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Hearing of Senate Judiciary Committe with FBI Director Continues. Aired 1-1:30p ET

Aired May 3, 2017 - 13:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


SEN. DIANNE FEINSTIN, D-CALIFORNIA: -- talked with the tech companies about this need in particular?

[13:00:00]

COMEY: Yes, senator. We've had a lot of conversations, and as I said earlier, they're -- in my sense, they've been getting more productive because I think the tech companies have come to see the darkness a little bit more. My -- my concern was privacy's really important but that they didn't see the public safety costs.

I think they're starting to see that better and what -- what nobody wants to have happen is something terrible happen in the United States and it be connected to our inability to access information with lawful authority. That we ought to have the conversations before that happens and the companies more and more get that. I think over the last year and half, and -- but it's vital, we weren't picking on Apple in the San Bernardino case.

FEINSTEIN: Right.

COMEY: There were real reasons why we needed to get into that device. And that is true in case after case after case, which is why we have to figure out a way to optimize those two things, privacy and public safety.

FEINSTEIN: Well to be candid my understanding about some of this was that the European community, had special concerns about privacy and that some of the company in our country were concerned -- well they would lose business. That European concern is changing. I think what I read about the U.K. -- what I understand is happening in France and Germany, increased sharing of intelligence, the realization I think that they have very dangerous people in large numbers, possibly plotting at any given time to carry out an attack has had some palliative effect. And there maybe a change of view point. So it would be very helpful if our law enforcement community could help us and this is not to monitor. This is something that's very basic.

If there is a piece of evidence that say hey there may be a cell -- there may be another individual out there, you have a chance of getting into that piece of evidence to see if that's true.

COMEY: All right, with a judges permission.

FEINSTEIN: With a judges permission. That's correct. So I thank you for that.

COMEY: Thank you Senator ...

FEINSTEIN: Thank you Mr. Chairman.

GRASSLEY: Senator Lee hasn't had first round. So I've got to go to Senator Lee.

LEE: Thank you Mr. Chairman. Thank you Mr. Comey for being here today. And thanks for your service to our country. I want to talk to you about something raise by one of my colleagues a little while ago about electronic communications transaction records. Would it be fair to say that electronic communications transaction records includes such things as browsing history? Ones history of websites that one might have visited on the internet?

COMEY: yes.

LEE: And would it be fair to say also that what one views, what pages one has visited might in some ways be indicative of what one is reading?

COMEY: Potentially. Right. Even if you don't have -- see where they went on the page that they went to ESPN or -- or fishing magazine gives you some indication of their interests, yes.

LEE: Individually and collectively you can find out a fair amount about their person, especially if you are able to review what it is that they've been reading for a certain period of time.

COMEY: Right. I -- the only reason I'm hesitating, is as I understand it, we can't look at -- all we can get is the websites visited not where they went on the page or what they clicked on. But it does give some indication of your interest.

Just like who you call gives you some indication of your interests.

LEE: But where they went on the website will also be indicative of what they did on the website, would it not? I mean if you can get that granular information about what subpart, not just that they went to ESPN but they went ESPN and read this or that article.

COMEY: Right. My understanding is that we can't within NSL -- as we understand the statute get that sub content. We can get the webpage visited, we can't get where they navigated within the website. That's -- I may be wrong about that, but I think that's how we are.

LEE: Within the existing confines of the law?

COMEY: Correct.

LEE: And so for those who are proposing that we change existing law, so as to allow you to use a national security letter to go further as was suggested by one of my colleagues earlier today that then would allow you to get this more granular information? COMEY: No I'm sorry. I may have screwed this up. As we understand the way ECTR was intended to be used, that our NSL authority under ECTR as we thought it was and as we hoped it will be changed, is limited to that top level website visit address.

LEE: Correct. COMEY: So even if it's changed, the way we hope it will be, we don't get any deeper into what -- what you looked at on a page. It's as if we're able to see what sporting goods store you called. We can't tell from the call record what you asked about. We can see what sporting page you visited, what website, but we can't see where you went within that.

LEE: Yes. Based on the legislation that I've reviewed, it's not my recollection that that is the case. Now, what -- what I've been told is that -- it would not necessarily be the policy of the government to use it, to go to that level of granularity. But that the language itself would allow it, is that inconsistent with your understanding?

COMEY: It is and my understanding is we -- we're not looking for that authority.

LEE: You don't want that authority...

(CROSSTALK)

COMEY: That's my understanding. What -- what we'd like is, the functional equivalent of the dialing information, where you -- the address you e-mailed to or the -- or the webpage you went to, not where you went within it.

LEE: Even if you look it at the broad level of abstraction, so if you're suggesting it would be used only at the domain name level, somebody went to ESPN.com. If you follow someone's browsing history over a longer period of time, you could still find out a fair amount about that person, could you not?

COMEY: Yes, sure and again, I keep saying this, but I mean it. As you can from their telephone dialing history.

LEE: Yes. Let's talk about Section 702, for a minute. Section 702 of the Foreign Intelligence Surveillance Amendments Act authorizes the surveillance, the use of U.S. signals surveillance equipment to obtain foreign intelligence information.

The definition includes information that is directly related to national security, but it also includes quote, "information that is relevant to the foreign affairs of the United States," close quote, regardless of whether that foreign affairs related information is relevant to a national security threat. To your knowledge, has the attorney general or has the DNI ever used Section 702 to target individuals abroad in a situation unrelated to a national security threat?

COMEY: Not that I'm aware of. I think -- I could be wrong, but I don't think so, I think it's confined to counterterrorism to espionage, to counter proliferation. And -- those -- those are the buckets. I was going to say cyber but cyber is fits within...

LEE: That's where it has typically used those things.

COMEY: Yes.

LEE: Does it -- so to your knowledge, it doesn't currently use Section 702 to target people abroad in -- in instances unrelated to national security threats?

COMEY: I don't think so, like a diplomat to find out how someone feels about a particular foreign policy issue or something, I don't think so.

LEE: Right. So if Section 702 were narrowed to exclude such information, to exclude information that is relevant to foreign affairs, but not relevant to a national security threat, would that mean that the government would be able to obtain the information it needs in order to protect national security?

COMEY: Would seem so logically. I mean to me, the value of 702 is -- is exactly that, where the rubber hits the road in the national security context, especially counterterrorism, counter proliferation.

LEE: Yes. Now, when Section 702 is used ,typically what we're talking about here is not metadata. It's not this call was made to -- from this number to this number. This is content. And so if -- if we were talking about two U.S. persons, two American citizens, if I were calling you, typically that's not something that Section 702 would be used to collect.

But if it's -- if it's me calling someone else and if that person is not a U.S. person, if that person ends up being an agent of a foreign government and if somebody has determined that communications involving that person might be connected to a national security investigation. There's a chance that that communication could be intercepted, not just the fact the call was made, but also the content of the call.

COMEY: Correct, that -- that's what we call incidental collection.

LEE: And that incidental collection is then aggregated, you have databases that store all these things and so there are lots of U.S. persons who have had communications, conversations that themselves have been recorded that are out there and in a database. Can you search that database for communications involving specific U.S. persons without getting a warrant?

COMEY: Yes.

LEE: And the fact that these communications were intercepted without necessarily any showing of wrongdoing on the part of the U.S. person without necessarily showing that that U.S. person had anything to do with the foreign -- with the national security investigation at issue.

Does that cause you concern that that could involve almost a backdoor way of going after communications by U.S. persons in which they have a reasonable expectation of privacy? COMEY: It doesn't cause me concern, but that may be because of the way -- what I can see from where I am. I understand the question, though. But it's true, whether it's 702 or other court authorized domestic surveillance in the United States, if we are covering a particular embassy of a foreign power, and Americans call in and speak to them, we record that because were authorized to collect the communications in and out of that embassy.

And we store all of those in a database where we have lawfully collected those, even though the American called wasn't a target. The same happens with 702. If you contact or call a terrorist or -- or someone we're targeting overseas, you're an American, you have a conversation.

Even though you're not the target, that's going to be collected and stored in a database. What matters is how we treat that data and they were careful with it and we don't use it willy-nilly. And we protected it in -- in important ways. That's true whether we collect it in 702 or collect it domestically.

I don't know how we would operate otherwise. And that's -- you know, I don't how we would operate otherwise. I think what the American people want us to do is make sure we hold it so we can connect dots if it turns out there's something bad in there, but treat it like the U.S. person information that it is; protect it and make sure that it's handled in a responsible way.

GRASSLEY: Senator Leahy.

LEE: Thank you.

LEAHY: Thank you. Thank you, Mr. Chairman. Director, let me (OFF- MIC) let me tell you a story about a hundred years ago, literally, my Italian grandparents and my Irish grandparents faced discrimination because of their religion -- now that discrimination wasn't violence, it was economic.

This was not unusual in this country at that time. I like to think that's gone. I like to think of my grandparents -- the Italian grandparents, the Irish grandparents -- discrimination they faced because of both their race and their religion as not here. But now we see alarming rise in hate crimes among minority communities.

Yesterday, this committee heard some important testimony from Department of Justice, from the International Association of Chiefs of Police -- I believe our nation's largest civil rights organization. The law enforcement and political leaders must send the message that toxic, hateful rhetoric will not be tolerated.

They must denounce bigotry wherever they encounter it. Even as a child, I was taught that we are never to discriminate against anybody because of their race or their religion. Now, what bothers me -- let me show you this. On the campaign trail President Trump promises supporters a Muslim ban.

A campaign press release entitled Donald J Trump's statement on preventing Muslim immigration. It says that he called for a total and complete shutdown of Muslims entering into the United States. Now I can understand that dumb things are said during a campaign. That's on his website today. That goes beyond being stupid. Do you agree with me that messages like that can cast suspicion on our Muslim neighbors, can perpetuate division and hatred? And if it does, does that make America less safe?

COMEY: Well Senator thank you. I'm not going to comment on the particular statement. But I do agree that a perception or a reality of hostility towards any community -- but in this particular the Muslim American community makes our jobs harder, because as I said in response to an earlier question, those good people don't want people engaging in acts of violence in the name of their faith or in their neighborhood and so our interest are aligned. But if anything gets in the way of the that and chills the their openness to talk to us and to tell us what they see, it makes it harder for us to find those threats.

So we've been spending a ton of time -- you're right about the increase in hate crimes. We've seen those numbers start to go up in 2014, they've been climbing since then. To redouble our efforts to get in those communities and show them our hearts and what we're like. To encourage people not to fear contact with us.

LEAHY: And director Comey, I don't ask this to make a political point. I ask this as a United States Senator. I believe the United States Senate can be and sometimes has been the conscience of the nation. We're a nation that (inaudible) our first amendment. We trust and we believe in all religions, allow you to practice any religion you want or none if you want.

I worry, whether it's a Muslim religion, or any other -- we have religions where people believe in it. They should not be condemned. The actions of a few. I worry very much that the rhetoric and the hatred can bring about things that neither you nor I ever want to see in this country. I think we'd agree on that. Hate crimes, I don't care who it's against, against somebody because of their race or their religion, you as a -- out of the FBI, any one of who have been prosecutors, we abhor all hate crimes. I believe you do, is that not correct?

COMEY: That's for sure.

LEAHY: And I worry that we also give the impression that citizenship alone might be a reliable indicator of the terrorist threat posed by an individual to the United States.

I think of the Oklahoma City bombing. One of the greatest acts of terrorism in our country, done by an American citizen who had served I believe honorably in our military.

So would you agree that citizenship alone is not a reliable indicator of a terrorist threat posed by the individual to the United States?

COMEY: Correct. Most of the people that I talked about that we have open cases on are American citizens. LEAHY: Thank you. In fact the Department of Homeland Security, we've heard from them, they have an assessment from the office of intelligence and analysis concluding that citizenship is unlikely to be reliable indicator for potential terrorist activity. Do you agree with that?

COMEY: Yes.

LEAHY: Thank you.

Another matter, Chairman Grassley and I have worked to address the concerns related to the FBI's hair and fiber analysis testimony has been flawed, I think we all accept in the past. The investigation began I believe 2012, after three men were exonerated here in Washington, D.C. because the FBI almost (ph) gave inadequate testimony. In order to review more than 3,000 cases, the FBI has reached out to officers that originally prosecuted these cases and I appreciate that.

I remain concerned that cases remain closed if you don't find the transcript right away. I've asked you this question in -- in writing. In any case is there -- where there's a missing transcript, do you commit to have an FBI conduct an in-person visit to obtain whether there was any information that was used in possibly faulty analysis by the FBI that might've brought about a conviction?

COMEY: I'm sorry, an in-person visit?

LEAHY: Well, to the prosecutor's office or whoever else may be involved, if you don't have a transcript, an in-person visit to say OK, was -- what do your record show, do you -- did you use analysis that may have been faulty from the FBI in bringing about that conviction?

COMEY: I see. I don't know enough to react to that now and commit to it now. Can I follow-up with you to see how we're thinking about that?

LEAHY: Will you -- will you follow-up?

COMEY: I will.

LEAHY: Referring to you (ph), OK thank you. Thank you. FEINSTEIN: Thank you, Senator Leahy.

Senator Whitehouse?

WHITEHOUSE: Thank you.

A couple of quick matters, for starters. Did you give Hillary Clinton quote, "a free pass for many bad deeds?" There was a tweet to that effect from the president.

COMEY: Oh, no, not -- that was not my intention, certainly.

WHITEHOUSE: Well, did you give her a free pass for many bad deeds, whatever your intention may have been? COMEY: We conducted a competent, honest and independent investigation, closed it while offering transparency to the American people. I believed what I said, there was not a prosecutable case, there.

WHITEHOUSE: The -- with respect to the question of prosecution for classified material, is the question of the consequences of the disclosure, i.e. the harm from the release or the actual secrecy of the material considered in a prosecutive decision?

COMEY: In my experience it is yes.

WHITEHOUSE: Because there's a great deal of material that while technically classified is widely known to the public and because over classification is a very significant problem within the executive branch, correct?

COMEY: Correct and DOJ reserves prosecution for the most serious matters, in my experience.

WHITEHOUSE: And that would've been evaluated also in looking at Secretary Clinton's e-mails?

COMEY: Yes.

WHITEHOUSE: So though they were classified, they may not have caused any harm in terms of who saw them? Well I mean, not I guess specific to that. There are e-mails that could be classified and cause no harm if they were disclosed?

COMEY: Yes there are -- that is the case.

WHITEHOUSE: It has been disclosed and publicly reported that there was a two day interval, between the FBI interview of Michael Flynn related to his conversations with Ambassador Kislyak and then deputy attorney general's report to White House Counsel about those calls.

Did you participate in conversations related to this matter during that two day interval and what can you tell us about why that interval took two days, was there some standard operating procedure that needed to be vindicated? Was there -- you'd think that that could've flipped over to a conversation to the White House a good deal quicker than that once the agent's report came back from the interview.

COMEY: Yes, I don't -- I don't know whether two days is right. I think it might have been a day. I could be wrong. It could have been two days. And I did participate in conversations about that matter, and I think I'll stop there because I don't ...

WHITEHOUSE: OK.

COMEY: ... I don't know the department's position on -- on speaking about those communications.

WHITEHOUSE: But as you sit here, you don't have any hesitation about that delay, about it representing any kind of, you know, mischief or misconduct?

COMEY: No, no and given your experience you know how this works. An agent conducts an interview, they're going back, they write up a 302, they show it to their partner, they make sure they get it right, then they produce the 302, so sometimes it's the next day before it's finished.

WHITEHOUSE: So the deputy -- Ms. Yates would have seen the 302, and that process would've taken place by the time she went up to see White House counsel McGahn?

COMEY: I think that's right, yes.

WHITEHOUSE: OK, thank you. And onto the Weiner laptop. As I understand it, you were informed by agents in the FBI office that there was potentially related or relevant information in Mr. Weiner's laptop. On the basis of that information, you then sent a letter to the members of Congress, before whom you had committed to answer if there were any changes in the status of things.

You also then authorized the agents to pursue a search warrant, which then gave them access to the content, which allowed them to do the search, that you then said came up with nothing so that you could then undo the letter and say, actually we took a look and there's nothing there. Is that the -- do I have the order correctly there?

COMEY: Right, they came to me, they briefed me on what they could see from the metadata, why it was significant. They thought they ought to seek a search warrant, wanted my approval to do that. I agreed, authorized it. So did the Department of Justice and then they reviewed -- I was just making sure I get the numbers right.

During the -- the following week, they reviewed 40,000 e-mails -- I understated how many they reviewed -- and found the 3,000 of them were work related and came from BlackBerry backups and a bunch of other things ...

WHITEHOUSE: My question ...

COMEY: And then 12 -- and then 12 of them were classified, but we'd seen them all before.

WHITEHOUSE: Yes.

COMEY: And so, they finished that work, they briefed me on it and say it doesn't change our -- our view, and then I send the second letter.

WHITEHOUSE: Did any of those classified e-mails create national security damage?

COMEY: That's a hard one to answer. By definition, the classification is based on the potential national security damage.

WHITEHOUSE: With respect to our earlier conversation ...

COMEY: Yes. WHITEHOUSE: ... that tons of stuff is classified that is on the front page of the New York Times.

COMEY: I'm not aware that any of these e-mails or any the e- mails in the investigation got into the hands of people that were able to exploit them to damage our national security.

WHITEHOUSE: So let me offer you this hypothetical. They come to you and say the metadata shows that we have potential information here that could be relevant and could cause us to reopen the information.

It would seem to me that it would be as sensible at that moment to say how quickly can you get a search warrant and how quickly can we get an answer that question because I made a promise to people in Congress that I would get back to them with this information.

And if there's anything real here, you need to get on that pronto so that I can answer that question, so that the search warrant precedes the letter rather than the letter preceding the search warrant, particularly in light of the widely adhered to policy the department not to disclose ongoing investigative materials. And their truly exceptional nature of disclosures. Why not the search warrant first?

COMEY: Well I pressed him very hard on that. And found credible their responses that there was no way -- no way they could review the volume of information they saw on the laptop in the time remaining.

WHITEHOUSE: Except that they did.

COMEY: Well they did, and -- because our wizards at our operational technology division came up with a way to de-dupe electronically -- that as I understand it involved writing a custom software program that's going to help us in lots of other areas. But investigative team said, sir we cannot finish this before the election.

So that -- to my mind that then made the judgment appropriate, the one that I made, not waiting -- waiting -- waiting to make the disclosure.

WHITEHOUSE: OK. And with -- and just with respect to your response to Secretary -- to Senator Tillis, we can talk about it some other time. My time has expired. But lest silence be viewed as consent I have a different view of what took place. I don't doubt your honesty for a minute, but I do think that there were very significant mistakes made through this process.

COMEY: In which -- in the e-mail case?

WHITEHOUSE: Yes.

COMEY: OK. WHITEHOUSE: In the Hillary Clinton e-mail case.

COMEY: Got it.

UNKNOWN: His time has expired.

FEINSTEIN: Thank you Senator. Senator (inaudible). FRANKEN: Thank you to the ranking member and I admire your hanging in there and being made of stone was it?

COMEY: Sandstone I think.

FRANKEN: I just want to clarify something -- some of the answers that you gave me for example in response to director -- I asked you would President Trump's tax returns be material to the -- such an investigation -- the Russian investigation and does the investigation have access to President Trump's tax returns and some other questions you answered I can't say. And I'd like to get a clarification on that. Is it that you cant say or that you can't say in this setting?

COMEY: That I won't answer questions about the contours of the investigation. As I sit here I don't know whether I would do it in a closed setting either. But for sure -- I don't want to begin answering questions about what we're looking at and how.

FRANKEN: OK. So I'll take that as at least in this setting you can't do that, and maybe you can elsewhere. We were talking about some of the number of the -- the unseal number of individuals in important roles in the Trump campaign or in his life and their sort of unexpected often undisclosed ties to Russia. And I'd like to focus on one of those individuals, Roger Stone and his relationship with Guccifer 2.0.

Guccifer 2.0 is an online persona that the I.C. concluded was used by Russian military intelligence to leak documents and e-mails stolen from the democratic national committee to Wikileaks. The U.S. intelligence community including the FBI have concluded that the Russian government directed the breach and that Russian military intelligence used Guccifer 2.0 to ensure that the documents obtained were publicly released.

So while Guccifer has insisted that he or she is not Russian, the intelligence community has concluded that the hacker has strong ties to Moscow and was used by Russian military intelligence, to leak information about the Clinton campaign and the Democrats that was stolen by Russia. Is that, Director Comey, a fair characterization?

COMEY: Yes, the I.C.'s adjustment was Guccifer 2.0 was an instrument of the Russian intelligence.

FRANKEN: Thank you. Well, a few months back it was revealed that in August of last year, that's a couple months before the 2016 election, Roger Stone, one of President Trump's long-standing political mentors. And at one time, before formal campaign adviser, exchanged a number of private messages with Guccifer 2.0 via Twitter.

Mr. Stone has since insisted that the relationship was totally innocuous. Now, in this series of messages, Guccifer 2.0 and Mr. Stone exchange a number of bizarre pleasantries. Guccifer thanked Mr. Stone for writing about him. And Mr. Stone expresses delight that Guccifer's Twitter handle was reinstated after having been suspended. But in one message, Guccifer writes to Mr. Stone, quote, "I'm pleased to say that you are a great man. Please tell me if I can help you anyhow, it would be a great pleasure to me."

[13:30:00]

Director Comey, to me this sounds like a clear offer from a Russian intelligence operative --