- NOMINATIONS OF JOE D. WHITLEY AND PENROSE C. ALBRIGHT

[Senate Hearing 108-235]
[From the U.S. Government Publishing Office]

S. Hrg. 108-235

NOMINATIONS OF JOE D. WHITLEY AND PENROSE C. ALBRIGHT

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

HEARING

before the

COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON THE

NOMINATIONS OF JOE D. WHITLEY, TO BE GENERAL COUNSEL, DEPARTMENT OF
HOMELAND SECURITY; AND PENROSE C. ALBRIGHT, TO BE ASSISTANT SECRETARY
OF HOMELAND SECURITY FOR PLANS, PROGRAMS, AND BUDGET IN THE SCIENCE AND
TECHNOLOGY DIRETORATE, DEPARTMENT OF HOMELAND SECURITY

__________

JULY 29, 2003

__________

Printed for the use of the Committee on Governmental Affairs

U.S. GOVERNMENT PRINTING OFFICE

89-036 WASHINGTON : 2004
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800, DC area (202) 512-1800 Fax: (202) 512-2250 Mail: stop SSOP, Washington, DC 20402-0001

COMMITTEE ON GOVERNMENTAL AFFAIRS

SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Deleware
PETER G. FITZGERALD, Illinois MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama MARK PRYOR, Arkansas
Michael D. Bopp, Staff Director and Counsel
Johanna L. Hardy, Senior Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Jennifer E. Hamilton, Minority Research Assistant
Amy B. Newhouse, Chief Clerk

C O N T E N T S

------
Opening statements:
Page
Senator Collins.............................................. 1
Senator Lautenberg........................................... 2
Senator Bennett.............................................. 6
Prepared statement:
Senator Akaka................................................ 23

WITNESSES
Tuesday, July 29, 2003

Hon. Zell Miller, a U.S. Senator from the State of Georgia....... 4
Hon. Saxby Chambliss, a U.S. Senator from the State of Georgia... 5
Joe D. Whitley, to be General Counsel, Department of Homeland
Security....................................................... 8
Penrose C. Albright, to be Assistant Secretary of Homeland
Security for Plans, Programs, and Budget in the Science and
Technology Directorate, Department of Homeland Security........ 10

Alphabetical List of Witnesses

Albright, Penrose C.:
Testimony.................................................... 10
Biographical and professional information requested of
nominees with attachments.................................. 79
Pre-hearing questionnaire and responses for the Record....... 97
Chambliss, Hon. Saxby:
Testimony.................................................... 5
Miller, Hon. Zell:
Testimony.................................................... 4
Prepared statement........................................... 24
Whitley, Joe D.:
Testimony.................................................... 8
Biographical and professional information requested of
nominees................................................... 25
Pre-hearing questionnaire and responses for the Record....... 39

Appendix

Post-Hearing Questions for Mr. Whitley from:
Senator Lautenberg........................................... 127
Senator Akaka................................................ 129
Senator Bennett.............................................. 131
Post-Hearing Questions for Mr. Albright from:
Senator Collins.............................................. 132
Senator Lieberman............................................ 137
Senator Lautenberg........................................... 138
Senator Coleman.............................................. 139
Senator Akaka................................................ 140
Senator Sununu............................................... 143

NOMINATIONS OF JOE D. WHITLEY AND PENROSE C. ALBRIGHT

----------

TUESDAY, JULY 29, 2003

U.S. Senate,
Committee on Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:34 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Susan M.
Collins, Chairman of the Committee, presiding.
Present: Senators Collins, Bennett, and Lautenberg.

OPENING STATEMENT OF CHAIRMAN COLLINS

Chairman Collins. The Committee will come to order.
Today, the Committee on Governmental Affairs is holding a
hearing to consider two nominations for the Department of
Homeland Security: Joe Whitley, to be the General Counsel, and
Penrose Albright, to be the Assistant Secretary of Homeland
Security for Plans, Programs, and Budget in the Science and
Technology Directorate.
Mr. Whitley, if confirmed as General Counsel, will face
many challenges. As the chief legal officer of the Department,
the General Counsel is responsible for providing legal
direction to and coordination of the various components of the
Department. The General Counsel also provides legal advice to
the Secretary and other senior officials while managing the
Office of the General Counsel.
The Department of Homeland Security is responsible for
carrying out laws as diverse as customs and emergency response.
Immigration laws, for example, are carried out by three
separate bureaus within the Department. Ensuring consistency in
their interpretation and application will be a challenge for
the new General Counsel.
I am also concerned, as are many members of the public,
about the protection of privacy and civil liberties as we
battle the terrorist threat. The General Counsel will need to
advise and provide leadership in defining the legal parameters
under which programs affecting these fundamental liberties must
operate.
Another challenge for the General Counsel will be the
Department's development of its new personnel system. The
General Counsel will help to ensure that those charged with
creating and implementing the new plan carry out their
obligations consistent with merit system principles and due
process.
There clearly are many complicated and important legal
issues related to the new Department. The General Counsel must
be someone who possesses the strong leadership skills,
exceptional legal talent, and experience to take on these
challenges successfully. Mr. Whitley is well qualified for
these far-reaching responsibilities.
Mr. Albright's position will be vital to the Science and
Technology Directorate's efforts to secure our communities. I
look forward to working closely with him as he helps to
identify research and develop products and services to prevent
and respond to any future terrorist threats.
From developing more effective radios for our first
responders to researching sensors to detect radiological
devices, innovative technologies are a focal point of our
homeland security efforts. Coordination among research and
development efforts will be key to the Department's success. In
addition to overseeing the research efforts within the
Department, Mr. Albright must work with numerous other agencies
outside of the Department. I look forward to hearing from him
how he plans on working, for example, with the National
Institutes of Health, which spends several times as much as the
Department on biodefense efforts.
We must also work to establish cooperative relationships
with the private sector and with our research universities. By
partnering with companies and the academic community, the
Department can truly maximize Federal homeland security
dollars.
I want to emphasize to the nominee the importance of
working with our small business community, which often has the
most innovative ideas and solutions to confront our homeland
security challenges. For example, in my home State of Maine,
there are a number of innovative sensor technology companies
that have developed products to help secure our ports, borders,
and food supply. We want to make sure that the Department
reaches out beyond the Beltway to tap the creative energy of
our small businesses. I look forward to hearing from Mr.
Albright on these and many other issues relating to the
responsibilities for which he has been nominated.
Again, I think we are very fortunate today to have two
highly qualified nominees appearing before the Committee.
Before turning to the two distinguished Senators who are here
to introduce the nominee, I would like to turn to Senator
Lautenberg for any opening comments that he might have.

OPENING STATEMENT OF SENATOR LAUTENBERG

Senator Lautenberg. Thank you, Madam Chairman.
I have to say it feels pretty good to be sitting this close
to the middle of the dais rather than at the end. There was a
time in my life when I used to sit here regularly. Now I sit
there regularly.
I am pleased to welcome our first two nominees, Penrose
Albright and Joe Whitley, to this confirmation hearing. I have
not had an opportunity to meet with either one, but based on
their backgrounds, these are very well-qualified people for the
posts.
Dr. Albright has been nominated to serve as Assistant
Secretary of Homeland Security for Plans, Programs, and Budget,
and he is truly a rocket scientist. And it must feel pretty
good to be the barometer of what stands for intellect and
achievement because we use the term here too frequently talking
about one another, I think. And so it is nice to meet a real
rocket scientist, I must say.
Dr. Albright holds a Ph.D. in theoretical physics, has
spent much of his career working on missile ballistics, but
also managed programs in molecular biology while at DARPA. This
experience will come in handy. And your position, the position
you are about to assume, falls under the Science and Technology
Directorate at the Department of Homeland Security and will be
one of your many responsibilities. Also, you will be asked to
be on the leadership group that tries to develop vaccines,
antidotes, diagnostics, and therapies against biological and
chemical weapons.
And Mr. Whitley has been nominated for a very important
post, DHS General Counsel, and, of course, as such, you are
going to be Secretary Ridge's chief legal adviser and oversee
the work of some 1,500 DHS lawyers. Now, that is really a job.
I am sure you will do well, Mr. Whitley. You have got a lot of
experience. You have had extensive public and private sector
experience and served as Acting Associate Attorney General
under the former President Bush. Your activities are worthy of
the American Bar Association. That affiliation apparently
hasn't damaged your reputation with the current administration.
Seriously, these are important positions that we are
filling. Bringing many disparate agencies under one roof at DHS
has not been an easy task. It is very complicated. And the
changes that are under way are, in fact, revolutionary in
character in many ways, to take people from so many departments
and bring them together under one management.
So I want to know what progress has been made on that
front, and I also want to know about DHS policies regarding
labor rights of its personnel, civil liberties, and gun
control. In all candor, I have to say that the DHS color-coded
homeland security advisory system is kind of a mystery. Today
we hear in the public media that there is an increased risk of
attack on Americans by terrorists. And I noted that at the same
time they decided not to change the color of the advisory. And,
frankly, before, what we got was color warnings without even as
near a direction as an attack on American soil. That is not
very specific, but it is a lot more than simply saying we are
going to go from yellow to orange or what have you. And I
assume that the parties who are involved in protecting our
citizenry have been advised on more specific things.
I had offered an amendment to the DHS appropriations bill
that the Senate passed last week asking the Department to
report back to Congress on whether the color system really is
doing any good. And I am anxious to hear the results of that.
So I look forward, Madam Chairman, to hearing from the
nominees on these and other important issues, and it is a
wonderful thing that we have two candidates who represent the
kind of achievement and responsibilities that they do.
Thank you very much.
Chairman Collins. Thank you very much, Senator. It is a
great pleasure to have you in the capacity as the Ranking
Member today.
Senator Lautenberg. Can we effect a permanent change?
Chairman Collins. Perhaps if you came to my side of the
aisle, we could work a deal on that. [Laughter.]
I am very pleased to welcome two of our distinguished
colleagues who are here today to introduce Mr. Whitley. We are
very pleased to be joined by Senator Zell Miller of Georgia and
Senator Saxby Chambliss, also of Georgia. We will start with
you, Senator Miller, to introduce the nominee.

TESTIMONY OF HON. ZELL MILLER,\1\ A U.S. SENATOR FROM THE STATE
OF GEORGIA

Senator Miller. Thank you, Madam Chairman, Senator
Lautenberg, and Senator Bennett. It is an honor to be here with
my good friend and colleague, Senator Chambliss, to appear
before you to present Joe Whitley, whom President Bush has
nominated to be the General Counsel for the Department of
Homeland Security.
---------------------------------------------------------------------------
\1\ The prepared statement of Senator Miller appears in the
Appendix on page 24.
---------------------------------------------------------------------------
Madam Chairman and Members of the Committee, this is not
just a constituent. This is not a casual acquaintance. This is
a man I know very well. I have watched his work up close for
many years. And I recommend him as highly as I possibly can to
this Committee and to the full Senate.
Joe Whitley has been to Washington before. He served as
Acting Associate Attorney General at the Department of Justice
between stints as the U.S. Attorney in two out of Georgia's
three districts, where, as I said, he did an outstanding job.
He wins plaudits from all sides as being, as someone wrote me,
competent and wise, quiet and cautious. Another one described
him as self-effacing and understated.
Madam Chairman, self-effacing and understated, Washington
needs some men like this.
This newly created position requires someone who can
provide Secretary Ridge with sound counsel. Senator Lautenberg
mentioned that this is a Department that consists of 1,500
lawyers, 180,000 employees merged from 22 different agencies.
It is going to have to have someone who can bridge together
contending factions. It is not going to be an easy job. It is
going to be difficult. But Joe Whitley, I am confident, can do
this. He is shrewd, he is tough, he is Marine tough. He is also
a consensus builder. I can tell this Committee, after watching
him for many years in some very tough situations, he has a
unique ability to bring people together, and that is what is
needed around here more than any place I have ever seen.
Madam Chairman, as we continue to transform our government
to protect our homeland, we need the hardest worker, we need
the sharpest mind as the first General Counsel and top lawyer
of this new Department. We need someone with enormous judicial
talent and someone with sharp legal skills. We need someone who
is dedicated beyond measure.
Madam Chairman and Members of the Committee, I submit to
you that I have just described Joe Whitley, and I give you my
strongest endorsement for his confirmation as General Counsel
of the Department of Homeland Security.
Chairman Collins. Thank you very much, Senator, for those
high words of praise for our nominee. Senator Chambliss.

TESTIMONY OF HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE
STATE OF GEORGIA

Senator Chambliss. Thank you, Madam Chairman, Senator
Lautenberg, and Senator Bennett. I am very pleased to be here
with my good friend and my colleague, Senator Miller, to
present to you Joe Whitley, who has been nominated as General
Counsel to the Department of Homeland Security to serve with
our friend, Secretary Tom Ridge. Joe brings extensive
experience to this important position, both from his work in
private practice as well as at the Department of Justice. Like
myself, Joe is a member of the Bulldog Nation, having graduated
from the University of Georgia with both an undergraduate
degree as well as his juris doctorate.
Joe began his career in public service with the U.S.
Department of Justice and has served that organization in
various capacities. I first met Joe Whitley when he was U.S.
Attorney for the Middle District of Georgia, having been
nominated by President Reagan for that position. That is the
particular district that I practiced law in for 26 years, so I
got to know Joe well back in those days.
He then was nominated in an unusual situation. It is not
very common to have someone serve as U.S. Attorney in two
districts, Federal districts, but Joe was nominated to be U.S.
Attorney for the Northern District by George H.W. Bush. He was
then promoted in the first Bush Administration to serve as the
Acting Associate Attorney General, which is the third-ranking
official at DOJ. Those are just the highlights of a career at
DOJ that spans five attorneys general that Joe served under.
Mr. Whitley also achieved great success in the private
sector. He became a partner with the prestigious Atlanta law
firm of Alston and Bird where his duties included chairing the
firm's government investigations and compliance group. In this
capacity, he represented and defended both individuals and
corporations in cases ranging from government investigations to
complex civil litigation matters. Outside of his employment,
Joe Whitley has been very active in the American Bar
Association. He frequently lectures at ABA programs, including
environmental crime, computer crime, and health care fraud
seminars.
Joe has chaired several continuing legal education programs
on topics ranging from white-collar to cyber crime and health
care fraud. All these activities demonstrate Joe's dedication
to improving the legal profession, and I am confident he will
work just as hard in this regard as General Counsel to the
Department of Homeland Security.
On a very personal note, as I say, I have known Joe for a
couple of decades and have had the opportunity to see Joe
operate in the courtroom and outside the courtroom. Joe Whitley
is not just one heck of a lawyer. Joe Whitley is a heck of a
man. And I am just excited as I could be about having Joe
Whitley return to public service, and particularly in this
position, this newly created position of General Counsel at the
Department of Homeland Security. He and his wife, Kathy, of
course, have been living in Atlanta, and while they are excited
about moving here, we should all be excited about having a man
of his caliber to serve in this capacity. And I am very pleased
to introduce him and recommend him to this body today. Thank
you very much.
Chairman Collins. Thank you, Senator. I am sure the nominee
is very grateful for your endorsement as well as Senator
Miller's. That sort of bipartisan support bodes well for his
confirmation.
I want to thank both Senators from Georgia for being with
us. I know you each have other engagements, so I am going to
excuse you at this point so that you can keep your commitments.
Thank you for being with us this morning.
Before turning to our nominees, I want to call on Senator
Bennett if he has any opening remarks he wishes to make.

OPENING STATEMENT OF SENATOR BENNETT

Senator Bennett. Thank you very much, Madam Chairman, and I
will take advantage of your courtesy, because I have to follow
Senator Miller immediately up to the Banking Committee, to say
to Mr. Whitley that I have a particular problem which I hope
you will address and that you will get back to me on before the
confirmation vote is taken. I will give you a quick background.
Since 1999, when I was heavily engaged in the Y2K issue, I
have had conflicting statements from the administration
officials regarding the applicability of the Defense Production
Act to critical infrastructure protection. I was interested
that Senator Saxby Chambliss referred to your background in
cyber crime, so you have an understanding of what it is I am
talking about.
During the Y2K activities, the administration, admittedly
then the Clinton Administration, said as a matter of law the
Defense Production Act may not be used to protect and restore
computer systems affected by Y2K. Now, on June 5 of this year
in a Banking Committee hearing, the administration, admittedly
now the Bush Administration, testified that the Defense
Production Act may be used for critical infrastructure
protection, particularly in the time of attack.
I have tried to find out the reason for these contradictory
positions because they are not ideological. It is not a liberal
position that the Clinton people would take or a conservative
position that the Bush people would take. And I have been told
it boils down basically to how the General Counsel feels. And
if the General Counsel thinks one way, then the lawyers say,
OK, that is the way it is going to be. And if he says, no, I am
the other way--so you can understand why I am raising this
issue while you are here in your confirmation process.
I am concerned because if we do indeed have an incident of
some kind of cyber attack against this country that shuts down
our critical infrastructure, I don't want an internal debate
within the Department of Homeland Security of saying, well, can
we use the Defense Production Act or can't we? Does it apply or
doesn't it? I think the decision ought to be made now when
there is no crisis pressing on us so that appropriate plans can
then go forward from that decision as to how we respond or how
we deal with it.
Now, I have asked this administration in writing for a
response, and I have not received a response in writing. I have
asked the question in open hearing, as I say, and
administration official said yes, absolutely, Senator, the
Defense Production Act does apply.
So my concern is if you could take the time, I would
appreciate it if you would respond in writing so that we have
more than just the record of a witness in a hearing as to
whether or not you would support including specific language in
the Defense Production Act reauthorization that makes it clear
that DPA can be used for critical infrastructure protection and
restoration.
The reason there is a time limit on this, Madam Chairman,
is that DPA expires on September 30, 2003. And I would like to
get this resolved and get the understanding firmly nailed down
before that time. So it is felicitous that we have Mr. Whitley
before this Committee. His confirmation will take place in this
time frame, and I will follow up with something in writing if
you would like, but that is my main issue here this morning.
Other than that, I accept at full face value all of the
wonderful things that Senators Miller and Chambliss have said
about you. I don't know what being part of the Bulldog Nation
means. I don't think that is an Indian tribe, but from where I
come from in Utah, sometimes reference to one kind of a Nation
or another does imply connection with a Native American group.
And you perhaps could explain that to us if it is important.
But I do appreciate, Madam Chairman, your allowing me to do
this now, and I do have to run off to the Banking Committee.
Mr. Whitley, I congratulate you on your willingness to accept
an appointment in public service. I know you don't make nearly
as much money in this as you do elsewhere. I am sorry to put
this right on your lap first thing, but we do have the deadline
that is in the law, and we have to deal with it.
Mr. Albright, you get a free ride. Thank you. [Laughter.]
Chairman Collins. Thank you, Senator Bennett.
Mr. Whitley's background has already been highlighted by
the two introductions that he received. I want to provide a
little more of an introduction for Mr. Albright, who has an
equally impressive career in science. As Senator Lautenberg
pointed out, he does have a Ph.D. in physics. He currently
serves as senior adviser to the Under Secretary for Science and
Technology at the Department of Homeland Security. Prior to
that, he served as Assistant Director of Homeland and National
Security in the Office of Science and Technology Policy. During
that time, he also served as Senior Director for Research and
Development in the Office of Homeland Security. He has served
as a program manager at the Defense Advanced Research Projects
Agency, known as DARPA, and several other positions as well.
Both nominees have filed responses to a biographical and
financial questionnaire, answered pre-hearing questions
submitted by the Committee, and had their financial statements
reviewed by the Office of Government Ethics. Without objection,
this information will be made part of the hearing record with
the exception of the financial data, which are on file and
available for public inspection in the Committee offices.
Our Committee rules require that all witnesses at
nomination hearings give their testimony under oath, so I would
ask the two nominees to please stand and raise your right hand.
Do you swear that the testimony you are about to give to the
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Mr. Whitley. I do.
Mr. Albright. I do.
Chairman Collins. You may be seated.
Mr. Whitley, we are going to start with you this morning. I
would first invite you to introduce any family members that you
may have present with you and then proceed with your statement.
Mr. Whitley. Thank you, Madam Chairman. Behind me is my
wife, Kathy, my daughter, Lauren, and my son, Thomas. And I am
very glad to have them here with me this morning. Thank you
very much.
Chairman Collins. We welcome them as well.
Mr. Albright, I am going to give you the opportunity to
introduce your family members now also, and then we will come
back to Mr. Whitley for his statement.
Mr. Albright. Thank you, Madam Chairman. Behind me is my
wife, Jamie; my daughter, Courtney; my son, Chris; my daughter,
Meredith; and my father and mother are in the row behind me.
Chairman Collins. How nice, and we welcome them as well.
And we hope we didn't embarrass Courtney too much by being
introduced, but we really are happy to have your whole family
with you today.
Mr. Whitley, you may proceed with your statement.

TESTIMONY OF JOE D. WHITLEY, TO BE GENERAL COUNSEL, DEPARTMENT
OF HOMELAND SECURITY

Mr. Whitley. Thank you, Chairman Collins, Senator
Lautenberg, and Senator Bennett, and distinguished Members of
the Committee who are not here with us today. I am honored to
appear before you. I am very grateful to President Bush for
nominating me to serve as the first General Counsel of the
Department of Homeland Security.
Some years ago, after having served five different
Attorneys General from both political parties, I left public
life. I believed then I would not return to government service.
However, the events of September 11, 2001, and a few
conversations with a number of people whose views I respect,
among them Secretary Ridge, convinced me that I should accept
the challenge of building the Office of General Counsel at DHS.
If I am confirmed by the Senate, I look forward to working
with this Committee and other Members of the Senate and House
of Representatives in making the DHS Office of General Counsel
an effective and responsive legal arm of the Department for the
benefit of the American people.
Over the last several weeks, I have had the opportunity to
meet with some of you and hear your thoughts about the future
of this critical Department. I fully understand and respect the
importance of the role reserved to Congress to oversee the
evolution of DHS. I look forward to working with all of the
Members of this Committee to establish a relationship that will
better enable the Department to fulfill its role as the
protector of the American people.
Also, I have had the pleasure of meeting with some of your
staff, and I wish to commend them for the dedication, the
knowledge, and the skill they have demonstrated during this
process.
Congress took a bold and historic step to establish the
Department of Homeland Security. As a consequence, for the
first time in the history of this country we have a Federal
Department whose primary mission is to protect the American
people against terrorist attacks on American soil. Now just 6
months into the life of this new Department, we are at the
beginning of the largest and most significant transformation of
government in over half a century, merging 22 separate work
cultures, operating procedures, management structures into one
cohesive organization.
While much has been accomplished, considerable work
remains, much of it dealing with implementing the Homeland
Security Act and related legislation. If confirmed, I will
commit myself to developing the legal infrastructure needed to
make America more secure, to prevent the entry of terrorists
and instruments of terrorism into the United States, while at
the same time protecting the rights and liberties of U.S.
citizens and lawful visitors to the United States.
Almost every action taken by DHS employees has a legal
impact. As President Bush has stated, we have a huge
responsibility, and that is to protect and defend America while
protecting our great liberties. The President and Secretary
Ridge have given the Department a clear mission. In addition to
protecting America's assets, DHS must also protect America, our
way of life, our constitutional framework, and basic civil
liberties that we revere, including our freedom of speech and
our right to dissent.
The General Counsel, as the chief legal adviser to the
Secretary, will and must play a significant role in ensuring
that the Department protects and enhances our civil rights and
civil liberties, while at the same time preventing future
terrorist incidents. To that end, together with the
Department's Office for Civil Rights and Civil Liberties and
the Privacy Office, I will carefully review any data-mining,
intelligence gathering, or programs to enhance information
collecting or sharing by DHS and balance our mission needs with
the privacy rights and civil liberties guaranteed to the
American people under our Constitution.
During my earlier service in Washington, I had the pleasure
of being the Justice Department's representative on the
Terrorism Working Group that met weekly to plan how better to
predict domestic terrorist activity. I came to appreciate the
men and women who daily devoted their lives to this effort. But
I also came to appreciate the need for better coordination and
communication among all of those involved in our efforts to
prevent future terrorist incidents.
If confirmed, I will work to foster better coordination and
communication within the DHS Office of General Counsel and our
client offices. I expect to structure the office along the
lines of the DHS management structure. Each of the five
directorates headed by an Under Secretary will be served by an
Assistant General Counsel within the Office of General Counsel.
Counsel within other DHS components will also report to the
Office of General Counsel. We will create a culture in which
every attorney is thinking about how his or her job fits into
the larger responsibility of protecting America.
To be successful, we will need to implement management
systems that facilitate coordination, collaboration, and team
work. I hope to encourage in all DHS lawyers a strong sense of
pride about working together in the public interest.
Before I close my preliminary remarks here today, I should
say, like many Americans, I stand on the shoulders of prior
generations of family, friends, and business associates, some
of whom are here today as my guests and many of whom could not
be here. To them, let me say a few words of thanks and praise
and appreciation.
I am most grateful that Senators Miller and Chambliss of
Georgia would take time away from their busy schedules to
introduce me here today.
To my extended family and my mother, Mary Jo Whitley, who
made all of this possible for me, I hope to make you proud, as
we say in Georgia.
In life, it is good to have a partner who is smarter and
more gifted than you are to make you better than you might
otherwise be, and my wife, Kathy, has been that person for me
in my life.
Finally, I would like to thank our two children, Lauren and
Tom, for their support and love they have given us both.
With that, Madam Chairman, I thank you for allowing me to
make this opening statement. If the Senate confirms me, I look
forward to serving the President, the Members of this
Committee, and the American people to the best of my ability. I
look forward to the opportunity to answer your questions here
today as well as those of your colleague, Senator Lautenberg.
Thank you very much.
Chairman Collins. Thank you. Mr. Albright.

TESTIMONY OF PENROSE C. ALBRIGHT, TO BE ASSISTANT SECRETARY OF
HOMELAND SECURITY FOR PLANS, PROGRAMS, AND BUDGET IN THE
SCIENCE AND TECHNOLOGY DIRETORATE, DEPARTMENT OF HOMELAND
SECURITY

Mr. Albright. Thank you, Chairman Collins, Senator
Lautenberg, and distinguished Members of the Committee who
could not be present this morning. It is an honor to appear
before you today regarding my nomination as Assistant Secretary
for Plans, Programs, and Budget in the Science and Technology
Directorate of the Department of Homeland Security. I am most
honored to have been nominated for this position by the
President and thank him and Secretary Ridge for their
confidence and support.
The President has stated on a number of occasions that our
Nation's advantage in science and technology is a key to
securing the homeland against the threat of terrorism. Just as
science and technology have been crucial to our ability to
defeat past and present enemies overseas, so, too, will it work
to defeat those who would attack our homeland and disrupt our
way of life.
Our Nation is blessed with a vast scientific and
technological enterprise. There are companies, universities,
institutes, and government labs of all sizes that conduct
research and development over a very broad range. That
enterprise must be harnessed in support of homeland security.
To do this, the President and Congress established the new
Department of Homeland Security and created within it the
Science and Technology Directorate. It serves as the Federal
lead for homeland security research and development and works
with private and public entities to assure a research and
development effort of sufficient size and scope to counter the
threat of modern terrorism. Creating and guiding this effort is
a major undertaking, and if confirmed, I will be pleased and
honored to be supporting Dr. Chuck McQueary, the Under
Secretary of Science and Technology, in this endeavor.
A key role of the Assistant Secretary for Plans, Programs,
and Budget in the Science and Technology Directorate is to be
responsible for the Directorate's planning, programming,
budgeting, and execution oversight processes. The Assistant
Secretary also develops and executes the Directorate's policies
associated with setting and promulgating standards for homeland
security equipment and technologies in coordination with other
entities of the Department.
Additionally, the Assistant Secretary develops for the
Under Secretary policy options associated with the external
research and development community, with State, local, and
Federal agencies, and with the international community, and
acts as the principal deputy to the Under Secretary for Science
and Technology.
My education and background provide me a strong base for
leading these activities should I be confirmed. In my role as
Assistant Director for Homeland and National Security in the
White House Office of Science and Technology Policy, and as
Senior Director for Research and Development in the Office of
Homeland Security, I advised the administration on science and
technology issues surrounding homeland security and on
organizing the Nation's research and development community on
homeland security issues. I also led the transition planning
activities for the Science and Technology Directorate prior to
the formation of the Department.
Given that experience and my background in analyzing and
developing technology options for the national security
community, I understand both the magnitude and scope of effort
required for this position.
Dr. McQueary has stated on many occasions the importance of
developing and deploying to the field as rapidly as possible
new capabilities for enhancing our security. Thus, if
confirmed, I will base the planning process for the Directorate
on a so-called spiral development paradigm. This means that we
rapidly field available technology where it is cost-effective
to do so, provide upgrades using near-term technologies
available from the labs and private sector, and yet at the same
time assure a long-range research and development effort aimed
at meeting the full set of requirements.
These requirements must be developed in close coordination
with the user community, the other Directorates within the
Department, and the State and local public safety communities.
Dr. McQueary has pointed out that these front-line operators
are the customers for the Science and Technology Directorate,
and if confirmed, I will assure that our plans are the result
of a close and continuous working relationship with these
entities. As our customers, they will define the problems we
need to address and the parameters for defining success.
Much of the research, development, test, and evaluation
activities relevant to homeland security occur in other Federal
agencies, such as the National Institutes for Science and
Technology, the Department of Health and Human Services, and
the Department of Defense. The Science and Technology
Directorate must coordinate with these activities to define a
national strategy for homeland security research and
development. If confirmed, I will work closely with my peers in
these agencies and with the White House to develop a national
plan and strategy to develop countermeasures for chemical,
biological, radiological, nuclear, cyber, and other emerging
threats.
Should the Senate confirm my appointment, I would welcome
the opportunity to work with the Congress and this Committee to
accomplish the important mission of homeland security before
us.
Thank you for your consideration of my nomination and for
the honor of appearing before you today. I am happy to answer
any questions you may have.
Chairman Collins. Thank you very much, Mr. Albright.
There are three standard questions that are asked of all
nominees that I will proceed to at this time. Is there anything
you are aware of in your background which might present a
conflict of interest with the duties of the office to which you
have been nominated? Mr. Whitley.
Mr. Whitley. No, ma'am.
Chairman Collins. Mr. Albright.
Mr. Albright. No.
Chairman Collins. Second, do you know of anything personal
or otherwise that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated? Mr. Whitley.
Mr. Whitley. No, I do not.
Chairman Collins. Mr. Albright.
Mr. Albright. No.
Chairman Collins. And, finally, do you agree without
reservation to respond to any reasonable summons to appear and
testify before any duly constituted committee of Congress if
you are confirmed?
Mr. Whitley. Yes.
Mr. Albright. Yes.
Chairman Collins. You passed that round very well.
[Laughter.]
We are now going to proceed to 10-minute rounds of
questions for both nominees.
Mr. Albright, if you are confirmed, you are likely to be
involved in the development of technology used to foster
information sharing. You may also be involved in the
development of data-mining technologies, which have been very
controversial.
From your experience in DARPA, you are probably familiar
with the controversy surrounding the Total Information
Awareness program. What steps will you take in your new
position to ensure that information-sharing programs and
technologies developed by the Department of Homeland Security
do not raise the same kinds of privacy concerns as the Total
Information Awareness program at DARPA?
Mr. Albright. The Homeland Security Act provided the
Department a privacy officer who among her duties includes
assuring that the activities that we undertake within the
research and development piece of the Department, in fact, are
consistent with both law and tradition in this country in terms
of protecting privacy.
As we go about developing or looking into those kinds of
programs--and as you point out, we will be involved in that
kind of activity. After all, one of the rationales for creating
the Department was to, in fact, bring intelligence data
together and to think about connecting the dots to some degree.
So as we bring together programs that are designed to do that,
you have my assurance that the privacy officer will be involved
right from the very beginning in these kinds of activities and
will be consulted and will guide the activities that we
conduct.
Chairman Collins. Mr. Whitley, do you believe that the
Privacy Act of 1974 is sufficiently up-to-date to address the
effect on personal privacy of new technologies such as data
mining?
Mr. Whitley. Senator, we will evaluate the application of
the Privacy Act to those activities once I am confirmed, if I
am confirmed, as General Counsel of this Department, and report
to you if there are any modifications that we think may need to
be enacted to protect Americans in their privacy rights.
Chairman Collins. Section 222 of the Homeland Security Act,
which Mr. Albright actually just referred to, directs the
Department's privacy officer to ensure that the use of
technologies sustain and do not erode privacy protections. Do
you believe that this language provides for any additional
protection for personal privacy beyond that already covered by
the Privacy Act?
Mr. Whitley. I believe it gives us an opportunity, Senator,
to set a standard that may be higher than what is required by
the Privacy Act. I look forward to working with our privacy
officer, Nuala O'Connor Kelly, in the Department, supporting
her efforts to evaluate her undertaking in this effort to make
sure privacy rights are protected.
I do believe that we will be seeking to create a higher
standard, if you will, an appearance and a reality of privacy
for Americans in things that need to remain private.
Chairman Collins. This is an issue of considerable concern
to Congress and to the public. I want to follow up, Mr.
Whitley, with you with a specific program that the Department
is in the process of developing, and that is the Computer-
Assisted Passenger Pre-screening System, which is know as the
CAPPS-II program. As I understand it, this program will match
airline passengers' names against commercial and intelligence
databases to assess how great a risk they pose and determine
whether or not they should receive additional screening before
they board their flight.
Now, on the one hand, if this is successfully implemented,
it should dramatically reduce the number of airline passengers
who receive heightened scrutiny at airports. One of my Senate
colleagues and I were traveling together recently, and both of
us were selected for the special screening at the gate, and
perhaps a program like this might allow us to have a more
focused approach. On the other hand, if the program is not
properly implemented, it could result in an unwarranted
intrusion into the privacy of law-abiding citizens.
What are you going to do to ensure that we strike the right
balance? And a related issue on this is the CAPPS-II program is
going to rely in part on commercial databases, which may or may
not have accurate information. I think any of us who have dealt
with constituents' problems with credit reports or identity
theft understand that information is not always accurate. How
are you going to strike that right balance and ensure the
accuracy of databases on which the Department will rely?
Mr. Whitley. Senator, let me respond to that and share with
you some thoughts I have on this. I look forward to working
with this Committee and also with our privacy officer as I go
forward, if I am confirmed, in making sure that this CAPPS-II
program that you are talking about works in an effective way so
that people who are law-abiding citizens who don't have any
concerns are boarded promptly on airplanes so that we can
promote the commerce that air transportation brings to our
country, both for visitors to this country from out of the
country and visitors around this country. We simply can't
impede that sort of traffic, so the goal, if you will, of the
legal support that I will be providing to the privacy officer
will be with that in mind.
But, specifically, let me say this about my understanding
about the CAPPS-II program and what will be done with it, which
will be very careful implementation of the new procedures,
testing them to make sure that there aren't any situations
where people are detained who should not be detained or who are
not on flights that they should be on, so the goal will be to
make sure that we create a program that is as flawless as
possible. There definitely will be flaws in any program that
has any human involvement in it, but we need to minimize those
situations where people are not boarded on an airplane for
reasons that are no fault of their own. And we need to make
sure that with these programs we are going to be pulling
information from the private sector that the information is
looked at in a redundant manner so that we are sure that the
information is accurate about the identification of the
individual who is getting on that airplane.
We have to balance those privacy rights--and we will do our
best to do that--against the rights of the other individuals on
these airplanes who are expecting a higher degree of safety
when they board airplanes. So we will deal with that balancing
act, and we will work with this Congress and with your
Committee in making sure this program is effective.
Chairman Collins. In light of media reports today
indicating there are some indications of new plans by Al-Qaeda
members to attack airlines, this is going to be particularly
important that we get this right, both to ensure that we are
making our airports and airlines as secure as possible, but
also making sure that we are doing so in a fair way and not
infringing on the right to travel and the privacy rights of
law-abiding citizens.
Mr. Whitley. I agree.
Chairman Collins. Mr. Albright, this Committee has had
extensive hearings on the needs of first responders, those who
are on the front lines in the war against terrorism. Your
answers to your written questions suggest that, if confirmed,
you will focus on homeland security equipment for first
responders. How will you work with the different agencies that
are involved to make sure that equipment purchased with Federal
funds meets certain standards? For example, we have heard at
our previous hearings that there are five different agencies
providing funding for interoperable communication systems
equipment. Well, if you have five different agencies with
different technical standards, that only contributes to the
problem of incompatibility.
What will you do to make sure that these grant programs are
better coordinated to help ensure that there are set standards
to promote interoperability?
Mr. Albright. The Science and Technology Directorate has
recently taken on responsibility for management of an OMB e-gov
initiative called Project Safe Com, which is one of the top
Presidential management priorities. And Project Safe Com's
rationale, what it is there to do, is, in fact, to set
standards for interoperable communications between Federal,
State, and local entities. And I am pleased to say that Project
Safe Com has recently had its governance structure and its
guidance to Federal grant-giving agencies, the main ones being
the Office for Domestic Preparedness, the COPS Program, and
former FEMA, now Emergency Preparedness and Response
Directorate within the Department, they have accepted our grant
guidance created under Project Safe Com and working through the
Coalition for Improved Public Safety Communications, which
includes all the major first-responder key associations, they
have approved that governance structure. They have approved
that grant guidance, and that is now being included as we start
to issue new grants to make grant money available to the State
and local communities.
Chairman Collins. Thank you. My time has expired. Senator
Lautenberg.
Senator Lautenberg. Thank you very much, Madam Chairman.
That is an anomaly I can't get used to, ``Madam Chairman,'' but
I think we have to define ``chairman'' as kind of a non-gender
word and let it go at that.
Mr. Whitley, I had to smile a couple times at things that
you said. One of them was that you never expected to return to
public life. And I can tell you firsthand that when I left here
2 years ago, the furthest thing from my mind was that I would
be sitting back here, even though the company is so forthright
and as leaderly as Susan Collins, my colleague and friend. But
I never expected to be back here, and I was reminded that I was
back when I got my first paycheck. [Laughter.]
You, too, will notice that. It is nice to meet your
families. I assume they are in both cases willing to make the
big sacrifices that you are going to have to make. Don't
prepare dinner at a precise time. I caution you about that.
Dr. Albright, your position, you will be working on the
budget of the Science and Technology Directorate of DHS, and we
have just heard some discussion about first responders. And it
is, I think, going to be a lot easier to coordinate the
activities than it is to prepare the first responders for a
biological or chemical attack.
What do you do about something like that?
Mr. Albright. That is an excellent question, Senator. You
are absolutely correct. It is not enough to create standards
for homeland security equipment and to provide grant guidance
for homeland security equipment and then, in essence, to throw
that equipment over the transom, so to speak, and let them have
at it.
What one also needs to do in conjunction with these
activities is also to develop training tools and provide
environments where first responders can come and train with
these kinds of equipment. They are not likely to be frequently
engaged in training for a radiological event, for example, so
what we have to do, I think, is create Web-based tools, for
example, where first responders from their desktops can get on
and go through scenarios and allow themselves to be trained for
events that may never happen in their entire lifetimes and
hopefully won't ever happen in their lifetimes.
We have also been discussing the notion of creating sites
where we could periodically bring first responders, much like
the red flag kind of activities that the Air Force does out at
Nellis. We could bring in trainers or bring in first
responders, have them run through scenarios, and then they can
go back and train the trainers.
But your point is an excellent one, that providing
equipment without an understanding of how to use it, how to
maintain it, or how to calibrate it, is crucial.
Senator Lautenberg. It is going to be very tough to get
that knowledge all the way down to the first-responder level
because in many instances first responders in one community are
quite differently trained than first responders in others, the
large urban centers versus the more rural communities.
Mr. Whitley, the questionnaire that you submitted, when
asked how DHS could ensure that its broad authority over a
personnel system would protect the rights of Federal employees,
you promised in your comments that any new DHS employment
system would abide by both the legal provision and ``the spirit
of the safeguards.'' I wonder if you could explain what you
mean exactly by the spirit of the safeguards.
Mr. Whitley. Well, as I am learning this new Department as
a consultant, one of the things I will be careful to say,
Senator, is I don't know the answers to all the questions that
you may pose to me here today, but I look forward to being more
responsive to that question later.
But I will say this: It is my understanding that our human
resources design team, which is coordinated by Under Secretary
Janet Hale, is working on these types of issues together with
Secretary Ridge and the Office of Personnel Management to
assure that we come up with a state-of-the-art new personnel
system, if that is where we move, so that we will have
transparency and accountability, so if people are disciplined
in the workplace or they are in situations where they need to
be held accountable for their conduct, they will know what that
was and what their rights are very clearly.
And so that is what I mean when I answered that comment,
which is that the rights of individuals in this system need to
be clear to them. Accountability needs to be clear to them so
that when incidents occur, they will understand what they need
to do to protect themselves.
Senator Lautenberg. I am talking about a broader issue, Mr.
Whitley, and that is the question of whether or not DHS
employees have the right to bargain collectively.
Mr. Whitley. Some DHS employees, it is my understanding,
Senator, do currently have a collective bargaining arrangement.
As you are aware, we are a group of legacy agencies, some of
which are from former U.S. Customs, some of which are from the
Immigration and Naturalization Service. It is my understanding
that within DHS there are still some of those current--those
bargaining units.
Senator Lautenberg. Because, as the DHS concept developed,
a large point of contention was whether or not the employees to
be hired would have the right to bargain.
Mr. Whitley. Let me say this, Senator, I am aware that the
human resources design team is a collaborative effort with the
labor unions in the Department. And one of the things that I
understand has happened is that the labor unions or some of the
labor unions' leadership have expressed their satisfaction, at
least, from what I have read and heard, with the direction we
are heading in, that they are being brought into the process,
that they are being respected in the process, and that
hopefully in the end they will be all together with us on the
results we come to.
Senator Lautenberg. I would hope that is true because
something as complicated as this amalgamation of all these
departments, the numbers are staggering, 150,000 or whatever
the round number is of employees, the different skills that are
going to be merged here. Nevertheless, it doesn't remove their
right to have job standards, to have compensation, what have
you, to fit the norm of what is customarily government. This is
not a private agency, and as a consequence, people have the
right, in my view, to expect a type of treatment that respects
their needs and their interests.
I noted in some of the reading that I have done that it
seems to separate local rights for collective bargaining from a
national right to collective bargaining. And I think that
locally the right has been removed, but nationally there is
some question about whether or not they can bargain
collectively.
Mr. Whitley. Senator, I look forward to looking into this
issue.
Senator Lautenberg. Well, I look forward to working with
each of you. The assignment is enormous. I come out of the
technology business, and the best thing that happened to me is
that I wasn't the technician. I was more on the marketing side
of things, so I didn't stand in the way of success at all.
[Laughter.]
But I would ask who might, in your judgments collectively,
be responsible for the plans that affect specifically, let's
say, aviation. We have an aviation security bill that was voted
upon during my absence, and I am not being critical in any way.
But I was a committee member of the Pan Am 103 study, and I was
an author of the report at that time. And, frankly, we went
through some things--now, this goes back more than 10 years
ago--that I think would have applied just as well right now. So
I would hope that you will take a look at that to see as
counsel whether you think the present plan, which is not only
cumbersome but it may have to be in this stage of our
activities, but we want it to be effective. That is the first
thing, so no matter how cumbersome, but it is a peculiar
condition that we run into.
Yesterday, for instance, I flew down from New Jersey, and
when I got to the airport a half-hour before the flight, I was
told that the flight had been shut down, closed, for its trip
to Washington, 35 minutes of lying time. And this was a half-
hour before the scheduled departure. And they said, well, it
was closed down, not because it was oversold but because there
was a security concern now established. And I don't know
whether that meant--and I am not revealing anything here--that
there was an alert from DHS that said give us time to check the
passenger roster more carefully. But it was a frightening
prospect because we had a vote here, had everything scheduled
for it. Anyway, finally--and I promise you I didn't kick and
scream. I know better than to do that. You can do that when you
are a private citizen. You can't do that when you are public.
But I would appreciate it if you would look at that.
Madam Chairman, we have lots of questions that we would
like to have answered. I am sure I speak for you as well as
myself. So if we will keep the record open, I would ask each of
you to respond as promptly as you can and to wish you both
well. You are excellent candidates, and I appreciate the fact
that you have taken on an assignment that has significant risks
but has great opportunities for our safety and our public
being. So thank you.
Chairman Collins. Thank you, Senator.
I, too, have a number of additional questions that I am
going to submit for the record. There are a couple, however,
that I do want to ask you here.
Mr. Whitley, you mentioned in your statement the importance
of congressional oversight in helping the new Department be
effective, and it is the most massive reorganization of the
Federal Government in half of a century. Your office will play
an important role in responding to congressional requests, and
there are times when the Department or its IG may be conducting
its own investigation into an issue that is of interest to
Congress.
Legally, do you believe that there are any cases in which
it is appropriate for the Department to withhold information
from Congress because the Department or its Inspector General
is already conducting a parallel investigation?
Mr. Whitley. Senator, I am not aware of any prohibition on
information sharing with this Committee or other parts of
Congress, if requested, if there is a parallel investigation
underway.
Chairman Collins. It is important that we do have access to
information in order to carry out our oversight responsibility,
so I am pleased to hear your response.
Mr. Albright, just a couple of closing questions to you.
There are many small technical companies in both the Senator
from New Jersey's State and my State who find it very difficult
to penetrate the bureaucratic maze to do business with the
Federal Government. Yet many of these small companies--I am
thinking of some small sensor companies in Maine, for example--
have products and services that would be extremely valuable to
the new Department of Homeland Security.
What steps will you take to make sure that the new
Department makes contracting opportunities available to the
small business sector? The large companies have several experts
and contracting officers and previous relationships and the
ability to monitor contracting opportunities. But for small
firms that may have exactly the cutting-edge invention or
technology the Department needs, it is a daunting task to
figure out how to do business with the new Department.
Mr. Albright. Absolutely. It has been clear from the outset
that a great part of the research and development community
that needed to be engaged in Homeland Security was, in fact,
comprised of what we call non-traditional government
contractors. Those could be very large businesses such as
pharmaceutical firms, or they can be many smaller businesses as
well.
What we have done is several things. Congress gave us in
the Homeland Security Act under Title 3 something called a
technology clearinghouse function. And what we have done is
entered into a partnership with something called the Technical
Support Working Group, which was an entity that was formerly
comprised or led by the Departments of State and Defense, and
it was aimed at getting small businesses in particular engaged
in rapid prototyping activities and taking off-the-shelf or
nearly off-the-shelf technologies and putting them in the
hands--initially for the special operations community.
What we have done is we have engaged the Technical Support
Working Group in our endeavor as well, and they recently
released a broad agency announcement that got over 3,000
responses on a wide variety of near-term technologies that we
wanted to see for the various user communities that comprise
our customer base.
Now, the intent with TSWG is to create an environment that
is very small business friendly. So, for example, the way it
operates is when you respond to the initial solicitation, you
send in a single piece of paper that indicates what it is you
are trying to sell.
The advantage to that is it gives the government an
opportunity to perform very rapid triage on those kinds of
proposals, while at the same time sparing the expense of the
smaller companies, in particular, from engaging in a very
expensive bid and proposal kind of activity. So what we do is
we have a staged process with the TSWG where they send in a
single sheet. If that is something that is of a priority for
the government to invest in, we will then come back and ask
them for a white paper. And we don't really get to a full
proposal until fairly late in the process.
The intent also by this fall is to allow businesses to
track the status of that proposal electronically. They will get
a PIN number when they submit that proposal into the
Department. Then they will be able to sign on to a website,
enter their PIN, and they will find out precisely where they
are in the evaluation process.
Now, the other thing that happened was that you granted us
other transactions authority within the Homeland Security Act,
and that is very important for non-traditional contractors
because it allows us a freer hand in negotiating intellectual
property rights between someone who is under government
contract and the government, and it also allows those
contractors to manage their finances under generally accepted
accounting rules as opposed to very specific government
accounting rules and regulations. Many of these companies are
not interested in overturning their entire accounting system
just to deal with the Federal Government.
So we have tried to make this as small business friendly as
we possibly can. And, of course, as you know, there is also a
special assistant to Secretary Ridge for the private sector who
is engaged certainly with the small business community, has
been conducting business roundtables throughout the country,
and we expect to continue that. If confirmed, I will certainly
participate in those kinds of activities.
Chairman Collins. Thank you. I am going to follow the lead
of the Ranking Member today and submit the rest of my questions
for the record. Without objection, the record will be kept open
until 5 p.m. today for the submission of your answers to our
questions and any other statements for the record.
Senator Lautenberg. Five p.m. today?
Chairman Collins. Yes. They would like to be confirmed
before we go home.
Senator Lautenberg. Well, I think the modesty raised when
the question of confirmation comes up, as we would say, you, I
think, are rather shoo-ins.
Chairman Collins. Did you have another one that you
wanted----
Senator Lautenberg. I do, if I may.
Chairman Collins. Absolutely. Go ahead.
Senator Lautenberg. Mr. Whitley, two laws have been passed
in the last couple of years. First, the ATS, the Aviation and
Transportation Security Act of 2001, federalized the airport
screeners as part of TSA. And then the Homeland Security Act of
2002 transferred some TSA employees to the Department of
Homeland Security.
Now, there is some confusion here about the labor status of
these Federal workers. Will they be, do you think, considered
full employees of DHS or will they remain part of a separate
personnel system within DHS?
Mr. Whitley. Senator, this is an issue that you broached
with me that I have not studied or looked at, candidly. But
what I will do is I will look at that issue and try to respond
to your question.
I will be dealing with lots of labor-related issues, I am
sure, in the performance of my duties, and I will have on my
staff, if I am confirmed, people who are very capable in these
areas. And, unfortunately, I don't have a response to your
question, but I will get you a response.
Senator Lautenberg. Well, if you would take a look at that
and get back to us, I would appreciate it.
Mr. Whitley. Thank you.
Senator Lautenberg. Another question for you, Mr. Whitley.
A CRS report that I requested revealed that known terrorists on
the State Department's list can easily purchase weapons such as
M-16s or .50-caliber assault weapons in the U.S. civilian
market. After complaining about that, the Department of Justice
now cross-checks gun purchases to see if the purchaser is on
the terrorist watch list.
Do you believe that any individual whose name is on the
terrorist watch list should have the freedom to purchase
weapons legally in the United States?
Mr. Whitley. I haven't studied this issue, Senator, but as
a practical matter, no, I don't think anyone who is designated
as a potential terrorist should be purchasing firearms.
Senator Lautenberg. Do you think that DHS or other
authorities ought to be notified when a person on a terrorist
watch list attempts a gun purchase?
Mr. Whitley. Senator, any avenue where we can have better
communication about potential purchases or acquisitions of
weapons by people who are in the category that we deem to be
dangerous, we should have that kind of communication. Again, I
haven't studied this issue, Senator, but I am----
Senator Lautenberg. I will trust your good judgment and
check on it once in a while.
Mr. Whitley. I certainly will. One of the things that we
want to do is protect all Americans, and there are certain
rights that Americans have certainly to bear arms. But at the
same time, those rights have constraints on them, and this
right is something we need to evaluate in terms of these
individuals who are acquiring these types of weapons.
Senator Lautenberg. Well, if we have the liberty of
detaining suspected terrorists without charge for a period of
time, certainly we ought to say, hey, you just can't walk up
like any other law-abiding citizen in the United States and
exercise the right to buy a gun. That is kind of simple common
sense to me.
Mr. Whitley. Thank you, sir.
Senator Lautenberg. Dr. Albright, do you think that--and I
don't mean to insult the system, but the color war, I will call
it, security assessment system can be enhanced to provide
accurate, specific warnings to the general public? And what can
DHS do to instruct Federal and local agencies to respond more
effectively just do a lot of hard work there? But if you will
answer the first part of that, can we have a security alert
system that tells people enough to put them on guard without
totally terrorizing our population into questions like: Dare I
go to New York with my family for a vacation? Dare I put my
children on the school bus? Can I plan a vacation trip? I mean,
people are concerned, and I worry about the effects of scare
without fact, and yet there is an enormous responsibility of
DHS and all of us in government to tell people what they can do
to protect themselves. Is it possible to achieve both ends of
the goal, tell people what to worry about and at the same time
not frighten them into inaction or otherwise?
Mr. Albright. Well, this is an issue that I personally
haven't studied in any great depth. The Information Analysis
and Infrastructure Protection Directorate are the people who
provide the intelligence information. And I think it is
certainly or it is my understanding, at least, that it is
certainly within the intent of what Secretary Ridge and the
Department would like to do to provide perhaps more focused
alerts and to perhaps make them more regional in nature or
infrastructure-specific. I think the Secretary has testified to
that effect in the past.
One area that we are expecting to invest in within the
Science and Technology Directorate, should I be confirmed, is
in some behavioral research studies that actually get at these
kinds of issues. There have been experiments done for decades
looking at how people respond to imminent natural disasters,
for example, hurricanes, that sort of thing, how people
responded during the blitz during World War II, for example. We
ran experiments in Germany after World War II on air raid
sirens, for example, and how people responded to that sort of
thing.
And your point is well taken that the concern you have is
that by constantly raising the alert status, people get inured
to the threat level and either start to ignore it, which is
obviously something we don't want to see happen, or change
their behaviors in a way that we don't necessary want to see
either.
So that is an area of research that the Department has
already entered discussions with the National Science
Foundation and with some of the social and behavioral sciences
communities to investigate.
Senator Lautenberg. I would close with this, Madam
Chairman. Is there a department there that devotes its time to
acronyms? [Laughter.]
Because it seems to me that you have got a batch of them
there, and I just hope everybody remembers what the code for
the short name is.
Thank you very much.
Chairman Collins. Thank you.
I want to thank both of our nominees for appearing today
and for their forthright answers to our questions. I also want
to thank both of you and your families for your willingness to
step forward and once again serve your country. We are very
fortunate to have people well qualified and with your
background who are willing to do yet another stint in the
public sector. So thank you for being with us today.
As I mentioned, the record will be kept open until 5 p.m.
today. This hearing is now adjourned, but I would alert people
we are going to go immediately into a new hearing.
[Whereupon, at 10:49 a.m., the Committee was adjourned.]
A P P E N D I X

----------

PREPARED OPENING STATEMENT FROM SENATOR AKAKA
Thank you Madam Chairman for holding this hearing. Today, we are
considering the nominations of two individuals to very important
positions in the Department of Homeland Security (DHS).
The first is Joe Whitley who has been nominated to be the General
Counsel. If confirmed, Mr. Whitley will serve as the chief legal
officer of the Department. He will provide legal policy, oversight,
advice, and direction throughout the Department. While the General
Counsel of any agency has great responsibility and challenges, the
first General Counsel at DHS faces unique challenges. The new agency is
just organizing. Many of its programs and policies are not yet in
place. This is particularly important in the context of the development
of the new human resources system and the critical infrastructure
protection program.
As my colleagues know, I am an advocate for the rights and benefits
of Federal employees, including whistleblowers. I would urge Mr.
Whitley to ensure that whistleblowers have the same rights as other
Federal employees and the right to bring concerns involving critical
infrastructure information to Congress. Federal employees must have
fair treatment and due process, including having final decisions made
by a neutral decisionmaker, when appealing personnel decisions.
Our second nominee is Penrose Albright, who, if confirmed, will be
the Assistant Secretary of Homeland Security for Plans, Programs, and
Budget within the Science and Technology Directorate. Mr. Albright will
guide science and technology policy and oversee the execution of the
Science and Technology Directorate budget.
The Directorate plays an important role in setting the direction of
this nation's policies and spending on homeland security technologies.
I look forward to working with Mr. Albright to ensure that there are
sufficient resources available for homeland security technologies,
particularly for defense against biological and nuclear attacks.
I say this because of my concerns that the Administration's
policies on science and technology spending are not balanced. For
example, the Administration has requested $9 billion for a national
missile defense system, but we still lack funds to protect our citizens
and our agricultural base from a bio- or agroterrorist attack. It will
cost billions of dollars more to increase our capability to respond to
an adequate level.
Similarly, the Administration wants $21 million to explore advanced
concepts for new nuclear weapons, even though we are not doing enough
to protect ourselves from a terrorist attack using a dirty bomb. I have
sponsored several GAO reports that examined U.S. and international
efforts to control and secure radioactive sealed sources. However, the
GAO has determined that we have done a poor job in tracing and
controlling these sources. Several tens of millions of dollars would go
a long way toward improving the control and security of radioactive
sealed sources in this country and abroad.
It is not Mr. Albright's responsibility to set spending priorities
for this Administration. However, he will be an important and
influential voice in setting those priorities.
Thank you again Madam Chairman for holding this hearing. I look
forward to hearing from the nominees and discussing these important
issues further.
[GRAPHIC] [TIFF OMITTED] 89036.001

[GRAPHIC] [TIFF OMITTED] 89036.002

[GRAPHIC] [TIFF OMITTED] 89036.003

[GRAPHIC] [TIFF OMITTED] 89036.004

[GRAPHIC] [TIFF OMITTED] 89036.005

[GRAPHIC] [TIFF OMITTED] 89036.006

[GRAPHIC] [TIFF OMITTED] 89036.007

[GRAPHIC] [TIFF OMITTED] 89036.008

[GRAPHIC] [TIFF OMITTED] 89036.009

[GRAPHIC] [TIFF OMITTED] 89036.010

[GRAPHIC] [TIFF OMITTED] 89036.011

[GRAPHIC] [TIFF OMITTED] 89036.012

[GRAPHIC] [TIFF OMITTED] 89036.013

[GRAPHIC] [TIFF OMITTED] 89036.014

[GRAPHIC] [TIFF OMITTED] 89036.015

[GRAPHIC] [TIFF OMITTED] 89036.016

[GRAPHIC] [TIFF OMITTED] 89036.017

[GRAPHIC] [TIFF OMITTED] 89036.018

[GRAPHIC] [TIFF OMITTED] 89036.019

[GRAPHIC] [TIFF OMITTED] 89036.020

[GRAPHIC] [TIFF OMITTED] 89036.021

[GRAPHIC] [TIFF OMITTED] 89036.022

[GRAPHIC] [TIFF OMITTED] 89036.023

[GRAPHIC] [TIFF OMITTED] 89036.024

[GRAPHIC] [TIFF OMITTED] 89036.025

[GRAPHIC] [TIFF OMITTED] 89036.026

[GRAPHIC] [TIFF OMITTED] 89036.027

[GRAPHIC] [TIFF OMITTED] 89036.028

[GRAPHIC] [TIFF OMITTED] 89036.029

[GRAPHIC] [TIFF OMITTED] 89036.030

[GRAPHIC] [TIFF OMITTED] 89036.031

[GRAPHIC] [TIFF OMITTED] 89036.032

[GRAPHIC] [TIFF OMITTED] 89036.033

[GRAPHIC] [TIFF OMITTED] 89036.034

[GRAPHIC] [TIFF OMITTED] 89036.035

[GRAPHIC] [TIFF OMITTED] 89036.036

[GRAPHIC] [TIFF OMITTED] 89036.037

[GRAPHIC] [TIFF OMITTED] 89036.038

[GRAPHIC] [TIFF OMITTED] 89036.039

[GRAPHIC] [TIFF OMITTED] 89036.040

[GRAPHIC] [TIFF OMITTED] 89036.041

[GRAPHIC] [TIFF OMITTED] 89036.042

[GRAPHIC] [TIFF OMITTED] 89036.043

[GRAPHIC] [TIFF OMITTED] 89036.044

[GRAPHIC] [TIFF OMITTED] 89036.045

[GRAPHIC] [TIFF OMITTED] 89036.046

[GRAPHIC] [TIFF OMITTED] 89036.047

[GRAPHIC] [TIFF OMITTED] 89036.048

[GRAPHIC] [TIFF OMITTED] 89036.049

[GRAPHIC] [TIFF OMITTED] 89036.050

[GRAPHIC] [TIFF OMITTED] 89036.051

[GRAPHIC] [TIFF OMITTED] 89036.052

[GRAPHIC] [TIFF OMITTED] 89036.053

[GRAPHIC] [TIFF OMITTED] 89036.054

[GRAPHIC] [TIFF OMITTED] 89036.055

[GRAPHIC] [TIFF OMITTED] 89036.056

[GRAPHIC] [TIFF OMITTED] 89036.057

[GRAPHIC] [TIFF OMITTED] 89036.058

[GRAPHIC] [TIFF OMITTED] 89036.059

[GRAPHIC] [TIFF OMITTED] 89036.060

[GRAPHIC] [TIFF OMITTED] 89036.061

[GRAPHIC] [TIFF OMITTED] 89036.062

[GRAPHIC] [TIFF OMITTED] 89036.063

[GRAPHIC] [TIFF OMITTED] 89036.064

[GRAPHIC] [TIFF OMITTED] 89036.065

[GRAPHIC] [TIFF OMITTED] 89036.066

[GRAPHIC] [TIFF OMITTED] 89036.067

[GRAPHIC] [TIFF OMITTED] 89036.068

[GRAPHIC] [TIFF OMITTED] 89036.069

[GRAPHIC] [TIFF OMITTED] 89036.070

[GRAPHIC] [TIFF OMITTED] 89036.071

[GRAPHIC] [TIFF OMITTED] 89036.072

[GRAPHIC] [TIFF OMITTED] 89036.073

[GRAPHIC] [TIFF OMITTED] 89036.074

[GRAPHIC] [TIFF OMITTED] 89036.075

[GRAPHIC] [TIFF OMITTED] 89036.076

[GRAPHIC] [TIFF OMITTED] 89036.077

[GRAPHIC] [TIFF OMITTED] 89036.078

[GRAPHIC] [TIFF OMITTED] 89036.079

[GRAPHIC] [TIFF OMITTED] 89036.080

[GRAPHIC] [TIFF OMITTED] 89036.081

[GRAPHIC] [TIFF OMITTED] 89036.082

[GRAPHIC] [TIFF OMITTED] 89036.083

[GRAPHIC] [TIFF OMITTED] 89036.084

[GRAPHIC] [TIFF OMITTED] 89036.085

[GRAPHIC] [TIFF OMITTED] 89036.086

[GRAPHIC] [TIFF OMITTED] 89036.087

[GRAPHIC] [TIFF OMITTED] 89036.088

[GRAPHIC] [TIFF OMITTED] 89036.089

[GRAPHIC] [TIFF OMITTED] 89036.090

[GRAPHIC] [TIFF OMITTED] 89036.091

[GRAPHIC] [TIFF OMITTED] 89036.092

[GRAPHIC] [TIFF OMITTED] 89036.093

[GRAPHIC] [TIFF OMITTED] 89036.094

[GRAPHIC] [TIFF OMITTED] 89036.095

[GRAPHIC] [TIFF OMITTED] 89036.096

[GRAPHIC] [TIFF OMITTED] 89036.097

[GRAPHIC] [TIFF OMITTED] 89036.098

[GRAPHIC] [TIFF OMITTED] 89036.099

[GRAPHIC] [TIFF OMITTED] 89036.100

[GRAPHIC] [TIFF OMITTED] 89036.101

[GRAPHIC] [TIFF OMITTED] 89036.102

[GRAPHIC] [TIFF OMITTED] 89036.103

[GRAPHIC] [TIFF OMITTED] 89036.105

[GRAPHIC] [TIFF OMITTED] 89036.106

[GRAPHIC] [TIFF OMITTED] 89036.107

[GRAPHIC] [TIFF OMITTED] 89036.108

[GRAPHIC] [TIFF OMITTED] 89036.109

[GRAPHIC] [TIFF OMITTED] 89036.110

[GRAPHIC] [TIFF OMITTED] 89036.111

[GRAPHIC] [TIFF OMITTED] 89036.112

[GRAPHIC] [TIFF OMITTED] 89036.113

[GRAPHIC] [TIFF OMITTED] 89036.114

[GRAPHIC] [TIFF OMITTED] 89036.104

[GRAPHIC] [TIFF OMITTED] 89036.115

[GRAPHIC] [TIFF OMITTED] 89036.116

[GRAPHIC] [TIFF OMITTED] 89036.117

[GRAPHIC] [TIFF OMITTED] 89036.118

[GRAPHIC] [TIFF OMITTED] 89036.119

[GRAPHIC] [TIFF OMITTED] 89036.120