Security. They discussed reauthorization of a surveillance law known as section 702 of the Foreign Intelligence Surveillance Act and warrant requirements for collecting data. The 50minute hearing is chaired by North Carolina republican richard burr. Id like to call this hearing to order. Id like to welcome our witness, john demeres. President trumps nominee to be the next assistant attorney general for National Security at the United States department of justice. John, congratulations on your nomination. I would like to start by recognizing the family that you brought here with you. I understand your wife sydney 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. And also, your sisterinlaw sue. In a statement for the record, john speaks strongly about the support each of you have provided 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 nomin nominees qualifications and to allow for a thoughtful deliberation by committee members. You have 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. He is a graduate from the college of holy cross and harvard law school, served as a clerk in the United States court of appeals from the ninth circuit court, and then for the late honorable Justice Anthony 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 dojs National Security division, mr. Demers additionally completed a detailed 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 global law affairs, chief counsel for network and Space Systems and currently as the environment and assistant general counsel for regulatory law. Hes also an adjunct professor at Georgetown University law center. John, youre being asked to lead the justice Departments Division responsible for our National Security related investigations there in 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 fisas title seven authorities for eight years with additional privacy protections for u. S. Persons. Im 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. Im also hopeful moving forward youll be in an influential youll 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 the nomination hearing, i can assure you this committee will faithfully follow its charter and conduct vigorous and realtime oversight over the Intelligence Community, its operations and its activities. Well ask difficult and probing questions of you and your staff, and we will expect honest, complete, and timely responses. You have already successfully negotiated one hurdle having be favorably reported out of the Senate Judiciary committee 200 on october 19th, 2017. I look forward to supporting your nomination and insuring its consideration without delay. I want to again thank you for being here. I would notify members that were under a fairly tight timeframe, so its my intention to move this nominee as quickly as we possibly can. With that, now i recognize the vice chairman. Thank you, mr. Chairman. And welcome, mr. Demers. Congratulations on your nomination to serve as assistant attorney general for National Security at doj. I have 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. I also appreciate the broad amount of bipartisan support youve 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 insure that our counterterrorism intelligence and counterintelligence activities are properly and sufficientabilitily coordinated across Law Enforcement and intelligence communities. As youre aware, another Critical Role of this position is to shepherd the departments review and approval of the requests of the fisa courts for surveillance activities including section 702. As the chairman just mentioned, we had a productive session on 702 last week. And last week, the committee supported a bipartisan bill to reauthorize 702. It seeks to maintain its operational capacities while increasing the privacy and civil lib rarity protections of u. S. Citizens. This includes strengthening judicial and congressional oversight of the governments queries of lawfully collected u. S. Persons data. I will be interested in your comments on the 702 program, in particular ill 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 loyals with the constitution and you would tell the president or attorney general no if asked to perform any task contrary to the constitution or laws of the United States. I very much appreciate these words, and well try to hold you to them. Mr. Demers, i would also like to hear your commitment that you will always seem to provide unbiased, unvarnished and timely responses to the president , his advisers, his cabinet, and congress. Facts are facts, and i expect you to be truthful to them while in service to the nation. Youre also aware that this committee is conducting an investigation into russian interference in the 2016 president ial election. This morning, 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 youre confirmed. I believe yesterdays indictment of president Trumps Campaign manager and deputy Campaign Manager by the special counsel and the guilty plea by 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 relitigating the election or playing gotcha with the reds. Its about following the facts where they lead and insuring 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 mornings discussion. Thank you. Mr. Demers, would 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. Before we move to your statement, ill 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 in any other venues when invited . Yes. If confirmed, do you agree to send officials before the committee anddiesinated staff when invited . Yes. Do you agree to provide documents or any other materials requested by the committee in order to carry out its oversight and legislative responsibilities . Yes. Will you both insure that your office and staff provide such materials to the committee when requested . Yes. Do you agree to inform and fully brief to the fullest extent possible all members of the committee of the intelligence activities and covert action rather than only the chairman and vice chairman . Yes. Thank you very much. Well now provide to Opening Statements after which ill recognize members by signeniori for five minutes. I will 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. Its my intention, again, to move through this as quickly as we can in a business session. With that, mr. Demers, the floor is yours. Great. Thank you very much, chairman bur, 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 this hearing will be only the beginning of working with you again on issues critical to the nations security. Issues best addressed when the congress and the executives work constructively together. Public service is never an individual endeavor and i would like to thank my wife cindy and children lizzy and matthew who are here behind me and have graciously agreed to join me in the next chapter. The love and fun we have together provide be always with a focus and sense of calm i think will be needed. Id also like to thank my parents whose example and encouragement have inspired me to be here today. My sisterinlaw and friend sue is here as well, and im grateful to her and 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 of the teachers i have had 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 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 combatting a variety of threats and the danger 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 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 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 insure that the Intelligence Community and prosecutors have the tools they need and that thesis 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 orour advery sayers are plain. 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 insure 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. John, thank you very much. Ill 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 methomethod s at great riv. 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 and prosecutions 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 also to revealing what we know to others, what we know about them, and lets make no mistake, sometimes the sources are human beings. The cases themselves, the investigation needs to be pursued fully and on the facts. Following the 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 and incapacitate folks who are leaking now and also deter future leakers as well. Ill 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. Will you commit to communicating with the committee on the progress of investigations and potential prosecuti prosecutions . I think within the bounds that i can, that is as long as its not interfering with the investigation itself, i will. Good. We mentioned fisa title 7 authorities including what is well known as section 702. And they expire at 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 . 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 very difficult for the lawyers that the Justice Department. And we were focusing a lot of our resources at that time on folks who, you know, nine u. S. Persons outside the u. S. , folks without constitutional rights. And i saw in the very early days the implementation of this law. I followed it, of course, on 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 have also seen the review that the privacy and Civil Liberties board did of this authority. And i take note of the fact that they have 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 im there in time. If not, then working with you on your oversight efforts of the authority to make sure its used effectively and well. I thank you for that. Deputy attorney general rosenstein called cybersecurity attacks and threats against our nations security and infrastructure as one of the departments highest priorities. How do you foresee furthering the departments cybersecurity efforts from within the National Security division . So i think the cybersecurity is the area that has changed the most since i was there last, about nine years ago. Now it seems to permeate all of the work of the division, whether its on the counterterrorism side or on the counterespionage side. So whether were talking about folks who are being radicalized or radicalizing themselves on the internet, or talking about nation states and the actions they have tried to take, if cybersecurity is there, i note in the prior administration, they developed a separate unit in the division to focus more squarely on cybersecurity. I support that. Im going to be looking closely at that to be sure that its resourced correctly and that the correct focus is on cybersecurity 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. As youre obviously aware one of the most important investigations this committee is involved in at this point is the Russian Investigation into activities in 2016. I just want to get you on the record. Do you promise to fully and completely cooperate with this committees 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 . 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. I would have to talk to other folks at the department about it, but i do support the constraints of the rules. We need that cooperation. Youll have it. We had it from many or some entities. We still have a ways to go. I also just want to, again, i think you have 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 a. G. s role in insuring that the Intelligence Community will continue to provide unvarnished assessments to congress, to the attorney general, and to the president regardless of politics . 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. It is 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. The chairman has always 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 americans, known americans privacies. Some of my colleagues didnt fully agree it went far enough, but i do think its important and id like to hear your comments about the oversight responsibilities of the assistant a. G. For National Security to insure that there is that full and robust oversight of the fisa legislation, including 702, and what youre going to do to make sure that representations made by the United States government to the fisa court are always accurate. So i have not read the bill that came out of committee, but i do support obviously the oversight within the bill. 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 its 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 followed accurately, and in this case, that the targeting procedures are 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, you know, 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. We added some additional requirements. While not perfect, i think go a long way should a nonamerican be in any way queried to make sure that there is almost 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 that again, as your comments indicated, while theres been no indication of abuse, there there are americans inadvertently swement up in the 702 foreign contact to contact information, we have to go the extra mile, and i would hope you would do a thorough review of what at least this committee has passed out and would look forward to getting your comments on whether you think we have struck that right balance. Thank you, mr. Chairman. Thank you. 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 youre 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 foreign 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 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. Persons identifier . Thank you, senator. I think here were talking about the querying of lawfully acquired information in the governments possession, information which the government acquired by targeting nonu. S. Persons outside the u. S. And as you say, you know, 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 thats consistent, i think, with the general Fourth Amendment principle 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, id, you know, its been a little while. I would 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 the database, a fisa order is a fair bit of work, one, to put together because you have to have probable cause. Its not just about the amount of work. Its also of course about what stage of an investigation youre willing to do this. And whether you have enough information to do probable cause. Its not just, well, it will take x number of hours, but its 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 also limit the amount of querying youre able to do. Thank you. This years intelligence authorization bill includes the provision that i drafted with senator manchin and senator lankford 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 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 the deterrent to wouldbe leakers of classified information . Thank you, senator. Yes, i will certainly follow the law if its enacted. And as i mentioned to senator warner, just be careful that were obviously not interfering with the investigation itself, but beyond that, yes, to share that 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 i have since voted in support of his nomination to be assistant attorney general for the National Security division. And im very pleased, sir, that you have Prior Experience in that division. I think youre well qualified to lead the 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 ninth circuit case in mohammed, 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 move 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. Yes, thats true, senator. And certainly, this question is open for legal discussion and debate. Theres 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 governments possession does not require a court order. Now, perhaps that principle isnt applicable here for some reason. I would have to give some more thought to it, but at least as a starting point, that is, as i understand it, the general principle. I would like to ask that when youre in the job, you 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. Okay. Let me go to one of my written questions. Question number seven. Recent media reports describe two american citizens apprehended by syria, by Syrian Defense forces. The article stated theyre being held as enemy combatants and may be transferred to iraqi custody. That question has come up in the public press recently. Your heres 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, im not familiar with the facts regarding these individuals or their detention. Im 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 . I dont know that my view is any different, senator. I dont 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, you know, what are you going to do in the long run with these folks . And especially with an american. And you know, there, you really would need to know all of the facts and circumstances to make that determination. I would say when it comes to americans, my leaning, and this is not a definite rule, but leaning is, you know, that we should, if we can, bring them here and try them. Im going to make 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 like you 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. Right. So i would appreciate your advice on that question. Sure. Thank you very much. Thanks, mr. Chairman. Thank you, mr. Chairman. I want to be able to press on a little bit of what the chairman brought up earlier about leaks. Leaks not only to the press but leaks out to other entities or individuals who may at some point talk to others. One of the challenges has been prosecution of those individuals. Its one thing to identify the leak and its one thing to identify the universe of where it came from. Its 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, theres a leak, to we have identified the individual and actually are actually prosecuting those individuals . Thank you, senator. Yeah, look. These investigations are difficult to do, just defining the fact 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 the prosecutions because the prosecution itself can risk having to use classified information or classified information or information that would be raised. So these are i dont have the answers to your question coming in from the outside. But i do acknowledge the importance of the issue and you know, this is something ill 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 the cases. Right, so what im trying to pursue is how will it be different . What would you do different than what is 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 to 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, once we put you on the inside to help resolve some of those. Talk to me about your coord nashz with the office of the director of international intelligence. How do you foresee that with your office and their office . 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 counsels office who were 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 the 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, 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 were talking about legislative or policy issues or whether were talking about political 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. Do you anticipate any changes from what we currently have status quo in relationship to that office and odni . Things you look at now and say i plan to change this or this . I dont know that i know enough to answer that question. Okay. Fair enough. Thank you, mr. Chairman. Thank you very much. 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 is 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 the searches. And i will tell you, im very troubled by the answer you gave my colleague, senator feinstein and senator collins, on this point. Im not going to go into it any further, but your position is at odds with, for example, mike morel, former cia director, who just said point blank 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 were going to debate this more, but i will tell you, i find it very troubling that youre now in disagreement with certainly what i heard senator feinstein and senator 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 wray, and 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 Americans Communications based on what somebody thinks could be suspicious behavior. Now, i personally think there are legal arguments for why you shouldnt be able to do it, but again, 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 american is talking to. So were going to know about bridge guy and how basically knowing who theyre talking to. Theres an emergency provision, so theres no delay, and as you and i talked about, i put that into every single proposal i have ever had. There be an emergency exception. So the question here, we talked about in the office, why should the government be reading the content of Americans Communications based on the smallest little sliver of suspicion when its got the authority to obtain noncontent information first . Very significant authority. 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 just expressed it, which is that we go from a noncriminal but suspicious act to reading the content of some aspect of this persons communications. Look, i want to stop you right there because thats encouraging. So you think thats a valid concern to be just kind of making that leap to reading content. I do understand the concern, 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 have been talking about today, so then you know, then it becomes a question, okay, so then were putting a warrant requirement in to search information thats lawfully collected by targeting nonu. 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, you know, we have been chastised for not connecting the dots in the past. I think thats the worry of the fbi here, but you should let them speak for themselves on that. And then, and of course, if youre ever interested in the american end, really to surveil the american, you would have to get a fisa warrant. I guess i just say that on balance, at least from where im coming from here right now, i dont think you should need a warrant to look at those communications that are already in the governments possession. Well, if the government wants to read the content of communications, they can also just use the query. So were going to continue to put in these emergency provisions. I think theres plenty of authority under 215, to you credit, you have acknowledged that this is a valid concern. Im going to want to explore that with you. Ill 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 thats very troubling as well. Thank you, mr. Chairman. Senator hatch. Thank you, mr. 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 limited 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 they would not seek to imprison members of the news media for doing their job. I want to ask you, mr. Demers, do you believe that journalists should be jailed for seeking the truth . 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 thereat are raised by taking an action like that. I think, you know, 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 you know, 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, you know, just 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 specter of jailing journalists has people highly concerned . Yeah, i can understand why you would be concerned. It would be a question of how you apply it then if you changed it. 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 tool shood be used, quote, only as aali last resort end quote. Do you agree with that statement . I would say they are extraordinary, and they would be a last resort or close to a last resort. 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. I understand your support of the statu statute. In particular, section 702. Osseo osseo obviously, section 702 collection has grown since its passage in 2008, and we still dont have dpata to show how many Americans Communications are being incidentally swept up in that collection. Do you believe theres a potential point at which incidental collection of americans becomes so preponderous, so significant that there might be either a policy or a constitutional issue associated with the current query standard . Well, i think in the abstract, certainly, if the incidental collection was getting so significant that you would actually think theres been reverse targeting taking place, that would be a serious concern. When Congress Passed the fisa amendment back in 2008, do you believe that it was the intent of congress to use that to be intentionally searching Americans Communications using that 702 section . Well, i think or is that afterthought . I think the intent of congress there is just expressed in the language which requires you to use the authority against nonu. S. Persons outside of the u. S. And not to engage in reverse targeting. 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 cant simply count times fbi agents searched the section 702 holdings for communications of americans. And they referenced that stovepipe issue and say they would have to basically rebuild the stovepipe to know that data. I am 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 its 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 . I cant say im 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 on u. S. Persons queries that were being done. But i cant talk to how the Computer Systems work or any of that. Thank you, mr. Chair. Thanks, senator heinrich. Seeing no additional members here, john, its pretty easy this morning. But it should be when youre going your second time around. And matthew, that tie lasted a lot longer than i thought it would. Thank you very much to you and your family for your willingness to come back into government one more time. And its 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, 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 is adjourned. Thank you. Thursday members reauthorize the brownfield waste site cleanup program. In additional 44 billion for Disaster Relief requested by President Trump. You can watch live house coverage on cspan. And then to President Trump for his signature. Republican leaders say they hope to have it finished before christmas. Tonight the newest member of the federal Communications Commission joins us to discuss net neutrality, the Justice Departments effort to sue at t over its plan to buy time warner. He is interviewed by Technology Reporter john hendel. Do you have faith in the independence and how you see that overall given it is pretty big situation to be unfolding . My general view is has a pretty limited role to play in mergers which is to say when a transaction comes before us we take a look and we say is there a transaction specific harm . If there is we try to find a remedy for that harm. If that addresses the harm we identified then we can move forward with the Public Interest determination. That is not the approach that i think the fcc should take. Watch tonight at 8 00 eastern on cspan 2 m. Nchlts with a busy week ahead we will have live coverage of two significant hearings. First Senate Banking committee considered Jerome Powell to be next chair of the federal reserve. And wednesday the focus on alex azar, the pick to replace tom price. The Senate Health committee will consider his nomination at 9 30 a. M. Eastern on cspan 3. Live coverage tuesday and wednesday on cspan and cspan 3, online or listen live with the free radio app. The house Judiciary Committee held a hearing examining free speech rights on college campuses. Witnesses include former Bush Administration solicitor general. And jewish studies professors and Advocacy Group leaders. The committee debated potential impact of proposed legislation on free speech rights. The Senate Passed legislation in december last year. This runs just under three hours. Good morning. Woud objection we welcome to this mornings hearing on examining