WASHINGTON—James B. Comey, director of the Federal Bureau of Investigation, appeared before for the Senate Judiciary Committee on May 21 to receive personal praise from the committee senators for his leadership and the FBI’s recent successes. However, while there could be little criticism of his brief tenure—he assumed office on Sep. 4—senators had serious concerns and questions for him.
Comey is serving a 10-year term that is not renewable. The long term gives the director a measure of independence from any particular administration or political party.
Two days prior to the oversight hearing, the Justice Department handed down five indictments of Chinese military operatives engaged in economic espionage. Both Sens. Chairman Patrick Leahy (D-Vt.) and Ranking Member Chuck Grassley (R-Iowa) congratulated the FBI director for the five indictments as well as the recent arrests of developers of Blackstone, a cyberstalking software.
Several senators who questioned Comey began with congratulatory remarks regarding the five Chinese hacker indictments. There has been talk in Washington for a long time of the theft of trade secrets by China. U.S. Army General Keith Alexander, then-director of the National Security Agency (NSA), said in 2012 that cybercrime amounted to “the greatest transfer of wealth in history.” It is widely believed that China is the most aggressive in economic espionage. The senators were pleased that finally something was being done about it.
Comey said that the Chinese were guilty of a “nation-state engaging in theft.” He said their hacking into U.S. company computers is not the same thing as the gathering of intelligence that one country needs to understand another.
“Why build it when you can steal it?” he said. It’s burglary, no different than “someone kicking in Alcoa’s front door and marching out with filing cabinets.”
He said to Chairman Leahy, “There are two kinds of big companies in the United States: those who have been hacked by the Chinese and those who don’t yet know they have been hacked by the Chinese.”
Cyberthreats: Top Priority
The central challenge today is cybercrime, Comey said. The cyberthreat from state-sponsored hackers—as in the Chinese case—organized cyber syndicates, and terrorists pose a dire threat to our state secrets, trade secrets, and technology as well as our infrastructure and our economy, Comey stated in his written testimony. The scope of the threat is so wide that the FBI and other agencies are making it a top priority.
“Because Americans have connected their entire lives to the Internet … the people who would do us harm, that’s where they come,” said Comey, calling cybercrime a “vector” that “touches everything the FBI is responsible for.”
The nature of crime has changed. The gangster John Dillinger could pull off many heists in the same day thanks to the automobile and roads. But John Dillinger “couldn’t do a thousand robberies in the same day in all 50 states in his pajamas halfway around the world. That’s the challenge we now face with the Internet,” said Comey.
He added, “We are going to treat these burglaries for what they are. We are going to treat them as seriously as someone kicking down your door to steal your stuff, to steal your ideas, to steal your identity.”
The senators, with one notable exception, refrained from personal attacks on the new director and instead directed their criticisms to the bureau in general. The FBI itself was criticized for being unresponsive to senators’ questions, “stonewalling” the Department of Justice Inspector General Office, retaliating against whistleblowers, and, in the case of one disgruntled senator, not being forthcoming on its ongoing investigation of the IRS’ targeting of Tea Party groups.
That senator was Ted Cruz (R-Texas), who was the only committee member to become antagonistic toward Comey when the director said he could not comment on the ongoing investigation.
Grassley also said in his opening remarks that after about a year, he found it “perplexing to hear nothing at all from the FBI concerning its investigation into the targeting of Tea Party groups by the IRS.”
Grassley also noted that it was only on May 19, two days before this hearing, that he received answers to questions he had put for the record at the last FBI oversight hearing 11 months ago. Grassley said that that is not acceptable. He acknowledged, however, that last year’s hearing was well before Comey became director, and he commended Comey for making an effort to improve the FBI’s communication with Grassley’s office.
“The FBI has a pretty dismal record of responding to my questions,” said Grassley.
Grassley said at the hearing that the Inspector General (IG) of the Department of Justice had told him that the FBI was causing significant delays to Justice by “refusing to turn over grand jury and wiretap information when the IG considers it necessary for his reviews.” This behavior is different from 2001 to 2009 when the FBI routinely provided this information to the IG.
“So, I’d like to know why the FBI has been stonewalling the Inspector General,” said Grassley.
Civil Liberties Concerns
A general concern expressed was that with the FBI’s new technologies and enhanced surveillance capabilities, American civil liberties could be threatened. Comey tried to put the doubts and concerns of senators to rest regarding this issue.
He said that he directs new agents to work on criminal cases in the beginning of their careers, “so that they develop both the tools and techniques of law enforcement and also the mindset. One of the great gifts of the FBI is that at our core is the respect for the rule of law, the Fourth Amendment, Fifth Amendment, and the Sixth amendment and there’s nothing like criminal work to drive that into the fiber of an agent.”
Many question the constitutionality of the government’s counterterrorism program. Grassley asked about the value of Section 702 of the FISA Amendments Act of 2008 to the FBI’s counterterrorism mission. (FISA refers to the Foreign Intelligence Surveillance Act of 1978.) Section 702 authorizes the NSA foreign surveillance programs, such as wiretapping and collection of communications without a warrant of persons generally thought to be foreigners, but sometimes U.S. citizens’ communications can be swept up in the course of the foreign communications surveillance.
The American Civil Liberties Union, for example, holds that Section 702 “violates the Fourth Amendment because it permits the government to conduct large-scale warrantless surveillance of Americans’ international communications in which Americans have a reasonable expectation of privacy.”
Comey answered that Section 702 is “extraordinarily valuable” in counterterrorism missions “to keep Americans safe.” He said that he could not say more in an unclassified setting.
He did add, “I do not have concerns about its legality or constitutionality.”
While a registered Republican, he is well liked by Democrats. As deputy attorney general during the Bush Administration from December 2003 to August 2005, he earned the respect from civil libertarians for standing up to White House senior officials over the reauthorization of NSA domestic surveillance without warrants, which the Justice Department had concluded was illegal. He was prepared to resign alongside FBI Director Robert Mueller, Attorney General John Ashcroft, and several others from the Justice Department.
Chairman Leahy recounted at the hearing of the high drama of Comey rushing to George Washington Hospital where Ashcroft lay in the intensive care unit for six days, ill from pancreatitis. The White House chief counsel and chief of staff came soon after and attempted to get Ashcroft to overrule Comey (who was acting attorney general while Ashcroft was hospitalized) and reauthorize the NSA surveillance program. Despite being very ill, Ashcroft managed to sit up and speak clearly of his disapproval of the NSA program.
Comey testified before this same committee, the Senate Judiciary Committee, in May 2007 regarding the above sequence of events. He said he was very angry that White House officials would take advantage of “a very sick man.”