[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
_______________________________________________________________________
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                   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.
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