Hearing Type: 
Date & Time: 
Tuesday, October 31, 2017 - 9:30am
Dirksen 106

Full Transcript

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

                                                        S. Hrg. 115-125




                               BEFORE THE


                                 OF THE

                          UNITED STATES SENATE


                             FIRST SESSION


                       TUESDAY, OCTOBER 31, 2017


      Printed for the use of the Select Committee on Intelligence

         Available via the World Wide Web: http://www.fdsys.gov

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
27-397 PDF                  WASHINGTON : 2018                     
For sale by the Superintendent of Documents, U.S. Government Publishing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, 
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). 
E-mail, gpo@custhelp.com.          

           [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
                 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


                            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


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



                       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.


    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 
    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.


    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 
    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 
    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 
    Do you solemnly swear to tell the truth, the full truth, 
and nothing but the truth, so help you God?
    Mr. Demers. I do.


    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 
    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 
    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 
    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:]

    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Lankford. Okay, fair enough. Thank you, Mr. 
    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 
    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.
    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 
    At this point this hearing's adjourned.
    [Whereupon, at 10:23 a.m., the hearing was adjourned.]

                         Supplemental Material