly, or so I hope.
In October, President Obama secured from President Xi of
China a striking landmark admission that China had been engaged
in economic espionage, cyber attacks--that is something you
have testified about here before--and a commitment that those
attacks would end. Yet press reports suggest that literally a
day after President Xi's visit, Chinese cyber attacks resumed.
Has the FBI detected any change in Chinese cyber espionage
behavior following President Xi's promise? And what do you
recommend in terms of action by the Senate to try and address
this ongoing challenge to our Nation's innovation and
inventions?
Director Comey. It's too early to say. We're watching it
very, very carefully. Given the long-tail nature of Chinese
cyber espionage and theft, even if--I'm not sure that I would
expect a change, even if one was going to happen, that would be
visible yet. And so, we are watching the space very carefully.
We have had good conversations with our Chinese counterparts. I
have told them I do not mean to be rude, but the FBI Director
is paid to be skeptical. I am deeply skeptical. And so, we will
have to watch and see what the facts show us, but I cannot say
yet.
Senator Coons. I think it is deeply disturbing and hostile
behavior that we need to continue to be engaged. I have heard
from far too many American companies that they have lost vital
both economic secrets and from some Federal agencies that
they've lost vital national security secrets, and I appreciate
your hard work on this.
Last, I am the Ranking Member of the Oversight
Subcommittee, and last month we held a hearing at which DeKalb
County Police Chief Cedric Alexander, who is himself a 30-year
law enforcement veteran, testified that the notion that there
is a so-called Ferguson effect is of no real significance. I
was struck at that hearing, which Chairman Cruz called under
the title ``A War on Police,'' that that hearing actually
produced no evidence that there is any meaningful organized war
on police. And as the Co-Chair of the Senate Law Enforcement
Caucus, I know that law enforcement faces real challenges
nationally every day, but I see little evidence to suggest that
these issues stem from the calls of some in the civil rights
community for greater accountability. In fact, my experience at
the local level was that police officers are some of the
greatest advocates for accountability because it makes them
more effective police officers.
So, is it your view that the protection of American civil
rights is actually inconsistent with good policing and officer
safety? Or do you see them as being fundamentally in harmony?
Director Comey. Oh, they are fundamentally in harmony.
Scrutiny and oversight and accountability are good for
everybody, law enforcement and non-law enforcement.
Senator Coons. Well, thank you, Director. It's my view that
in a democracy the enormous power that we give to law
enforcement and the very high expectations we have for them are
only strengthened by accountability that then produces
community engagement, community support. The agency I was
fortunate enough to be closely associated with for a decade
really was an early national leader in community policing and
did, I think, an outstanding job at winning the trust of our
community and, thus, being effective at policing. And, I think,
there is a lot of work to go in terms of accountability and
engagement and protecting civil rights, but I appreciate your
response on all four of the questions I have asked today, and I
am grateful for your service. Thank you, Director.
Director Comey. Thank you, Senator.
Chairman Grassley. I have got three questions I would like
to ask, and then I assume everybody has asked questions once
and that nobody will come back.
I want to start by underlining what Senator Cornyn said
about the Clinton email investigation. Almost 1,000 emails
contained classified information were transmitted through and
stored in the non-Government server system. A former IT
specialist at the State Department who also managed the private
server has avoided this Committee's questions by relying on the
Fifth Amendment right of self-incrimination. And in the course
of the FBI's investigation, there might come a time when it
refers the matter to the Department of Justice for prosecution
of some of the individuals involved.
But as you know, no matter what the FBI finds, a political
appointee at the Justice Department will ultimately make the
decision of whether or not to prosecute. That's why some have
called for a special counsel to be appointed for an independent
decision.
So, my question is, if the FBI refers the matter to the
Justice Department but the Justice Department refuses to
prosecute, the public will not learn the facts that the FBI
independently inquiry established. So, would there be a process
by which you would inform the public of what the FBI learned
and what you will do if the decision not to prosecute appears
to be improperly influenced by political considerations?
Director Comey. Mr. Chairman, I am not comfortable
answering a question about what might happen in that particular
matter. I think it's important that I am--I'm making sure it
has the right resources, the right people, and it's done in an
expeditious, fair, and competent way. I don't want to speculate
and go down that road, if I could.
Chairman Grassley. Could I remind you that in the anthrax
case, after the person that was suspected committed suicide,
the FBI did make that investigation public? So, wouldn't there
be a precedent for you making your investigation public?
Director Comey. There is a variety of precedents for
investigations, describing some or all of it to the public. I
just don't want to start to speculate on this particular
investigation.
Chairman Grassley. Okay. State Department officials--along
the same lines, State Department officials have informed my
staff that the FBI has seized or taken possession of the State
Department computer used by the witness who is asserting the
Fifth Amendment to this Committee. There has also been a public
report that the FBI has taken possession of State Department
email servers. Is that correct? Has the FBI seized or taken
possession of these State Department computers?
Director Comey. I can't comment on that given that it is an
ongoing matter.
Chairman Grassley. I'm not really asking you what it
serves. I am just asking you, do you have these tools
available?
Director Comey. Well, if I were to answer, I would be
answering about what evidence we have gathered in an
investigation. I can assure you----
Chairman Grassley. You don't need to go any further.
Director Comey. Okay.
Chairman Grassley. I trust you. The American people rely
upon you to investigate potential criminal conduct, and in the
course of that conduct, politics cannot interfere with your
responsibilities. In a ``60 Minutes'' interview, President
Obama declared in response to a question about Secretary
Clinton's use of a private server, quote, ``I can tell you that
this is not a situation in which America's national security
was endangered,'' end of quote. How can you assure the American
people that you will not let the White House influence the
FBI's inquiry?
Director Comey. I hope that the American people know the
FBI well enough and the nature and character of this
organization to know, as I have said many times, we don't give
a rip about politics. Anybody's view of that investigation they
are not involved in is irrelevant. We care about finding out
what is true and doing that in a competent, honest, and
independent way. I promise you that is the way we conduct
ourselves.
Chairman Grassley. Okay. Nowc, I would like to discuss
whistleblowers, and the second of at least three questions I
would like to ask you.
In your confirmation hearing, you expressed strong support
for whistleblowers and the need for them to feel free to raise
their concerns up their chain of command. FBI policy encourages
employees to report wrongdoing to their supervisors. First
question, do you support legal protections for FBI employees
who follow FBI's own policies and report wrongdoing to their
supervisors? If not, why not?
Director Comey. I do, very much.
Chairman Grassley. Okay. Under current law, FBI agents have
no legal protection for reporting wrongdoing to their
supervisors. Do you see any justification for not fixing that
problem?
Director Comey. I think it is very, very important that we
create the safe zones that all of our people need to raise
concerns that they might have. And so, that is the way I not
only talk; that is the way I walk at the FBI. And I know that
we are having conversations about are there additional
protections we can offer. I think there might be sensible ways
to do that. I have some small concerns. I want to make sure
that we don't create a system where, to get too deep into the
weeds here, an FBI agent or FBI employee can report not just
fraud, waste, and abuse, but can get whistleblower protection
for reporting bad management. That is potentially a huge range
of things, so I want to be thoughtful about what we're
considering whistleblowing as we do this. But I am open to try
and improve the way we approach it.
As I said, I have tried to really walk this talk by the way
I have acted, the people I have met with, the way I have given
out awards in the FBI. And so, I will continue to work with you
to try and improve that.
Chairman Grassley. You've spoken repeatedly about ISIS'
sophisticated and successful use of the internet to lure
Americans to Syria and to inspire tacts--tactics in the United
States. This is very concerning, and I know you speak from your
heart on that.
Other than addressing the problem by encryption, are there
any other tools that would help the FBI identify and monitor
terrorists online? More specifically, can you explain what
electronic communications and transactional records, or ECTR, I
think that is referred to as an acronym, are and how Congress
accidentally limited the FBI's ability to obtain them--obtain
them or drafting them? Would fixing this problem be helpful for
your counterterrorism investigations?
Director Comey. It would be enormously helpful. There is
essentially a typo in the law that was passed a number of years
ago that requires us to get records, ordinary transaction
records that we can get in most contexts with a non-court order
because it doesn't involve content of any kind, to go to the
FISA Court to get a court order to get these records. Nobody
intended that. Nobody I've heard thinks that is necessary. It
would save us a tremendous amount of work hours if we could fix
that, without any compromise to anyone's civil liberties or
civil rights. Everybody who has stared at this has said that is
actually a mistake, we should fix that.
Chairman Grassley. Yes. This will be my last question.
I've--you heard my concerns about noncitizens who are not legal
permanent residents buying and possessing guns in this
country--if you want me to ask this, then I am not going to ask
this other question. Let me go to this question.
In regard to your last response, you said you try to walk
the talk on this. So, why hasn't the FBI imposed discipline in
any of some cases that I have been investigating? What message
does it send to FBI employees when the FBI fails to hold
retaliators accountable for their actions? That will be my last
question.
Director Comey. That's a good question and a hard question.
I believe we do work very hard to try and hold retaliators
accountable. Each case--the challenge of answering it in the
abstract level is each case has to be looked at individually.
So, I do think that we work very hard to try and hold people
accountable.
Now, often when people know we are coming for them, they
will retire on us and leave Government service, which is a
challenge. But it is not just that enforcement that matters.
It's how do we act, how do we conduct ourselves. And I don't
want to brag on myself, but I will for a second. We have Annual
Directors Awards, and at the end of the Directors Awards this
year, I gave an award to recognize somebody for blowing the
whistle on misconduct. And I went back to the podium, and I
said, ``This matters. The reason I am saving this one for last
is this matters. We are an organization dedicated to finding
the truth in American life. We have to make sure we are open to
seeing the truth about ourselves.''
So, look, we're not perfect, and I think we can benefit
from working with you to get better. But I believe we have sent
the message this matters.
Chairman Grassley. Listen, you have been here a long time.
I thank you for the time you have given us. Maybe some Members
will submit questions for answer in writing. I may even do that
myself. I hope you will respond appropriately and as quickly as
you can. Thank you very much for your service.
Director Comey. Thank you, Senator.
[Whereupon, at 12:50 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
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