James Comey is testifying Tuesday morning in front of the Senate Judiciary Committee as the committee weighs his confirmation as FBI director.
While Comey's confirmation isn't in much doubt, he is expected to weigh in on some timely issues, including the National Security Agency's surveillance programs and waterboarding of terrorism suspects. In his previous role as deputy attorney general, Comey both raised concerns about these practices and signed off on them.
The hearing begins at 10 a.m. EDT, and we'll be providing live updates in this space.
Sen. Richard Blumenthal (D-Conn.), in committee Chairman Pat Leahy's (D-Vt.) stead, gaveled the hearing to a close just before 12:45 p.m. EDT.
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Returning to the subject of FISA, the secret surveillance court, Sen. Richard Blumenthal (D-Conn.) asked Comey if he would consider introducing a special advocate to protect Americans from unwarranted intrusion.
Blumenthal noted that other federal criminal proceedings are part of an adverserial process, culminating in a pulbic hearing at which evidence is scrutinized by attorneys from both sides.
At present, FISA hearings take place in private and all court rulings are classified.
"There is no such adversarial process in the FISA court," Blumenthal said. "And so I propose that there be some special advocate, in effect a defender of constitutional principles, to make sure that the other side is heard, if there is another side."
He said creating a special advocate position would ensure that "constitutional protections of privacy and liberty" are considered when applications to authorize surveillance measures are made.
Comey said his "honest answer is I don’t know, but I think it’s a very good question".
He said he hadn't considered it before but "hoped that the Department of Justice would take seriously that kind of suggestion and think it through in a way that I can’t sitting here."
Sen. Mazie Hirono (D-Hawaii) asked Comey about potential abuse of drones by civilians. Comey said he doesn't have personal experience with the issue, as he has been a private citizen in recent years, but that he's aware of the concerns.
He mentioned a recent video of a gun being mounted to a drone.
"It's certainly something that lies in our future, if not our present," Comey said.
Here's more on civilian drone use, from AP:
The unmanned, generally small aircraft can steer water and pesticides to crops with precision, saving farmers money while reducing environmental risk. They can inspect distant bridges, pipelines and power lines and find hurricane victims stranded on rooftops.
Drones — some as tiny as a hummingbird — promise everyday benefits as broad as the sky is wide. But the drone industry and those eager to tap its potential are running headlong into fears the peeping-eye, go-anywhere technology will be misused.
Since January, drone-related legislation has been introduced in more than 30 states, largely in response to privacy concerns. Many of the bills would prevent police from using drones for broad public surveillance or to watch individuals without sufficient grounds to believe they were involved in crimes.
Stephen Ingley, executive director of the Airborne Law Enforcement Association, says resistance to the technology is frustrating. Drones "clearly have so much potential for saving lives, and it's a darn shame we're having to go through this right now," he said.
But privacy advocates say now is the time to debate the proper use of civilian drones and set rules, before they become ubiquitous. Sentiment for curbing domestic drone use has brought the left and right together perhaps more than any other recent issue.
And here's the video Comey referred to:
Comey said he supported the gathering of metadata “as a general matter”, saying it provided valuable evidence which had helped counterterrorism efforts.
Former National Security Agency contractor Edward Snowden, a fugitive currently in a Moscow airport, has disclosed details of sweeping surveillance programs, one of which records information about calls to and from U.S. citizens, including the length of these phone calls.
During questioning by Sen. Patrick Leahy (D-Vt.), Comey said he was not familiar with the programs disclosed by Snowden because he had been working in the private sector for eight years and didn’t have the necessary security clearances.
However, he continued: “I do know as a general matter that the collection of metadata and analysis of metadata is a valuable tool in counterterrorism.”
Leahy asked the nominee to ensure that the FBI did not lose sight of its “traditional crime-fighting missions” combating white collar and violent crime and public corruption.
The Senate Judiciary Committee chairman warned against being “seduced away by the intelligence gathering aspects”.
Comey said he thought outgoing Director Robert Mueller had “tried to strike that balance and I would as well”.
“The FBI has to be both an intelligence agency and crime-fighting agency,” he said.
In response to questioning by Sen. Ted Cruz (R-Texas) about Benghazi, Libya, Comey said he couldn't say whether the administration failed to connect the dots after the tragedy.
"I don't know enough to give you a responsible answer at this point," Comey said.
Republicans including Cruz have blamed the administration for a faulty response to the killings of four Americans at the consulate in Benghazi and for its public response afterward.
Sen. Ted Cruz (R-Texas) provided a flashback to Sen. Rand Paul's (R-Texas) 13-hour drone filibuster.
Cruz asked if Comey thinks the law allows for use of drones against Americans on American soil if that person poses no imminent threat.
"No, sir," Comey said.
After Paul's filibuster on that very issue, the White House offered much the same response as Comey did.
Responding to questions from Sen. Charles Schumer (D-N.Y.), Comey indicated that he might consider making some details of FISA court judgments public. The secret surveillance court, which has come to national attention in the wake of the disclosure of several FISA court orders by NSA leaker Edward Snowden, meets in private and issues classified rulings.
Schumer asked Comey if he would be prepared to release declassified summaries of court opinions, with necessary redactions made to prevent security breaches.
Comey said he would consider it, adding that James Clapper, the Director of National Intelligence, was already looking at this possibility.
“Senator, I agree with you that transparency is a critical value, especially when weighing trade-offs between security and liberty,” he said. “And I’m also aware that the Director of National intelligence is looking at that very question.”
The nominee said it was a “worthy exercise” to consider the release of declassified FISA summaries, but added that he was not prepared to commit to this because he was not familiar with the types of information contained in the court opinions.
“Because I don’t what’s in the opinions, also I don’t know what’s on the other side in terms of concerns about classified information, it’s hard for me to say at this point,” he said. “I think it is a worthy exercise to look closely at it though.”
Schumer later returned to the issue, asking Comey to confirm that he would “work for greater transparency provided it doesn’t jeopardize security”. “Yes,” Comey replied.
Sen. Amy Klobuchar (D-Minn.) is questioning Comey now, but they are no strangers to each other. In fact, the two go back three decades.
The two attended the University of Chicago together and graduated from the same law school class in 1985.
Here's Klobuchar's statement after Comey's nomination last month:
“From our days together as classmates at law school to his work as a top federal prosecutor and Deputy Attorney General, Jim Comey has proven to be a man of principle and integrity with a deep understanding of the law. Jim’s intelligence, strength of character, breadth of experience, and ability to reach across the aisle and work with others make him a fine candidate to lead the nation’s most powerful investigative body.”
In an exchange with Sen. Charles Grassley (R-Iowa), Comey called whistleblowers "a critical element of a functioning democracy."
Here's the exchange:
GRASSLEY: We also discussed on the issue of whistleblowers, I value the candid unfiltered information they provide Congress from the executive branch whistleblowers who will raise concerns with management and who bring concerns to Congress and cooperate with congressional oversight efforts should be protected not retaliated against.
So to you, could you give me a commitment you'll not retaliate against FBI whistleblowers and instead work with it home to address the concerns that they raise?
COMEY: Yes, I give you that assurance now, senator. As I said to you when we spoke privately I think whistleblowers are also a critical element of a functioning democracy.
Worth noting: Grassley has long worked on whistleblower protection issues, and his line of questioning didn't specifically deal with NSA leaker Edward Snowden.
Asked by Sen. Dianne Feinstein (D-Calif.) for his view on the practice of force-feeding detainees at the Guantanamo Bay detention center, Comey declined to take a specific position, saying it wouldn’t fall under his purview as FBI director.
Reflecting on a recent visit to the facility, Feinstein made it clear that she believed it was “inhumane” to treat 86 inmates who had been cleared for transfer home or to a third country in this way. Many Guantanamo inmates are taking part in hunger strikes, which officials say requires that they be force-fed.
Comey replied: “Obviously, if I were FBI director, I don’t think it’s an area that would be within my job scope, but I don’t know more about what you’re describing than what you're describing”.
Feinstein pressed him for an answer, interrupting to say it was “within all of our job scopes to care about how the United States of America acts."
Comey agreed with her comment and said there were occasions when inmates in federal facilities had to be force-fed, but said he wasn't aware of the specific circumstances she was alluding to.
“What you’re describing, I frankly wouldn’t want done to me,” he continued. “But I don’t know the circumstances well enough to offer you an opinion.
“I don’t think it would be worth much -- my opinion -- at this point.”
Sen. Dick Durbin (D-Ill.) said later that he will send a letter to the White House asking that the practice be stopped.
Force-feeding of detainees has been in the news this week after Yasiin Bey, better known as rapper/actor Mos Def, released a video of himself undergoing the procedure.
(Warning: the video below may be disturbing to some viewers.)
During questioning by Sen. Orrin Hatch (R-Utah), Comey defended the Foreign Intelligence Surveillance (FISA) court's approval of surveillance programs, dismissing arguments that the court is a "rubber stamp."
Critics have noted that the court has very rarely denied requests for surveillance, but Comey said it's hardly a pushover.
People "hear 'secret court;' they hear 'rubber stamp,'" Comey said. "It is anything but a rubber stamp. Anyone who knows federal judges and has appeared before federal judges knows that calling them a rubber stamp shows you don't have experience before them."
Comey noted that FISA doesn't operate in a vacuum and that there are checks and balances.
“That combination of judicial involvement, congressional oversight, IG oversight, results in a very effective regime," he said.
Pressed later by Sen. Charles Schumer (D-N.Y.), Comey noted that government surveillance requests are "extremely conservative" and often altered at a judge's request so that they don't get denied.
“I know from criminal cases – I don’t know of a case where a wiretap application has been rejected by a federal judge," he said. "The reason for that is we work like crazy to make sure that doesn’t happen.
Responding to questions from Sen. Dianne Feinstein (D-Calif.) about waterboarding, Comey said the White House should have asked three questions about the practice
First, does it work? Second, is it legal? And third, should we be doing it?
"The White House's view was that only the first two questions mattered," Comey said.
Comey, as deputy attorney general in the mid-2000s, both raised concerns about waterboarding and signed off on it. Much of the early questioning of him has focused on what he did to stop the practice, which he labeled "awful" at the time.
Previously, Comey told Judicary Committee Chairman Patrick Leahy (D-Vt.) that the law on waterboarding was "very vague."
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), the first to question Comey, asked him whether waterboarding is torture and illegal. Comey said that it is.
Leahy then pressed him on his role in approving the Bush administration's use of the technique. Comey said he tried to stop it, but the law was "very vague."
"I made that argument as forcefully as I could to the attorney general," Comey said. "He actually 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 fully on-board with the policy. And so my argument was rejected.
Comey said that he fought to change the law to get a "much more responsibly written" one. He said he tried "to force and fight for a discussion about whether this is something we should be doing as Americans."
"I said this is torture; it's still what I think," Comey said. "If I were FBI director, we would never have anything to do with that."
Leahy asked again: "Do you agree that waterboarding is torture and is illegal?"
"Yes," Comey said.
In his opening statement, James Comey acknowledged how tough the FBI director job is. He said the job requires learning from mistakes -- which he said are inevitable.
"I'm sure that things will go wrong and I will make mistakes," Comey said.
Comey said he will follow current FBI Director Robert Mueller's lead and respect the law, praising Mueller as a top-notch public servant.
NSA surveillance and waterboarding aren't the only issues on the table today.
Sen. Charles Grassley (R-Iowa) expressed concern in his opening statement about the use of drones and the FBI's treatment of whistleblowers.
"I continue to have concerns about the FBI’s treatment of whistleblowers," Grassley said. "Unfortunately, the FBI has a poor history of retaliation against whistleblowers who come forward."
He added: "I'd like assurance from Mr. Comey that whistleblowers will not face retaliation."
James B. Comey, 52, is likely to face questions from the Senate Judiciary Committee on NSA surveillance programs and on “enhanced interrogation techniques,” including waterboarding that he approved as the deputy attorney general at the Justice Department in the George W. Bush administration.
Comey also raised concerns about the practice, though, and he nearly resigned in 2004 over concerns he raised about electronic surveillance orders he believed to be illegal. But he has come under fire from civil-liberties advocates for his role in signing off on some Bush-era “enhanced interrogation techniques."
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) raised these two issues in his opening statement, and two Democratic senators have raised concerns about Comey's role as well:
In a letter to James B. Comey, President Obama’s nominee for F.B.I.director, two Democratic senators expressed concern on Wednesday about Mr. Comey’s views on waterboarding and his role in approving “enhanced interrogation techniques” while at the Justice Department in the George W. Bush administration.
The senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, said they wanted to know Mr. Comey’s position on “an issue of great importance to our nation: torture.” Both senators are on the Judiciary Committee, which is scheduled to hold a confirmation hearing on the nomination on Tuesday.
Their views reflect uneasiness among Senate Democrats about Mr. Comey’s record on the divisive issue of interrogation methods. Both men voted against confirming Mr. Bush’s last attorney general, Michael B. Mukasey, in part because he declined to describe waterboarding as torture.
James Comey put on quite a show during his last appearance before the Senate Judiciary Committee.
It was May 2007, and the newly empowered Democrats were conducting sweeping oversight investigations of the Alberto Gonzales-led Justice Department, particularly the unusual firings of a handful of U.S. attorneys a few years earlier.
The investigations, however, seemed to be losing steam.
Enter Comey — and a then-little known staffer, Preet Bharara. Bharara was senior counsel to Sen. Charles E. Schumer (D-N.Y.), the political pit bull who had led much of the DOJ probe in the Senate, and more importantly, Bharara had previously worked as a junior federal prosecutor in the Southern District of New York when Comey was the U.S. attorney there. (Previous U.S. attorneys in this plum post include Louis Freeh and Rudolph Giuliani — and the current occupant is none other than Bharara.)
What Bharara knew that the House Democrats didn’t know was that Comey wanted to tell this amazing story about a constitutional crisis in the hospital room of then-Attorney General John Ashcroft in 2004. So Bharara arranged for Comey to testify before a Senate subcommittee.
The usually loquacious Schumer stopped asking Comey questions and just let him give a long statement telling the tale of something that seemed like a movie plot. You could hear a pin drop in the Dirksen hearing room, and in fact we did, when one reporter — stunned at what he was hearing — literally just dropped his pen onto the press table.
Words don’t do this testimony justice, so just watch it.