The FBI is Helping the NSA Spy, but Senators Don’t Want to Know About It

James Comey’s first appearance before a congressional committee as the new director of the FBI was a walk in the park. The hearing Thursday, on threats to the U.S. homeland, was notable not for what Comey said, so much as what he didn’t say, and what he wasn’t asked.

After telling members of the Homeland Security and Governmental Affairs Committee that he thinks cyber attacks and homegrown extremists are the biggest threats to U.S. national security, Comey, who was sworn in on September 4, was asked only a few questions about the role of government surveillance in monitoring those threats. And the questions were not about the FBI’s activities, but the National Security Agency’s. Which is a shame. While the leaks of the last five months have mostly been about the NSA’s snooping, it’s the bureau that actually serves surveillance orders on telephone companies, e-mail and Internet service providers, and other corporations in the United States whose data the government wants to analyze.

Classified documents disclosed by the former NSA contractor Edward Snowden show a little-known FBI organization, the Data Intercept Technology Unit, is apparently in charge of obtaining information from companies like Google and Facebook as part of the NSA’s Prism system, and then providing the data to the NSA. It’s this handoff of information, some security experts say, that allows the companies to avoid the appearance of complicity in surveillance programs by saying they don’t give information directly to the NSA. The Senate panel asked no questions about Prism.

The lack of inquiry on surveillance was all the more surprising considering that Comey has famously held forth on that subject before. Appearing before another Senate committee in May 2007, Comey recounted how, three years earlier, he had rushed to the hospital bedside of a critically ill Attorney General John Ashcroft and fended off White House aides who wanted him to sign an order authorizing President George W. Bush’s so-called warrantless wiretapping program. Comey, along with other senior Justice Department officials, had concluded that a significant part of the program was illegal. As the acting attorney general, Comey refused to sign the order, and he later told Congress that he was "very upset; I was angry" at the White House officials’ attempts to "take advantage of a very sick man…"

"That night was probably the most difficult night of my professional life, so it’s not something I forget," Comey said.

Not that the Senate panel was convened to revisit history. But considering that the administration has stressed the importance, and the legality, of surveillance programs in protecting the United States, the FBI director is a logical official to address the role of law enforcement in those efforts.

Instead, Congress has focused more attention on the NSA director, Keith Alexander, even though he technically neither orders surveillance operations nor has the legal responsibility for executing them in the United States. Alexander has appeared six times before congressional committees since the first Snowden leak in June, according to a review of public documents. Robert Mueller, whom Comey replaced at the head of the FBI, testified about those programs twice, in his last appearances before the House and Senate judiciary committees. Those were previously-scheduled hearings about a range of FBI oversight issues, and they took place shortly after the initial leaks, when relatively few surveillance programs had been disclosed.

The leaks themselves, however, were the subject of some discussion at Thursday’s hearing. Comey and his fellow witnesses argued that Snowden had damaged the work of government security agencies and tipped off the United States’ enemies.

Comey said that in his first two months on the job, he has seen terrorists "change their behavior," he argued as a result of knowing how the government monitors their communications.

"Terrorists are seeking to learn about the ways we collect intelligence," said Matt Olsen, the director of the National Counterterrorism Center. The leaks about NSA programs have "made our job significantly harder." Neither Olsen nor Comey provided any information to substantiate those claims.

The hearing was nominally about threats to U.S. security, and in his appraisal, Comey put himself in lock step with his predecessor. Terrorism and cyber attacks top the list, he said. The risk of a "spectacular" attack on the scale of the September 11 attacks had diminished since 2001, thanks to counterterrorism operations overseas, Comey judged. But that the risk remains high of an attack by extremists in the United States who are inspired by terrorist propaganda and successful attacks in foreign countries. Olsen and Rand Beers, the acting secretary of the Homeland Security Department, concurred with that assessment.

Comey said that Mueller had told him that the threat of cyber attacks would become the most pressing issue facing the FBI in Comey’s time as director. Now that he’s in the job, Comey said he agrees. Americans have connected all aspects of their personal and professional lives to the Internet, and placed their money, their secrets, and their intellectual property there, Comey said. "There are no safe neighborhoods." Everything and everyone is a target.

Comey praised the work of the Homeland Security Department, with which the FBI "is working better than ever." For years the department has feuded with the NSA over which agency should have the primary responsibility for protecting U.S. computer networks and critical infrastructure, such as the power grid and the financial sector, from cyber attackers and spies. The Snowden revelations, which have damaged NSA’s credibility in the eyes of many lawmakers and businesses, have put wind in Homeland Security’s sales as it asserts its role in leading national cyber security strategy, current and former U.S. officials say.

Beers, who urged the Senate to confirm President Obama’s nominee for secretary, Jeh Johnson, said that the department is doing all it can to implement the administration’s cybersecurity policy under current authorities and an executive order. But it cannot move forward without legislation from Congress, Beers said. Topping the department’s wish list is a provision in law that would allow companies to share information with the government for the purposes of preventing cyber attacks without the threat of being sued if that information turns out to contain private information about Americans.

At the FBI, which is responsible for investigating computer crimes and intellectual property theft, Comey said cyber task forces have been set up in each of the bureau’s 56 field offices across the country. They work with state and local officials and businesses to investigate and help prevent crime. And FBI agents are working in the offices of law enforcement agencies in Romania, Estonia, the United Kingdom, the Netherlands, and other countries, Comey said.

Comey warned that mandatory budget cuts, as part of the sequestration process, woul
d hinder the FBI’s operations. "I worry we’re approaching a situation where we’re going to do less with less," Comey said. The bureau is not hiring additional personnel. There are about 36,000 employees at the FBI now, and Comey said he will cut that number down to 31,000, about where it was in 2009. He said that he will also cut $700 million in expenditures from the FBI’s budget this year, on top of $600 million Mueller took out last year.

As the hearing came to a close, Committee Chairman Thomas Carper, from Delaware, asked Comey if he could assure Americans that the NSA was not using their personal information inappropriately. (No one from the spy agency was present for the hearing.)

"I’ve seen no indications NSA is acting outside the law," Comey said, adding that the agency is "obsessed with compliance" and operating by the rules. Olsen, who once served as general counsel of the NSA, concurred.

Comey said he welcomed the opportunity to discuss surveillance operations, and said committee hearings were a fundamental component of the constitutional system of checks and balances.

"We shouldn’t be doing anything we can’t explain," Comey said.

It was a commendable sentiment, but odd in the moment, considering Comey wasn’t asked to explain much of anything.