Hearings
Hearing Type:
Open
Date & Time:
Tuesday, October 31, 2017 - 9:30am
Location:
Dirksen 106
Witnesses
Full Transcript
[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
__________
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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
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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:]
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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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