Transcripts For CSPAN2 Tonight From Washington 20130710

Necessary. I think everybody is going to want the court, but just so everyone would understand what the ground rules or, those are the ground rules. More important, i wanted the American Public to have a chance to be heard. Today as we know, we will consider the nomination of james comey, jr. To be in the federal investigation, the current director started just a week before the terrorist attack of september 11th. We know the world has changed dramatically. In that time weve often debated the National Security while protecting the freedom and liberty and the privacy rights and that define us as a great nation. That is alive today and the confirmation hearing provides another opportunity to evaluate an existing policy and to correct the course. Few positions have as much impact on the liberty and National Security as the director of the fbi. And as the president s nominee, the senate has sent Important Role in this debate and that of course begins here in this committee. I welcome him and his family today and they will be introduced in a moment. Hes had an outstanding career in Law Enforcement, serves as the Deputy Attorney general and the u. S. Seventh the district of new york under president bush and hes worked in the private sector Lockheed Martin and bridgewater associates. When he appeared before the committee in 2007, he described the dramatic confrontation of senior white house officials who were trying to get the John Ashcroft in the hospital would about to have serious surgery or had it to her reauthorize the surveillance program. The Justice Department concluded it was illegal and the to the attorney general showed courage and independence by Standing Firm against the rules to circumvent but continued to stream to the casino strength of character. Since the terrorist attack of september 11 the fbi dramatically increased its National Security and counterterrorism efforts but that is a transition that has not been without problems. The National Security matters, the latest revelations that the use of the patriot act Surveillance Authority remain concerned we havent struck the right balance between the intelligence gathering needs of the fbi and the privacy rights of americans. We all agree the fbi said that if necessary to keep us safe from terrorism. But i hope that we can agree that those should not come at the expense of our Constitutional Rights. The Constitutional Rights make us unique and great as a nation. They become aware of the Surveillance Authority is granted to the fbi and the patriot act and others. The Administration Officials defend these programs by saying they are critical to identify in the socalled botts. There will always be more to analyze and try to connect. And when the government is collecting data on millions of totally innocent americans on a daily basis and, when is enough enough just because we have the ability doesnt mean that we should be doing at. Last month i introduced the Privacy Protection act to ensure the limits of the government surveillance activities along with strong privacy and protection and oversight. As the head of the pair Law Enforcement agency the fbi director bears this responsibly to make sure the domestic of government surveillance and do not infringe upon our freedoms. Live long said that protecting the National Security and protecting americans fundamental rights are not and should not be exclusive. We can and must do both and i look forward to the testimony about how we achieve both goals. I also have concerns about the Justice Department treatment of journalists. As the son of vermont printers and publishers, the First Amendment is in my blood. The burden falls on the federal government to ensure the press is being protected. Im very concerned by the obligations regarding the Associated Press when records. Again if confirmed mr. Comey will be tasked with the ones in the government will enforcement with personal First Amendment rights. I am concerned as others have been here that during the attorney general he improved legal memo with the gulf allies use of waterboarding and other techniques long recognized as torture to both domestic and international law. The conduct oversight on the issue for years might believe that they led to the treatment of detainees. It was contrary to law and value and made us less safe, not more. Its critical whoever takes over has a sense of history understanding that we must never repeat these mistakes because they leave a permanent stain on the great nation. We learned nothing else in those years from the september 11 the tax we learned it matters who leads the nation and tall levels of government we need strong ethical and leaders who adhered law they face how to sustain the increased focus on counterterrorism upholding the commitment to its historic functions so of course we want to hear the priorities for the next decade. It is a ten year term. Does director miller noted and i applaud him on the floor of the speech the fbi will fall Civil Liberties and civil rights are not burdens for the fbi. We look forward to seeing how. Thank you for wanting to reenter the Public Service again. The director of the federal bureau of the investigation is charged with running an agency with tremendous power. This power if used appropriately could threaten Civil Liberties of every american. However, when used appropriately and subject to the rigorous oversight by the congress it protect the nation from terrorist spies and hardened criminals. They are commonly referred to as low Law Enforcement officer in the country. The fbi director serves as the attorney general, serves the attorney general and the American People as a top cop on the street and. They have a keen understanding of law, management skills, under significant pressure and a level head. The director learned this soon after arriving at the fbi headquarters and the United States was attacked by terrorists arrests september 11, 2001. As a result of this terrible attacks, the director mentioned as the fbi director changed maria instantly and significantly. Instead of managing a Law Enforcement agency, she was immediately thrust into the role of reinventing the story all Enforcement Agency and to the National Security agency. This is the sort of change that happens overnight. Fortunately he rose to the challenge and the face of the fbi for this new age and threat. The threats are facing and a great time multifaceted. Terrorism unfortunately at the fbi it must face in addition to serving as a Law Enforcement agency and the lead Counter Intelligence agency. The next director of the fbi must be prepared to continue the transition. He must also be prepared to manage the fbi through the next challenge. Despite the success director had been transforming the fbi to deal with National Security threats, the challenges remain for the next fbi director. For example, legacy problems such as developing a working Case Management computer system, a working effectively managing location to watching tv to washington, d. C. Headquarters and managing linguists dealing with aging infrastructure such as the fbi headquarters. Management concerns remain about the proper personnel balance between the special agents and analysts. The standard of discipline between the law and agency and management as well as the issues dealing with whistleblower retaliation. These matters must be addressed as they threaten to undermine the hard work of one of the employees at the fbi. The position is unique in that it is a tenured appointment subject to the advice and consent of the senate. This term was extended two years ago by a one time basis only the extension allowed the director to serve an additional time frame as the president failed to nominate a replacement. At the time we held a special hearing to discuss the importance of the term limit for the fbi director. One of the reasons they created the term was to ensure accountability of the fbi. This hearing is part of that accountability. We have a responsibility to ensure the director will be a will to balance the duties of the fpi connector against the Civil Liberties of americans. Before us today is the president s choice for the next fbi director, you, mr. James comey. He has a distinguished past he served as the u. S. Attorney for the Southern District of new york and Deputy Attorney general during the Bush Administration. I would also like to add hes smart because he married in line iowan. [laughter] he handled a difficult matters that provide a solid basis for the type of matters that may come up as fbi director. I had the opportunity to sit down with mr. Comey yesterday. We talked about his government experience and have it prepares them for the job so today i want to discuss with him his nongovernmental employment work with Lockheed Martin, hedge fund bridgewater partners and his position board of directors at hsbc. Having to balance public and private sector experience is a good thing but i have openly open concerns about the administrations failure to prosecute those involved in the financial crisis including criminal wrongdoing at hsbc. I want to know whether mr. Comey can look beyond his affiliations in the private sector and prosecute such wrongdoing and i also want to discuss a number of policy matters impacting the director. First i continue to have serious concerns with the fbi treatment of whistleblowers. We discussed the Important Role the bling and the transparency and accountability to bureaucracies including the fbi. In my opinion they have a poor history retaliating against whistleblowers that come forward and report wrongdoing. This is particularly concerning in light of the recent weeks of classified information while not necessarily in fbi matter what recent weeks have violated an issue like focused on for years, protection for National Security employees. These including many a sign that the fbi made a protective mechanism to report wrongdoing without the fear retaliation. I believe a number of National Security leaks wouldnt have occurred if they had a path forward. Unfortunately a provision of the whistleblower protection enhancement act extended protection to National Security employees but was cut by the house of representatives prior to being signed into law. I continue to believe this is a necessary legislation. I but like to hear mr. Comeys lots on the whistleblowers value and how he will handle the complaints. I would like an assurance that they will not face retaliation and i would like an assurance that the policy pursuing handle list appeals against the whistleblowers even when their retaliation was found by the Inspector General and will not come to an end, will now come to an end. Second i want to ask mr. Comey about the developments of the use of drones within the u. S. A few weeks ago we learned that the fbi was using them here for surveillance while the director indicated that this was a very limited he also said policies regarding limitations were still being developed. That is concerning if they are developed after the fbi deploys them here. Further the use calls into question the thoroughness of the written response received from the attorney general holder indicating the use by the dea and the 80 but also mentioning the fbi in passing. So i want to hear what he thinks the proper limit on the domestic use should be. Whether he would believe the u. S. Until the final regulations and policies are drafted and how he would deploy them from domestic use. I but also discuss their views on the National Security and fbi role. We are all painfully aware of the limits, of the limitations placed on the fbi agents prior to 9 11 and the socalled wall between intelligence and Law Enforcement. Congress and the executive branch have been successful bringing double wall of intelligence and Law Enforcement that concerns expressed in the recent years rebuild those walls. For example, advocates have opposed information sharing of cybersecurity threat information which could in erroneously reconstitute a subornation similar to the wall. I would like to hear the views on National Security matters such as cyber set to become a Counter Intelligence and counterterrorism and also discussed the management matters with nominees and specifically i want to hear the assurances he will work with congress and provide forthcoming responses. Congress has a duty to conduct oversight so given the discretion the fbi has to conduct the investigations, Congress Needs to have an open channel to obtaining information relevant to the oversight request. Finally i want to discuss general Management Issues such as the disciplinary system which has long been criticized for having a double standard for management and opposed the line agents on problems like this are dangerous to an agency and need to be managed before they bring out other problems. So there is a lot of ground to cover, and obviously probably wont i will probably have to submit some questions for answers and writing. I would note senator blumenthal is the senior senator for the state in which mr. Comey presides. Mr. Blumenthal, did you wish to introduce thank you mr. Chairman, i do and i appreciate the honor of introducing mr. Comey to the committee and supported him strongly for this role in an extraordinarily distinguished career of Public Service. I want to welcome him and his family, his wife and i think a number of your children are with you today and i will let you introduce them until i look forward to saying hello to them later when we are done. I want to say how much i admire his record of Public Service. He really epitomizes which way is best about American Public service. Senator grassley mentioned that he was reentering Public Service but in a sense, he never left because in his private life, his life of working in the private sector, hes also contributed immensely to his community and the state of connecticut where he and his wife have devoted himself and their family to serving the needs and the interest of both their community and the state and many individuals who live there. Mr. Comey is no stranger to our civil and criminal Justice System. In fact, his wife has been about Public Service and about using the department of justice as an agent with the means to achieve greater justice in our society. He began his career at the department of justice in one of the most difficult and important jobs there is as an assistant United States attorney in the Southern District of new york. He quickly rose to become the deputy chief of the Criminal Division as a former United States attorney myself, i know how important that response oblivious in a practical handson sense of making extraordinarily difficult decisions about balancing individual rights, and also the need to prosecute and achieve greater security and safety for the community. He took on another difficult job as house managing assistant, i United States attorney for the Eastern District of virginia and he was recognized by his superiors as an unusually skilled prosecutor who could be counted on to get results and to get the job done. He had personal responsibility for prosecuting one of the most heinous terrorist attacks in the United States and saudi arabia and he quickly delivered 14 indictments. He was promoted at that time to be the United States attorney for the Southern District of new york, one of the major prosecutorial areas outside of washington. He showed the same fearlessness and tinier looseness and relentlessness and his dedication to justice which had become his trademark as a professional prosecutor. He also pursues corporate crime in some of americas biggest businesses. And he was recognized for his performance with the directors award for superior performance and the metal from the new york city bar association. Throughout his career hes been recognized not only in the Public Sector but also by the private bar. Mr. Comeys success led to his nomination to be the Deputy Attorney general for the United States, the secondhighest ranking official with the department of justice and a lot has been written and said about his tenure in that role. I had the privilege of working with him in a number of respects as attorney general for connecticut during that period of time. But i can to admire his courage in standing up and speaking out to the superiors and his willingness to speak truth to power and defend the most fundamental liberties and guarantees that our constitution provides. And i know that whatever the members of the committee think about mr. Comeys views, they can count on his complete and utter integrity and devotion to the rules law, his dedication to excellence in the pursuit of justice and Civil Liberties which he has demonstrated not just in words with action throughout his career. In Westport Connecticut i particularly admire the work that his wife and he have done in the community. As i mentioned earlier i think noteworthy for the committee and a member of my colleagues are aware that he and his wife are licensed foster parents and connecticut and have cared for infants and toddlers and theyve also donated their time and energy to create a foundation to support children who age out of foster care. So his life has been about Public Service. I am honored and pleased that he has chosen to assume this demanding and challenging role. I want to thank him and his family for the service and sacrifice they have made and you, mr. Comey, for joining us today. I look forward to leave your testimony. Thank you mr. Chairman. Before i swear you then, just so we have it on the record for the archive someday, would you introduce everybody here from your family . Is your microphone on . There you go. Behind me to my left is my life, patrice come senator blundell mengin the love of my life and everything that is good about me is her fault. Then my five children seated in just about the same seats they were sitting in ten years ago when i was you to become confirmed. They are a little that older. The change to the estimate the only one that hasnt aged is my wife to get the rest of us have gotten older. Martinez 24, keith is 23, brian is 19, claire is 16 and atty is 13 and those are my troops. Now would you please stand. Do you solemnly swear the testimony you have given is the truth, the whole truth and nothing but the truth, so help you god . I do. Please go ahead, mr. Comey. Thank you, mr. Chairman, senator grassley and members of the committee its an honor to be back before you. The last time i sat at this table was two years ago or so to testify in favor of extending the term by two years. Now im back asking you to confirm me to come replace Robert Mueller which is amazing and hard to believe. Ive known and loved the fbi for a long time. My first major case was an fbi case. In 1987i was assigned an interstate theft and fraud case in new york and the case agent who was about to retire from the bureau reached mandatory retirement to report to the supervisor the prosecutor had been assigned to the complex case and she said i will go down and talk to Rudy Giuliani and we will get someone else assigned to this case and he asked her to please hold off because he thought the prosecutor may be could be trained. And so i was trained. By him and by dozens and dozens of other special agents who were working the cases that i was so lucky to handle over the next decade. I came to know the fbi agents well and i used to tell them the division of responsibility was clear. The attorney would get the credit. I was teasing that rooted in that was the truth. The work was often only to recognize when something went wrong. I came to know there were people from all over the country, all walks of life but united by the fierce desire to do something good in their country. I came to know that they embodied something churchill said stuck with me that you make a living by what you get and make a life by what you give. They chose to lead to the comic remarkable lives without getting much in return. Those people are what excited me the most about the prospect of being confirmed to be the director of the fbi. I also know that if i am come from for this position i will follow a great american, one who has been clear about that threat facing the country, especially the metastasizing terrorist threat, the cyber threat that poses a risk to the secrets, to the commerce, to the people and most honestly to the networks we depend upon our lifeblood. I know that hes changed the fbi as the chairman and the Ranking Member described in fundamental and crucial ways i know that this will be a hard job to refine sure things will go wrong and i will make mistakes. When i pledge to you to follow bob muellers of staring hard at those mistakes, learning from those mistakes and Getting Better as a result, his legacy of candor and straightforward as and integrity is 1i pledged to continue. I also know that the fbi is and must be an independent entity in the life of america. I cannot be associated with any party or interest or group. It has to be seen as the good guys and gals in this country. The fbi is and must be about finding the facts and away the fact is unfair, faeroe and objective way and to do that with a rock solid commitment to the constitution and to the law. The culture of the commitment to law and resistance to any jeopardy or independence is at the core of the fbi. I know it is deep inside the fbi agents. Those values are the things love about the fbi. As you know, mr. Chairman my beloved wife and my five kids, she had a real sense of the reason im sitting here today. Im going to embarrass her by telling you the little story. When i was first approached about this job i was inclined to say no, that it was too much for my family and that it was the wrong time. She urged me to say yes i would be considered and she said that for two reasons. Youve only been happiest when you are in government service. This is what you love. Second, they arent going to take you any way. [laughter] so, you might as well go to the interviews just to make them sorry that they dont pick you. So here we are. I will remind her of that if im fortunate to be confirmed over the next decade. Ive been gone from the government for eight years and ive missed it nearly every day of those eight years. The mission of the department justice. And im looking forward to answering your questions and hope to be confirmed to rejoin that mission. Thank you mr. Tran. Thank you, mr. Comey. I am reluctant to talk about private conversations, but a few weeks before your name was disclosed the president called me at home and talked about you and asked my advice and but i thought about nominating you and i said how are you ever going to talk him into this and then i said secondly how are you going to talk his wife and to this . He said we are read to have Robert Muellers life talk to his wife. So, anyway, to be serious and go back to something i talked about earlier, one has been recognized to be tortured as in the spanish inquisition and we prosecuted american soldiers for years and japanese soldiers for using americans during world war ii. After 9 11 when the cia personnel began to use harsh interrogation techniques including waterboarding, the director refused to allow the fbi to participate in those interrogations. I said before and i will say it again this was true leadership on the part of the director mueller. He refused to bend to the enormous pressure of the time. Its easy to say what you might have done at the time that what do you think he would have done if you had them the fbi director at that time. Would you have given the same direction . Absolutely, senator. When i first learned about waterboarding when i can the Deputy Attorney general my reaction as a citizen and a leader was this is torture and thats still what i think and to his great credit, Robert Mueller made sure the fbi had nothing to do with that business and if our fbi director it would never have anything to do with that. Can that be reconciled with your approval in may of 2005 the memo that conclude the gulf ablaze to use of waterboarding wouldnt violate the statute . I think so, senator pete if i might explain to you. As i said, when i was first bred into the Interrogation Program my reaction is what i described it is only the most important thing i did as the Deputy Attorney general was forced country to force and fight for a discussion about whether this is the kind of thing we ought to be getting as americans. There were issues i will talk about in a second but i thought most of all it was the discussion with the cia says it is effective and regardless whether the Legal Counsel says it doesnt late this particular statute. There is critical third question which is should we be doing this and is it appropriate . I thought some fights i will talk about the plan to the attorney general and i said this is long. You have to go to the white house and force them to steer it is and the answer that question. My answer is we shouldnt be involved in that kind of stuff so i made that argument as forcefully as i could. He literally took my notes with him to a meeting at the white house and told me he made my argument in full and that the principals were on board with the policy and my argument was rejected. On the legal front what i discovered when i became the general is even though i as a person felt we shouldnt be doing that kind of thing id discovered it was harder to interpret this statute which i found very vague and applied it to the individual techniques. One of the first things i did is drive to withdrawal terrible opinions that have been written before my tenure and then commission the drafting of a new analysis of the particular statute and that resulted in an opinion at the end of 2004 which was the general opinion i thought much more responsibly written. Then in the spring of 2005 after i already announced am i resignation and resulted in too opinions that applied to the individual techniques the cia wanted to use and to the combination of the techniques. The combination opinion was by far the most important because no interrogation was done with one technique. They were always used in the group so i read the first opinion of the individual techniques and i thought that was a serious and reasonable interpretation. I read the second and thought it was terrible. I thought was irresponsible both as a policy and a legal matter and i objected and to come under a plea to the attorney general and made my case that there was wrong. He disagreed with me so next i fought the fight i talked about at the beginning. So senator, im not sure that i did the right. Lets them forward eight years. The same question of general mukasey when he was before this committee for the confirmation of found his answer unsatisfactory but i asked the same question, do you agree that waterboarding is torture and is illegal . Yes. Would you agree to answer this question the same way no matter who is present . Certainly. The surveillance powers that the fbi have ground. Americans have become increasingly concerned the fbi is becoming a Domestic Agency than crimefighting organization. The patriot act by the referees they can get vast amounts of information. In the law abiding americans it creates concern reindell. Do you believe the collection of data from the telephone calls and emails is appropriate even when the majority of individuals with whom the calls or emails are associated with our law letting americans clacks senator, im not familiar with the details in the current programs. Obviously i havent been cleared for anything like that and ive been out the government for eight years. I do know as a general matter that the data is a valuable tool in counterterrorism. What ps2 this. We are going to be very shortly reviewing some of the aspects of this. If you are confirmed, will you work with me . Im not asking for a particular piece of legislation but work with me to enact some common sense improvements to our surveillance law . I would be happy to work with you. I worry that just because we think we can do it it doesnt mean that we should. Thats without going into the open session. I want going to some of the parts of that. I also ask you this basic question. William lecturer the fbi doesnt lose sight of its traditional Crime Fighting mission, Violent Crime, whitecollar crime, corruption, forensics reform and not just be seduced by the intelligence gathering aspects . Yes, senator and i think the director tried to strike the balance and i will as well. The fbi has to be both an Intelligence Agency and crimefighting agency. A background in Law Enforcement and sometimes it is the nuts and bolts that are the most important to the average person those are the people we have to protect. Senator grassley . As you and i discussed yesterday in my office, how important oversight is in the checks and Balance System of the government to make it more transparent and accountable and effective i expect that you would be respected to the constitutional duty of the oversight and that the documents will be taken seriously and they answered in a timely and complete manner. So do i have your assurance that if confirmed he will assist me in my constitutional oversight activities and will be responsive to my request, my colleagues requests and help make the fbi more accountable to the American People which is the principal of checks and balances . I agree, senator. The oversight is a critical part of effective government and are functioning democracy so yes. So would you be responsive to my request for information and provide this information to congress in a timely manner that is until but due to the clearance process . I dont know the problems are that you have encountered. I will do my all for the oversight requests. We also discussed the issue of whistleblowers. I will tell you the information they provide the congress from the executive branch. They raise concerns with management and who bring concerns to congress and cooperate with congressional oversight efforts should be protected and not retaliated against. So can you give me a commitment he will not retaliate against fbi whistleblowers and instead work with them to address the concerns they raise . I will give you that assurance now. Senator as i said when we spoke privately i think whistleblowers are a critical element of a functioning democracy. Folks have to feel free to raise their concerns and if they are not addressed up the chain of command to take them to inappropriate place. Im not accusing you or other directors of retaliation. But in some organizations whistleblowers can be retaliated against by people within their organization. Would you assure us that every whistleblower is treated fairly and those that retaliating against whistleblowers are held accountable . Retaliation is unacceptable. And do you believe this is more difficult probably for you to answer right now but do you believe whistleblowers who know of problems with matters of National Security should be treated differently than they are today because call does not apply to them . You are right, that isnt 1i know well enough. I will look into it to understand it better. I do want to another subject that might be more difficult because you are new to knowing that you were going to be appointed. But sometimes a change in leadership can shift in organization and go in a different direction while moving the organization forward. The director of the fbi can set the tone for the bureau. So the question is to have specific goals or priorities for the fbi if confirmed that you would pursue . I can only say with confidence i believe its important for the next director to continue the transformation of the fbi into an Intelligence Agency to continue the cultural change and i know as i mentioned in my Opening Statement that the cyber threat of cybercrime and terrorism is an enormous and exponentially growing threat that will be a key part of the next ten years and beyond that it would be irresponsible to say more without being confirmed and getting the job to understand how things are going now. About to go to the Public Sector service and how that might interact with who the new position if you are confirmed. In 2010 the fbi issued a stop order to Lockheed Martin, the leading contractor working with the next generation Case Management system. The stop work order preceded the termination of the prime contractor. The development was closely watched and criticized by the Inspector General. Ultimately the Program Development ran past the had land cost significantly more than a was planned not to mention the fbi got less system than originally thought. Now because you were the general counsel but Lockheed Martin that time the store was initiated, i ask these questions. What if any involvement did you have in the Sentinel Program . None. I was aware internally Lockheed Martin in a general way. I had no contact about it. Id been the Deputy Attorney general when the contract was first lead. I didnt know that at the time set out of abundance of caution i tried not to be involved in it and was not involved in that. The Inspector General continually unfolded development. Do you think that the american taxpayers got what they paid for the program . I dont know, senator. I dont know the answer to that. Speckling your Public Service and worked at a major Defense Companies then wellknown private investment manager. Recently you became a director at hsbc. Given the department entered into a deferred prosecution agreement with hsbc will you have a conflict of interest with regard to that matter . And if you do or what have, how would you resolve that . I think it would be a conflict so i would recuse myself that any matter relating to my former employers. Just generally with pursuing those matters what assurances can you give that you collected it will pursue the securities, regulations, bank fraud, Money Laundering or other financial whitecollar offenses and when you have reluctance of conducting such investigations . Not at all, senator. Ive long felt that the prosecution of socalled white collar crimes was both the right thing to do and extremely effective. I believe deterrence works in that area because you dont have people committing crimes, accounting fraud or securities, high on crack or inflamed with passion. They think before they act. My track record as an assistant u. S. Attorney and Deputy Attorney general was to make the cases and send messages to the good folks of reassurance the we are doing something about this and to the that people if we catch you doing this you will pay a penalty to try to change behavior. May ask one more question . At bridgewater your former employer the founder of the firm embraced radical transparency that involve recording a lot of meetings in turnage u. N. Your employees to probe senior staff with tough questions. I think the fbi to use more radical transparency. I dont mean necessarily recording your meetings. What you think are the benefits of radical transparency and how could this apply to the fbi . Actually bridgewater suggested i consider taking all of the meeting said the fbi. Im not prepared to commit to that. I went to bridgewater in part because the culture of transparency is something that has long been a part of me and its incumbent upon every leader to foster an atmosphere people speak truth to power. They are two different institutions but i promise i will carry those values with me and try to spread them as far as i can in the institution. Senator feinstein and then senator hatch. Thank you mr. Chairman. Welcome, mr. Comey. As you know in december the Intelligence Committee adopted a 6,000 page report that provides a comprehensive review of the cia detention and Interrogation Program during the Bush Administration. We are not quite ready to issue the findings publicly but the adoption of the report is significant because it means the majority of the committee has gone on the record to declare that the socalled enhanced interrogation technique should never be used past present or future. If he were confirmed to be the next director of like to ask you to personally review the report. Its a big deal. It was 6,000 pages that i think its important you have the background and its important to read the actual case studies how they were used before approving them and the quote simply couldnt be that the principals could be willfully blind. Why did you believe there was a danger that the principles of the National Security council were unaware or they were willfully blind to the details of the cia program. Thank you, senator. Because i heard no one asking that third critical question. As you recall there are three key questions in the technique but especially in the interrogations. Is it effective, something they were talking about, is that legal under the section 340 question and then this last question is this what we should be doing . And instead, i heard nothing and was reported to me that the white house view was only the first two questions matter if the cia says it works and the doj will issue an opinion and doesnt violate the that is the end of the inquiry and as you said, senator i thought that was unacceptable. Thank you. I would like to speak about one other thing in my time. On june 19th i wrote a letter to the secretary of defense on the issue of the force feeding of detainees at guantanamo. A week prior year id spent the day at guantanamo with the president chief of staff and senator mccain and we took a look at the forced feeding issue. Detainees are restrained by body, foot and hand coming and twice a day a tube is inserted and perhaps covered with olive oil up the nose and down into the stomach and the individualists force fed. This goes on week after week and month after month. We have 86 detainee is who are cleared for transfer. They are no threat to the country. The have been judged so and they have no place to go. So, this is an expression of hopelessness in the forced feeding. The issue has recently been before the d. C. District court, and this morning the newspaper said no court, justice or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any other aspect of the detention, transfer treatments, trial or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combat. So, we have a lot that essentially is taken to the courts out of any added to the occasion in this issue. Im very curious because you have looked at the combination of the manner in which they are administered and youve come to the conclusion that they are tortured. These are people now 86 of them are no threat to this country. Theyve been cleared for the country many of whom are being forced fed to keep them alive. In my view this is an inhumane. And i am very curious as to what you would say about this. I have received no answer for my letter to the secretary. Now the president s chief of staff was with me. He saw what i saw and i am very concerned about it because it is the wrong thing to do. I would appreciate your comment. If i were the fbi director i dont think it is an area that would be against my job scope, but i dont know more about what you are describing them. It is within all of our job scope to care about how the United States of america act spivvy estimate i agree very much with that. And i do also know that there are times in the bureau of prison where the federal authorities have had to force feed someone who is reef refusing to eat and they try to do it in the least invasive way. What you are describing i frankly wouldnt want done to me but i dont know the circumstances well enough to offer an opinion and wouldnt be worth my opinion at this point. Thanks very much, mr. Chairman. Thank you jury much, senator feinstein. I agree with what you said. Welcome back to the committee, mr. Comey. We are happy to have you here. This isnt the third time that you are being unanimously supported by the senate. Lets hope that that is the case. After all. The report came back in may about your likely nomination and said that you are a full key vote for the democrats. At least in your case i dont believe that is a cause for concern on this side of the nile. Its also easy to forget that the director Robert Mueller began the service just one week before the terrorist attack changed forever. There was a fundamental reconfiguration and the fbi. Since then, the congress provided significant tools to the fbi to use. But the debate continues in congress whether the tools are sufficient or appropriate. Theres also a debate in the public arena sparked by damaging the leaks by reckless individuals. I hope we have your commitment that should be confirmed the willfully and aggressively use the tools the congress has provided. Senator, you have the commitment. In that connection i am concerned the American People do not understand the rules and standards that guide how the fbi uses these to protect the country. The recent column in the Washington Post for example claimed that we were living in a time of warrantless everything. Please take a minute and explain some of the rules and standards because our fellow citizens need confidence the fbi itself respects the rule of law. Yes, senator. Folks dont understand that they operate under a wide variety of constraints starting with the attorney generals guidelines to conduct investigations, criminal investigations, counter investigations. Sometimes folks also dont understand what the fisa court is. They hear secret court and sometimes they hear rubberstamp. In my experience which is long folks dont realize its a group of independent federal judges who sit and operate under a statutory regime to review the request by the government to use certain authorities to gather information and it is anything but a rubber stamp. Anyone who has appeared before a federal judges nose calling them a rubber stamp is it shows you dont have experience before them. I think sometimes folks also dont understand the degree to which the activities of the entire community are overseen by congress and also overseen by independent and highly effective inspectors general embedded within each of the institutions that report within the executive and also the relevant Oversight Committee of congress. That combination of the judicial involvement come congressional oversight to me is a regime of oversight that took me two minutes to explain. Its hard to get the time and space in life to have the folks understand that sometimes. That is good enough for me. On march 40th, you spoke at the Humphrey Institute of Public Affairs and minnesota. Walter mondale said that you are a, quote, a remarkable example of the lawyers that remember their function and obeying and enforcing law to be a i would like you to comment briefly on that function both enforcing the law as it relates to what you were appointed here. Of the oath that the Public Servants take is to uphold law and the constitution of the United States to with respect the man that you dont exceed the law and that they are executed and given life, that congress intended that they use the tools to address crime, for example intelligence risk for examples of its important than you would be both aggressive and respectful of the boundaries and that is a balance that people sometimes think is impossible to strike. I think this government is full of people that get it that the or to do both, respect law and the constitution and the use the tools to protect the American People. One of the many things i respect about the director Robert Mueller, and i do respect him, is his candor with congress and acknowledging the problems in the fbi that have made it fixing hes been very straightforward about it. When the Justice Department Inspector General released a report in 2007 about the fbi use of National Security letters. That report found an intentional misuse of either statutes or guidelines. Nonetheless, directors beat implemented reforms to address the deficiencies and oversight and auditing that the ig Inspector General identified. I hope you see the value of that accountability and will be open and candid about anything that might need to be corrected. I am sure that you do but i just thought i every at the core of the problem all of those being and its something that i intend to emulate admitting and learning from the mistakes is the only way that the institutions survive and improved. The Center White House and ih the senator schiff for years worked on a bipartisan manner to highlight the scope and the debt around the world. With the billions and billions of dollars every year but for the lack of intellectual property protections. The theft of intellectual property undercuts the hard work of americans who share their talent and creations with us. One of the things that makes this remarkable country great is that we are the cradle of innovation, of ideas that become products that become jobs that become enormous companies. We will lose that if we are not able to protect that which we intend. You have accepted this position, a great deal of respect for you and intend to work with you. I just want you to know that for you to be willing to get back into the government is a Great Service to our country. I want to support you and hope we can make this a quick conversation. Thank you, senator. Thank you and welcome. Despite the fact the you have moved to connecticut and i hope the senator does not take offense, we still consider you an new yorker. And we have known each other a very long time. Im glad youre here, and i want to speak a little bit about my experience with you because i think everyone in the committee and elsewhere should hear that. First, the job of fbi director is one of the most important in the nation. It is a 10year commitment. Two reasons. First, a lifetime appointment runs the risk of abuse of power, as we learned from j. Edgar hoover, but second because a shorter appointment could put the head of the most important Law Enforcement body in the country in danger of being subjected to the winds of purely political appointees. At 10year appointment is the right amount. Not lifetime. Now, if there is one thing i am confident of it is that you are more than capable of exercising independent judgment. Even have enough courage in the face of enormous political and professional pressure. It was just a little more than six years ago the use that at that table, i sat at the dais chairing a committee about the overall winning role of politics at the u. S. Department of justice. Your testimony about this incident was one of the most courageous acts by a witness i have ever seen. If another book were written about profiles in courage, this would certainly be a chapter. Having served as Deputy Attorney general fund 2003 until 2005, you came to my subcommittee to talk about the departments policies regarding appointments of u. S. Attorneys. And at that point the department did not look very good. My staff, my chief counsel at the time, now u. S. Attorney for the Southern District has discovered there was more to the story. He reluctantly agreed to speak to him before the hearing on this additional topic. After that conversation we knew that you were prepared to testify about something of central importance, a possible constitutional crisis previously announced to the American Public by an administration embroiled in and very possibly blinded by the war on terror. And so your testimony was one of the most dramatic and brave moments that i have ever witnessed in my years as a legislature. You exhibited the wherewithal to talk about a different ilk of interference with lawenforcement Decision Making and the department of justice, the apparent attempt by two members of the president s team to attain speech in which you said that a good lawyer must be willing to say no when it matters most and as fbi director William Still be able to say no as it matters most remote as you did on that day when you would the acting attorney and that night when you were acting attorney general . Yes, senator. I believe so. Could. And i have every faith that you will. The details of the program at issue in 2004 and the Decision Making are still classified. News reports have suggested you were now, there has always been an ageold struggle between security and liberty. This tension has never been more stark in the 12 years since september 11th. I realize that well. You know that better than most, three our roles and Law Enforcement and many roles before and after these events. My view, when you have a classic conflict of liberty and security , first, the debate should be open. Second, the resulting policies have to be governed by rules, whether set by congress and the administration. Third, and this is where my question leads, an independent arbiter must determine whether these rules are being followed. In order to make sure that we strike the right balance as a society we need to know more about what the fisa court role is in approving these programs. My question is as follows. First, would you be willing to support declassifying or releasing declassified summaries of fisa Court Opinions that have been issued regarding these programs as the senator proposes to do, i am a supporter of. Obviously with limitations on security breaches. Senator, i agree with you that transparency is a critical value, especially when weighing tradeoffs between security and liberty and i am also read that the director of National Intelligence is looking at that very question. Because i dont know what is in the opinions about that, it is hard for me to say. I think it is a worthy exercise to look closely at. Let me just say this, if it is true that none of the 18 request for orders last year were denied, and maybe others on the committee know that, but i doubt, how can the American People be sure that the fisa court is exercising real oversight as it was intended to do when it was established in 1978 . You told senator hatch it is not a rubber stamp, but if they approved every decision it is awfully hard to think that there really doing the job that they were empowered to do. Can you give me a little thought on that . I hear folks say that quite often. The government is undefeated. How can it be a real court. I know from criminal cases that i dont know that case where a wiretap application has been rejected by a federal judge, certainly none that i was involved with, and the reason is we dont ever want that to happen. And so we work like crazy to make sure we have our ducks in a row, probable cause because if we lose that credibility with the court we worry that we will have lost something we cannot ever get back. And so i know that in both fisa applications and in criminal applications for courtordered wiretaps the government is extremely conservative in putting together what it presents. But you would work for Greater Transparency provided it does not jeopardize security. Yes. Thank you. Thank you, mr. Chairman. Congratulations on this very important nomination. I will the fbi, you have, and i remember as you were telling your first story, i remember being trained by some very fine fbi agents as a young prosecutor and i do believe it is the greatest lawEnforcement Agency, perhaps, in the world in dealing with complex cases of all kinds. And it deserves and must have great leaders. I first considered the nominee should be able to give that. I believe it was Rudy Guiliani who talked about his successor and said it would be nice if you were able to contribute to the discussion every now and then. And it sounds like, i suppose. And you are able to contribute to the discussion. I was looking at your bio. You have the kind that we should look for. Assistant United States attorney in the Southern District of new york, Deputy Attorney general, the Fraud Task Force and the president s board on safeguarding american Civil Liberties. About three years in addition to being an attorney for some highly some great law firms and corporate entities. So i think they you bring the kind of background that we need. Looking at some of your cases, you tried the gambino brothers. The case involving 14 saudi people who murdered 19 americans. You a huge billion dollars fraud matter. Communications, 200 million case. Let the prosecution on one of the largest Identity Theft cases in u. S. History. Martha stewart, Insider Trading case. Project exile in virginia. I will mention that in a minute, but those represents to me the experience of a highly professional, very, very rarely a lawyer and the United States that would very rarely be involved in so many intensive, high profile cases. You bring that background and worked on virtually every one of those cases with the fbi, did you not . Yes, sir. And so you know the rules that they operate under in the department of justice very well from an intensive personal experience. I think you have that background for this job. Now, you have proven that youre willing to stand up for your convictions. Will you be prepared to pursue any cases that come before you involving congress or the administration, governors, other powerful forces in the country if you are called upon to investigate them . Will you complete the investigation effectively and call to a question based upon the law and the facts . Absolutely, senator. I think that is your background, and i believe that you can fill that task. I do. Now, we talk about guantanamo and exactly what senator feinstein is referring to. I would say that nobody is being tortured at guantanamo. At guantanamo, no one was water boarded. This was done, special cia or other people somewhere around the globe, but it was not done by the military at guantanamo. Tune not dont you agree that there are two options with regard to how to handle someone who attacks the United States . Of their car and enemy combat and the can be tried by the military commission cannot tried and. And in a place like guantanamo by the military as a prisoner of war and may be tried if they violated the rules of war or otherwise committed crimes as opposed to just being a lawful and in the combat and to. Then, of course, as the federal Court Prosecutions that can be carried out, if a person is brought to federal court and violated federal, civil, and criminal law. Is that right . Yes. From my experience i think of them has three effective lawful and appropriate tools that can be used dependent upon the individual case. Lot of were detention commit detention and trial and a military commission are detention and trial and a civilian court and the article three article iii courts. All three have been used. The obama and administration and president bushs administration. Well, if you are tried in civilian courts and you must be brought before the United States magistrate, judge. Is that correct . Yes. Requires. And your right to have an attorney appointed for you if you do not have one. Yes, sir. Or the attorney may have. Correct. If it is a terrorist, could be associated with the terrorist organization, could they not . Could be. Miranda warnings. They dont have to make any statements. Thats correct. And they can be brought before the judge at a preliminary hearing and the government has to lay out evidence revealing to the world that the individual who may be an enemy combat and has been captured, revealing that to his compatriots and enemies. Is that right . Certainly when Court Proceedings are filed and on the docket the public can know about it. Well, and evidence has to be presented. Witnesses can be cross examined, even in the early hearing preliminary stage. Isnt that right . Yes, sir. If theyre is a preliminary hearing. I have never done one because i used to indict the cases but i understand. While there are some protections for intelligence methods and capabilities and resources in some of these hearings, it does provide the possibility of repealing through the evidence presented the sources and methods of identifying and arresting this individual, isnt that correct . I suppose it is possible. In my experience, senator, the federal courts are effective at protecting classified sources and methods, even in prosecuted methods cases. Thank you. Isnt it true that with regard to let each of those instances that i mentioned that that trial and military commission provides a better protection for the United States with regard to intelligence revealing and be able to maintain the individual with or without a trial . And without resentment . I think in some ways the military commission has an advantage. In other words, i am not so sure. I think it depends on the individual case. My time is i had a few more questions. Were getting off the subject four or five convictions of military tribunals. Senator the military commission. Youre not trying to get convictions. Thank you very much. Let me start off, i understand your answer about the force beating at guantanamo, particularly in light of the opinion, but i would like to clarify for the record, i agree with his conclusion. We will join together. Perhaps others wish to join us in a letter to the president asking him to exercise his executive authority. The president , for the record, has called for the closing of guantanamo and has raised, in a speech just a few weeks ago this very issue. He has not been evading it. Judge kessler is calling into question whether he has the authority. We express our feelings that it should come to an end which will force. Congress has been complicitous in the current complicated situation. We have not followed the president s lead in the closing guantanamo. We left it in limbo which is unfair to many involved. I visited the Southern Command in miami until you members of the navy and coast guard who were part of it are at their wits and as to what to do with these detainees, many of whom have been judged no threat to the United States and are held indefinitely. In this case he has been held for 11 years. For the past four he has been judged ready for release. In his despair he has turned to not eating and all. I think its time for us to move the issue. I understand it puts you in a delicate position to have conjecture on where this goes, but we will follow through. Let me go through specifically a couple of issues. You and i have a long conversation yesterday. I thought what you said in a few words was what attorney general refused to say. In fact, water boarding was torture. I could spend some time here. I wont. What was going on within the administration, the debate over the use of water boarding and other coercive techniques in interrogation. More importantly was a point raised by senator schumer about the fisa courts. Use it yesterday as Deputy Attorney general you did your best so that there was more Information Available to the public to understand the Decision Making. That is certainly consistent with our democracy and, although there is an obligation to keep us safe which requires cross fire information, declassifying provides that information. The feel the same about these fisa Court Decisions that if redacted, if carefully screened, we should be releasing more of the decisions to the public so that they understand the role of the court in this decision process . Thank you. As i said earlier, i think the transparency is a key value, especially when it helps the American People understand what the government is doing to try to keep unsafe. If they understood more there would feel better about it. It is one folks dont know things that people can question whether the government is doing the right thing, but at the same time i am not in a position to judge what is on the other side and would not want to let transparency be the only value. I would lose some operational advantage. It is important to do what they are which is look closely and lane for to see what you can do. I hope you will encourage more transparency in the fisa court. I think that would be helpful. Also in future gatherings of information, minimization is critical. To minimize the information gathered to protect innocent americans. We discussed this yesterday. Instead of gathering all of the phone records of one area code to focus on the suspects, which i have been arguing for for years. Let me get to the point that has been raised by senator sessions because it comes up time and again. The minute we apprehend a terrorist, i can guarantee you someone will take the floor and say, well, for goodness sakes, dont put them through the article iii court. They must go to military tribunals or commissions. I have always been puzzled by this and i know the you have as a prosecutor faced this decision where will this person be tried . For the record, i believe that hundreds, literally hundreds have been accused of some form of terrorism have successfully tried and prosecuted in article iii courts. During that same time i believe the track record is 62 have been successfully prosecuted before military tribunals. Lets go to the points raised by senator sessions. They would characterize their reading of the miranda warnings has the end of the interrogation. What has been your experience when it comes to prosecuting terrorism cases using noranda . My experience has been we have a 20year track record in handling particularly al qaeda cases in federal courts and courts and prosecutors are effective at accomplishing the goals and everyone of these situations, getting information and incapacitating the terrorist there are a number of other tools available, but i know the track record. It is highly effective. We discussed yesterday the role of attorneys and family in the article three process, the interrogation and preparation for trial. Could you tell us on record what your experience has been . One of the things i like about the federal criminal Justice System that i suppose some might not is the entire thing is designed to get information. We have very strong sentences in the federal system. The only way to have any chance to get out from under them is to provide information, and in my experience the presence of families and lawyers is often a useful lever for me as a prosecutor to get information because then i have a loved one whispering in the year of the person i have detained saying, look, you need to do the right thing. Is the only way youll ever see the kids again. That assist me in getting information. This point about taking this and prosecuting. Running the risk of disclosing sources and methods that could jeopardize the lives of friends, allies of the United States, even our military. What protection is there against the possibility . My experience has been that federal courts are effective at protecting classified information. Theyre is a classified information procedures act under which a court scrubs confirmation to try to reduce the risk of disclosure. The track record is pretty good. Obviously there always remains a risk that there will be disclosure, but by and large it is effective. Thank you very much and i appreciate your testimony. Thank you, mr. Chairman. I remember distinctly meeting use several years ago when i was an assistant u. S. Attorney. He visited our office. If you remember the council you gave us, remember you telling us specifically that we ought to stay close to our families because as you put it, you see things that sometimes no person ought to have to see, unpleasant things. I cannot help but be reminded of that as you begin what could become a journey in serving as art director of the fbi where you, too, will have to see things that might be unpleasant. Its good to see you have the support of your family here. I want to talk to you a little bit about some of the privacy interests protected by the constitution and how those relate to a some of the activities of the nsa and other arms of the government. The government maintains that it has the authority to collect large amounts of data to store that on a database, basically with respect to telephone and email communications a pretty much every american. Purports to have the authority to store that, hold it over a long amount of time and when necessary perform searches to figure out connections based upon a National Security concerns to identify leads that it might fall upon. As i understand it, the search is on that database are governed largely, if not entirely by internal nsa rules. No external constraints, warrant requirement or anything approaching it. Those who defend this program and practice consists that under Supreme Court precedent, most notably maryland versus smith, the government has the right to do this and there is no real Fourth Amendment problem. Of course it was a case decided on a 54 margin back in 1979. It was an opinion authored and dealt not with that kind of mass Data Collection but Data Collection as against a single suspect in a single criminal investigation easing of register. We think there might be different Fourth Amendment interests at play where we are dealing with a much broader scale were potentially, theoretically every american is the target of the kind of Data Collection at issue with what were talking about today. Thank you, senator. It is an interesting question. You and i spoke about this a bit privately. I had not thought about it much in an. I read a paper written by a second year harvard law student about this. It is an interesting question as to whether the Fourth Amendment from work that is embodied in the case applies as Technology Changes or whether as the justice wrote last year, we ought to think about it differently where each of those pieces of data is allowing the government to put together a mosaic about you that goes beyond what you would normally expect and intrudes into a reasonable expectation of privacy. A fascinating question. I dont think it is settled. I hope it is. I will ask that the department of justice is thinking about. I dont think there is a clear answer, but it is a reasonable question. I appreciate your willingness to keep an open mind. As you look at that and as the Court Reviews the president and the two questions, whether there was a subjective expectation of privacy and whether that expectation is one that, and objective terms, society could and should regard as reasonable. You have to come to a different conclusion. I appreciate your willingness to consider that. Would you concede as i suppose you would that it would be different altogether, the case of canal collection, surveillance of emails, it would be an even easier question with regard to the collection of content. Thats the difference between reading the outside of an envelope and opening it. You would not see any substantive distinction between their government opening somebodys mail and somebodys email. I dont. Analysts thought of it as of Fourth Amendment. And it is interesting. The law in this area, there is a particular title that allows government agents simply by sending a request to an email provider to read the contents of someones email, obtain the substantive content, once that has ripened past the age of 180 days that seems to be a problem and is one that the chairman and i have been working on together. This is a loophole or trying to close. But would you agree in concluding that for her Fourth Amendment purposes there is no discernible constitutionally significant distinction between an email that is 179 days old and one that is 181 days old with the former being entitled to Fourth Amendment protection and the latter being entitled to nothing. I would. I dont think the Fourth Amendment has an expiration date. I was unaware of that 180 day. I always thought of it as compton that i would need probable cause to get. I think the department is also working to see if that cant be fixed. It sounds like an anachronism. I think it certainly is. It was anachronistic at the time in the sense that think it was incompatible with the Fourth Amendment. Its easier to understand why it did raise eyebrows. People typically did not store emails and the longer than that. Maybe one could have made an argument back and that no one was concerned about it, therefore no reasonable expectation of privacy could develop. I dont take the same argument can be made today. I am pleased that you, as a prosecutor, never went down that road. I know i didnt, but there have been some within the government who have suggested that this is an appropriate option for government agents to pursue. I hope you will stand with me in recognizing there is an important Fourth Amendment interests at play. If there are there will be unhappy with me. I see it as you do. Thank you. We will continue to work on legislation you discussed. Thank you. Welcome back. Let me pick up where the chairman left off. You were describing the two office of Legal Counsel torture opinions. There was one that related to certain techniques and then there was a second one that related to a combined techniques you indicated that you focused on the combined techniques, but because he knew that the techniques were being applied in combined fashion which was what was really mattered. You concede that if the combined techniques were to fall, under the certain techniques memo the government, the cia would have been able to go ahead as long as that was the technique. In that sense you clearly authorized water boarding by proving that memo. I think thats right. I dont want to quibble and say i authorize it. I found the opinion which in its text was a serious and reasonable effort to interpret the statute. Thats what i thought and why did not object to that one. Looking backwards, i would contend that it was not serious and not reasonable and that it left out things the u. S. A supervisor were not necessarily in a position to know about. When it leaves out the history that the chairman referred to of the United States having been the prosecutor water borders in the past, prosecuting japanese soldiers as war criminals, prosecuting our own soldiers for during that during the philippines uprising, prosecuting and American Sheriff for doing it. There is actually a file somewhere in the department of justice about a criminal prosecution of an american for water boarding at the time but that memo came out and nobody bothered to bring that up or put that in the opinion. Its not something you had to go through the files of the department to find out about. It ended in an appeal, describing it to the public has tortured ten times. That never made it into the opinion. I cannot blame you for that, but i dont want to let the record of the hearing go forward with the thought that these are responsible opinions because i dont think they meet that standard. He also said you were concerned that they were narrow, specific questions being answered. That was a reason. There was a third opinion these two are dated may 10th. The third was dated may 30th. On the same letter read. It is from the same office, the office of the principal Deputy Attorney general and signed by the same lawyer, directed to the same recipient, the council at the cia, discussing the same topic, but it is not specific. It is the general opinion that discusses the constitutional requirements and obligations under the convention against torture. What of that opinion . It came out 20 days later. I did not see it at the time. I guess i can guess why they did not show it to me. I did not see it. I have read it sense, but i did not know about it. That is somewhat remarkable, isnt it . Did you ask me about the first to opinions . I asked the then head of the office of Legal Counsel, a fellow named dan levin, to undertake the completion of the work to finish the general opinion. And ask him to do the opinion. That came from elsewhere, grow with the cra. You were made aware of the opinion, presumably you have made your concerns no. Very much. I made my concerns about the legal analysis known. Late may is when i went to the attorney general and said we have to address why were doing this. By the time of the opinion there wrote another and more broad opinion on the same subject and simply cut you out of the loop . Unless im completely losing my mind i dont remember. That is about, as i recall, article 16. Whether its cruel treatment. Applying a fifth amendment standard. I dont know. I didnt see that opinion. When you said you thought that the letter to opinions or more responsibly written. What opinion did you make . The people involved. My great confidence in this serious balance and the process that went through involving many more bride lawyers around the government to poke their ideas to try and pressure test them in a way that i dont think was done in the earlier opinions. Would it be fair to summarize it is saying that you didnt pressure test them yourself . You felt there were subjected to a much broader array of comment and therefore received pressure testing for multiple agencies and also at considerably more confidence in the principles involved in writing the opinion and you had and their predecessors. Thats fair. One thing i think i would like to emphasize to you, i think it would be very, very wise and helpful for you to take senator feinsteins advice and spend some time with the Intelligence Committee report on the torture program. I was heavily involved in that. If you look at, particularly the third one, then make a search and assertions. A lot of this stuff is classified. I had a hearing in this committee on the interrogation. The fbi participated, and it was from the fbi humane interrogation we got the news that Khalid Sheikh mohammed, it was from that interrogation we get the information about the dirty bomb plot. The cia contractors, not the agents, the contractors came in and started to apply the abuse of techniques and at that point the information completely shut down. Did not get anything more out of the gatt was of any significance , certainly nothing compared to what had been achieved by the fbi agent who was a very gifted interrogator. My apologies. My time is up. Take a look at page ten in the may 30th report and compare that to the the facts and i think you will see that the department was bravely misled. Im sorry. I appreciated. We have a vote coming. Senator. Congratulations on your nomination, and im glad that your family is able to be here today. None of us to do these jobs without the support of our families. Thank you for your willingness to continue to serve the United States. I wanted to ask you. I know you will agree. What are the great things unique about the american system is that no person, whether the president of the United States or an average citizen on the street, no person is above the law. That is one of the many great things about this country. But its hard when youre a member of an administration to do what you have recounted the you did during the bush ministration. That is be a voice of independence and, perhaps, go against the grain. You going to be as equally committed as a member of the Obama Administration as you were as a member of the Bush Administration to go against the grain and to be that independent voice for you feel that that is the appropriate course of action . Yes, i am. And for all the differences that have been discussed here over enhanced interrogation, my impression is that the Counter Terrorism policies of the Obama Administration, in large part, bear a lot of similarity to a counterterrorism policies of the Bush Administration. Would you agree with that . At think thats fair. The foreign intelligence court, the National Security agency role in collecting met a data, their use of Unmanned Aerial Vehicles to kill terrorists, members of al qaeda. There seems to be a lot of continuity here with some notable differences. I do have a question about the enhanced interrogation techniques that you talked about earlier. As i understood you said there were three questions. Effective, which is a question for the intelligence agencies. Secondly, legal, which is a question for the office of Legal Counsel, the primary law firm, so to speak, for the United States government, and then there is the provincial question about, should we be doing this stuff. I think he made clear on the third issue utah we should not. Does that apply to all of the enhanced interrogation techniques that were used to interrogate members of al qaeda and other terrorist groups or just water bordering . I was particularly concerned with water boarding and sleep deprivation. Those with the two live focused on the most. Just to be clear, you think sleep deprivation is torture . I was concerned, senator, that particularly in aggregation the use of six and a half days of sleep deprivation plus these other things was very problematic under the office of Legal Counsel interpretation of the statute. One of the consequences of the Obama Administrations decision to shutter the enhanced interrogation and there are a number of practices, as you know, that do not include the ones that you object to. By virtue of their decision not to question members of al qaeda and other terrorist organizations, we dont have a lot of information that we might otherwise be able to get from an intelligence gathering perspective. That strikes me as problematic. Instead, we have an administration that has decided to compile a kill list for terrorists using armed jones and the like. That strikes me as problematic as well because if you are just going to use that authority to kill terrorists you certainly dont know anything about their networks to many of the other intimation that would be helpful from an intelligence perspective and, perhaps, save american lives. Do you believe that the memos from the office of Legal Counsel that have authorized the use of kill less for armstrongs, including american citizens, that those should be made public . I dont know, senator. I know, as i said earlier, transparency is an important value. I dont know what is on the other side of the scale, the operational risk. I am not in a position to say that. But you are not differentiating between in terms of your Transparency Commitment between what was revealed during the last administration and what should be revealed here. The same values and principles. And it strikes me as a lawyers arguments that we would be interested to know what sort of process would be required as a legal matter and as a provincial matter to protect against inadvertent or improper use of that kind of the ultimate authority to kill an american citizen. That would be something that if kept secret would tend to undermine Public Confidence if in fact theyre is a good lawyers argument, one that would satisfy the court of law that this was necessary and properly applied, that would be something that would bolster Public Confidence, wouldnt you think . I think thats right as a general matter. Transparency on these matters, including the use of the executive branch and the Legal Authority tense to bolster peoples confidence and support for the use of those authorities. There may be good reasons why an opinion would need to remain confidential or classified. Sitting from this Vantage Point i cannot say about the particulars. I dont suppose youre of seen them. I would not ask you to pass judgment on something you have not seen. They could be redacted or otherwise protected in terms of the information that would need to be protected and still give some better understanding of the legal rationale and tell the due process concerns could be addressed, especially when youre talking about killing american citizens. I understand the questions you were asked and answered about enhanced interrogation and your objection to the use of intense interrogation. Why did he not resign if you objected . I had already resigned by the time this came up. I announce my resignation in mid april. This came up the memos were talking about in late april and may. I announced in mid april i would leave before the end of the summertime and decided to stay because there were a number of important things i need to complete. Thats where i was. Were those of sufficient seriousness that unless you had if you have not already announced your retention, it would be worthy or justify your resignation . Hard to answer. I would have given it serious consideration. My time is up. Thank you. Thank you very much, mr. Chairman. Again, welcome. I have been watching your family. I understand that one of them and we will not reveal who was assigned to play it senator blumenthal and miraculously won the debate. Swept the other school. Very good. You when i went to law school together. You and i were in the same class and law school. People often wonder what people were like before there were a shining light, and i can tell my colleagues and everyone that you were an incredibly decent person, smart guy, and a lot of fun to know. I want to thank you for that. A number of classmates watching this hearing and i have an urge to mention their names. My colleagues should know that the Law School Professors at the university of chicago called our class that the class because we started the first musical and secondly because i dont think we produced enough Supreme Court clerks to their liking. I really hope theyre watching this hearing right now and see that both of us are up here and mostly see what a great job your doing. Most of my colleagues have focused on terrorism and drones and the important work to have done in the past in terms of upholding the law. While i think we can all agree that counterterrorism and National Security is at top priority of the fbi. Still incredibly important to victims of crime, to those who are victims of complex fraud. The former prosecutor, that this oil is thought of the fbi and the work we did with them. I know one of the things that has not come out as the work that you did in richmond were you started project exile. A Successful Program that involves several state and local partnerships. We copy that in minneapolis years later. With the effort began, it was supported by the nra and the Brady Campaign and the results, it spread across the country. Can you talk about the work and how it will inform your work as head of the fbi and what you learned from the the you think would be helpful to what were facing now . Yes. Thank you. That was some of the most rewarding work ever did. A terrific Violent Crime problem isolated, especially in the minority community. The idea was what if we used the federal penalties that came with gun possession, position by a felon, drug user, drug dealer, stiff penalties, what if we used those to try to change criminal behavior and make the gun of liability. In richmond the situation was the average criminal got dressed , put on shoes, socks, pant, build, gun with equal amount of reflection. What if we could change that so theyre afraid to have begun. The first part of project exile was aggressive prosecution of gun possession crimes. And the magic, which was not my idea, was what if we went into the Public Markets and hired an advertising agency, and their work for free, to sell deterrents to the bad guys. And so these geniuses created a brand and pot billboards in bad neighborhoods and buses and tv commercials and printed cards. Cops gave out thousands of them so that because advertising works. Actually, the criminals became more afraid of us because advertising works. Our slogan said an illegal gun gets you five years in federal prison. We locked one guy out of india seven years. He send us a letter that said, the dam had said five. Then aggression plus the magnification changed behavior. You and your brother were actually held hostage when you were young and were able to escape captivity. In an interview you once said that experience give you a keen sense of what victims feel. Talk about the current fbi and how you see the fbis role with Violent Crime, understanding most of it is headed up local level, how you can coordinate. And i would add on, the really complicated whitecollar crisis. As we talked about earlier in response to other questions, the fbi has a vital to play. And as i know bob has explained, that is a challenge for him given all of the things on their plate. But at least on the outside it looks to me like he has been smart in the use of leverage to achieve the objectives by forming good task force relationships on Violent Crime the state and local Law Enforcement. The fbi has long been accused of not playing well with others. I think that is a bit of a myth and i know that is pushed to change that in both perception and reality is critical. As i said in response to an earlier question, the role in white collar is also indispensable because you need an agency that can devote the time, resources command has the expertise to plow through stacks of spreadsheets to find the evidence of fraud which is hard for overworked local and forces to do. Very good. I am the daughter of a reporter. Am asking this for my dad. Have seen both sides of this. Moving forward with cases and keeping information so that you can do a good job and protect public safety. I am a cosponsor of the free flow of information act. The first time that it was introduced and now to protect the freedom of the press. Can you talk about your views on how Law Enforcement should balance one of our nations most cherished rights, freedom of the press and the investigation of classified information leaks. Law enforcement can balance it most importantly by keeping in front of mind the values that their secrets we must keep. We have to investigate the loss which may lead to bumping into the media, but we have to understand that is essential to what a remarkable country is this is is that aggressive pain in the neck press. So an enforcer must keep both of those front of mind. In each case tried to work to preserve those values. You will make mistakes, but if you keep that in mind the main, youll get it right. Im aware of the legislation. I testified about a different delano was still in the governments. Did not have to carve out for National Security which was concerning. I gather this is different. We look forward to working with you on that. Timman trafficking report act that i introduced. Another is there are a lot of my colleagues to have been waiting. The record will stay open until noon on friday for any questions to be submitted. His nomination will be on the agenda. Thank you, mr. Chairman. Welcome. Thank you for your testimony this morning and thank you for your lawn Public Service as well a number of topics. I want to start by talking about the iras. As you know, as you and i discussed in my office, there has been multiple reports and commissions of the irs improperly targeting groups based upon political speech, based on their espousing conservative views, espousing proisrael views, Ongoing Investigation of the fbi into what exactly the irises down. Your predecessor, whom i like and respect, has received some amount of criticism for not appropriately prioritize in that investigation. Indeed, there have been multiple reports that even today many of the groups that were unfairly targeted by the irs or that believe they were have yet to be interviewed. What level priority in your judgment should the investigation into the allegations of misconduct and political targeting, what level of priority do you believe that should hold . I think in the think i have seen the director say it should be a very high priority. I appreciate that commitment, and i also any time the bureau is asked of the department is asked to investigate allegations of wrongdoing by the administration and in particular wrongdoing that raises at least some concern about confusing partisan politics in what should be the fair and Impartial Administration of justice, that puts the bureau and a delicate position. We saw that during the Nixon Administration when president nixon attempted to use the irs to target his political enemies. There have been similar concerns raised here. Can we have your commitment that this investigation, if you are confirmed, you will pursue every lead vigorously regardless of the political consequences . Absolutely, and this and all other investigations. Lets shift to a different target topic. I have been concerned about the current administrations balance of the rights of lawabiding citizens on one hand and the willingness to pursue serious terrorist threats on the other. In my view the balance has been wrong on the one hand, not fully respecting the Constitutional Rights of the United States citizens. On the other hand, not vigorously going after radical islamic terrorists and acting to stop terrorism before it occurs. On the first piece, one of the aspects where i think the administration has been less than fully protective of the Constitutional Rights of u. S. Citizens deals with shrontz. We see instance after instance in benghazi there were multiple reports about the need for security that were not followed up on. We say with the boston bombing, the boston bombing, i think, is a very distressing pattern where the u. S. Government dropped the ball. We have the government of russia that notified us directly about the concerns about the brothers that told us that he was a follower of radical islam and they had fears of terrorist activity on his path. The bureau interviewed him, interviewed his family, concluded they didnt find any terrorist activity, and it appears dropped the ball after that. After that interview, we now know that he traveled to without any apparent followup from the bureau or u. S. National security. We know in august of 2012, he published a youtube page with jihadist prop began that on it, by all appear pernses the bureau missed that Law Enforcement missed that. We know he was affiliated with [inaudible] who pleaded guilty to the illegal transaction with the Libyan Government and a role on a conspiracy to assassinate saudi crowned prince abdullah. Yet, it appears with all of these warning signs, the bureau did not followup on the credible information it had, and tragically, because the dots werent connected, we saw horrific bombing occur in boston. Similarly i was in fort hood last week, the murder that our can there, the fbi was aware that major hasan had been emailing with al qaeda an war blank blank asking about the fbi was aware of that. Major hasan made a presentation espousing jihad uist views. It appears in both instances the bureau dropped the ball. I have a real concern fears of Political Correctness are i advise the senator his time is up. Theres a did you have a question in here . Or just a speech . I did have a question, mr. Chairman. I apologize for you gaveling me a few seconds over. If i may ask the question. Do you share the concerns about the bureau being either unwilling or unable to connect those dots, and as a result to prevent terrorist attacks that have been carried out . I dont know enough from this adVantage Point, senator, to comment on the particular case. Obviously i think its important to connect the dots as best you can. I dont know enough to give you a responsible answer at this point. Do we have your commitment you would not let Political Correctness impede efforts to correct the dot and prevent terrorists . Certainly. Senator franken. Thank you. Thank you for coming. To my office yesterday. I enjoyed our conversation. You have had imprezzive career and impressive career and if youre confirmed you have a hard act to follow. Admiral mol mule leer is amazing. We touched on a number of subjects yesterday when we talked. One of them was the right of americans we talk about the american citizens accused and since convicted of providing materials for terrorists. He was arrested on american soil, but subsequently transferred with your support to military custody. While in the military custody he went almost two years without having any access to an attorney. I am more of the belief and actions of he deserves to be punished. But i have to say i was dismayed by principle that a american can be detained in his own country for almost two years without having any contact with an attorney. I asked you this question in our meeting yesterday, and to be honest. I wasnt satisfied totally with your answer. So i want to ask this head on, do american citizens always have the right to talk to an american when they are detained by their own government on american soil . I suppose one of the reasons you may not have been satisfied, im not sure i was expert enough or still am to give you a good answer to that. I think the answer is, yes except when that person is detained as a prisoner of war in an ongoing Armed Conflict that is a prisoner of war, the person does not have a constitutional right to counsel. I think that was the position that the Justice Department took in mr. Pa diazs case. I think thats the position. Who determines whether that person is a prisoner of war . An american citizens on american soil arrested on american soil. Who makes that determination . And doesnt that person have an american citizens now have a right to an attorney to make the case that im not a prisoner of war . Well, they certainly have a right to access to the court. As was done in that case to file a habus corpus petition to challenge the the person is involved in Armed Conflict with the United States. But thats a different question from whether they have a constitutional right to have a lawyer. I think the direct judge in that case said as a matter of his ability to oversee habus corpus petitions, he thought the person thought have a lawyer to assist him in the preparation of that petition. I dont think the judge found a constitutional right to counsel. Okay. And as you said, its a oneoff horrific case that was a very difficult one. So its obviously not a settled area. I dont know that its ever happened other than his case. Okay. Well, i want to move to a. By the way, a number of my colleagues have marked on your courageous act, senator schumer referred to it in the hospital room and when you were acting attorney general, and i commend you for those actions. At the same time with last month the New York Times reported that you did not object to, quote, the qee element of the Bush Administration program, the wiretapping of american citizens inside the United States without warrants. The time times report in december of 2005 under the program the nsa can eavesdrop on up to 500 people in the u. S. At any time as long as one party to the call was broad. According to a public letter from then attorney general gonzalez in 2007, the surveillance was subsequently approved by the fee is a court, and therefore continued under the super vision of the court as it is now. Until then, the wiretapping program had not been reviewed by the court. How do you respond to the time times allegation you did not object to this warrantless wiretapping program . I have to be caught in the way i answer simply. I dont know what is still classified and what is not. I think a lot of things i was exposed to in that connection in 2004 is still classified. I dont think the times story is accurate. Maybe i should leave it at that. I tonight think its accurate. Umm, can you say in what way its inaccurate without maybe i can say [laughter] while i was Deputy Attorney general, the officer of Legal Counsel head bid Jack Goldschmidt concluded that the president could lawfully relying upon the authors authorization of use of military force could target the International Communication of mens of al qaeda and associated forces. And the office of Legal Counsel issued a opinion it could be done. The targeted collection of content of al qaeda members and sorted forces. I think thats public. I dont want to get to what i objected to. I think its different than that. Okay. Well move ton to sleep deep elevation. You talked about how deprivation can be torture. I think you said in combination with other methods. This is what the bradbury memo said about sleep deep pray they are standing in the handcuffs and attached by length of chain to the ceiling. The hands are shackled in front of the body so that the detain knee has approximately a two to tree foot diameter of movement. They are shack eld to a bolt in the floor. It said wears diapers and sleeping deprivation can cause swelling. None of the amounts to torture and authorizes sleep deprivation for up to 18 0 hours. Thats seven and a half days. That is torture isnt it . That was my reaction. And i remember that description vividly, senator. Its one of the thingses that lead me to ask who are we as americans . We have to have the conversation even if someone said it doesnt violate this vague statute. Theres a third question that that description cries out for us to an. Okay. Im out of time. But i would say that was a memo you approved. It was one of separate meths that was talked about in that one. It was the first bradbury memo. Thank you, mr. Chairman. Thank you. Thank you. Senator [inaudible] ill yield her. Then senator blooming that is on the way back. Im going leave to vote. Ly not be back as they finish up. Its not in our disinterest in your hearing. We have known each other for a long time. I have to go. I want to take a moment to compliment mrs. Koa komey and all of your children. The senators can kind of go in and out check notes an whisper back and forth. They have to stay rivetted with interest on everything youre saying. And probably thinking, wait until we get them home and tell them when we really think. I do want to compliment your family, and i would say the same thing i said to director and to ann mueller, it does mean a big sacrifice on the part of the family. I want you to know that those of us who spend time in government realize that. And i compliment you on that too. The record will be kept open until noon on friday for further questions. So thank you for that. I also apologize some of the questions have been covered by my colleagues. I note that the questions regarding waterboarding and you acknowledged while you had advocated you were disagreement on the use of waterboarding by cia, but you were overruled in terms of your perspective. Ive. Now potentially you would become the head of the fbi. And the fbi does not utilize those forms of integration. You could continue that policy, would you not . I absolutely would. The fbi does use any abusive integration technique. If i were confirmed, that would stay the same. I think thats very important in the context of other agencies using some of these enhanced integration technique we have an agency, the fbi which would draw the line and use those kinds of techniques. Theres been a lot of discussion around the surveillance programs, and the collection of trillions, literally trillions, millions pieces of information in this program. So i want to ask you regardless of the legality or constitutionality of a given surveillance program, do you believe that government surveillance of u. S. Citizens can go too far . Where do we draw the line at going too far . Hard for me to answer from this adVantage Point. I dont know the detail of the programs involving meta data that are going on now. I watched testimony from the table by directer mueller, for example, the safe guards around the meta Data Collection. The all of those sounded reasonable to me. He use the description of connecting the to. You never know where its going to come from. Weather the collection of millions of the kind of information or not. And if thats the answer, then if you start thinking about the parameters may be. It seems as though there wouldnt be any parameters. How could you define when the particular dot critical dot of information when it would arise . That troubles a number of us. So i hope that you will give some thought to what the parameters might be, when can government go too far in collecting data from millions and millions of u. S. Citizens who have done nothing wrong . I think you also mentioned that you are engaged in the fbi needs to engage in a culture change acknowledging the threat to us from cyberthreats. At the same time, though the fbi has a very Strong Mission to go after white collar and other criminals. So i think there might be some concern in the Law Enforcement community as to where the fbi is prioritys will be. And what percentage of your mission will involve the kind of intelligence gathering versus the traditional Crime Fighting role that the fbi undertakes. What where do you see that balance . You can respond in term of the percentage of your resources, that will go toward the new kind of crime versus the traditional white collar and other kinds of crime. Thank you, senator. I dont think i can responsibly be too specific from the adVantage Point. I know, its essential that the fbi do both being an Intelligence Agency and Counter Intelligence agency and address the vital criminal needs especially things like public corruption and white collar crime. From this shrank point. I would hope to be confirmed and get to the job understand what is going on now before i can make any prescriptions how i would strike the balance. Its a constant challenge of director mueller. Thats all i can say from here. Should you get confirmed then, you would be responsive to questions we would have that would followup. And in your role as director should you be confirmed you would be in a better position to provide us with timely responses to these kinds of questions . Yes, senator. If im confirmed, i suspect youll see a lot of me. You would make the commitment to do that . Yes. Thank you. I dont know if there are have been questions related to the civilian use of drones. Thats a area of concern for us. With the expansion of civilian use of drones, do you have any security concerns about criminals or terrorists using drones to conduct surveillance of potential targets . I do. I know as a private citizens reading and about the increasing availability to me as drones. I watched a sobering video of somebody who put a firearm on a drone and fired it remotely while driving a 100 drone. Its certainly something that lies in our future, if not in our present. Do we have laws that would allow the fbi to go after these kinds of use of drones . I think so, senator. I dont know enough to give you a definitive answer. Thats something i need to understand if i became the director. I think that the fbi has authorities that it can, for example, try to shoot someone using a drone there would be firearm or attempted homicide statute available. I dont know if there are any specific to drones though. He said perhaps there is a good time for us to review whether or not we have very specific laws that address the use of drones by the civilian community. Private use of drones. Ill do that and urge the department of justice to do it as well. Thank you for your patience and excellent testimony. Let me thank you for bringing clare to the hearing today. My daughters name is claire. Im particularly partial to the name. So you can be me any time you want, claire. And i want to just say that the fact that im able to joke about one of your children reflect rehabilitate the witness. But i think that youve done an excellent job today. Im looking forward to your conformation. I do have a few questions, and first beginning with one of the topics thats been covered today the integration procedure, and boarding and so forth. I take it not only that you would oppose the use of such enenhanced integration like waterboarding or other forms of integration that could be regarded. But also that you would use the fbis resources to investigate those kinds of violations of law if you found reason to think they were occurring. Correct. Theres no question you would oppose those kinds of procedure within the administration and recommend that prosecution be undertaken if a official of the administration, or in the military, or anyone in the federal government engaged in such practices . Thats correct, senator. I think thats without lawful authority. Its a violation of law. Let me turn to another subject close to my heart. And close to anyone that lives in connecticut, gun violence. And the answer to this question may be selfease. Take i you would support with great vigor and zeal the position of the administration in support of background checks, a ban on trafficking, assault weapons. High capacity magazine, in other words the position and proposal of the administration to combat gun violence . Yes, senator. I think youll find i approached that just as bob mueller did. Thank you. Using the resources of the fbi to investigate violation of our gun laws, as you did in virginia. Not only for their own sake but also because so many of those gun violence are related to other kinds of crime whether drug dealing or extortion. Can you talk a little bit about the porn you would bring to violations of gun violence prevention clause as the directer of the fbi . Yes, senator. I think in general the enforcement of those laws is essential to crime production. Escaped dcial especially Violent Crime. I believe a so i think its important that the government is whole approach aggressively. I think the fbis role in addressing those is more in the context of complex violent cases, gang cases, and its more of an atf responsibility. I have a fashion for this as cro the board. Ly ensure we continue to do what the directer has done look at those seriously in the complex gang case. I welcome that passion. I think it is tremendously important. As you know, one of the arguments made against these kinds of laws is that not enough prosecution are undertaken under existing laws. I strongly support stronger and more frequent prosecution under existing laws even as we move forward. And i take it that you would agree. Let me turn to an area i think is very important you addressed it in part. I circulateed a letter yesterday to my colleagues on the issue of nsa surveillance. In particular the fisa court. And i take your point and agree with it that any assistant united attorney or United States attorney or department of justice official in effect fail to respect direct court judge and seeking a warrant where there was no reasonable suspicious or probably cause to go so would soon lose credibility, and would undermine not only his or her credibility, but also the offices. And so would be rigorous, as you have been, and i think all of us are in the federal prosecutors, and that exparty process. But in the context of federal criminal procedures, theres ultimately a public proceeding when evidence is sought to be introduced in court. And there are challenges to admissibility and law is made in an adversarial process. There is no such adversarial process in the fisa court. And so i proposed that there be some special effect at the defender of constitutional principles to make sure that the other side is heard if theres another side. I support declassifying and disclosing some of the opinions and rulings possible. I join supporting the measure that senator schumer and senator durbin mentioned. But put aside the disclosure of declassifyification issue. Isnt there a role for the adversarial process in some form when law is made in the fisa court, whether its on the meaning of relevant, or other kind of key Legal Standard and criteria for the issue chance of warrants or other kind of means of surveillance, search, seizure, where constitutional protections, privacy, and liberty are implicated. My honest an is i dont know. I think its a very good question. I havent thought about it well enough to give you a good answer. I would hope the department of justice would take seriously that kind of suggestion and think it through in a way i cant sitting here. Well, i welcome your resiptiveness to thinking more seriously about some kind of adversarial process in the fisa court so that in effect law is the result of litigation rather than simply fiat. And i know that characterization may strike some as unfair. But i would hope to work with you, and i hope youll work with me and other colleagues on trying to reform the fee is a court in that way. I also, by the way, think that you phrase the very important point that the American Public is not fully understand the way fisa court works. Has no ink ling in the way it work. One of the aspect of the fisa court, unknown to a lot of people, the chief justice aking alone appoints members of the court. And i think strictly from an appearance standpoint, that could be regarded as raising questions about the accountability as well as the transparency of that procedure. Theres no other court, Specialized Court that operates in that way. I understand fisa court is different from the court of claims or other similar Specialized Courts where judgeses are appointed for term of years. But i would invite your thinking about that issue as well. I recognize it may not be within your direct purview as the director of the fbi. In light of your experience as a federal prosecutor and litigator. I would hope perhaps you would work with us on that issue as well. Finally, maybe most important, i join you i share with you a tremendous admiration and love for the fbi. It is an constitution that has done great good for the country, and has some of the most dedicated Public Servants in america. I wonder if you have given thought to how the fbi can continue to attract the very best talent, both women and men to it ranks . Some, senator, enough to know its something im keen to learn about. And not just because i have four beautiful talented daughters sitting behind me. But i know that diversity in all institutions, public and private is essential to complen. Especially if youre force the myriad of laws the fbi has to force. You have to look like america. Im keen to know. I know, its a passion of bob mewlers mewl i think head of hr and head of technology. Im eager to learn how they are approaching recruitment, promoting, training of all stripes. So from this adVantage Point, thats the best i can say. Im sure youll hear more from me about it. I hope to hear more from you about it. Whenever we can support or help you in the effort, in my view, with all humility one of the most important tasks and challenges you have as director of the fbi. Thank you very much. Again, my thanks to you and your family. Im going ask senator koontz now to ask whatever ask he may have. Thank you senator blooming that, thank you for your Service Today to the people of the United States. Thank you for the tact youre about to take on. I was moved by your comment earlier about pa trees, about the children you raised together and the foster children you care for together. The traffic you are about it to take on is central to the security to the united. To the enduring vitality of our constitutional of liberty, and the feat out of nation. Its an important task and take the conformation seriously. I appreciate how seriously you have taken it. The answer you have given so far. As many of my clothe colleagues have noted previously the record in very controversial decisions in particular with regard enhanced integration. In my view, in the last Administration Legal opinion were improperly use to facility acts what is broadly understand to be torture. I appreciate your answers previously in response to the chairman and well rely on them in my support for your nomination. I think americanss will rely on you to defend their civil clibties and what are difficult times. Your prior involvement in also addressing the proper scope of Surveillance Authority is deeply relevant, once again. Its my hope you will be a force for openness and transparency as you committed to the panel today. Particularly to clarifying the lethal road of. Openness at this time and particular essential. It will be undertaking. If it i might, then, could you comment on how you plan to address the current classification standards and whether you consider loosening them in response to senator durbin. You said transparency is a key value. And people would be better off if they knew rather than less. How would you take an affirmative effort to ensure the classification is as minimal as necessary . Thank you, senator. First, as fbi directer, i would try to understand how are we approaching it at the fbi . When the fbi is the class fying authority. I have a sense from my time in government theres a reflects to class if i and up the classification. From this adVantage Point. I dont know how the bureau is approaching that. With respect to the broader questions, to the extent im involved with the issues about fisa Court Opinion or other opinions, i would simply be a voice as i was here for the importance of value of transparency and balancing other things i have to worry about. For example, taking the fisa Court Opinions. I think thats largely a question for the director of National Intelligence. I would be hope involve discussion about that as director of the fbi. I would bring with me, the equipment to the value. I think directer mueller laid out long and important record in the issue in particular on standing up against torture as well. Standing for opennd and transparency. Thats my hope. Youll continue in that tradition. So you just mentioned, i think to senator blumenthal the head of hr and technology. Im sure you are familiar with director muellers assessment the fbi is behind a curve when it comes to cyber crime. Its how do you plan to ensure the fbi catches up is current, and fully participate in one of th most important fronts against crime . I agree very much. Its one of the most important front. You spoke about being behind the curve. Its moving away at great speed. The first thing i intend to do is understand what is going on now. What short falls there are. I come in with, i think bob muellers sense its a vital area to be addressed. And where we are falling short and make appropriate tradeoff. It i cant get the money and resources or shout to the heavens i need the money and resources. From this point, i dont know. It will be something i will focus on very early. One of the things im concerned about, we spoke about earlier the amount of both counterfeiting coming out of the peoples republican of china. There was a report that i are chinese origin. 78 of seized goods in the United States are china origin. There is great deal of trade secret theft and hacking yet doj and trade secret cases are keeltively rare between ten and twenty a year over the last five years. I was wondering what you think u. S. Law enforcement could do to be a better partner with Companies Facing in as love intellectual property or become victim of centralized escaped espionage. How can we make better partner between the u. S. Law enforcement and the private sector . I think key to working together better is talking more i think that coordination, which i know the bureau has been pushing to understand the threat. I spent eight years in the private sec form two Different Companies keenly to focused on this. I think its vitally important that government and private sector speak together very closely. The information about the threat often lies in our wonderful private enterprise system. Its in the pocket that the companies to able to address it. They need to find out what is going on in each of those pockets. That requires conversation. A lot of conversation. I was responsible for a county police agency, so im passionate senator Law Enforcement caucus. Closer working relationship between federal, state, and local Law Enforcement. In your own experience, as u. S. Attorney and other role at the department. You had exposure to how it works well, and works well. And how it breaks down when it doesnt. Tell me something about your plan as fbi directer to fully engage in the state and local Law Enforcement. Particularly with regard to emerging threat like cyber crime as well as terrorism and threat to the National Security. I think most importantly i have approach with the understanding born of decade of experience that nobody can do it alone. That federal, state, and local enforcers across jurisdictions have to cooperate and work together. Especially true for the fbi. So many things on the plate has to find a leverage to achieve the goals. That leverage lies in the amazing people of state and local Law Enforcement. So i will understand better once im in the job. And my long practice has been we have to build the relationships. Thank you. I appreciate your testimony today and the willingness to serve. I note the visible relief on the faces of your family that the hearing at least is coming to an end. Senator blumenthal, did 0 you have the Closing Announcement to make . Im happy to close the hearing. And the record will remain open until friday at noon. Seeing no other questions, this hearing is adjourned. Thank you very much. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] grncht the problem was that darwin did not understand that he did not unthat with such a they arely natural election would never have really worked. Because, you know, imagine you have a population of a million white cats and one black cat and suppose that being the black cat does provide you with a big advantage. In the blending theory, you mix things the black cat mixed white cat you get a gray cat. They get a pais already shade of cat. They get diluted. Black advantage will sphere and never appear again. The privacy and civil liberty board heard from legal expert in support of again n a surveillance program. It was originally recommended by the 9 11 commission. One of the withins at the meeting is retired judge who served on the intej Surveillance Court that approved wiretap. [inaudible conversations] good morning. Welcome to the third Public Meeting held by the privacy and Civil Liberties oversight board. I want to introduce my fellow board member. Blank blng within the executive branch. We are recommended by 9 11 commission and created by congress the boards primary Mission Review and analyze missions to protect the nation from terrorism. And ensuring the need for such actions balanced with need to protect privacy and civil liberty. And assure liberty concerns are appropriately concerned in the development and implementation to protect them from terrorism. T both and advisory and oversight role with respect to our countrys counterterrorism effort. I want to thank our for agreeing to participate in the workshop and share their view about the Important Program of the board. I want to thank sue, the boards chief administrator officer, and our chief legal officer for the tireless effort in making this event possible. Section 702 program under the fisa amendment act. The purpose of the workshop it to forecaster a public discussion of legal, constitutional, and policy issues relating to the program. They agreed to provide the president and congress a public report on the two programs, along with my recommendations it may have. A few ground rules for todays workshop. We expect the discussion will be based on unclassified or declassified information. However, some of the substitution will inevitably touch unleaked classified document or media report classified information. In order to promote a robust discussion, speakers may choose to reference the classified documents for information, but they should keep in mind in some cases these documents still remain classified. Therefore, wile discussing them speakers in a position to do so are urged to avoid confirming the validity of the documents or information. There will be three panels today. The first will focus on legal issues, the second on technical aspect, and the third on policy. After the first panel, we will be taking a lunch break. Two Board Members will moderate each panel and pose questions. And Board Members may have all the questions. Panelist are urged to keep the responses brief to submit the greatest possible exchange of views. At the end of the day there will be time for members in the audience to make statements about the two programs. This workshop is being recorded and transcript will be posted on what we hope will be the website accountive this evening. As well as on regulations. Gov. Those that wish to submit written comments about the issues are welcome to do so, and comments may be submitted at regulation. Gov or by mail until august 1st. I want to start by level setting the discussion. My discrepancy on the programs is based on information publicly disclosed by the federal government. I should not be interpreted as saying anything new about the programs. Its merely a summary of unclassified remarks by federal officials. They have not come any conclusion regarding the accuracy or completeness of this enrings information. Both are designed to identify terrorists in a possible prevent terrorist plots. Both for the criteria of order may directer mueller the government may end up collecting or accessing information beyond what was authorized. Leading to questions how such information should be handled. And of course both program have been subject to leak by mr. Snowden. Turning to the specific programs, the first is based on section 215 of the u. S. A. Patriot act. Which was reauthorsed by congress in 2011. Sometimes referred to as 215 Business Records collection program. One of the things government collect under 215 is telephone data pursuant to court order. Under provision that allows government to obtain Business Records for intelligence and counterterrorism purposes. Governments argue it must be broad in scope. More narrow collection would limit the governments table to screen for and identify terrorismrelated communications. The meta Data Collected describes telephone calls such as telephone number making the call, the telephone number dial, the date and time the call was made, and the eleventh of lercht of the call. The government takes a position these are considered Business Records of the telephone companies. The program doesnt collect the content of any communication nor the identity of the persons involved in the communication. Intej Community Representative stated that cell phone Location Information not collected such as gps or cell tower information. In approving the program, the fisa court issued two orders. One order, which was the type of order order to the telephone providers directing them to turn the information over to the government. Its been asserting the other order the government can do with the information. It must be issued every ninety days for it to continue. Large quantity of meta data could be subjected to sophisticated analysis to drive information not otherwise determined. This type of analysis is not permitted under the program. Instead it can be queried when theres a social foreign terrorist organizations. Even then the only purpose for what the data can be queried is identify contacts. In other words, the input and output of the program is limited to meta data. In practice only a small portion of the Data Collected is ever reviewed. A vast majority of data it is never going to be responsive to terrorism related query. Fewer than 300 identifiers were approved for searching the data tap the rational for the program is because the meta data is collected you want to find needle in the hay stack you have to have the hay stack. Requires a court order based on probably cause. Im turning now to the Second Program under section 702 involving the governments collection of foreign intelligence information from Electronic Communication Service providers, urnt court super vision pursuant to section 702. S t name of a Government Data base. Under zek 702 which was reauthorized by congress in december of 2012, information is obtained with fisa Court Approval with the knowledge of a provider and based on a written directive for the attorney general and the directer of National Intelligence to acquire foreign intelligence information. The somebody not a citizen or a permanent resident, alien, lo located out the United States. Somebody outside the United States in order to obtain information about somebody in the united. In other words section 70 prohibits of reversed targeting of u. S. Persons. It doesnt prevent intelligencally targeting or u. S. Other were person. Procedure for ensuring individuals targeted for collection reasonably believed to be u. S. Persons located outside the United States. There must be approval of the governments procedure for what it will do with the information without a u. S. Person or in the united get that information through the collection. Court approved minnization procedure which has been the subject of a leak determined what can be kept and disseminated. Expressly prohibited unless the information is necessary to understand foreign intelligence, importance, and evidence of a crime or indicates an imminent threat of death or serious bodily harm. I will turn to the first panel which will focus on legal and constitutional perspectives on the two members. We are moderating first panel focus on the legality of the two type of surveillance they describe. A policy implication of those type of surveillance discussed at later panel. We have a panel of five distinguished expert to give us the view on the issue. Ill introduce them in a minute. They have five minutes for opening remarks. Diana is in the front row with cards, red, green, yellow. For your benefit. [laughter] they have responsive give remaxes. We will ask a series of questions for panel for for the last threent manies they ask ask questions as well. Our panelists are deputy legal director at aclu and involved in a constitutional challenge in court to one of the programs were talking about today. Candidate martin is the directer for National Secure business which must be reviewed and approved by the federal judgeses that side sit on the fisa court every ninety days. I understand that fourteen different federal judges have approved this order since 2006. The meta data consistent of the transactional information that phone company retain for billing purposes. It includes only data field showing which phone numbers called which numbers, and the time and duration of the call. This order doesnt give them content of the calls or any other scribing information or doesnt enable them to listen to phone call. Access is limited under the term of the court order contrary to some news report. There no data mining or random sifting of the data permitted. Data base may only be ak ssessed through query of individual phone numbers when the government has reasonable suspicious that the number is associated with a foreign terrorist organization. If it appears to be a u. S. Number, the suspicious cannot be based solely on the activity by the First Amendment. Any query of the data base requires approval from the small circle designated nsa officer. A query will simply return a list of any number, suspicious numbers called, and any numbers that called it. And when the calls occurred. Thats all. The data base includes meta data going back five years to enable a analysis of historical connection. Any connections found to numbers inside the United States will be of most interest because the analysis may suggest the presence of a terrorist cell in the u. S. Based in part on that information, the fbi may seek a separate fisa order for surveillance of a u. S. Number. That surveillance would have to be supported by individualized probably cause. The nsa deputy directer, as david mentioned, testified in all of 2012, there were fewer than 300 query of the data base. Only a tiny fraction of the data has ever been reviewed by analysts. Dat base has kept segregated and not accessed for any other purpose. Nsa requires the government and fisa excuse me, requires the government to follow procedures overseen by the court to minimize any unnecessary dissemination of u. S. Number generated from the queries. In addition to Court Approval within the 215 order is subject to oversight by the executive branch in congress. Fisa mandates periodic audit by inspectors general and report together intelligence and Judiciary Committee of congress. And thats what this program enables. The Legal Standard of relevance in section 215 is the same standard used another context. It doesnt require a separate showing that individuals in the record database are relevant to the investigation. It satisfied with the use of the database as a whole. Its important to remember that the Fourth Amendment doesnt require a search warrant or other individualized court order in this context. A government request for Business Records is not a search with any of the for amendment. Government agencies have authority under many federal