WASHINGTON -- FBI Director James Comey said he thinks there's a legitimate debate to be had about the National Security Agency's phone surveillance program. But don't get him started on the notion that the man who sparked that debate, leaker Edward Snowden, should be called a whistleblower.
"It is complicated stuff," Comey told a roundtable of reporters at FBI headquarters on Thursday. "And it's all sort of gotten mushed together in our public debate. That's sort of my frustration when I hear people talking about 'whistleblower' hero for revealing -- and I say revealing what?"
The FBI's role in the mass surveillance has been obscured by the NSA in Snowden's revelations. But because of the way the Patriot Act is written, the FBI has always been a crucial junior partner in bulk phone data collection. Only G-men are authorized by the law to ask a secret surveillance court for permission to engage in bulk collection. And only the FBI is supposed to pursue the fruits of the phone records collection inside U.S. borders.
From his words on Thursday, it's clear that Comey, like NSA Director Keith Alexander, isn't backing away from his support for phone data collection -- even after a critical White House review panel's report last month.
"It can provide us with a better picture of somebody we're worried about, it can alert us to the presence of someone that we don't otherwise see," Comey said of the metadata program.
The NSA revelations, Comey said, are "complicated stuff" about which "serious people can disagree." He said the disclosures are nowhere close to the FBI domestic surveillance wrongdoing exposed more than 40 years ago, when a band of activists broke into an FBI field office in suburban Philadelphia. Five of them revealed their identities for the first time in a book published on Tuesday, with several praising Snowden for his actions.
In the case of the 1971 Media, Pa., break-in, Comey said the burglars revealed government misdeeds. Snowden's documents showed the government "operating the the way the founders intended," and his disclosures were "really just someone disagreeing with the way our system is structured and operates," Comey said.
"Whether you agree or disagree with [the bulk metadata collection], it's the product of our government working as designed," said Comey, who took over the FBI last fall. "I think what the Media materials revealed is the government not working as designed, one part of one branch of the government acting in a way that was inappropriate, not subject to the oversight of Congress and the courts. And so I see it as an example of government broken."
Comey said he could see why people may see the 1971 burglary as good, but that doesn't change his view that the burglars should have been prosecuted if they had been caught before the statute of limitations expired. "Lots of acts of civil disobedience in the U.S. have been good things, where people subjected themselves to the court system as an act of conscious," he said.
"We're a nation of laws, and if you violate the law, our country is built around the notion that there will be a way to adjudicate that violation. I think some of the most important violations of the law in our country took place during the civil rights movement. Martin King's letter from Birmingham Jail is one of the most important things I've ever read. I read it as a religious studies major in college. But that was a decision to use the breaking of the law to send a broader message, and so I don't see it as inconsistent."
Comey said the phone metadata may "potentially" be just as valuable to the government if a third-party entity holds the information to alleviate privacy concerns.
"It just depends upon the technology, where it's held," Comey said. "I don't know that that would address people's concerns about private data being aggregated. But sure, conceivably, in theory if you had the technology, it could be just as fast and just as useful in another facility."
Comey touched on another issue raised in the White House review panel report: National security letters. They are used by the feds to force telecom and Internet companies to hand over data on their customers without judicial supervision, in many cases with a gag order. The FBI engaged in "widespread and serious" abuse of national security letters under President George W. Bush, according to an inspector general's report. The White House review panel recommended that national security letters be reviewed by a judge, who can determine whether there are "reasonable grounds" that a letter relates to national security.
The FBI director said he was open to the "thoughtful" idea of allowing the subjects of national security letters to eventually disclose the letters' existence to clients or the public. But he said that requiring judicial oversight of national security letters would turn something the FBI can do in "hours or days now" to something that would take "weeks."
"A national security letter, the process is multi-multi-layered in the FBI to get one approved, but we can turn it around in hours sometimes," Comey said. "They are harder for my folks to get than grand jury subpoenas."
The courts have generally shown great deference to the government on national security matters. The secret Foreign Intelligence Surveillance Court, for example, approves 99 percent of the government's surveillance requests, and seeks modifications before approving those requests only 24.4 percent of the time.
But switching to judicial approval, Comey claimed, "would actually make it more difficult for us to do national security investigations than bank fraud investigations."
"There's no doubt that the process for NSLs was broken six years ago or longer," he said. "It is not broken today, so I don't know why we would make national security investigations more difficult in that respect than criminal investigations."
Comey said he met with three of the five members of the White House review group this week to discuss his disagreements. Two of the three were his professors in law school.
"That was my sense from talking to them, the real rub with NSLs was there's a nondisclosure that comes with it that lasts forever," he said. "I think their point is reasonable: There ought to be some way to tailor the nondisclosure regime so it lasts however long is necessary for the investigation or something else. I don't know what that would look like, but I think we ought to work on that to change NSL procedures to make that more reasonable.
"I want to ensure that when we discuss tools, like [bulk metadata collection], that we understand the benefits and the tradeoffs on the other side, and just have a reasoned discussion about those things," Comey said. And it's important to have a conversation as "serious adults" about risks associated with changes, he said.
"The government saying it's a useful tool should not be the end of the conversation," he said.