Senator richard burr chairs the hearing. Id like to welcome our witness today, president trumps nominee to be the next assistant attorney general at the department of justice. Congratulations on your nomination. Id like to start by recognizing the family you brought here. I understand your wife, cindy is here, as well as elizabeth and matthew. Senator warner will sign a slip for you to take to school and get extra credit. And also your sister also. In a statement john speaks strongly. 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 aconsider the nominees qualifications. Mr. Debeers has provided substnant written responses to over 30 questions presented by the committee and of course members will be able to ask additional questions. Mr. Is a graduate from holy cross, served as a clerk for the ninth Circuit Court and then for the late honorable Justice Anthony scalia. While at the dojs National Security division, he 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 Vice President for international affairs, Vice President and assistant general counsel for general law affairs, chief counsel for network and assistance general counsel for regulatory and government law. Hes also currently an agungt professor that law school. Youre being asked to lead in during a time when questions on what is lawful. They recently renewed a bill with additional privacy protections for u. S. Persons. Im hopeful this bill will pass the senate and ultimately be signed into law as it provides the department and intelligence communitiy the needed goals and authorities. Youll be an influential and enforcement advocate in those tools you believe will keep citizens safe like section 702. I can assure you that this committee will faithfully follow its charter and conduct vigorous and realtime oversight over the Intelligence Community, its operations and its activities. We will ask difficult and probing questions of you and your staff and expect honest, complete and timely responses. Youve already successfully negotiated one hurdle, 200 on october 19th, 2017th. I look forward to supporting your nomination and insuring its consideration without delay. I would notify members were under a fairly tight time frame so its my intentions to move this nominee as quickly as we possibly can. Thank you, mr. Chairman and welcome, mr. Demers. Congratulations on your position to serve as assistant National Attorney general at doj. Ive reads your testimony before the Senate Judiciary committee. I appreciate your candor and forth riet responses to the equestion and the bipartisan support youve gotten from doj officials in terms of your nomination. If confirmed, you will lead an organization that was established after 9 11 to insure our counterterrorism, intelligence and counterintelligence activities are properly and sufficiently coordinated across both Law Enforcement and intelligence communities. As youre aware another Critical Role is approval to the request for fisa activities. I think we had had a very product session on 702 last week. It seeks to maintain its operational capacities while increasing the privacy and civil liberty protections of u. S. Citizens. This includes strengthening oversight of lawfully collected u. S. Persons data. In particular ill be listening closely to be assured you recognize the need to conduct reviews in a manner that protects these priechbacy concerns. In your written responses to the committee you wrote quote that your loyalties lie with the constitutional laws of the United States, unquote and you would tell the president or attorney general no if asked to perform any tasks contrary to the laws of the constitution or the United States. Let me assure you ill try tohold you to them. I would also like to hear your commitment that youll continue to provide timely responses to the president , his cabinet and his advisors. Facts are facts and i expect you to be truthful to them. Youre aware this committee is conducting an investigation in the 2016 president ial election. This morning and i will ask you during the question and answer session i want to hear your assurance you will fully cooperate with this review and provide this committee with all the information requested in a timely fashion. I will ask you ask that you faithfully inform this committee if you become aware of additional relevant information in the course of your duties if confirmed. I bleechb yesterdays indictment of president Trumps Campaign manager and special Campaign Manager is further evidence that these investigations are serious and that this country needs to hold accountable any of those that do a disservice to our nation. This investigation, let me make clear is not about playing gotcha with the president. Its about following the facts where they lead and insuring the sanksty of our elections untarninged by foreign interruption. I look forward to this mornings discussion. 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 . I do. Please be seated. John, before we move to your statement, ill ask you to answer five standard questions the committee poses to each nominee. They require a simple yes or no answer. Do you agroo eto appear here or other venues when invited . Yes. Do you agree to designate staff when invited . Yes. Do you agree to provide documents or materials in order to carry out its oversight and ledgevative responsibilities . Yes. Will you both insure your office and staff provide such materials to the commit tee whe request snd. Yes. Do you gree to fully brief all members of the covert a, rother than only the chairman and vice chairman . Yes. Thank you very much. Well now proceed to Opening Statements after which ill recognize members by seniority and the Committee Received this nomination on referral from the Judiciary Committee and we have 12 calendar days in which to report this to the senate. Its my intentions to move to this as quickly as we can in the business session. With that, mr. Demers, the floor is yours. Thank you very much. Thank you for the opportunity to appear before you today and for considering my nomination. During my last time i worked cleesly with this committee to draft and negotiate the fisa amendments act of 2008. Should i be confirmed i hope this will be only the beginning of working with you again. Issues best address whd the congress and the executive work constructi constructively together. Public service is never an individual endeavor and id like the thank my wife, lindsey and children who have joined me on my next chapter. They provide me always a sense of calm i believe is needed. Id omso like to thank my parents whose curage has inspired me to be here today. And to the other Close Friends and colleagues here and watching remotely for their love and support and because i can come from a family of teachers, i would do well to thanking all the teachers ive had all along the way. I owe them more than they and i will ever know. Im 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 at the highest priority of the department and the National Security division is at the forefront of thooese efforts. Although the thinking behind the division may seem obvious now, those knee that the reorganization that created the division was revolutionary. It brought together attorneys with those working nontelligence investigations. And it created a strong link between the department and Intelligence Community. More broadly it recognized the effectiveness of Law Enforcement and intelligence effortess in combatting the needlessness of drawing lines between criminal investigations. Since that time the capabilities have broadened to confront new manifestations of old threats. The men and women have worked tirelessly with the other parts of government to help guard our security. Regardless of whether they come on airplanes or over the internet. The dedicated lawyers and professionals understand that without the 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 the guaranteer of both is the law. I know this first hand and would consider it an honor to return to serve with them. Critical to our security and liberty are statutory authorities that the prosecutors use every day. I look forward to working together with you and your colleagues to insure that Intelligence Community and prosecutors have the tools they need and that they keep up with changes in technology and the threats that face us. I also understand the only way to keep the confidence of the American People in these tool sz to the use them lawfully and wisely. Thus, i look forward to furthering the oversight function and conducting the proper oversight by the congress and surveillance court. The threats we face are real, the threats of our adversary are plain, to weaken our values, democracy and resolve to lead, to undermine the very idea of america. I appreciate you have always taken these threats seriously. I look forward to working with you to insure this country continues to thrive and all americans enjoy both liberty and security under the rule of law. I look forward to answering your questions. Thank you very much. Ill recognize members based on seniority. Leaks of classified information are deplorable. Im 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 of those who leak classified information . 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 and in revealing what we know to others and about them. Lets make no mistake sometimes those sources are human beings. I the cases them svls, the investigations need to be pursued fully and on the facts. Following those facts wherever they may go. And the enthe prosecutions need to be considered carefully as well, take nothing to account the equities of the Intelligence Community as well as the need to deter, obviously and capacitate folks leaking now and deter future leakers. Ill work closely with the career attorneys at the department who have been doing these case flz many years and continue to focus on them and follow the facts where they lead us. Will you commit to communicate with the committee on the progress of investigations and potential prosecutions . I think within the bounds that i can, that is as long as its not interfering with the investigation itself, i will. We mentioned fisa title 7 authorities, including what is well known as section 702. And they expire the end of the year. As youre aware the committee has Significant Interest in reauthorizing these authorities. Based upon your experience how critical is reauthorizing to our nations National Security . I saw the world before the fisa amendments act and it was very difficult for the Intelligence Community and the Justice Department and we were focusing a lot of our resources on folks without constitutional rights. I saw in the very early days the implementation of this law. I followed it of course in the news since then. I understand the Intelligence Community considers it to be one of the most critical tools it has. Ive seen the work the private and Civil Liberty Union did of this authority and i take note that 245i found no intentional misuses of this authority. It seems, at least from the outside, this is a critical authority and i look forward to working with the committee on that if im there in time and working with you on your oversight efforts making sure its used effectively and well. Deputy attorney general rosenstein called attacks against our infrastructure as one of the nations highest priorities. How do you foresee furthering the Cyber Security efforts within the National Security division . So i think the Cyber Security is the area that has changed the most since i was there last about nine years ago. Now it seems to permeate all the work of the division whether its on the counterterrorism side or espionage side. So whether were talking about folks being radicalized or being radicalizing themselves. I note that in the priored a administration they developed a separate division. Im going to be looking cleesly at that to make sure its resourced correctly and the correct focuses on Cyber Security issues. I think theyre going to be one of the biggest parts of the job going forward. Great. Thanks, john. Vice chairman. Again welcome, sir and as youre obviously aware one of the most important investigations this committee is involved in at this point is the Russian Investigation activities in 2016. I just want to get you on the record. Do you promise to fully and completely cooperate with this committees investigation into russias interference in the 2016 election including turning in all your materials as requested as promptly as possible . I do support the work of this committee and that investigation. I think its a very important one and i do pledge to cooperate with you on that investigation. Obviously in terms of turning over everything. From the outside i dont know all the rules, senator. Id have to talk to other folks that department. Within the constraints, obviously. And weve had it theres some entities weve got a ways to go. I also again i think youve answered this before. But i want to get it on the record here. I think one of the most important functions is speaking truth to power and can you talk about the assistant ags role in insuring the Intelligence Community will continue to provide untarnished assessments to the president regardless of politics . Well, for sure, senator. Politics has no place in the Intelligence Community in the Intelligence Community or national skurbt division as particulate of those efforts and its critical for all of us to speak truth to those in the executive branch and here on the hill. So i pledge to do so and to sonority efforts of others to do so. The chairmans 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 a known americans privacies. Some thought it didnt go far enough. Id like to hear your comments about the oversight responsibilities of the assistant ag for National Security to insure that there is that full and robust oversight of the fisa legislation, including 702 and what youre going toing do to make sure that representations made by the United States government to the fisa court are always accurate. So, ive not read the bill that came out of committee but i do support obviously the oversight within the bill. I think there was significant oversight in the law as it stands today as well. The role of the assistant attorney general when it comes to any fisa collection whether its collection 702 or title one is of course to conduct that oversight of the use by elements of the intelligence kmunlt of these authorities to be sure the minimization procedures are being followed accurately and in this case that the targeting procedures are being followed as well and to promptly report any noncompliance, both to the fisa court, which has authorized the use of those targeting minimization procedures and to the congress and to look and see to really do a root cause analysis of what the reason for that noncompliance is and to fix it going forward. I would strongly urge you to please take a look at that legislation. Weve 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 there is almost simultaneous appropriate review. It will add some additional challenges but i think theyre appropriate in terms of balancing the very critical privacy protections. This is a tool that again i think as your comments indicated, while theres been no indications of abuse, because there are americans swept up in the 702 Contact Information i think we have to go the extra mile and i would hope you would do a thorough review of what at least 24is this committee has passed out and look forward to your comments on whether we struck that right balance. Thank you very much, mr. Chairman. Mr. Demers, i want to follow up on the questions on questions 702 which have been a matter of great debate before our committee. And ultimately before the full senate. As youre well aware if a u. S. Person is in contact with a foreign target of section 702, some of their communications could be collected incidentally to the intent of targeting the communications of a foreigner located overseas. The question that has been a matter of debate is whether the fbi should be able to search the content of the section 702 data base 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 confidence that such a process does not violate the Fourth Amendment provisions 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 to require the fbi to get a warrant every single time it sought to query these section 702 data base using a u. S. Persons identifier. Thank you, senator. I think here were talking about the queering of lawfully acquired information in the governments possession, informationing the government required by targeting nonu. S. Persons outside the u. S. And as you say can and does incidentally pick up communications of u. S. Persons as well. As i understand it every court to consider this has found there is no Fourth Amendment requirement that the government get a search warrant before looking at this information, before querying this information and thats consistent i think with the general Fourth Amendment principal that the government doesnt 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 its been a little while. Id have to talk again to the fbi. But if what were talking about is getting the equivalent of a fisa order every time you query a data base, its a fair bit of work because you have to have probable cause. So its not just about the amount of work, its of course at what stage of an investigation youre willing to do this. And whether you have enough informationi to do probable cause. Its not whether it will take xnumber of hours but can you do it lat to tying that person to a foreign power. Or u. S. Agent to a foreign power. If you had a warrant requirement, it would slow things and lim thet amount of querying you were able to do. Thank you. This years intelligence authorization bill includes the provision i drafted with senator mansion and senator langford that would require you, assuming youre 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 it 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 wouldbe leakers of classified information . Thank you, senator. Yes. I will certainly follow the law if it is enacted. And just be careful were obviously not interfering in the investigation itself. But beyond that, yes, to share thet information with you. Thank you. Thanks very much, mr. Chairman. I had the opportunity to meet with mr. Demers before his hearing in judiciary on october 4 and ive since voted in support of his nomination to be assistant attorney general for the National Security division and im pleased you have Prior Experience in that division. I think youre well qualified to lead that division. So i assume im going to vote again for you here. Having said that i must tell you i disagree strongly with your answer to senator collins question and 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 9th circuit case in muhammad, what it upheld was that the incidental collection of an american in the program initially did not essentially distract from the constitutionality of the pro. M. 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 move such an amendment in the intelligence committee. I did not have the votes. I voted for the bill as is. But i very strongly believe 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. Yes. Thats true. Senator. And certainly this question is open for legal discussion and debate. Theres no question about that. But i do think there is a general principal of Fourth Amendment law which is searching information lawfully in the governments possession does not require a court order. Perhaps thats not applicable here for some reason. Id have to give some more thought to, at least as a starting point, as i understand it, the general principal. I would like to ask that when youre in the job that youd follow up on this and perhaps write with your thoughts because i think this is going to be a problem in the future. Right. Ill certainly be doing a lot of thinking about this, yes. Okay. Let me go to one of my written questions. Question 7. Recent media reports showing two americans apprehended by syrian forces. Saying theyre being held as enemy combattants and may be transferred. That question has come up in the press recently. Heres the question i ask in writing. What is the legal status of after an american apprehended while fighting in syria . Should that individual be returned to the United States for trial and held as an enemy combattant . Your response was im committed to identifying and submitting 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 thin press about these two people. What is your view today . I dont know that my view is any different, senator. I dont know the facts of this case. My view is in general that folks detained on the battle field or captured on the battle field canby lawfully detained by the u. S. Armed forces. But then i think the question becomes what are you going to do in the long run with these folks and especially with an american . And there you really would need to know all of the facts and circumstances to make that determination. Whether it comes to americans, my leaning and this is not a definite rule but leaning is that we should, if we can, bring them here and try them. Im going to making a small personal request and that is that you obviously i have voted for you and im going to vote for you again however, i would likia to take a look at this and give me an answer in writing, if you can. And after youre confirmed is fine with me. Im not doing this to jeopardize my vote. So i would appreciate your advice on that question. Thank you sure. Thank you, mr. Chairman. I want to press on what the chairman brought up earlier about leaks, not only to the press but other entities that may at one point talk toot othe. One of the challenges has been prosecution of the individuals. Its another thing to actually identify the person and prosecutor. What can you put in to place to yes theres a leak and now were prosecuting the individuals . Thank you, senator. 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 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 classified information would be raised. So these are i dont have the answer to your question from the outside. But i do acknowledge the importance of the issue and 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 investigating these cases. So what im trying to pursue is how will itby different . What has been done in the past is not been able to close the deal to actually find those individuals and be able to prosecute . And i guess the answer to that is i cant tell you coming from the outside what i would do differently at this point. Okay. We will look forward to that conversation in the future wunls we put you on the inside to resolve some of those. Talk about your coordination. Theres a unique role in the coordination there. How do you foresee that with your office and their office . So last time i was at the National Security division i worked a lot with the office of the director with the general counsel who is there with the chief of staff, the other folks in the general counsels office who was there. Worked a lot on the fisa amendments act and 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 im to be the main link to the odni but to appreciate and be the voice of the equities of the Intelligence Community whether were talking about legislative or policy issues or again political particular prosecutions. And what equities of the Intelligence Community may be effected by a particular prosecution. So i anticipate regular communications with that office, the director, the chief of staff and the general counsel. Do you anticipate any changes from what we currently have status quo between that office and odni . I dont know that i know enough to answer that question. Okay. Fair enough. Thank you, mr. Chairman. Thank you very much. Mr. Demurs, 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 bute the need for the government to have the tools to go after threats overseas. 15 people on the committee. Everybodys on the program with respect to that. The question is what happens, particularly as Global Communications has changed when law abiding americans are swept up in searches . And im very troubled by the answer you gave is enter feinstein and collins on this point. Your position is at odds with for example mike morel, the former cia director who just said point blank the government ought to have a warrant to search for Americans Communications in section 702 collection and of course in emergency exception. I will tell you i find it very troubling youre in disagreement with certainly what i heard senator feinstein and collins say and a 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 ray. And he essentially gave an example of somebody taking picture oofz bridge at night. And according to the director, the government ought to be able to go directly to reading the content of this Americans Communications based on what somebody thinks could be suspicious behavior. Now, i personally think there are legal arguments but from a security standpoint, its unnecessary. The government has a lot of authorities for obtaining information about americans, including 215 of fisa which tells the government who that urmarecon is talking to. So well know about bridge guy and knowing who theyre talking to. Theres an emergency provision so theres no delay. I put that in2to every single provisions i have. That there be an emergency exception. So the question is why should the government be reading the content of Americans Communications based on the smallest sliver of a suspicion when its got the authority to obtain noncontent information first . So i found that hypothetical after we spoke last night and i read it and having read it i do understand your concern. As youve just expressed it which is we go from a noncriminal but suspicious acts to reading the contenlt of some aspect im going to stop you right there. Thats encouraging. So you think thats a valid concern to making that leap to reading content . No, i do understand the concern, yeah. Definitely. And then this brings us to so then if the solution is the warrant requirement, as we also discussed last night and have been talking about today so then were putting a warrant requirement in by targeting nonu. S. Persons. Where no court has held that a warrant is required to do so and where weve been chastised for not connecting the dots in the past and i think thats the worry of the fbi here. But you should let them speak for themselves on that. And of course if your interested in the american and really to surveill the american, youd have to go get a fisa warntd on that. I say on balance, at least from right now i dont think you should need a warrant to look at those already in the governments possession. If the government wants to read the content of communications, they can also just use the queries. So were going to continue to put in these emergency provisions. I think theres plenty of authority under 215. To your credit youve acknowledged this is a valid concern. And my time is up. Ill also have written questions with respect to encryption. Because given the fact mr mr. Rosenstein has us back in the business of responsible inkripshz which is requiring companies to build a back door under a different name. I think thats very troubling as well. Thank you, chairman and mr. Demers for being here today. I want to start with an issue in august the attorney general announced the department is reviewing its policies for subpoenaing reporters. Suggesting current guidelines in place and the limits on the practice could potentially rolled back. In recent testimony the attorney general failed to say whether he would jail journalists. The last administration said they would not seek to imprison members of the news media for doing their job. So i want to ask you, mr mr. Demers, do you believe journalists should be jailed for seeking the truth . I thing 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 journalists in our political system. And the significant First Amendment concerns that are raised by taking an action like that. I think at least as i say coming in from the outside, you know i dont want to say that something could never happen. It always depends on what the facts are of that investigation. I cant imagine it would ever be lightly undertaken and as i said i would be loathe to do it. But i hate in the abstract saying i cant imagine anything that would ever cause the government to go in that direction. Do you understand why the suggestion that we should change that policy and raising the spect specter jailing germest journale concerned . Yes and it would be question of how iyou changed it. Quote in light of importance of the correctively used they view it 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 . I would say they are extraordinary, yes. And theyd be a last resort or close to a last resort. Thank you. As you note in your testimony you helped this Committee Draft 702 in fisa and working in the department of justice. I understand its grown since 2008 and we still dont have data to show how many Americans Communications are being accidently swept up. Do you believe theres a potential point where incidental collection of americans becomes sobecomes so preponderous, so significant that there might be. Or listen live on the free cspan radio app. Hes been called one of the premier chroniclers of our age, best selling author, whose books have been adapted into three Award Winning movies. Michael lewis will be our guest sunday. What almost all of theks
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