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FBI Director James Comey Testifies Before the Senate. Aired 10:30-11a ET

Aired May 3, 2017 - 10:30   ET


[10:30:00] JAMES COMEY, FBI DIRECTOR: Last month, the FBI working with our partners with the Spanish national police took down a botnet called the Kelihos botnet and locked up the Russian hacker behind that botnet, who made a mistake that Russian criminals sometimes make of leaving Russia and visiting the beautiful city of Barcelona. And he's now in jail in Spain and the good people's computers who had been lashed to that zombie army have now been freed from it and are no longer part of a huge criminal enterprise.

And the last one I'll mention is, this past week for the first time since Congress passed a statute making it a crime in the United States to engage in female genital mutilation to mutilate little girls, it's been a felony in the United States since 1996, we made the first case last week against doctors in Michigan for doing this terrifying thing to young girls all across the country. With our partners in the Department of Homeland Security, we brought a case against two doctors who were doing this to children. This is among the most important work we do, protecting kids especially, and it was done by great work that you don't hear about a lot all across the country by the FBI. It is the honor of my life.

I know you look at me like I'm crazy for saying this about this job. I love this work. I love this job. And I love it because of the mission and the people I get to work with, some of whose work I just illustrated by pulling those three cases from last month, but it goes on all the time, all around the country, and we're safer for it. I love representing these people speaking on their behalf, and I look forward your questions today.

Thank you, Mr. Chairman.

SEN. CHUCK GRASSLEY (R-IA), CHAIRMAN, JUDICIARY COMMITTEE: And thank you for your opening statement. I'm going to start out probably with a couple subjects you wish I didn't bring up, and then a third one that I think everybody needs to hear your opinion on a policy issue. It is frustrating when the FBI refuses to answer this committee's questions, but leaks relevant information to the media. In other words, they don't talk to us, but somebody talks to the media.

Director Comey, have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?

COMEY: Never. GRASSLEY: Question two on relatively related, have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation?


GRASSLEY: Has any classified information relating to President Trump or his association -- associates been declassified and shared with the media?

COMEY: Not to my knowledge.

GRASSLEY: You testified before the House Intelligence Committee that a lot of classified matters have ended up in the media recently. Without getting into any particular article -- I want to emphasize that, without getting into any particular article -- is there an investigation of any leaks of classified information relating to Mr. Trump or his associates?

COMEY: I don't want to -- I don't want to answer that question, senator, for reasons I think you know. There have been a variety of leaks -- well, leaks are always a problem, but especially in the last three to six months.

And where there is a leak of classified information, the FBI -- if it's our information -- makes a referral to the Department of Justice. Or if it's another agency's information, they do the same. And then DOJ authorizes the opening of an investigation. I don't want to confirm in an open setting whether there any investigations open.

GRASSLEY: You -- I want to challenge you on that because the government regularly acknowledges when it's investigating classified leaks. You did that in the Valerie Plame case. What's the difference here?

COMEY: Well, the most important difference is I don't have authorization from the department to confirm any of the investigations they've authorized. And it may be that we can get that at some point, but I'm not going to do it sitting here in an open setting without having talked to them.

GRASSLEY: And I can -- you can expect me to follow up on that offer.

COMEY: Sure.

GRASSLEY: There are several senior FBI officials who would've had access to the classified information that was leaked including yourself and the deputy director. So how can the Justice Department guarantee the integrity of the investigations without designating an agency, other than the FBI, to gather the facts and eliminate senior FBI officials as suspects?

COMEY: Well, I'm not going to answer about any particular investigations but there are -- I know of situations in the past where if you think the FBI or its leadership are suspects, you have another investigative agency support the investigation by federal prosecutors. [10:35:07] It can be done. It has been done in the past.

GRASSLEY: OK, moving on to another subject, The New York Times recently reported that the FBI had found a troubling e-mail among the ones the Russians hacked from Democrat operatives. The e-mail reportedly provided assurances that Attorney General Lynch would protect Secretary Clinton by making sure the FBI investigation "didn't go too far."

How, and when, did you first learn of this document? Also, who sent it and who received it?

COMEY: That's not a question I can answer in this forum, Mr. Chairman, because it would call for a classified response. I have briefed leadership of the intelligence committees on that particular issue, but I can't talk about it here.

GRASSLEY: You can expect me to follow-up with you on that point.

COMEY: Sure.

GRASSLEY: What steps did the FBI take to determine whether Attorney General Lynch had actually given assurances that the political fix was in no matter what? Did the FBI interview the person who wrote the e- mail? If not, why not?

COMEY: I have to give you the same answer. I can't talk about that in an unclassified setting.

GRASSLEY: OK, then you can expect me to follow-up on that. I asked the FBI to provide this e-mail to the committee before today's hearing. Why haven't you done so and will you provide it by the end of this week?

COMEY: Again to react to that, I have to give a classified answer and I can't give it sitting here.

GRASSLEY: So that means you can give me the e-mail?

COMEY: I'm not confirming there was an e-mail sir. I can't -- the subject is classified and in an appropriate forum I'd be happy to brief you on it. But I can't do it in an open hearing.

GRASSLEY: I assume that the other members of the committee could have access to that briefing if they wanted? I want talk about going dark. Director Comey a few years ago, you testified before the committee about going dark problem in the inability of law enforcement to access encrypted data despite the existence of a lawfully issued court order. You continue to raise this issue in your public speeches most recently Boston College. My question, you mentioned it again in your testimony briefly -- but can you provide the committee with a more detailed update on the status of going dark problem and how it affected the FBI's ability to access encrypted data? Has there been any progress collaborating with the technology sector to overcome any problems?

At our hearing in 2015 you said you didn't think legislation was necessary at that time. Is that still your view?

COMEY: Thank you, Mr. Chairman. The shadow created by the problem we call going dark continues to fall across more of our work. Take devices for example. the ubiquitous default full disk encryption on devices is affecting now about half of our work.

First six months of this fiscal year FBI examiners were presented with over 6000 devices for which we have lawful authority search warrant or court order to open and 46 percent of those cases we could not open those devices with any technique. That means half of the devices that we encounter in terrorism cases, in counter intelligence cases, in gang cases, in child pornography cases cannot be opened with any technique, that is a big problem. And so the shadow continues to fall.

I'm determined to continue to make sure the American people and Congress know about it. I know this is important to the President and the new Attorney General. I don't know yet how the new administration intends to approach it, but it's something we have to talk about. Because like you I care a lot about privacy. I also care an awful lot about public safety there continues to be a huge collision between those two things we care about.

So I look forward to continuing in that conversation, Mr. Chairman.

GRASSLEY: You didn't respond to the part about do you still have the view that legislation is not needed.

COMEY: I don't know the answer yet. As I think I said -- I hope I said last time we talked about this it may require a legislative solution at some point. The Obama administration was not in a position where they were seeking legislation. I don't know yet how President Trump intends to approach this. I know he spoke about it during the campaign. I know he cares about it, but it's premature for me to say.

GRASSLEY: Senator Feinstein.


Director I have one question regarding my opening comment and I view it as a most important question and I hope you will answer it.

[10:40:04] Why was it necessary to announce 11 days before a presidential election that you were opening an investigation on a new computer without any knowledge of what was in that computer?

Why didn't you just do the investigation as you would normally with no public announcement?

COMEY: A great question Senator. Thank you. October 27th, the investigative team that had finished the investigation in July focused on Secretary Clinton's e-mails asked to meet with me.

So I met with them that morning, late morning, in my conference room. And they laid out for me what they could see from the metadata on this fella Anthony Weiner's laptop that had been seized in an unrelated case. What they could see from the metadata, was that there were thousands of Secretary Clinton's e-mails on that device, including what they thought might be the missing e-mails from her first three months of Secretary of State.

We never found any e-mails from her first three months. She was using a Verizon BlackBerry then and that's obviously very important, because if there was evidence that she was acting with bad intent, that's where it would be in the first three months.

FEINSTEIN: But they weren't there.

COMEY: Look, can I just finish my answer, Senator?


COMEY: And so they came in and said, we can see thousands of e- mails from the Clinton e-mail domain, including many, many, many, from the Verizon Clinton domain, BlackBerry domain. They said we think we got to get a search warrant to go get these and the Department of Justice agreed we had to go get a search warrant.

So I agreed, I authorized them to seek a search warrant. And then I faced a choice. And I've lived my entire career by the tradition that if you can possibly avoid it, you avoid any action in the run-up to an election that might have an impact. Whether it's a dogcatcher election or president of the United States, but I sat there that morning and I could not see a door labeled no action here.

I could see two doors and they were both actions. One was labeled speak, the other was labeled conceal. Because here's how I thought about not it, I'm not trying to talk you into this, but I want you to know my thinking. Having repeatedly told this Congress, we are done and there's nothing there, there's no case there, there's no case there, to restart in a hugely significant way, potentially finding the e-mails that would reflect on her intent from the beginning and not speak about it would require an active concealment, in my view.

And so I stared at speak and conceal, speak would be really bad. There's an election in 11 days, Lordy, that would be really bad. Concealing in my view would be catastrophic, not just to the FBI, but well beyond. And honestly, as between really bad and catastrophic, I said to my team we got to walk into the world of really bad. I've got to tell Congress that we're restarting this, not in some frivolous way, in a hugely significant way.

And the team also told me, we cannot finish this work before the election. And then they worked night, after night, after night, and they found thousands of new e-mails, they found classified information on Anthony Weiner. Somehow, her e-mails are being forwarded to Anthony Weiner, including classified information by her assistant, Huma Abedin. And so they found thousands of new e-mails and then called me the Saturday night before the election and said thanks to the wizardry of our technology, we've only had to personally read 6,000. We think we can finish tomorrow morning, Sunday.

And so I met with them and they said we found a lot of new stuff. We did not find anything that changes our view of her intent. So we're in the same place we were in July. It hasn't changed our view and I asked them lots of questions and I said OK, if that's where you are, then I also have to tell Congress that we're done. Look, this terrible. It makes me mildly nauseous to think that we might have had some impact on the election. But honestly, it wouldn't change the decision.

Everybody who disagrees with me has to come back to October 28th with me and stare at this and tell me what you would do. Would you speak or would you conceal? And I could be wrong, but we honestly made a decision between those two choices that even in hindsight and this has been one of the world's most painful experiences, I would make the same decision.

I would not conceal that, on October 28th from the Congress. And I sent the letter to Congress, by the way, people forget this, I didn't make a public announcement. I sent a private letter to the chairs and the rankings of the oversight committees.

FEINSTEIN: Did you...

COMEY: I know it's a distinction without a difference in the world of leaks, but it is -- it was very important that I tell them instead of concealing. And reasonable people can disagree but that's the reason I made that choice and it was a hard choice. I still believe in retrospect the right choice, as painful as this has been. And I'm sorry for the long answer.

FEINSTEIN: Well, let me respond. On the letter, it was just a matter of minutes before the world knew about it. Secondly, my understanding -- and staff has just said to me -- that you didn't get a search warrant before making the announcement.

COMEY: I think that's right. I think I authorized and the Department of Justice agreed we were going to seek a search warrant. I actually don't see it as a meaningful distinction.

[10:45:00] FEINSTEIN: Well, it's very -- it's very hard -- it would've been -- you took an enormous gamble. The gamble was that there was something there that would invalidate her candidacy and there wasn't. So one has to look at that action and say did it affect the campaign? And I think most people who have looked at this say, yes, it did affect the campaign, why would he do it. And was there any conflict among your staff, people saying do it, people saying don't do it; as has been reported?

COMEY: No, there was a great debate. I have a fabulous staff at all levels and one of my junior lawyers said, should you consider that what you're about to do may help elect Donald Trump president. And I said, thank you for raising that, not for a moment because down that path lies the death of the FBI as an independent institution in America. I can't consider for a second whose political fortunes will be affected in what way.

We have to ask ourselves what is the right thing to do and then do that thing. I'm very proud of the way we debated it, and at the end of the day, everyone on my team agreed we have to tell Congress that we are restarting this in a hugely significant way.

FEINSTEIN: Well, there's a way to do that. I don't know whether work or not, but certainly in a classified way carrying out your tradition of not announcing investigations. And you know, I look at this, exactly the opposite way you do. Everybody knew it would influence the investigation before, that there was a very large percentage of chance that it would. And yet, that percentage of chance was taken and there was no information and the election was lost.

So it seems to me that before your department does something like this, you really ought to -- because Senator Leahy began to talk about other -- other investigations. And I think this theory does not hold up when you look at other investigations, but let me go on to 702 because you began your comment saying how important it is. And yes, it is important. We've got a, I think, a problem and the issue that we're going to need to

address is the FBI's practice of searching 702 data using U.S. person identifiers as query terms. And some have called this an unconstitutional back door search, while others say that such queries are essential to assuring that potential terrorists don't slip through the cracks as they did before. So could you give us your views on that, and how it might be handled to avoid the charge which may bring down 702?

COMEY: No, thank you, Senator, it's a really important issue. The way 702 works is under that provision of the statute the FISA court, federal judges, authorize us as U.S. agencies to collect the communications of non-U.S. people that we believe to be overseas, if they're using American infrastructure.

The criticism the FBI has gotten and the feedback we've gotten consistently since 9/11 is, you have to make sure you're in a position to connect the dots. You can't have stove piped information. And so we've responded to that over the last 10 years, mostly to the great work of my predecessor Bob Mueller and we have confederated databases so that if we collect information under 702 it doesn't sit in a separate stovepipe.

It sits in a single cloud type environment so that if I'm hoping an investigation United States in a terrorism matter, an intelligence matter or a criminal matter and I have a name of the suspect and there telephone number and their e-mail addresses. I search the FBI's databases. That search necessarily will also touch the information that was collected under 702 so that we don't miss a dot, but nobody gets access to the information that sits in the 702 database, unless they've been trained correctly.

If there is -- let's imagine that terrorists overseas were talking about a suspect in the United States or someone's e-mail address in the United States was in touch with that terrorist and that information sits in the 702 database, and we open the case in United States and put in that name in that e-mail address. It will touch that data and tell us his information in the 702 database that's relevant.

If the agent doing the query is properly trained on how to handle that he or she will be able to see that information. If they're not properly trained they'll be alerted that there is information then have to go to the appropriate training and the appropriate oversight to be able to see it.

[10:50:08] But to do it otherwise is to risk us where it matters most in the United States failing to connect dots.

So my view is the information that's in the 702 databases has been lawfully collected carefully overseen and checked and our use of it is also appropriate and carefully overseen and checked.

FEINSTEIN: So you are not masking the data -- unmasking the data?

COMEY: I'm not sure what that means in this context. What we do is we combine information collected from any lawful source in a single FBI database so we don't miss a dot when we're conducting investigations the United States. What we make sure of though is, nobody gets to see FISA information of any kind unless they've had the appropriate training and have the appropriate oversight.

FEINSTEIN: My time is up. Thank you.

Senator Hatch?

SEN. ORRIN HATCH (R), UTAH: Thank you Senator.

Director Comey, in January I introduced a S139, the rapid DNA act. It's bipartisan cosponsors include Senators Feinstein, Cornyn, coons, Flake, Klobuchar and me on this committee and maybe more.

Mr. Chairman, I want to thank you for putting this bill on the agenda for tomorrow's business meeting. This is the same bill that the Senate Unanimously passed last year, and this technology allows developing a DNA profile and performing database comparisons in less than two hours. Following standards and procedures approved by the FBI. It would allow law enforcement to solve crimes and innocent advocates to exonerate the wrongfully accused.

Now Mr. Director you came before this committee in December 2015, and I asked you then about this legislation, you said it would quote "help us change the world in a very very exciting way," unquote. Is that still your view of the value of this legislation? And you believe the Congress should enact it on its own without getting tangled up in other criminal justice reform issues?

COMEY: I agree very much, Senator Hatch. The rapid DNA will materially advance the safety of the American people. So that if a police officer somewhere United States has in his or her custody someone who is a rapist, before letting them go on some lesser offense, they'll able to quickly check the DNA database and get a hit. That will save lives. That will protect all kinds of people from pain and I think it's a great thing.

HATCH: Well, thank you. And your prepared statement touches on what the FBI is doing to protect children from predators. Personnel and youth serving organizations such as employees, coaches or volunteers, often work with unsupervised -- or with youth unsupervised. That magnifies the need for a thorough evaluating and vetting at the time they join such organizations.

Along with Senators Franken and Klobuchar, I introduced the Child Protection Improvement Act, which gives youth serving organizations greater access to the nationwide FBI fingerprint background check system. Now, do you believe that providing organizations like the YMCA and the Girl Scouts of America greater access to FBI fingerprint background checks is an important step in keeping job predators and violent criminals away from our children?

COMEY: I do, Senator. I don't know enough about the legislation to react, but I think the more information you can put in the hands of the people who are vetting, people who are going to near children, the better. We have an exciting new feature of the FBI's fingerprint system called Rap Back, that once you check someone's identification; check them to see if they have no record. If they later develop one, you can be alerted to it if it happens thereafter, which I think makes a big difference.

HATCH: Well, thank you. You have spoken at length about the so- called Going Dark program, whereby strong encryption technology hinders the ability of law enforcement to excess communication in other personal -- personal data on smart phones and similar devices. Your prepared testimony for today's hearing addresses this issue, as well.

Now, I've expressed significant concern about proposals that would require device or software manufacturers to build a back door into their programming to allow law enforcement to excess encrypted data in the course of investigations. Now, I remain convinced that such backdoors can be created without seriously compromising the -- the security of encrypted devices.

Now, I believe this is an issue where law enforcement and stakeholders need to work together to find solutions rather than coming to Congress with one-size-fits-all legislative fixes. What are you doing to engage with stakeholders on this issue and what kind of progress are you making, if you can tell us?

[10:55:00] COMEY: Thank you, Senator. I think there's good news on that front. We've had very good, open and productive conversations with the private sector over the last 18 months about this issue, because everybody realized we care about the same things. We all love privacy. We all care about public safety. And none of -- at least people that I hang around with, none of us want backdoors. We don't want access to devices built-in in some way.

What we want to work with manufacturers on is to figure out how can we accommodate both interests in a sensible way? How can we optimize the privacy, security features of their devices and allow court orders to be complied with? We're having some good conversations. I don't know where they're going to end up, frankly. I could imagine a world that ends up with legislation saying, if you're going to make devices in the United States, you figure out how to comply with court orders, or maybe we don't go there. But we are having productive conversations, right now I think. HATCH: Right, Section 702 of the FISA Amendments Act is up for reauthorization this year. We now have almost a decade of experience, using the statute. So we have much more to go on than simply speculation or theory.

Now, the intelligence value of Section 702 is well-documented and it has never been intentionally misused or abused. Every federal court, including the FISA Court that has addressed the issue has concluded that Section 702 is lawful. Administrations of both parties have strongly supported it. Describe for us the targeting and minimization procedures that Section 702 requires and how each agency's procedures are subject oversight within the executive branch.

COMEY: Thank you, Senator. As a said in my opening, 702 is a critical tool to protect this country and the way it works is we are allowed to conduct surveillance -- again, under the supervision of the Foreign Intelligence Surveillance Court on non-US. persons who are outside the United States if they're using American infrastructure; an e-mail system in the United States, a phone system in the United States.

So it doesn't involve U.S. persons and doesn't involve activity in the United States. And then each agency, as you said, has detailed procedures for how we will handle this information that are approved by the FISA Court and so become court orders that -- that he govern us. But not only are we overseen by the FISA Court, we're overseen by our inspectors general and by Congress checking on her work.

And you're exactly correct, there have been no abuses. Every court that has looked at this has said, this is appropriate under the Fourth Amendment, this is appropriate under the statute. It was an act passed by a Democratically controlled Congress for a Republican president, then renewed by a Republican controlled Congress for a Democratic president, and uphold by every court that's looked at it.

And -- and I'm telling you what the rest of the intelligence community has said, we need this to protect the country. This should be an easy conversation to have, but often people get confused about the details and mix it up with other things. So it's our job to make sure we explain it clearly.

HATCH: Well, thank you, my time is up.

Senator Leahy, I turn to you.


Welcome back, Director Comey, you had mentioned you liked these annual meetings. Of course, we didn't have an annual meeting last year. It's been, I think -- last year is the first time in 15 years that the FBI did not testify before this committee. But there's been a lot that's happened last year and half as noted.

Senator Feinstein noted that Americans across the country have been confused and disappointed by your judgment in handling the investigation into Secretary Clinton's e-mails. On a number of occasions you told us to comment directly and extensively on that investigation. You even released internal FBI memos and interview notes.

I may have missed this, but my 42 years here I've never seen anything like that. But you said absolutely nothing regarding the investigation into the Trump campaign's connections to Russia's illegal efforts to help elect Donald Trump. Was it appropriate for you to comment on one investigation repeatedly and not say anything about the other?

COMEY: I think so. Can I explain, senator? Pardon me...

LEAHY: Briefly, I only have so much time.

COMEY: OK, I'll be quick. The department -- I think I treated both investigations consistently under the same principles. People forget we would not confirm the existence of the Hillary Clinton e- mail investigation until three months after it began, even though it began with a public referral and the candidate herself talked about it.

In October of 2015, we confirmed it existed and then said not another word -- not a peep about it until...

LEAHY: Until the most critical time...

COMEY: ... we were finished.

LEAHY: ... possible, a couple weeks before the election. And I think there are other things involved in that election, I'll grant that.

[11:00:04] But there is no question that that had a great effect.