    [Senate Hearing 115-125]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 115-125

                       NOMINATION OF JOHN CHARLES DEMERS
          TO BE ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION

    =======================================================================

                                     HEARING

                                   BEFORE THE

                        SELECT COMMITTEE ON INTELLIGENCE

                                     OF THE

                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                           TUESDAY, OCTOBER 31, 2017

                                   __________

          Printed for the use of the Select Committee on Intelligence

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                        SELECT COMMITTEE ON INTELLIGENCE

               [Established by S. Res. 400, 94th Cong., 2d Sess.]

                     RICHARD BURR, North Carolina, Chairman
                    MARK R. WARNER, Virginia, Vice Chairman

    JAMES E. RISCH, Idaho                DIANNE FEINSTEIN, California
    MARCO RUBIO, Florida                 RON WYDEN, Oregon
    SUSAN COLLINS, Maine                 MARTIN HEINRICH, New Mexico
    ROY BLUNT, Missouri                  ANGUS KING, Maine
    JAMES LANKFORD, Oklahoma             JOE MANCHIN III, West Virginia
    TOM COTTON, Arkansas                 KAMALA HARRIS, California
    JOHN CORNYN, Texas
                     MITCH McCONNELL, Kentucky, Ex Officio
                      CHUCK SCHUMER, New York, Ex Officio
                        JOHN McCAIN, Arizona, Ex Officio
                      JACK REED, Rhode Island, Ex Officio
                                  ----------
                          Chris Joyner, Staff Director
                     Michael Casey, Minority Staff Director
                       Kelsey Stroud Bailey, Chief Clerk

                                    CONTENTS

                                  ----------

                                OCTOBER 31, 2017

                               OPENING STATEMENTS

    Burr, Hon. Richard, Chairman, a U.S. Senator from North Carolina.     1
    Warner, Hon. Mark R., Vice Chairman, a U.S. Senator from Virginia     2

                                    WITNESS

    Demers, John Charles, Nominee to Be the Assistant Attorney
      General, National Security Division............................     4
        Prepared statement...........................................     6

                             SUPPLEMENTAL MATERIAL

    Questionnaire for Completion by Presidential Nominees............    20
    Additional Prehearing Questions..................................    35
    Questions for the Record.........................................    46

                       NOMINATION OF JOHN CHARLES DEMERS
          TO BE ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION

                                  ----------

                           TUESDAY, OCTOBER 31, 2017

                                           U.S. Senate,
                              Select Committee on Intelligence,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:35 a.m. in Room
    SD-106, Dirksen Senate Office Building, Hon. Richard Burr
    (Chairman of the Committee) presiding.
        Committee Members Present: Senators Burr, Warner, Collins,
    Blunt, Lankford, Cotton, Feinstein, Wyden, Heinrich, King,
    Manchin, and Harris.

       OPENING STATEMENT OF HON. RICHARD BURR, CHAIRMAN, A U.S.
                      SENATOR FROM NORTH CAROLINA

        Chairman Burr. I'd like to call this hearing to order. I'd
    like to welcome our witness today, John Demers, President
    Trump's nominee to be the next Assistant Attorney General for
    National Security at the United States Department of Justice.
    John, congratulations on your nomination.
        I'd like to start by recognizing the family that you've
    brought here with you. I understand your wife, Cindy, is here,
    as well as your children, Elizabeth and Matthew. Senator Warner
    will sign a slip for you to take to school and get extra
    credit.
        [Laughter.]
        And also your sister-in-law, Sue.
        In his statement for the record, John speaks strongly about
    the support each of you have provided to him over the years. I
    know from personal experience just how important a supportive
    family is. And to each of you, I thank you for the sacrifices
    you make.
        Our goal in conducting this hearing is to enable the
    committee to consider the nominee's qualifications and to allow
    for a thoughtful deliberation by committee members. Mr. Demers
    has provided substantive written responses to over 30 questions
    presented by the committee, and today, of course, members will
    be able to ask additional questions and hear from him
    personally in open session.
        Mr. Demers is a graduate from the College of the Holy Cross
    and Harvard Law School, served as a clerk in the United States
    Court of Appeals for the Ninth Circuit Court, and then for the
    late Honorable Justice Antonin Scalia.
        Mr. Demers served in the Department of Justice National
    Security Division as Deputy Assistant Attorney General, where
    he also served as senior counsel to the Assistant Attorney
    General. While at the DOJ's National Security Division, Mr.
    Demers additionally completed a detail as counsel to the Deputy
    Attorney General.
        Following his tenure at DOJ, John joined the Boeing
    Company, where he served as the Vice President for
    international affairs, the Vice President and Assistant General
    Counsel for global law affairs, the Chief Counsel for network
    and space systems, and currently as the Vice President and
    Assistant General Counsel for regulatory and government law.
    John is also currently an adjunct professor at Georgetown
    University Law Center.
        John, you are being asked to lead the Justice Department's
    division responsible for our national security-related
    investigations during a period of significant debate about what
    authorities and tools are lawful and appropriate. As you know,
    the committee recently reported out a bill that would renew
    FISA's Title VII authorities for eight years, with additional
    privacy protections for U.S. persons. I'm hopeful that this
    bill will pass the Senate and ultimately be signed into law, as
    it provides the Department and the intelligence community the
    needed tools and authorities.
        I'm also hopeful, moving forward, you'll be in an
    influential and forceful--you'll be an influential and forceful
    advocate for those foreign intelligence tools you believe are
    necessary to keep citizens safe, like Section 702.
        As I mentioned to others during their nomination hearing, I
    can assure you that this committee will faithfully follow its
    charter and conduct vigorous and real-time oversight over the
    intelligence community, its operations and its activities.
        We will ask difficult and probing questions of you and your
    staff, and we will expect honest, complete and timely
    responses. You've already successfully negotiated one hurdle,
    having been favorably reported out of the Senate Judiciary
    Committee 20 to nothing on October 19th, 2017. I look forward
    to supporting your nomination and ensuring its consideration
    without delay. I want to again thank you for being here.
        I would notify members that we're under a fairly tight time
    frame, so it's my intention to move this nominee as quickly as
    we possibly can.
        With that, now--I now recognize the Vice Chairman.

      OPENING STATEMENT OF HON. MARK WARNER, A U.S. SENATOR FROM
                                VIRGINIA

        Vice Chairman Warner. Thank you, Mr. Chairman. And welcome,
    Mr. Demers. Congratulations on your nomination to serve as
    Assistant Attorney General for National Security at DOJ. I've
    reviewed your statement, questions for the record, and
    testimony before the Senate Judiciary Committee on October 4th.
    I appreciate your candor and forthright responses to the
    questions. And I also appreciate the broad amount of bipartisan
    support you've got from DOJ officials in terms of your
    nomination.
        If confirmed as Assistant Attorney General for National
    Security, you will lead an organization that was established
    after 9/11 to ensure that our counterterrorism, intelligence,
    and counterintelligence activities are properly and
    sufficiently coordinated across both law enforcement and
    intelligence communities.
        As you're aware, another critical role of this position is
    to shepherd the Department's review and approval of requests to
    the FISA Court for surveillance activities, including Section
    702. As the Chairman just mentioned, we had, I think, a very
    productive session on 702 last week. And last week the
    committee supported a bipartisan bill to reauthorize 702 that
    seeks to maintain its operational capacities while increasing
    the privacy and civil liberty protections of U.S. citizens.
        This includes strengthening judicial and Congressional
    oversight of the government's queries of lawfully collected
    U.S. persons' data. I will be interested in your comments on
    the 702 program. In particular, I'll be listening closely to
    your responses to be assured that you recognize the need to
    conduct reviews in a matter that--in a manner that protects
    these privacy concerns.
        In your written responses to this committee and to the
    Judiciary Committee, you wrote, quote, that your ``loyalties
    lie with the Constitution and laws of the United States,''
    unquote, and that you would tell the President and Attorney
    General ``No'' if asked to perform any task that was contrary
    to the Constitution or laws of the United States. I very much
    appreciate these words. And let me assure you, we'll try to
    hold you to them.
        Mr. Demers, I would also like to hear your commitment that
    you will always seek to provide unbiased, unvarnished, and
    timely responses to the President, his Cabinet, his advisers
    and the Congress. Facts are facts, and I expect you to be
    truthful to them while in service to this nation.
        You're also aware that this committee is conducting an
    investigation into Russian interference in the 2016
    presidential election. This morning, and I will ask you during
    the question and answer session, I want to hear your assurance
    that you will fully cooperate with this review and provide this
    committee with all the information requested in a timely
    fashion.
        I will ask you--I will ask that you faithfully inform this
    committee if you become aware of additional relevant
    information in your course of your duties, if you're confirmed.
        I believe yesterday's indictment of President Trump's
    campaign manager and deputy campaign manager by the special
    counsel and the guilty plea by campaign adviser George
    Papadopoulos is further evidence that these investigations are
    serious and that this country needs to hold accountable any of
    those who do a disservice to our nation.
        This investigation, let me make clear, is not about re-
    litigating the election or playing gotcha with the President.
    It's about following the facts where they lead and ensuring the
    sanctity of our democratic principles through free and fair
    elections, untarnished by foreign interference.
        Again, congratulations on your nomination. I look forward
    to this morning's discussion.
        Thank you, Mr. Chairman.
        Chairman Burr. Thank you, Vice Chairman.
        Mr. Demers, will you please stand and raise your right
    hand?
        Do you solemnly swear to tell the truth, the full truth,
    and nothing but the truth, so help you God?
        Mr. Demers. I do.

       TESTIMONY OF JOHN CHARLES DEMERS, NOMINEE TO BE ASSISTANT
              ATTORNEY GENERAL, NATIONAL SECURITY DIVISION

        Chairman Burr. Please be seated.
        John, before we move to your statement, I'll ask you to
    answer five standard questions the committee poses to each
    nominee who appears before us. They just require a simple yes
    or no answer.
        Do you agree to appear before the committee, here or in any
    other venues, when invited?
        Mr. Demers. Yes.
        Chairman Burr. If confirmed, do you agree to send officials
    from your office to appear before the committee and designated
    staff, when invited?
        Mr. Demers. Yes.
        Chairman Burr. Do you agree to provide documents or any
    other materials requested by the committee in order to carry
    out its oversight and legislative responsibilities?
        Mr. Demers. Yes.
        Chairman Burr. Will you both ensure that your office and
    your staff provide such materials to the committee, when
    requested?
        Mr. Demers. Yes.
        Chairman Burr. Do you agree to inform and fully brief to
    the fullest extent possible all members of the committee on the
    intelligence activities and covert action, rather than only the
    Chairman and the Vice Chairman?
        Mr. Demers. Yes.
        Chairman Burr. Thank you very much.
        We'll now proceed to opening statements, after which I'll
    recognize members by seniority for five minutes.
        And I would once again remind members that, pursuant to
    Senate Resolution 400, the committee received this nomination
    on referral from the Judiciary Committee and we have 20
    calendar days within which to report this nominee to the full
    Senate.
        It's my intentions, again, to move to this as quickly as we
    can in a business session.
        With that, Mr. Demers, the floor is yours.
        Mr. Demers. Great. Thank you very much, Chairman Burr, Vice
    Chairman Warner and distinguished members of this committee.
    Thank you for the opportunity to appear before you here today
    and for considering my nomination.
        During my last time at the National Security Division, I
    worked closely with this committee to draft and negotiate the
    FISA Amendments Act of 2008. Should I be confirmed, I hope that
    this hearing will be only the beginning of working with you
    again on issues critical to the nation's security, issues best
    addressed when the Congress and the executive work
    constructively together.
        Public service is never an individual endeavor, and I'd
    like to thank my wife, Cindy, and children, Lizzy and Matthew,
    who are here behind me and have graciously agreed to join me on
    this next chapter. Their love and the fun we have together
    provide me always with a focus and sense of calm I think will
    be needed.
        I'd also like to thank my parents, whose example and
    encouragement have inspired me to be here today. My sister-in-
    law and friend, Sue Lim, is here as well, and I'm grateful to
    her and to the other close friends and colleagues, here and
    watching remotely, for their love and support.
        And because I come from a family of teachers, I would do
    well to thank all the teachers I've had along the way. I owe
    them more than they and I will ever know.
        I am grateful for and humbled by this opportunity to return
    to the Department of Justice and to the National Security
    Division. Protecting the national security is the highest
    priority of the Department, and the National Security Division
    is at the forefront of these efforts.
        Although the thinking behind the division may seem obvious
    now, those of you who have worked these issues since before
    September 11th know that the reorganization that created the
    division was revolutionary. It brought together the lawyers
    prosecuting terrorism and espionage offenses with those working
    on intelligence investigations, and it created a strong link
    between the Department and the intelligence community. More
    broadly, it recognized the effectiveness of this combination of
    law enforcement and intelligence efforts in combating a variety
    of threats and the danger and needlessness of drawing lines and
    building walls between criminal and intelligence
    investigations.
        Since that time, the capabilities and the mission of the
    division have broadened to confront new manifestations of old
    threats. The women and men of the division have worked
    tirelessly with the intelligence community and the other parts
    of government to help guard our security, regardless of whether
    the threats come on airplanes or over the Internet.
        The dedicated lawyers and professionals of the division
    understand that without this security the promise of liberty
    enshrined in our founding documents would be an empty one. They
    also understand that without liberty, security has no purpose,
    and they recognize that the guarantor of both is the rule of
    law. Having worked with many in the division and followed the
    division since I left, I know this firsthand and would consider
    it an honor to return to serve with them.
        Critical to our security and our liberty are the statutory
    and other authorities that the investigators and prosecutors
    use every day. I look forward to working together with you and
    your colleagues to ensure that the intelligence community and
    prosecutors have the tools they need, and that these tools keep
    up with changes in technology and the threats that face us.
        I also understand that the only way to keep the confidence
    of the American people in these tools is to use them lawfully
    and wisely. Thus, I look forward to furthering the oversight
    function of the division and supporting the proper oversight
    conducted by the Congress and the Foreign Intelligence
    Surveillance Court.
        The threats we face are real. The objectives of our
    adversaries are plain: to weaken our culture, our democracy,
    our values, our economy and our resolve to lead--indeed, to
    undermine the very idea of America. I appreciate that you have
    always taken these threats seriously.
        I look forward to working with you to ensure that this
    country continues to thrive and that all Americans enjoy both
    liberty and security under the rule of law.
        Thank you again for the opportunity to be here today. I
    look forward to answering your questions.
        [The prepared statement of Mr. Demers follows:]

        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Burr. John, thank you very much. I'll recognize
    members based upon seniority for up to five minutes. The Chair
    would recognize himself first.
        Mr. Demers, leaks of classified information are deplorable
    and put sensitive sources and methods at great risk. I'm
    increasingly alarmed at the number of individuals who feel they
    can safely disclose classified details to the press under the
    cloak of anonymity, which seems to be the most common last name
    in America today.
        How do you plan to proceed with investigations and
    prosecutions of those who leak classified information?
        Mr. Demers. Thank you, Senator. I agree with you that the
    leaks of classified information present serious threats to the
    national security, as you mentioned, in particular to the
    sources and methods we use, but also in revealing what we know
    to others, what we know about them. And let's make no mistake;
    sometimes those sources are human beings.
        The cases themselves, the investigations, need to be
    pursued fully and on the facts, following those facts wherever
    they may go. And then, the prosecutions need to be considered
    carefully as well, taking into account, of course, the equities
    of the intelligence community, as well as the need to deter--
    obviously incapacitate folks who are leaking now, but also
    deter future leakers as well.
        I'll work closely with the career attorneys at the
    Department who have been doing these cases for many years, who
    continue to focus on them today, and just follow the facts
    wherever they lead us.
        Chairman Burr. Will you commit to communicate with the
    committee on the progress of investigations and potential
    prosecutions?
        Mr. Demers. I think, within the bounds that I can--that is,
    as long as it's not interfering with the investigation itself--
    I will.
        Chairman Burr. Good.
        We mentioned FISA Title VII authorities, including what is
    well known as Section 702, and they expire at the end of the
    year. As you're aware, the committee has significant interest
    in reauthorizing these authorities.
        Based upon your experience, how critical is reauthorizing
    to our nation's national security?
        Mr. Demers. Well, Senator, I saw the world before the FISA
    Amendments Act of 2008. I saw what it was like without this
    authority, and it was very difficult for the intelligence
    community and it was very difficult for the lawyers at the
    Justice Department.
        And we were focusing a lot of our resources at that time on
    folks who--you know, non-U.S. persons outside the U.S., folks
    without constitutional rights. And I saw the very early days of
    the implementation of this law. I followed it, of course, in
    the news since then. I understand the intelligence community
    considers it to be a critical, if not one of the most critical,
    tools it has in the work that it does.
        I've also seen the review that the Privacy and Civil
    Liberties Board did of this authority, and I take note of the
    fact that they found no intentional misuses of this authority.
        So it strikes me that, as best I can see from the outside,
    this is a critical authority. I support its reauthorization,
    and I look forward to working with the committee on that if I'm
    there in time; and if not, then working with you on your
    oversight efforts of the authority, making sure it's used
    effectively and well.
        Chairman Burr. I thank you for that.
        Deputy Attorney General Rosenstein called cybersecurity
    attacks and threats against our nation's security and
    infrastructure one of the Department's highest priorities. How
    do you foresee furthering the Department's cybersecurity
    efforts from within the National Security Division?
        Mr. Demers. So I think cybersecurity is the area that has
    changed the most since I was there last, about nine years ago.
    It now seems to permeate all of the work of the division,
    whether it's on the counterterrorism side or on the
    counterespionage side. So whether we're talking about folks who
    are being radicalized or radicalizing themselves on the
    Internet, or we're talking about nation-states and the actions
    that they've tried to take, cybersecurity is there.
        I note that in the prior administration they developed a
    separate unit in the division to focus more squarely on
    cybersecurity. I support that. I'm going to be looking closely
    at that to be sure that it's resourced correctly and that the
    correct focus is on cybersecurity issues. I think they're going
    to be one of the biggest parts of the job going forward.
        Chairman Burr. Great. Thanks, John.
        Vice Chairman.
        Vice Chairman Warner. Again, welcome, sir. And, as you're
    obviously aware, one of the most important investigations this
    committee is involved in at this point is the Russia
    investigation into activities in 2016. And I just want to get
    you on the record. Do you promise to fully and completely
    cooperate with this committee's investigation of Russian
    interference in the 2016 election, including by turning over
    all materials in your possession to the committee, as
    requested, as promptly as possible?
        Mr. Demers. I do support the work of this committee and
    that investigation. I think it's a very important one, and I do
    pledge to cooperate with you on the investigation, obviously,
    in terms of turning over everything.
        I--from the outside, I don't know all the rules, Senator.
    I'd have to talk to other folks at the Department about it. But
    I do support your efforts.
        Vice Chairman Warner. But within the constraints of the
    rules, obviously.
        Mr. Demers. I will, yes.
        Vice Chairman Warner. We need that cooperation.
        Mr. Demers. Yes. And you'll have it.
        Vice Chairman Warner. And we've had it from many. There are
    some entities that I think we still need--have got a ways to
    go.
        I also just want to--again, I think you've answered this
    before, but I want to get it on the record here. I think one of
    the most important functions of the I.C. is speaking truth to
    power. And can you talk about the assistant A.G.'s role in
    ensuring that the intelligence community will continue to
    provide unvarnished assessments to Congress, to the Attorney
    General and to the President, regardless of politics?
        Mr. Demers. Well, for sure, Senator. Politics has no place
    in the work of the intelligence community. Partisanship has no
    place in the work of the intelligence community, nor in the
    work of the National Security Division as part of those
    efforts.
        And it is--it's critical for all of us to speak truth to
    those within the Executive Branch and also here on the Hill. So
    I pledge to do so and pledge to support the efforts of others
    to do so.
        Vice Chairman Warner. The Chairman's already raised 702. We
    had a spirited debate last week on this important tool. I
    believe that we strengthened 702 in terms of putting additional
    responsibilities in place, in terms of protections of
    American--particularly known Americans' privacies.
        Some of my colleagues didn't fully agree we went far
    enough. But I do think it's important, and I'd like to hear
    your comments about the overwrite--oversight responsibilities
    of the Assistant A.G. for National Security to ensure that
    there is that full and robust oversight of the FISA
    legislation, including 702, and what you're going to do to make
    sure that representations made by the United States Government
    to the FISA Court are always accurate.
        Mr. Demers. So I've not read the bill that came out of
    committee. But I do support, obviously, the oversight within
    the bill that--there was, I think, significant oversight in the
    law as it stands today, as well.
        The role of the Assistant Attorney General in the National
    Security Division when it comes to any FISA collection, whether
    it's Section 702 or Title I, is of course to conduct that
    oversight of the use by elements of the intelligence community
    of these authorities to be sure that the minimization
    procedures are being followed accurately, that the orders are
    being followed, and in this case, that the targeting procedures
    are being followed as well, and then to promptly report any
    noncompliance both to the FISA Court, which has authorized the
    use of those targeting minimization procedures, but also to the
    Congress; and then to look and see to, you know, really do a
    root-cause analysis of what the reason for that noncompliance
    is, and to fix it going forward.
        Vice Chairman Warner. Well, I would strongly urge you to
    please take a look at that legislation. We've added some
    additional requirements, while not perfect, but I think go a
    long way, should a known American be in any way queried, to
    make sure that there is a simultaneous appropriate review. It
    will add some additional challenges, but I think those
    challenges are appropriate in terms of balancing the very, very
    critical privacy protections.
        This is a tool, but again I think, as your comments
    indicated, while there's been no indication of abuse, because
    there are Americans inadvertently swept up in the 702 foreign-
    to-foreign contact information, I think we have to go the extra
    mile, and I would hope that you would do a thorough review of
    what at least this committee has passed out, and we look
    forward to getting your comments on whether you think we've
    struck that right balance.
        Thank you, Mr. Chairman.
        Chairman Burr. Senator Collins.
        Senator Collins. Thank you very much, Mr. Chairman.
        Mr. Demers, I want to follow up on the questions on Section
    702, which have been a matter of great debate before our
    committee and ultimately before the full Senate. As you're well
    aware, if a U.S. person is in contact with a foreign target of
    Section 702 collection, some of their communications could be
    collected incidentally to the intent of targeting the
    communications of a foreigner located overseas.
        My--the question that has been a matter of debate is
    whether the FBI should be able to search the content of the
    Section 702 database using a U.S. person identifier or search
    term without first securing a warrant.
        I have a couple of questions for you. First, are you
    confident that such a process does not violate the Fourth
    Amendment prohibitions against unreasonable searches and
    seizures? And second, since you have worked in the National
    Security Division before, could you tell us from an operational
    perspective what harm you would see if Congress were to require
    the FBI to get a warrant every single time it sought to query
    the Section 702 database using a U.S. person's identifier?
        Mr. Demers. Thank you, Senator.
        I think here we're talking about the querying of lawfully
    acquired information in the government's possession,
    information which the government acquired by targeting non-U.S.
    persons outside the U.S. And as you say, you know, it can and
    does incidentally pick up communications of U.S. persons as
    well.
        As I understand it, every court to consider this has found
    that there is no Fourth Amendment requirement that the
    government get a search warrant before looking at this
    information, before querying this information for a U.S. person
    identifier. And that's consistent, I think, with the general
    Fourth Amendment principle that the government doesn't need a
    search warrant to look at information lawfully in its
    possession. So I believe that is the state of the case law
    today.
        In terms of the operational question that you posed, again,
    I'd--it's been a little while. I'd have to talk again to the
    FBI, but if what we're talking about is getting the equivalent
    of a FISA order every time you query the database, a FISA order
    is a fair bit of work, one, to put together, because you have
    to have probable cause.
        So it's not just about the amount of work. It's of course
    also about at what stage of an investigation you're willing to
    do this and whether you have enough information to do probable
    cause. So it's not just, well, it will take X number of hours,
    but it's can you do it at all based on the information you have
    to tie that U.S. person to being an agent of a foreign power or
    a foreign power.
        So I think, you know, if you had a warrant requirement, it
    would slow things and it would also limit the amount of
    querying that you were able to do.
        Senator Collins. Thank you.
        This year's intelligence authorization bill includes a
    provision that I drafted with Senator Manchin and Senator
    Lankford that would require you, assuming you're confirmed to
    your position, to report to Congressional intelligence
    committees every six months regarding the status of every
    criminal referral made in the last year from the intelligence
    community to the Department of Justice about any unauthorized
    disclosure of classified information.
        If you are confirmed and if our provision does become law,
    do you commit to faithfully reporting the information required
    by this provision to serve as a deterrent to would-be leakers
    of classified information?
        Mr. Demers. Thank you, Senator. Yes, I will certainly
    follow the law if it's enacted. And as I mentioned to Senator
    Warner, just be careful that we're obviously not interfering
    with the investigation itself. But to that--beyond that, yes,
    to share that information with you.
        Senator Collins. Thank you.
        Chairman Burr. Senator Feinstein.
        Senator Feinstein. Thanks very much, Mr. Chairman. I had
    the opportunity to meet with Mr. Demers before his hearing in
    Judiciary on October 4, and I have since voted in support of
    his nomination to be Assistant Attorney General for the
    National Security Division. And I'm very pleased, sir, that you
    have prior experience in that division. I think you're well
    qualified to lead the division, so I assume I am going to vote
    again for you here.
        Having said that, I must tell you I disagree strongly with
    your answer to Senator Collins' question. Let me try and
    explain why, and let me preface this with the fact I am not a
    lawyer, but the 702 reauthorization gave me cause for really
    serious study.
        And as I understood the Ninth Circuit case in Mohamud, what
    it upheld was that the incidental collection of an American in
    the program initially did not essentially detract from the
    constitutionality of the program. No court to my knowledge has
    played a role in determining whether a second query or a query
    of that separately by the FBI for a civil criminal case would
    require a warrant or not. I moved such an amendment in the
    Intelligence Committee. I was voted--I did not have the votes.
    I voted for the bill as is, but I very strongly believe that
    that second part is really open to conjecture and I think some
    discussion.
        Do you have any comment to make, because you spoke about
    incidental collection? Once that incidental collection is
    achieved, the use separately is a different item.
        Mr. Demers. Yes, that's true, Senator. Certainly this
    question is open for legal discussion and debate. There is no
    question about that. But I do think that there is a general
    principle of Fourth Amendment law which is that searching
    information that is lawfully in the government's possession
    does not require a court order. Now, perhaps that principle
    isn't applicable here for some reason that I would have to give
    some more thought to. But at least as a starting point, that
    is, as I understand it, the general principle.
        Senator Feinstein. I would--I would like to ask that when
    you are in the job you would follow up on this and perhaps
    write with your thoughts, because I think this is going to be a
    problem in the future.
        Mr. Demers. I will certainly be doing a lot of thinking
    about this, yes.
        Senator Feinstein. Okay. Let me go to one of my written
    questions. It was question number 7: Recent media reports
    described two American citizens apprehended by Syria, by Syrian
    Defense Forces. The article stated they're being held as enemy
    combatants and may be transferred to Iraqi custody. That
    question has come up in the public press recently.
        Here is the question I asked in writing: What is the legal
    status of an American apprehended while fighting in Syria?
    Should that individual be returned to the United States for
    trial and held as an enemy combatant? Your response was: ``I'm
    not familiar with the facts regarding these individuals or
    their detention. I am committed to identifying and considering
    all legally available options and pursuing the option or
    options that best protect national security and the liberty
    interests of Americans.''
        Well, much more has been said in the press about these two
    people. What is your view today?
        Mr. Demers. I don't know that my view is any different,
    Senator. I don't know the facts of this case. My view is, you
    know, in general that folks who are detained on the battlefield
    or captured on the battlefield can be lawfully detained by the
    U.S. armed forces. But then I think the question becomes, well,
    what are you going to do in the long run with these folks and
    especially with an American? And there, you know, you really
    would need to know all of the facts and circumstances to make
    that determination.
        I'd say when it comes to Americans, my leaning--and this is
    not a definite rule, but leaning, you know--is that we should,
    if we can, bring them here and try them.
        Senator Feinstein. I'm going to make a small personal
    request and that is that you--obviously I have voted for you
    and I am going to vote for you again. However, I would like you
    to take a look at this and give me an answer in writing, if you
    can. And after you're confirmed is fine with me. It's not a--I
    am not doing this to jeopardize my vote.
        Mr. Demers. Right.
        Senator Feinstein. So I would appreciate your advice on
    that question.
        Mr. Demers. Sure.
        Senator Feinstein. Thank you very much.
        Thanks, Mr. Chairman.
        Chairman Burr. Senator Lankford.
        Senator Lankford. Thank you, Mr. Chairman.
        Good to get your testimony. I want to be able to press on a
    little bit on what the chairman brought up earlier about leaks,
    leaks that not only come to the press, but leaks out to other
    entities or individuals that may at some point talk to others.
        One of the challenges has been prosecution of those
    individuals. It's one thing to identify the leak and it's one
    thing to identify the universe of where it came from. It's
    another thing to actually identify the person and actually
    prosecute. What can you do or put into place to make sure we
    move from yes, there's a leak, to we've identified the
    individual and actually--and are actually prosecuting those
    individuals?
        Mr. Demers. Thank you, Senator. Yeah, look, these
    investigations are difficult to do just to find the facts as
    you mentioned: Who did the leak, who did they pass it to, and
    then maybe who leaked it further to the public? But also, there
    are difficult considerations about whether you move forward
    with prosecutions, because the prosecution itself can risk
    having to use classified information or that classified
    information or other information would be raised.
        So these are--I don't have the answer to your question
    coming in from the outside. But I do acknowledge the importance
    of the issue and, you know, this is something I will certainly
    be working on with those folks in the division who have been
    doing these cases for some time and with the FBI and others who
    are investigating these cases.
        Senator Lankford. Right, so what I'm trying to pursue is
    how will it be different? What would you do different than what
    was done in the past? Because what has been done in the past
    has not been able to close the deal, to actually find those
    individuals and be able to prosecute?
        Mr. Demers. I guess the answer to that is, I can't tell
    you, coming from the outside, what I would do differently at
    this point.
        Senator Lankford. We will look forward to that conversation
    in the future once we put you on the inside to be able to help
    resolve some of those. Talk to me about your coordination with
    the Office of Director of National Intelligence. There is a
    unique role in the coordination there. How do you foresee that
    with your office and their office?
        Mr. Demers. Last time I was at the National Security
    Division I worked a lot with the Office of the Director, with
    the general counsel who was there, with the chief of staff, the
    other folks in the general counsel's office who are there,
    worked a lot, obviously, on the FISA Amendments Act the first
    time through, but also on other issues as well.
        I have met with the Director as part of this process to
    just begin to establish a relationship with him. And my view of
    what the role is of the National Security Division when it
    comes to the Director is that really I'm to be, you know, the
    main link to the ODNI, but also to appreciate and be the voice
    of the equities of the intelligence community within the
    Department, whether we're talking about legislative or policy
    issues or whether we're talking about again particular
    prosecutions and what equities of the intelligence community
    may be affected by a particular prosecution.
        So I anticipate regular communications with that office,
    with the Director, with the chief of staff and with the general
    counsel.
        Senator Lankford. Do you anticipate any changes from what
    we currently have status quo in the relationship between that
    office and ODNI?
        Mr. Demers. I think----
        Senator Lankford. Anything that you look at now and say, I
    plan to change this or this in it?
        Mr. Demers. I don't know that I know enough to answer that
    question.
        Senator Lankford. Okay, fair enough. Thank you, Mr.
    Chairman.
        Chairman Burr. Senator Wyden.
        Senator Wyden. Thank you very much, Mr. Chairman.
        Mr. Demers, thank you for coming by yesterday. I very much
    enjoyed the conversation and your history with some of the
    people sitting behind me on 702. Like I indicated, there is
    absolutely no disagreement, none, about the need for the
    government to have the tools to go after threats overseas. 15
    people on the committee, everybody's on the program with
    respect to that.
        The question is what happens, particularly as global
    communications have changed, when law-abiding Americans are
    swept up in searches? And I will tell you, I'm very troubled by
    the answer you gave my colleagues Senator Feinstein and Senator
    Collins on this point. And I'm not going to go into it any
    further, but your position is at odds with, for example, Mike
    Morell, the former CIA Director who just said point-blank,
    wrote a big article about it, the government ought to have a
    warrant to search for Americans' communications in Section 702
    collection, and of course an emergency exception.
        So we're going to debate this some more, but I will tell
    you I find it very troubling that you're now in disagreement
    with, certainly, what I heard Senator Feinstein and Senator
    Collins say and the former CIA Director. And as we consider
    your nomination, I want you to know that.
        But I do want to get into the question you and I talked
    about in the office, and we can call it the bridge guy issue.
    This is the issue presented by Director Wray. He essentially
    gave an example of somebody taking pictures of a bridge at
    night. And according to the Director, the government ought to
    be able to go directly to reading the content of this
    American's communications based on what somebody thinks could
    be suspicious behavior.
        Now, I personally think there are legal arguments for why
    you shouldn't be able to do it, but again from a security
    standpoint it's unnecessary. The government has a lot of
    authorities for obtaining information about Americans,
    including 215 of FISA, which tells the government who that
    American is talking to. So we're going to know about bridge
    guy, basically knowing who they're talking to.
        There's an emergency provision, so there is no delay, and,
    as you and I talked about, I put that into every single
    proposal I've ever had, that there be an emergency exception.
        So the question here is, as we talked about in the office,
    why should the government be reading the content of Americans'
    communications based on the smallest little sliver of a
    suspicion when it's got the authority to obtain non-content
    information first, very significant authority?
        Mr. Demers. So I found that hypothetical after we spoke
    last night and I read it and having read it, I do understand
    your concern, as you've just expressed it, which is that we go
    from a non-criminal but suspicious act to reading the content
    of some aspect of this person's communications.
        Senator Wyden. I want to sop you right there because that's
    encouraging. So you think that that's a valid concern to be
    just kind of making that leap to reading content?
        Mr. Demers. I do understand the concern, yes.
        Senator Wyden. Go ahead.
        Mr. Demers. No, definitely. And then this brings us to, so
    then if the solution is the warrant requirement, as we also
    discussed last night and as we've been talking about today, so
    then, you know, then it just becomes a question, okay, so then
    we're putting a warrant requirement in to search information
    that's lawfully collected by targeting non-U.S. persons where,
    at least as I understand it, no court has held that a warrant
    is required to do so and where if you--we've been chastised for
    not connecting the dots in the past and I think that's the
    worry of the FBI here, but I--you should just let them speak
    for themselves on that.
        And then, and of course if you're ever interested in the
    American, and really want to surveil the American, you'd have
    to go get a FISA warrant on that. I guess, I just say that on
    balance, at least from where I'm coming from here right now, I
    don't think you should need a warrant to look at those
    communications that are already in the government's possession.
        Senator Wyden. Well, if the government wants to read the
    content of communications they can also just use the query. So,
    we're going to continue to put in these emergency provisions. I
    think there's plenty of authority under 215. To your credit,
    you've acknowledged that this is a valid concern. I'm going to
    want to explore that with you.
        I'll also have some--and my time is up. I'll also have some
    written questions with respect to encryption because, given the
    fact that Mr. Rosenstein has now got us back in the business of
    looking at what he calls responsible encryption, which is
    really requiring companies to build a back door into their
    products under a different name, I think that's very troubling
    as well.
        Thank you, Mr. Chairman.
        Chairman Burr. Senator Heinrich.
        Senator Heinrich. Thank you, Chairman.
        And thank you, Mr. Demers, for being here today. I want to
    start with an issue. In August, the Attorney General announced
    that the Department is reviewing its policies for subpoenaing
    reporters, suggesting that current guidelines that are in place
    and the limits on the practice could be potentially rolled
    back.
        In recent testimony, the Attorney General refused to say
    whether or not he would actually jail journalists. This is a
    reversal of the stance of Attorneys General in the last
    administration, who had said that they would not seek to
    imprison members of the news media for doing their job.
        So, I want to ask you, Mr. Demers, do you believe that
    journalists should be jailed for seeking the truth?
        Mr. Demers. I think that--well, first of all, I would hate
    to ever have to go down a path like that. And I understand the
    importance of journalism and of journalists in our political
    system and the significant First Amendment concerns that are
    raised by taking an action like that.
        I think, you know, at least coming in from the outside, I
    don't want to say that something could never happen. It always
    depends on what the facts are of that investigation. I can't
    imagine it would ever be lightly undertaken. And as I said, I'd
    be loath to do it. But I hate just in the abstract saying I
    can't imagine anything that would ever cause the government to
    go in that direction.
        Senator Heinrich. Do you understand why the suggestion that
    we should change that policy and raising the specter of jailing
    journalists has people highly concerned?
        Mr. Demers. Yes, I can understand why you'd be concerned,
    and it would be a question of how you applied it and if you
    changed it.
        Senator Heinrich. Back in 2013, the Justice Department
    guidelines with regard to the media state that quote, ``In
    light of the importance of the constitutionally protected news-
    gathering process, the Department views the use of tools to
    seek evidence from or involving the news media as an
    extraordinary measure.'' End quote. And that such tools should
    be used, quote, ``only as a last resort''. End quote.
        Do you agree with that statement? Does that sort of line up
    more accurately with your----
        Mr. Demers. I would say they are extraordinary, yes. And
    yes, they'd be a last resort or close to a last resort.
        Senator Heinrich. Thank you.
        As you note in your testimony, you helped this committee
    draft Section 702 of FISA and you were working in the
    Department of Justice as the statute was first implemented, and
    I understand your support of the statute, in particular Section
    702. Obviously, Section 702 collection has grown since the
    law's passage back in 2008, and we still don't have data just
    to show how many Americans' communications are being
    incidentally swept up in that collection. Do you believe
    there's a potential point at which incidental collection of
    Americans becomes so preponderant, so significant, that there
    might be either a policy or a constitutional issue associated
    with the current query standard?
        Mr. Demers. Well, I think in the abstract, certainly if the
    incidental collection was getting so significant that you'd
    actually think there's been reverse targeting taking place,
    that would be a serious concern.
        Senator Heinrich. When Congress passed those FISA
    Amendments back in 2008, do you believe that it was the intent
    of Congress to use that to be intentionally searching
    Americans' communications using that, using the 702 section?
        Mr. Demers. Well, I think that----
        Senator Heinrich. Or is that an afterthought basically?
        Mr. Demers. I mean, I think the intent of Congress there is
    just expressed in the language which requires you to use the
    authority against non-U.S. persons outside the U.S. and not to
    engage in reverse targeting.
        Senator Heinrich. So since 9/11, obviously, the
    intelligence community has come a long way in tearing down the
    stovepipes that kept agencies from sharing information. But we
    recently heard from the FBI that they cannot simply count how
    many times FBI agents searched the Section 702 holdings for
    communications of Americans. And they reference that stovepipe
    issue and say they'd have to basically rebuild the stovepipes
    to know that data.
        I'm concerned that the FBI is hiding behind that stovepipe
    argument. I would frankly suggest that it is a fairly mundane
    technical issue or an I.T. issue. I cannot in a million years
    imagine Google saying it's impossible to count the number of
    queries on a particular subject. Do you think that that is data
    that we ought to be able to see to be able to properly do our
    oversight role?
        Mr. Demers. I can't say I'm familiar enough with the
    concerns expressed by the FBI to comment on those. I think I
    can certainly see why the committee would want to know the
    numbers of queries and U.S. person queries that were being
    done. But I can't talk to how the computer systems work or any
    of that.
        Senator Heinrich. Thank you, Mr. Chair.
        Chairman Burr. Thank you, Senator Heinrich.
        Seeing no additional members here--John, it was pretty easy
    this morning. But it should be when you're going your second
    time around. And, Matthew, that tie lasted a lot longer than I
    thought it would.
        [Laughter.]
        Chairman Burr. Thank you very much to you and your family
    for your willingness to come back into government one more
    time. It's always a tough decision, but you have performed
    there in an exemplary fashion prior to this.
        I know that the folks at Boeing would probably like to keep
    you there, but to have you at the National Security Division as
    the chief there certainly is advantageous to the country and to
    this committee. We look forward to very quickly moving your
    nomination.
        At this point this hearing's adjourned.
        [Whereupon, at 10:23 a.m., the hearing was adjourned.]

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