[Senate Hearing 110-965]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 110-965

                    NOMINATION OF GUS P. COLDEBELLA

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

                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                                 ON THE

NOMINATION OF GUS P. COLDEBELLA TO BE GENERAL COUNSEL, U.S. DEPARTMENT 
                          OF HOMELAND SECURITY

                               __________

                             JULY 15, 2008

                               __________

       Available via http://www.gpoaccess.gov/congress/index.html

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs










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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas              NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana          TOM COBURN, Oklahoma
BARACK OBAMA, Illinois               PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri           JOHN WARNER, Virginia
JON TESTER, Montana                  JOHN E. SUNUNU, New Hampshire

                  Michael L. Alexander, Staff Director
               Kristine V. Lam, Professional Staff Member
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                   Jennifer L. Tarr, Minority Counsel
                  Trina Driessnack Tyrer, Chief Clerk
         Patricia R. Hogan, Publications Clerk and GPO Detailee
                    Laura W. Kilbride, Hearing Clerk












                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Lieberman............................................     1
    Senator Collins..............................................     3
    Senator McCaskill............................................    10
    Senator Landrieu.............................................    13
    Senator Akaka................................................    16

                                WITNESS
                         Tuesday, July 15, 2008

Gus P. Coldebella to be General Counsel, U.S. Department of 
  Homeland Security:
    Testimony....................................................     5
    Prepared statement...........................................    25
    Information submitted for the Record by Mr. Coldebella in 
      response to Senator Landrieu...............................    28
    Memorandum submitted for the Record by Mr. Coldebella in 
      response to Senator Landrieu...............................    29
    Biographical and professional information....................    30
    Letter from U.S. Office of Government Ethics.................    41
    Responses to pre-hearing questions...........................    42
    Responses to additional pre-hearing questions from Senator 
      Lieberman..................................................   133
    Responses to post-hearing questions for the Record...........   152

 
                    NOMINATION OF GUS P. COLDEBELLA

                              ----------                              


                         TUESDAY, JULY 15, 2008

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Joseph I. 
Lieberman, Chairman of the Committee, presiding.
    Present: Senators Lieberman, Akaka, Landrieu, McCaskill, 
and Collins.

            OPENING STATEMENT OF CHAIRMAN LIEBERMAN

    Chairman Lieberman. Good morning. Welcome to the hearing, 
which we will now bring to order. We are here today to consider 
the nomination of Gus Coldebella to be General Counsel of the 
Department of Homeland Security (DHS).
    We welcome you, Mr. Coldebella, and we welcome what I 
gather is your new bride.
    Mr. Coldebella. Yes, sir.
    Chairman Lieberman. Not that you had a previous one, but 
recently married. [Laughter.]
    We congratulate you and welcome the rest of your family as 
well.
    The position of General Counsel is obviously a critical one 
at the Department of Homeland Security, of which this Committee 
has oversight jurisdiction. The Department has made good 
progress in 5 years to strengthen our defenses here at home 
against terrorist attacks and natural disasters; but, of 
course, we have all got a long way to go, and it is a 
persistent challenge to make sure we defend the security of our 
Nation and our people.
    First and foremost, the General Counsel must advise the 
Secretary and manage the legal functions of the Department. But 
it seems to me that it is important to say that the Counsel's 
role at the Department is not solely inward-looking. The 
General Counsel, for example, must ensure that Americans' 
fundamental rights are protected as the Department's mission is 
carried out. The General Counsel also occupies a unique 
position with respect to the interaction between the Department 
of Homeland Security and Congress. The General Counsel is 
responsible for counseling the Secretary on how the laws 
Congress passes are to be interpreted and properly implemented. 
The General Counsel also plays a central role in the 
relationship between the Department and Congress.
    Mr. Coldebella came to the Department of Homeland Security 
in 2005 from the law firm of Goodwin Procter of Boston, where 
he was a partner. In his almost 3 years at DHS, he has served 
in the Office of General Counsel as Deputy General Counsel, 
Principal Deputy General Counsel, and, since February 2007, as 
Acting General Counsel. He obviously comes with considerable 
personal experience, ability, and is acquainted with the 
responsibilities of the job and has a full record upon which 
the Senate can judge him.
    I want to say very directly because of what I am going to 
say after it, that I have never, to the best of my 
recollection, met Mr. Coldebella before this morning. I believe 
that is right.
    Mr. Coldebella. Just once, Senator.
    Chairman Lieberman. Really? Was it a circumstance you care 
to divulge in public?
    Mr. Coldebella. It was actually in a classified briefing. 
So other than that, we can talk about it.
    Chairman Lieberman. Thank you. But my staff has had many 
interactions with him over the last 3 years, and I want to say 
directly and respectfully as a result have significant concerns 
about this nomination based on those interactions. And I think 
it is important and fair to deal with them directly both in 
these opening comments and in my questions.
    The fact is that Mr. Coldebella joined the Department 
shortly after this Committee began its investigation into the 
government's response to Hurricane Katrina, and he was 
immediately asked to take a leadership role by the Department 
in its response to our inquiry. I was critical at the time of 
the Department's response, finding it often slow and ultimately 
incomplete. In fact, six Members of the Committee, including 
me, concluded in our ``additional views'' in the Committee's 
report on Hurricane Katrina, and ``there is no doubt that the 
way in which the Department responded to the Committee's 
document, information, and witness requests significantly 
hampered the Committee's ability to conduct its 
investigation.''
    As Deputy General Counsel during this investigation, Mr. 
Coldebella arguably bears some responsibility for this 
inadequate response both by virtue of his position and through 
his direct personal involvement. During interviews he 
instructed Department witnesses, I gather, not to answer 
certain questions simply because they sought information about 
the role of the Secretary of the Department of Homeland 
Security or of the White House. During our review of his 
nomination, he conceded that his office had likely failed to 
turn over some boxes of documents submitted by DHS agencies, 
simply because his office did not have enough time to review 
them.
    The Government Accountability Office has also periodically 
raised concerns about its ability to gain access to relevant 
information and materials at the Department and has complained 
about the Office of the General Counsel inserting itself 
unhelpfully into the process. Perhaps you are aware of that.
    I am also concerned that the Department, with advice from 
the Office of General Counsel, has sometimes adopted legal 
interpretations at odds with congressional intent--and with the 
seemingly plain language of a statute. This has occurred, for 
example, with respect to various provisions of last year's 9/11 
Commission Recommendations Act that originated in this 
Committee--including requirements for the Visa Waiver Program, 
and at least one aspect of the homeland security grant 
provisions.
    So your nomination comes to us with a great personal 
capability and experience, a record without accusations of 
unethical behavior or anything like that, but with serious 
questions that go to the extent to which you have and, if 
confirmed, would cooperate with Congress, certainly in this 
Committee's case, in the dispatch of our oversight 
responsibilities for the Department.
    So I wanted to mention these directly so we have an 
opportunity to discuss them openly and honestly and in that 
sense reach a reasoned conclusion about these concerns and 
proceed with consideration of your nomination.
    Senator Collins.

              OPENING STATEMENT OF SENATOR COLLINS

    Senator Collins. Thank you.
    The Office of the General Counsel at the Department of 
Homeland Security is, as the Chairman has indicated, one of 
special interest for Members of this Committee. The General 
Counsel provides legal advice to the Secretary on the missions 
that Congress has assigned to DHS and on the Department's 
compliance with Federal laws on civil rights, employment, and 
many other matters. And the General Counsel serves as an 
important point of contact with Congress, especially with this 
oversight Committee.
    The General Counsel's operating principle should be that 
the oversight and investigative committees of Congress, as well 
as the GAO, should always receive the maximum feasible 
departmental compliance and cooperation and to allow us to 
perform our constitutional duties. In that regard, let me 
respond briefly to some of the concerns that the Chairman has 
raised about the Committee's almost year-long investigation of 
Hurricane Katrina and the failed response by DHS and the 
Federal, State, and local officials who were involved.
    I want to point out that this Committee held some 24 
hearings, interviewed some 325 witnesses--and those were 
transcribed interviews--and received from the Administration 
more than 838 pages of documents. The Department of Homeland 
Security alone produced more than 350,000 pages of documents 
and made available 73 witnesses for formal interviews.
    The Department, in my view, that was not cooperative with 
our investigation was not the Department of Homeland Security. 
It was the Department of Justice. And we were forced to issue 
five subpoenas to the Department of Justice personnel, who were 
then finally made available to the Committee staff.
    I am not saying that the Department of Homeland Security's 
compliance was perfect. It certainly was not. There was a 
constant back and forth with the Department. We had to push in 
many cases. In many cases the Department was not as timely as 
it should have been in providing access to key witnesses and in 
producing documents. But, on balance, I believe that we had a 
very clear window into the functioning and role of the 
Department in the days before and after Hurricane Katrina made 
landfall.
    So I have a little bit different view than the Chairman. It 
is not to say that it was an easy relationship. We constantly 
had to push the Department. But I do believe that its 
compliance was, on the whole, acceptable.
    I also want to point out the fact that Mr. Coldebella was 
not the General Counsel during the Hurricane Katrina 
investigation. It was, in fact, Phil Perry. I was not pleased 
with Phil Perry's compliance and cooperation with the 
Department on the chemical security bill, for example, or the 
ensuing regulations to implement that important law. But I want 
to make sure that we take recognition of who was in charge, who 
was General Counsel at that time, and it was not Mr. 
Coldebella, although I know he was involved. It was Mr. Perry. 
And, in fact, we did receive some 350,000 pages of documents 
from the Department and did transcribed interviews with 73 
witnesses. So I just want to fill in that part of the picture 
as well.
    Mr. Coldebella's nearly 3 years of experience at DHS and 
his current service as Acting General Counsel have given him 
ample opportunities to appreciate the importance and the 
critical nature of the position for which he has been 
nominated. He does also have an impressive legal background 
that has served him well.
    The fact is, however, that his nomination does deserve 
close scrutiny. The Department of Homeland Security operates 
many programs that are critical to promoting the safety of 
American citizens and the security of America's infrastructure 
and economy. Those programs require the cooperation and support 
of State and local governments and the understanding and trust 
of citizens, if they are to succeed. And the Department has 
certainly had many rough spots and many difficult decisions to 
make. It has not always been smooth. I have had many 
conversations with the Department on chemical security 
regulations, on the implementation of the REAL ID Act, and at 
times, the performance of the Department of the legal counsel's 
office certainly could have been better.
    The official actions of the Department and the conduct of 
all its employees must, therefore, meet the highest standards 
set by the law, and that is what we will explore today. Again, 
I appreciate the opportunity to question the witness today and 
his commitment to public service.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thanks very much, Senator Collins.
    Mr. Coldebella has filed responses to a biographical and 
financial questionnaire, answered pre-hearing questions 
submitted by the Committee, and has had his 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.\1\
---------------------------------------------------------------------------
    \1\ The biographical information appears in the Appendix on page 
30.
---------------------------------------------------------------------------
    Our Committee rules require that all witnesses at 
nomination hearings give their testimony under oath, so, Mr. 
Coldebella, I would ask you to please stand and raise your 
right hand and respond to this question: 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. Coldebella. I do.
    Chairman Lieberman. Thank you. Please be seated.
    Mr. Coldebella, as I mentioned, I understand you have a few 
family members here with you today, and I wanted to know 
whether you would like to introduce them at this time and then 
proceed with your statement to the Committee.
    Mr. Coldebella. Thank you, Mr. Chairman. My wife of 
slightly over 10 weeks, Heather Coldebella, is here, as are my 
parents, Gus and Phyllis Coldebella.
    We also have about 12 of our summer legal interns from the 
Department on this side of the gallery.
    Chairman Lieberman. Should we ask them to vote on your 
confirmation?
    Mr. Coldebella. I would appreciate that. [Laughter.]
    Chairman Lieberman. OK. Anyway, we welcome them. We 
certainly welcome your wife and your self-evidently proud 
parents. You can proceed with your statement now.

 TESTIMONY OF GUS P. COLDEBELLA\1\ TO BE GENERAL COUNSEL, U.S. 
                DEPARTMENT OF HOMELAND SECURITY

    Mr. Coldebella. Thank you, Senator. It is my pleasure to 
appear before you today as the nominee for General Counsel of 
the Department of Homeland Security. Since October 2005, it has 
been my great honor to work alongside the men and women of the 
Department on our important mission of keeping the Nation 
secure. I am grateful for the confidence placed in me by the 
President and by Secretary Chertoff. Thank you, Mr. Chairman 
and Ranking Member Collins, for your opening remarks. I look 
forward to answering each and every one of your questions about 
my performance at the Department over the last 3 years.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Coldebella appears in the 
Appendix on page 25.
---------------------------------------------------------------------------
    During my time at DHS, and especially since I took the role 
of Acting General Counsel in February 2007, I have done 
everything in my power to make sure that the rule of law is 
strong at the Department. I will discuss just a few of those 
things now.
    As you noted, Chairman Lieberman--and I agree--the 
paramount duty of the General Counsel is to faithfully 
interpret the Homeland Security Act, the 9/11 Act, and the 
other laws that Congress has passed that relate to the 
Department. With the assistance of the 70 or so attorneys at 
headquarters and the over 1,700 lawyers around the Department's 
components, we have accomplished this goal by providing 
correct, useful, and timely legal advice.
    It has been my great honor to work with these highly 
skilled civil servants during my time at the Department, and I 
have been consistently impressed with the level of rigor and 
professionalism that they bring to the tasks that they are 
assigned to accomplish.
    I have tried to bring to the Office of the General Counsel 
(OGC) a spirit of forward-leaning lawyering that well suits the 
mission of the Department. It is the job of a good agency 
lawyer to tell operators and policymakers that they cannot 
follow a particular course of action if the law does not allow 
it. But it is the job of a very good agency lawyer to suggest 
an alternative, if one exists--one that comports with the 
Constitution and all relevant laws to achieve the Department's 
goals. This idea, that lawyers should be problem solvers 
instead of merely problem identifiers, is one that I have 
propagated throughout DHS.
    The Office of the General Counsel is uniquely positioned 
for another task, which is helping to unify, integrate, and 
improve the efficiency of the Department. Because lawyers are 
serving in every component, communication between those lawyers 
and the General Counsel helps to identify impediments to 
accomplishing our homeland security goals so those impediments 
can be removed quickly.
    There are also several management goals that I have put 
into place over the last year or so regarding continuity, 
transition, and other issues that are noted in my written 
statement. I would like to mention one now for special note, 
which is that we at OGC have named a career Deputy General 
Counsel, which I think is an important move so that at the time 
of an Administration change, the new Secretary has the benefit 
of an experienced Acting General Counsel.
    All of these things lay the foundation for an office that 
is not only recognized inside the Department for its quick, 
clear, and excellent legal counsel, but also acknowledged by 
lawyers outside the Department as a high-quality legal office 
and as one of the most rewarding places to work in the 
Executive Branch, as I consider it to be.
    Mr. Chairman, as you made clear, given that I have been at 
the Department for almost 3 years, I am not an unknown quantity 
to this Committee. During that period, we have had many joint 
successes, including the passage and implementation of the 
first Federal chemical security legislation, improvements to 
security in the 9/11 Act, including the Visa Waiver Program, 
and many others. We have also worked together on some difficult 
issues, and as both you and the Ranking Member pointed out, one 
of them was the investigation into the response to Hurricane 
Katrina.
    Throughout our discussions about these and other matters, I 
have strived to be both clear in my legal interpretations and 
straightforward in presenting the Department's positions to you 
and to other interested members and committees of Congress. If 
confirmed, I will, of course, continue to do my best to make 
sure the Department communicates well and clearly with 
Congress.
    Access to the Department's information by this Committee, 
by other committees of Congress, by the Department's Inspector 
General, and by the GAO is a topic frequently raised in my 
discussions with Members and congressional staff. I am 
committed, as is the Secretary, to swift access by Congress, 
the IG, and the GAO.
    I am gratified that the Department's Inspector General 
stated in congressional testimony back in February of this year 
that cooperation in the preceding year had improved noticeably 
and access during the same period had been outstanding. At the 
same hearing, the Comptroller General testified that access to 
departmental information had improved due to discussions 
between DHS and GAO over the preceding year.
    Recently, the Department issued two documents: A revised 
management directive regarding the relationship between the 
Department and GAO, and a memorandum from the Secretary to all 
employees about the roles of the Inspector General. Both of 
these documents are designed to improve access, and if 
confirmed, I will continue to look for ways to make more 
efficient the information flow to Congress.
    Mr. Chairman, I am humbled that the President has asked me 
to serve in this capacity and that this Committee is 
considering my nomination. I look forward to answering all of 
the questions that you have today, and I request that my full 
written statement be included in the record.
    Chairman Lieberman. Without objection, it will be included 
in the record.
    I thank you for your opening statement. I am going to start 
with the standard questions that we ask of all nominees.
    First, Mr. Coldebella, is there anything you are aware of 
in your background that might present a conflict of interest 
with the duties of the office to which you have been nominated?
    Mr. Coldebella. No.
    Chairman Lieberman. 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. Coldebella. No.
    Chairman Lieberman. 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. Coldebella. Yes.
    Chairman Lieberman. OK. Thank you. We are going to start 
with a first round of questions limited to 6 minutes.
    I had a question on the Hurricane Katrina investigation, 
but I think I am going to defer it because I note that Senator 
Landrieu is here, and I would guess that because she has such 
an interest ongoing in that matter, she may want to ask that.
    Let me go to this question, which in some sense puts in 
focus, perhaps not in a typical way, some of the concerns that 
I think our staff has had as a result of their interactions 
with you.
    Last year, the House Homeland Security Committee invited 
you to testify at a hearing concerning privacy and civil 
liberties issues in the Department's National Applications 
Office. You responded with a letter to Chairman Bennie Thompson 
in which you stated, ``I must respectfully decline your 
invitation.'' You asserted that your participation as a hearing 
witness would prevent or limit you from carrying out your 
responsibilities to provide legal advice and counsel to 
Department officials and that for these reasons, ``members of 
the Office of General Counsel do not ordinarily provide 
testimony.''
    Notwithstanding that, just moments ago when I asked you one 
of the three standard questions we ask all nominees that come 
before the Committee, which is if you agree without reservation 
to respond to any reasonable summons to appear and testify 
before any duly constituted committee of the Congress, you 
responded--and, of course, you are under oath--that you did.
    So this puts in focus, I think, the way in which you would 
balance both your responsibilities as counsel to the Department 
of Homeland Security and your responsibility to testify before 
Members of Congress, before duly constituted committees of 
Congress. So I wanted to ask you if you would explain--if you 
would respond to that question, and particularly whether you 
would explain if there are any limitations on your agreement to 
respond to a reasonable summons to appear before a committee of 
Congress or any circumstances in which you believe that you or 
others in the Office of General Counsel might appropriately 
decline to testify before this or any other committees? And 
take your time answering this. This is an important question.
    Mr. Coldebella. Thank you, Mr. Chairman. I would like to 
talk about some of the circumstances that led up to the letter 
that you quoted from.
    Chairman Lieberman. The letter on the House side, you mean.
    Mr. Coldebella. That is exactly right.
    Chairman Lieberman. OK.
    Mr. Coldebella. The letter that was sent to Chairman 
Thompson was not the first communication that I had with that 
committee regarding the hearing. In fact, when it was suggested 
that I testify at that hearing, the first thing I did was to 
pick up the phone and speak to Chairman Thompson's staff. And I 
think that is an important fact that is not made clear just by 
the letter.
    What I wanted to do was express my concerns about 
testifying on that particular topic at that particular time. 
The Department was at that point considering various options on 
which it was seeking legal advice regarding the National 
Applications Office. And while the staff director to whom I 
spoke was completely aware of, sympathetic with, and 
understanding about the divide between getting into legal 
advice that had been given to the Secretary or would be given 
to the Secretary, and the justification for programs that the 
Department was pursuing or not pursuing, she understood during 
our phone call that the various members of that committee might 
not, even if she briefed them, understand or deal with that 
difference.
    More clearly, the concern that I had was one of discussing 
legal advice that was yet to be given, and I expressed that 
concern and really asked the staff for advice on how to 
proceed. The advice that I received was, first of all, that 
they understand; second, it would make sense to write a note to 
Chairman Thompson regarding this conflict, which I gladly did.
    The next that I had heard of it was at the time of the 
hearing when Chairman Thompson spoke about the letter that I 
had sent him and was upset about it.
    As I discussed during my staff interview, I think it is 
important, first of all, to have a dialogue between the 
Department and the staff that is requesting information. That 
is how I try to comport myself all of the time, and that is how 
I did so here. But, second, if the message that I received 
during that initial phone call that led to the letter was not 
reflective of the chairman's view--which it seems not to have 
been since he made that comment at the hearing--I would have 
been perfectly open to further discussions with the committee 
about appearing, about sending someone else, about providing 
the committee the information that it needed in order to have 
the hearing that it wanted to have.
    Chairman Lieberman. Forgive me for interrupting, but my 
time is running out. So you are saying that the sentence that I 
quoted from your letter, ``I must respectfully decline your 
invitation,'' was a result of the conversation you had with the 
staff member?
    Mr. Coldebella. That is right.
    Chairman Lieberman. And, therefore, that if you had known 
how the chairman felt, you might have decided otherwise and 
gone to the hearing?
    Mr. Coldebella. Well, my basis for sending the letter was 
the discussion that I had with the staff, and the point that I 
was making was I would prefer to keep that discussion open. You 
read a few sentences from the letter. The letter seems very 
final. But it seems to me that in my interactions with that 
committee, in my interactions with this Committee, what we tend 
to do is have discussions about information that is sought and 
try to refine both what we are going to be able to provide and 
what the committee is seeking.
    Chairman Lieberman. I am over my time now, but I want you 
to just very briefly indicate what you meant when you said yes 
to the third question that I asked. Now, obviously, I do not 
want to coach the witness. That does not mean that you will 
necessarily answer every question. But can we take that to mean 
that you will feel, if confirmed, a responsibility to respond 
to any reasonable summons to appear and testify before any duly 
constituted committee of Congress?
    Mr. Coldebella. Yes. And just to be clear about it, I feel 
a responsibility to respond to every request for information or 
testimony, be it from me or from anyone else at the Department. 
The natural next step is speaking with the Committee about the 
information that is being sought. So I can unequivocally answer 
that, yes, I will appear whenever asked by this Committee. That 
is not to say that I will not pick up the phone and speak to 
your staff if I do have concerns about it. But the answer to 
that question is definitively yes.
    Chairman Lieberman. OK. I think I better stop here. I thank 
you, and I will yield to Senator Collins.
    Senator Collins. Thank you. Mr. Chairman, I know that 
Senator McCaskill has to preside, so I am going to only ask one 
very quick question, and then yield to her, if that is OK, and 
then reclaim my time later.
    Chairman Lieberman. Go ahead.
    Senator Collins. I would like to talk to you about the 
relationship with GAO and the IG, both of which have expressed 
concerns that the General Counsel's office within the 
Department of Homeland Security has at times been a roadblock 
to getting cooperation from the various entities within the 
Department. That is of great concern to this Committee. We rely 
very heavily on both the GAO and the IG for information and 
investigation.
    I would like you to address that issue in general. Then I 
am going to yield to Senator McCaskill given her time 
constraints, and then I will get back to the issue.
    Mr. Coldebella. Thank you, Senator. Let me start with the 
IG. I think that Rick Skinner and I have a very good 
relationship. We try on a monthly basis to get together to talk 
about access issues at the Department that he may be having. 
And we worked together over the past few months in order to 
have the Secretary issue that memo that I talked about in my 
opening remarks, instructing all Department employees on how to 
interact with the IG.
    Mr. Skinner certainly will raise access issues to me, to 
the Deputy Secretary, to the Under Secretary for Management. 
That is the kind of attitude, the kind of relationship that we 
need to have at the Department. If he is running into 
roadblocks somewhere, it is part of the General Counsel's job 
to remove the roadblocks, not to be a roadblock. And I think we 
have been successful at that over the past year, year and a 
half that I have been interacting with Mr. Skinner.
    One more thing about the IG is that I have the attitude, 
and the Secretary has the attitude, that the IG is not someone 
to call when he is about to issue a report. The IG is someone 
to call when the Department is dealing with thorny issues of 
financial controls, thorny issues that are in his area of 
expertise. And I make it a practice to, in dealing with issues 
such as that--some examples spring to mind of a few years ago 
where there were data breaches at some of our components. One 
of the first calls that we make is to the IG.
    Regarding the GAO, I mentioned that we had recently redone 
our management directive, and I believe that the new process 
laid out in the management directive is going to meet our goal 
and Congress' goal of getting the GAO documents within 20 days. 
That is very aggressive. I think that is what exists in the 
statute when the Comptroller General complains. But we are 
taking that on in the first instance.
    Senator Collins. I am going to reserve the balance of my 
time.
    Chairman Lieberman. Without objection. Senator McCaskill.

             OPENING STATEMENT OF SENATOR MCCASKILL

    Senator McCaskill. Thank you so much. I really appreciate 
it, Senator Collins, that you are giving me this opportunity.
    I obviously do not have much time since I am supposed to be 
on the chair in 6 minutes, so some of what I have to say and my 
thoughts about your nomination I will put in the record. And 
some of the questions I ask now, you may want to respond in the 
record in terms of the time consideration.
    On November 6 and 7, there were requests made by this 
Committee, your authorizing and supervisory Committee in 
Congress, for pictures of the Halloween party that was held at 
Immigration and Customs Enforcement (ICE), highly 
controversial. And CNN made requests at the same time under a 
Freedom of Information Act (FOIA) request. One week later, 
November 10, those pictures were recovered. They were not given 
to this Committee. Julie Myers was confirmed in mid-December, 
and the first week of February, the pictures were first 
produced to CNN and then a day later to this Committee.
    Do you disagree with any of those facts?
    Mr. Coldebella. The only fact that I was unaware of, 
Senator, was the request by the Committee--I think you said on 
November 10.
    Senator McCaskill. No. The pictures were recovered on 
November 10 by your Department. The request was made by the 
Committee and the request was made by CNN on November 6 and 
November 7.
    Mr. Coldebella. Right.
    Senator McCaskill. Do you disagree with any of those facts?
    Mr. Coldebella. No. I think that sounds right.
    Senator McCaskill. OK. And do you think that is 
appropriate?
    Mr. Coldebella. Well, Senator, like I said, the request by 
the Committee--and I was not personally involved in the back 
and forth between the Committee and the Assistant Secretary--I 
think had followed several briefings--at least one briefing, 
but I think more than one briefing--by Assistant Secretary 
Myers to the Committee or the Committee staff about this.
    The first that my office had heard that there was a 
standing request by the Committee for the recovered photographs 
was at the time that the photographs were in the process of 
being sent to the FOIA requester. So I could see you laying out 
the timeline as you have, that this request--if a committee of 
Congress makes a request for a document, then that document 
should be produced, whether it be text, photographs, etc.
    Senator McCaskill. Well, frankly, there is no excuse not to 
give it to CNN on November 11.
    Mr. Coldebella. I am not familiar----
    Senator McCaskill. Which would have solved the problem 
because that is how we got to see it in the first place, 
through CNN.
    Mr. Coldebella. I believe the process that ICE went through 
was to go through the documents for the FOIA request, which is 
typically what you do in the course of business. But I agree 
with you that at the time that the documents were recovered, if 
there was a standing request from this Committee, it should 
have been addressed.
    Senator McCaskill. Well, it should have been given to CNN, 
and it was not, and I would like in writing at what time you 
were informed of this and whatever written documentation that 
your office has, whether it is e-mails or written documentation 
between you, Julie Myers, the Department, the Secretary, as it 
relates to these photographs for the record.
    Now moving on to access, I respect your background as a 
litigator. I am one, too. And I get it that when you are 
litigator, you think adversarially. But I have to tell you that 
I believe you see GAO adversarially, and I have reviewed their 
letter to you of June 4, 2008, where they reject your new 
policy on access. And I have reviewed your response on July 1, 
2008. And I have four questions, and I do not know that we will 
have time to go into all of them. You can pick one to answer 
now, and I would appreciate a written answer to the remaining 
questions in writing to this Committee or to my office within a 
week.
    First, I want to talk about and find out your requirement 
that every request from GAO must go through a central office.
    Second, your, in fact, debilitating request that everything 
they want, the request has to be in writing. As a former 
government auditor, that is absolutely debilitating to an 
auditor. It interrupts the free flow of information between the 
government auditor and the agency that must provide that level 
of accountability to the government auditor.
    Third, the requirement that GAO must clearly identify the 
document requested. It appears that you are trying to prevent 
fishing expeditions, which is what you do when you are 
litigating against an opponent in court. You want to prevent 
fishing expeditions. But it is exactly what GAO is supposed to 
be doing. They are on a fishing expedition. It is their job to 
fish. They do not know every exact document they need. That is 
why they are asking the questions. So to require a clearly 
identified document is saying to GAO, ``Nah, nah, nah, nah, 
nah, we are not going to give you what you may want because you 
cannot name it.''
    And, finally, I would like to hear from you--and this is 
the one question I would like you to try to address quickly, 
and I will maybe have to leave in the middle of your answer. I 
do not mean to be rude, but I get in big trouble if I am not on 
the chair when I am supposed to be. I would like you to cite 
the appropriate legal authority on what basis you think you can 
deny GAO documents that you consider law enforcement sensitive, 
pre-decisional or draft records, or records relating to ongoing 
proceedings or investigations or confidential. I am not aware 
of any legal authority that allows you to withhold any of those 
documents from GAO, and I would like you to find that legal 
authority and cite it to me or the Committee.
    And once again, I apologize for being so rude, but I am 
going to be late if I leave right now. You can either choose to 
address those later in your testimony, or you can obviously get 
them to me in writing, and I will share them with the rest of 
the Committee.
    Mr. Coldebella. Senator, I would be pleased to give those 
answers to you in writing.
    Senator McCaskill. And I want to tell you, sir, I have 
nothing against you or your fine family, and I appreciate your 
willingness to leave probably a very lucrative law practice to 
serve government. But I think you are the wrong man for this 
job.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thanks, Senator McCaskill.
    We will now return to Senator Collins, who will complete 
her questioning.
    Senator Collins. Thank you, Mr. Chairman.
    I do want to continue talking about the GAO issue which I 
raised and then Senator McCaskill elaborated on. As I look at 
the policy, it is a far more formal process than GAO usually 
has. Even the Department of Defense, with its massive size and 
all of its entities, does not have the kind of formal tracking 
process that DHS has. Now, I personally believe that the reason 
that it has been implemented is to make sure that every agency 
is responding to GAO in a timely fashion.
    Is that the reason that it has been centralized in the 
General Counsel's office?
    Mr. Coldebella. Yes, Senator. It has not actually been 
centralized in the General Counsel's office. It has been 
centralized under the Under Secretary for Management, who has a 
liaison with the GAO. But describing it in the way that I think 
Senator McCaskill has, and certainly the General Counsel of GAO 
has, as ``overcentralized'' I think is incorrect because each 
of our components has a liaison with the GAO. It is not as 
though every request has to be written down and sent to 
headquarters and then sent out.
    The reason that you stated is exactly why liaisons need to 
be involved.
    Senator Collins. Let me just suggest to you that we want 
GAO to be happy with the process----
    Mr. Coldebella. As do we.
    Senator Collins [continuing]. To put it bluntly, since the 
whole idea of the direction that Congress gave to you was in 
response to GAO's belief that it had great difficulty in 
getting the information it needed and the cooperation from DHS.
    So my strong suggestion to you is that while it is a good 
idea to have a tracking system to ensure that every request is 
answered, you make a mistake if you embrace a system that GAO 
believes is too bureaucratic and will result in less than a 
free flow of information and the kind of access that GAO simply 
must have in order to perform its duties.
    Mr. Coldebella. Senator, I would make two very quick 
points.
    The first one is that the legislation that we were 
responding to--and our own internal desire to modernize the 
procedures that we deal with GAO on--have set a high bar for 
ourselves. We are supposed to produce documents in 20 days. The 
proof is going to be in the pudding. I mean, I think the last 
paragraph of Gary Kepplinger's letter--and I have spoken with 
him on several occasions about our one remaining area of 
difference on the GAO management directive--is we need to be 
able to say both to GAO and to the Secretary, and to you as one 
of our oversight committees, that we are meeting the goal that 
we have set for ourselves.
    If the system is that we go directly to program points of 
contact, operators, people in the field, it is one of 20 of 
their jobs to respond to GAO. If the liaison--decentralized 
now, in each of the components--is the person who is in charge 
of making sure that document is produced in 20 days, that is 
his or her only job. And for that reason, though I respect Mr. 
Kepplinger's opinion here, I think the system that we have 
chosen is going to help us to be more accountable to ourselves 
and to you at the high bar that we have set.
    Senator Collins. Thank you. Thank you, Mr. Chairman.
    Chairman Lieberman. Thanks, Senator Collins. Senator 
Landrieu.

             OPENING STATEMENT OF SENATOR LANDRIEU

    Senator Landrieu. Thank you, Mr. Chairman.
    I appreciate the Chairman allowing me to ask a few FEMA, 
Katrina, and Rita-related questions. Of course, this has been 
heavily on my mind the last couple of years. And you know as we 
move to the end of this August, it will be the marking of the 
third anniversary of the largest natural catastrophe to hit our 
country, and our people are still struggling to recover. So I 
am very interested in pursuing your testimony in your written, 
as well as your oral presentation before our Committee this 
morning, about identifying yourself as a problem solver. And I 
will say that both Secretary Chertoff and FEMA Administrator 
Paulison have testified before this Committee on separate 
occasions, but unequivocally, that the Stafford Act is 
inadequate to address the needs of families and communities 
after a catastrophic disaster. Yet, to date, neither FEMA nor 
DHS has requested to my knowledge any additional legislative 
authorities from this Committee to change the Stafford Act.
    Can you explain how this reality, which, according to my 
understanding, is the reality, with your claim that you are 
indeed a problem solver?
    Mr. Coldebella. Yes, Senator. I think I would point to a 
few things.
    The first is that much closer to the time of Hurricane 
Katrina--in fact, I think this Committee's investigation had 
just wound down or was winding down--your office approached my 
office, and me in particular, with a problem regarding charter 
schools in New Orleans, and what I considered to be an overly 
bureaucratic requirement that those charter schools make an 
application to another agency before they could go to FEMA for 
assistance. And I think because it had been done a particular 
way in disasters in the past, FEMA gave your office the answer 
that it was to be done this way going forward.
    We took a look at the problem with fresh eyes and had a 
meeting--not here--somewhere else in this building at which we 
were able to talk to your staff about how both the Stafford Act 
and the regulations allowed us to do what we thought was not 
only a legally sound thing, but the right thing for those 
charter schools in New Orleans.
    Senator Landrieu. And I appreciate that, and I will accept 
that. Could you provide at least four or five other items in 
writing to this Committee about examples of your office being a 
problem solver--and that is a good one--relative to the 
Stafford Act and how it was interpreted? And particularly if 
you could mention the confusion that still seems to exist 
between FEMA and Homeland Security over use of mitigation 
money. There is, I think, if my memory serves me correctly, 
about $1 billion--$1.16 billion in mitigation money that is 
still tied up in a dispute. So if you could list at least four 
or five others and specifically comment on the status of that 
mitigation.
    Mr. Coldebella. I would be glad to, Senator.\1\
---------------------------------------------------------------------------
    \1\ The information appears in the Appendix on page 28.
---------------------------------------------------------------------------
    Senator Landrieu. In 2007, the Washington Post uncovered 
communications from a FEMA attorney who advised agency 
officials not to publicly reveal the fact that formaldehyde 
emissions were causing trailer occupants to become ill. In your 
written response to this Committee's pre-hearing questions, you 
asserted that your office had no knowledge of this advice at 
the time it was given and that you subsequently sent a memo to 
attorneys in the Department on the issue of formaldehyde.
    When did you first learn that the attorneys in FEMA's 
Office of General Counsel were providing this advice? What was 
the nature and subject of your memo? Who did you circulate it 
to? And when was it distributed? And if you have a copy of it, 
I would like it submitted to this Committee.
    Mr. Coldebella. Senator, I would be glad to submit a copy 
of the memo. In fact, I do not have one with me, but I will 
send it right over to your office.\1\
---------------------------------------------------------------------------
    \1\ The memorandum submitted by Mr. Coldebella appears in the 
Appendix on page 29.
---------------------------------------------------------------------------
    The time that I discovered that this advice had been given 
was, I think, coincidental with the production of documents to 
Chairman Waxman's Oversight and Government Reform Committee on 
the House side. He had been looking into matters of 
formaldehyde in travel trailers with FEMA, and during the 
document production, it was pointed out to me that an e-mail 
existed that suggested that an attorney had, either 
intentionally or not, tried to delay some testing, citing 
litigation reasons.
    I think my reaction to that was swift and appropriate, 
which was even if that attorney had good intentions--and 
reading the e-mail, that attorney would have to make a pretty 
strong argument to me that he did--it left the impression that 
at least one attorney in the Department had put litigation 
concerns over the concerns of the health and welfare of victims 
of this disaster, and that was completely inappropriate.
    The memo that I prepared was sent to every attorney in the 
Department of Homeland Security for a simple reason. I know I 
felt like I was punched in the gut when I saw that e-mail and 
when it ended up in the paper. And I wanted to reassure all of 
the attorneys around the Department that I expected them to put 
the health and safety and welfare of the disaster victims 
first.
    Senator Landrieu. OK. If you would supply a copy of your 
memo to this Committee, and did that lawyer work for you?
    Mr. Coldebella. As far as I remember, Senator, that lawyer 
was a temporary lawyer and----
    Senator Landrieu. Has he been terminated?
    Mr. Coldebella. His term came to an end, and he is not----
    Senator Landrieu. So he is no longer working with the 
Department.
    Mr. Coldebella. That is correct, Senator.
    Senator Landrieu. OK. One final question, if I could, Mr. 
Chairman. I am going to submit a question about presidential 
signing statements that I am somewhat concerned about that may 
be able to be cleared up by this nominee. I had the 
opportunity--I guess you could say it in that way--to meet a 
constituent of mine who was literally burned to a crisp in a 
FEMA trailer. Her name is Mrs. Jeanne Joseph. I met her at a 
public event when I was home. She is still walking, amazingly, 
and talking and, most amazingly of all, has a spirit that I am 
not sure I could have myself under those circumstances. She had 
only been in her trailer about 30 minutes when it blew up and 
burned her almost beyond recognition.
    We are having a very difficult time getting information on 
burn victims in trailers. I don't know why we are, and I don't 
have time to go over that today. But I would like you to submit 
any correspondence to this Committee that you or your office 
have related to fires in FEMA trailers. And if that request is 
too broad, I trust that the Chairman will help me to fashion it 
in a way to get some information about how many fires there 
have been in FEMA trailers, a broad but general description of 
those. And if the number of fires in FEMA trailers is a greater 
proportion of fires than exists in regular homes at regular 
times, not in California wildfires but under regular 
circumstances, so we can ascertain how extensive this problem 
is. In the meantime, I am doing what I can to help Ms. Joseph, 
but I am assuming that there are a lot more people that might 
be in her situation.
    Thank you.
    Mr. Coldebella. Thank you, Senator.
    Chairman Lieberman. Thanks, Senator Landrieu. I will 
certainly work with you on that, and, Mr. Coldebella, I urge 
you to be as responsive as quickly as possible to Senator 
Landrieu on this matter as you possibly can be.
    Mr. Coldebella. Senator, I wrote down the questions. This 
is the first that I have heard of your request for information, 
but as soon as I get back to the office, I will pass it along 
to FEMA and make sure that they follow up on it.
    [The information from FEMA follows:]

                  INFORMATION PROVIDED FOR THE RECORD
    ``In 2006 and 2007, there were approximated 90,000 FEMA-provided 
Temporary Housing Units (THU) occupied in Louisiana. During this 
period, there were 145 reported fires in FEMA managed THUs, resulting 
in a fire incident rate of 0.16 percent. During this same period, the 
incident rate of reported fires in U.S. homes was 1.26 percent. Causes 
of trailer fires varied greatly, and include factors such as arson, 
smoking, candles, cooking accidents, overloading of electrical 
circuits, portable space heaters and other electrical heat sources 
operating too close to flammables, and improper use of trailer 
appliances. FEMA has taken numerous precautions to ensure fire safety 
in THUs. The Lousiana Transitional Recovery Office's Individual 
Assistance case workers have consistently communicated THU safety to 
occupants through flyers, PSAs, public information sessions, and face 
to face recertification visits.''

    Chairman Lieberman. Thank you. Senator Akaka.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. Thank you very much, Mr. Chairman. I want to 
commend you and Ranking Member Collins for having this hearing. 
And I want to add my welcome to Mr. Coldebella and his family: 
Your lovely wife, Heather, and your Mom and Dad, Phyllis and 
Gus. Welcome to the Committee.
    Mr. Chairman, I ask that my full statement be made a part 
of the record.
    Chairman Lieberman. Without objection.
    [The prepared statement of Senator Akaka follows:]
                  PREPARED STATEMENT OF SENATOR AKAKA
    Thank you, Mr. Chairman. I join you in welcoming Mr. Coldebella and 
his family and friends today.
    Mr. Coldebella, I want to start by thanking you for your service at 
the Department of Homeland Security. I appreciate your willingness to 
leave a law firm partnership to join the Federal Government.
    However, I do have several concerns about your nomination, which I 
hope you will address at this hearing.
    I am concerned about vacancies in the General Counsel's office, 
particularly among senior-level people. As we near the presidential 
transition, filling key vacancies with highly-qualified Federal 
employees is increasingly important.
    My other concerns all relate to the tendency in this Department and 
this Administration to view Executive Branch power expansively and 
congressional oversight as something to be avoided, evaded, or 
marginalized whenever possible. I hope you approach oversight as a 
constitutional congressional responsibility and a constructive avenue 
to improve government programs for the American people, but I am 
concerned that your actions may indicate otherwise.
    I have been disappointed at times with DHS delays in responding to 
congressional requests for information and the adequacy of the 
information we receive. Too often, the Department categorizes 
information as law enforcement sensitive or otherwise restricts it, 
likewise limiting the public's access to information about DHS 
activities. Similarly, the Government Accountability Office (GAO) has 
had problems with access to information during your tenure in the 
Office of General Counsel.
    Additionally, I am troubled by your office's aggressive legal 
interpretations of certain statutes to fit Administration priorities. 
Relatedly, I am troubled by your view that Executive Branch officials 
are bound to follow presidential signing statements disagreeing with 
provisions of laws passed by Congress and signed by the President.
    I understand that these problems are not always connected with the 
General Counsel's office, but it appears that your office at times has 
been part of the problem rather than part of the solution.
    If confirmed, I hope you will work to increase the Department's 
transparency and accountability.
    I look forward to hearing from you on these important issues.
    Thank you, Mr. Chairman.

    Senator Akaka. I will come back to the issue of your 
approach to oversight, if possible, but first I would like to 
ask you about an issue that is very important to my State of 
Hawaii.
    The Passenger Vessel Services Act (PVSA), restricts 
foreign-flagged ships' operations at U.S. ports. But it has not 
been enforced adequately. Customs and Border Protection (CBP) 
issued an interpretive rule on the PVSA in November 2007. In 
May 2008, I asked Paul Schneider about the delay in finalizing 
the rule, and he promised a speedy resolution. Well, my concern 
now is that the rule still has not been finalized.
    In the meantime, due to unfair competition from foreign 
ships that are not required to follow U.S. tax, labor, 
environmental, and other laws, two U.S.-flagged cruise ships 
left Hawaii for the last time, causing a dramatic economic loss 
in my State. And that is my concern. There is only one 
remaining large U.S.-flagged cruise ship operating in Hawaii.
    Mr. Coldebella, can you explain to me the delay in 
finalizing this regulation?
    Mr. Coldebella. Senator, thank you for asking the question. 
As you pointed out, CBP issued interpretive guidance late last 
year regarding the PVSA. We received over a thousand comments 
on that draft interpretation, and most of them were supportive; 
that is, for the trade between Los Angeles and Hawaii for large 
passenger vessels, the U.S.-flagged vessels should be protected 
by the PVSA. There were, I think, an equal number of comments 
that raised concerns about other trades around the country, 
specifically from the Northwest of the United States to Alaska 
and around New England, that the rule--the interpretation was 
drafted in such a way that it might suggest that foreign-
flagged vessels operating those trades without any large-
passenger U.S. vessels in the same trade would also have to 
leave those other markets. And even though the rulemaking is 
pending, Senator, I can tell you a few things.
    We have sent the rule over to the Office of Management and 
Budget (OMB)--for what I hope will be a quick review--last 
week. And while we took those comments that I just noted for 
you into account in putting together the rulemaking, the core 
function of the interpretation that CBP issued late last year 
is still intact; that is, the large U.S.-flagged passenger 
vessels that you were speaking of will be protected by the 
PVSA.
    Senator Akaka. Well, as I said, my concern was the delay, 
and hopefully we can get that as soon as we can.
    Mr. Coldebella, I am concerned about the vacancies in your 
office, particularly among senior-level people. And this 
Committee--in particular, my Subcommittee on Oversight of 
Government Management, the Federal Workforce, and the District 
of Columbia--has been working on the recruitment and retention 
of employees throughout the Federal Government. A recent report 
by the National Academy of Public Administration on DHS's 
planning for the presidential transition revealed that the DHS 
Office of General Counsel had a 40-percent vacancy rate in 
executive positions. That was one of the highest levels in the 
Department, which has an overall average vacancy rate on the 
executive level of 26 percent. Moreover, one-third of the 
executives that you do have are political appointees who will 
leave at the end of this Administration. This is very 
concerning to me.
    As we near the presidential transition, filling key 
vacancies with highly qualified career employees is 
increasingly important, and you will be left with very few 
senior people through the Presidential transition.
    What are you doing to fill high-level vacancies in the 
Office of General Counsel?
    Mr. Coldebella. Thank you, Senator. We read the same 
report, and we have been acting on the recommendations made in 
it. I will note a few things.
    The first one is that we have appointed a Deputy General 
Counsel, who is a career lawyer, who will provide continuity 
for the new Secretary immediately upon his or her arrival. I 
think that is important, and we are striving to do that around 
the Department for all of the headquarters components and the 
operating components.
    The second point that you have made about vacancies is one 
that we have been working hard to remedy. In fact, the senior 
leadership positions within the headquarters of OGC have all 
been filled or are on the brink of being filled; that is, the 
Associate General Counsel for Immigration, the Associate 
General Counsel for Science and Technology, and the Associate 
General Counsel for Operations and Enforcement are either at 
the end of their listing period or they are in the selection 
process.
    But the most important point that I will make is regarding 
the percentage of political appointees within OGC. We have been 
steadily reducing the number of political appointees in the 
senior leadership ranks of OGC. In fact, when the Department 
began, I think also when I began at the Department, the 
Associate General Counsel for Science and Technology was a 
political appointee, the Associate General Counsel for 
Information and Analysis was a political appointee, and the 
Associate General Counsel for Immigration was as well. All of 
those positions have been converted within the last year or so 
during the posting of these jobs that I just discussed to 
career positions, which I think, in addition to the Deputy 
General Counsel, will ensure high-quality legal advice to the 
new team.
    Senator Akaka. If I may, Mr. Chairman. Mr. Coldebella, I 
have long been concerned with DHS's overreliance on contractors 
to perform government work. I understand that DHS used 
contractors to assist in drafting and editing DHS's 
regulations.
    What actions are you taking to ensure that contractors are 
not, in effect, making policy determinations that the American 
people expect to be made by government officials?
    Mr. Coldebella. Senator, I take seriously the proscription 
on using contractors to perform inherently governmental 
functions, and one of those functions--in fact, one of the 
functions that is mentioned in the OMB circular is 
``interpreting the laws that Congress passes.'' And I include 
in that, making the policy choices that end up in the 
regulations of the Department.
    Let me mention a few things.
    First of all, we have lawyers in each of our components 
that are providing guidance to the policymakers and the 
operators about what is appropriate and what is not appropriate 
for contractors to do.
    Now, the Department's rulemaking pace is torrid. Congress 
has, I think quite rightly, given the Department of Homeland 
Security several deadlines on important regulations which we 
are striving to meet. While I would prefer all of the work on 
our regulations to be done by Federal employees, we must make 
sure as a Department that when that work--such as economic 
analysis, for one example--is done by contractors, that the 
contractors are not making any of the policy choices that are 
being implemented in that rulemaking. That requires good 
supervision by the contracting officials and the operators in 
those components to make sure that the contractors are being 
given very strong guidance as to what they may and may not do.
    Senator Akaka. Thank you, Mr. Chairman, for your courtesy, 
and thank you, Mr. Coldebella, for your responses.
    Mr. Coldebella. Thank you, Senator.
    Chairman Lieberman. Thank you, Senator Akaka. We will do 
one additional round as time allows. We are going to have a 
vote in the next 5 or 10 minutes.
    Obviously, you get the drift, Mr. Coldebella, that the 
concern that I have is about what we could expect from you as 
General Counsel in terms of cooperation with Congress. Let me 
go to the question of the relations with the Government 
Accountability Office, which we work very closely with on this 
Committee.
    On June 30, the Department of Homeland Security issued a 
new directive on relations with GAO after several months of 
discussions, as you know. Unfortunately, I understand that GAO 
remains dissatisfied with and skeptical of this new directive. 
Just yesterday, GAO's General Counsel sent you a letter 
complaining that the new process ``places burdensome controls 
over access to the information we need and to which we have a 
statutory right of access.''
    Their concern apparently is that under the new procedures, 
even simple requests will not be able to be handled by the 
program officials with knowledge of the matter, but will 
require the involvement of multiple layers of ``liaisons,'' and 
they fear that would lead inevitably to greater delays and 
reduced access.
    So I want to ask you what assurances can you offer that 
these new procedures will not hamper and delay access needed by 
GAO to conduct its audits and ultimately to keep Congress and 
the American people informed, and whether you intend to take 
any further action that even small, routine requests for 
information by GAO are not encumbered by a lengthy, multi-
layered review process.
    Mr. Coldebella. Thank you, Senator. Gary Kepplinger, who is 
the General Counsel of GAO, and I have a small disagreement 
about the management directive that you referenced in your 
question. What is driving the revision of the Department's 
process vis-a-vis GAO is a perception that access to documents 
and access to witnesses has taken too long, not ultimately that 
GAO hasn't received access to the documents and witnesses that 
it has asked for but that it has taken too long.
    We have set for ourselves a very aggressive goal, which is 
providing documents to GAO within 20 days. What animates the 
requirement, not that all requests go to a central point, but 
that a GAO liaison at least be aware of the fact that GAO has 
asked for documents, so that person can make sure that the 20-
day calendar is being met.
    As I was saying earlier, if the request goes directly to a 
program person, the manager of the CBP office on the Southwest 
border, for example, that person has mission after mission 
after mission that he or she has to accomplish. And one of the 
long list of things will be responding to this GAO request.
    If the request is also communicated to the CBP liaison or 
the Border Patrol liaison, then that person's sole task is 
making sure that the document gets from where it is to where it 
needs to be within the 20 days that we have set for ourselves 
as a goal.
    I do not begrudge Mr. Kepplinger's opinion here. We have 
had at least two discussions about this, and probably even 
more. And as I told him, I am committed to making sure the 
Department sticks with that schedule. What are we going to do? 
As we are working through the new process, we are going to make 
sure that all the documents are produced within that time 
period. And when Ms. Duke and I were talking to the senior 
leadership of the Department regarding the new management 
directive, we made it very clear that, in addition to this 
piece of paper, there was going to be training. Folks from the 
Under Secretary's immediate office and knowledgeable lawyers 
were going to talk to everyone who is involved in the chain of 
production to GAO about making sure that they comply with the 
new 20-day requirement.
    So what I would say, Senator, is the proof is in the 
pudding. If for some reason we see a lot of requests that are 
going over the target that we have set for ourselves, then I 
will revisit the management directive.
    Chairman Lieberman. All right. I appreciate that. So you 
are saying that the liaisons and what they see as 
centralization and unnecessary notification for routine 
requests is really your attempt to guarantee that all requests 
are answered within 20 days.
    Mr. Coldebella. The Department has an obligation to 
Congress because this did appear in a statute, to get those 
documents out within 20 days, yes.
    Chairman Lieberman. All right. So we are going to hold you 
to that.
    Let me ask you--and I apologize for doing this. I just have 
about a minute left, and we have to go soon. I want to know, 
briefly, if you would indicate to us what legal bases, if any, 
you believe there are for the Department to ever withhold 
requested information or documents from Congress. In other 
words, this is the basic concern that is expressed about your 
nomination, not your qualifications, not your integrity, but to 
what extent you will block Congress' exercise of its 
responsibilities.
    Mr. Coldebella. Senator, I think my operating principle 
since February 2007, when I became the Acting General Counsel, 
is to, as quickly as possible, give Congress all the documents 
that it requests; if there are questions or concerns, to 
immediately speak with the staff about those questions or 
concerns.
    Now, we spent quite a while talking about this topic in my 
staff interview. The questions of privilege or other legal 
defenses should not really be reached when the Department is 
operating in the right way and when the staff is operating in 
the right way, which is to get together and speak about what is 
necessary right now, what the concerns are, and getting to a 
solution that works for both Congress and the Department.
    I think the basis for what has been called for years ``the 
process of accommodation'' is in some decisions; it is in some 
Attorney General opinions from every Administration. But we 
could talk about the law. What I want to assure you, Senator, 
is that since I have been heading up OGC, I think the problems 
that may have been described by some of the other Senators and 
some of the things that may be causing you concern have not 
appeared. There are fewer, if any, access issues that I would 
say some lawyer is causing this problem to happen. And, in 
fact, with this Committee, with GAO, and with the IG, I see my 
lawyers and I certainly see myself as a facilitator of getting 
the information quickly out to Congress.
    Chairman Lieberman. OK. My time is up. Senator Collins.
    Senator Collins. Thank you.
    Mr. Coldebella, I want to return to two issues which 
Senator Akaka raised with you. The first is the proposed rule 
from Customs and Border Protection that I have a very different 
view than my friend from Hawaii has. This rule, simply put, 
would devastate the cruise ship industry in my State and result 
in the loss of tens of millions of tourism dollars. It would 
require foreign-flagged cruise ships--and almost all of the 
cruise ships today are foreign-flagged--to visit a foreign port 
for at least 48 hours during each trip itinerary.
    I have filed comments in opposition to that rule expressing 
my concerns, as have several other Maine State officials and 
businesses from my State. In total, I am told that there were 
hundreds of comments filed, most in opposition to the proposed 
rule.
    I know that you cannot comment on what is in the rule given 
the stage of the proceeding, but I am seeking from you two 
things today: One is assurance that when the final rule is 
issued, it will address the points that were raised in these 
comments; and, second, I would like a better indication from 
you of the time frame for issuing the final rule. You mentioned 
to Senator Akaka that it has been sent to OMB for review. When 
do you expect the revised rule to actually be issued?
    Mr. Coldebella. Thank you, Senator. This is one of our top 
priorities. The rule, as I said, is at OMB. I will commit to 
checking on the process as soon as I get back to the office, 
but I think it is fair to say that it will be--OMB has 90 days 
to review. I think it will be significantly shorter than that.
    On the assurance regarding the comments that you and--you 
are right--hundreds of others made about the effect that this 
would have on other trades around the country, you do have my 
assurance that those comments have been taken into account in 
what has been submitted to OMB.
    Senator Collins. Thank you, and I would appreciate prompt 
notification when the rule is about to be issued.
    Let me return to another issue that the Senator from Hawaii 
raised, and it is one that I know is of great concern to the 
Chairman as well because he held an excellent hearing looking 
at the overreliance of DHS on contractors.
    I am sympathetic to the fact that DHS has been inundated 
with work, with new rules, with new laws, with new 
responsibilities. And I also recognize that all of them are 
time sensitive. When it comes to protecting the security of 
this Nation, everything is important and, thus, we have imposed 
a tremendous work burden on the Department. But I can tell you 
also that this Congress, this Senate, is also very responsive 
when DHS tells us that you need more people to carry out these 
responsibilities.
    The hearing that the Chairman held earlier this year found 
that DHS has an overreliance on private contractors and that 
the line which is supposed to be drawn keeping inherently 
governmental functions for Federal employees to carry out has 
been crossed many times. And this is not just my view or the 
Chairman's view. It was the result of an analysis that GAO did 
which found that to be the case.
    I am very concerned when I look at the list of contractor 
support in DHS rulemakings that the Department has provided to 
the Committee that a contractor for Citizenship and Immigration 
Services has performed research and prepared the initial draft 
of a regulation. Preparing the initial draft of a regulation 
seems to me to be clearly an inherently governmental function 
that should not be contracted out. It involves substantial 
value judgments and decision-making.
    Do you think it is appropriate for DHS to be using private 
contractors to draft the initial regulation or policy?
    Mr. Coldebella. Senator, I would prefer it--and I expressed 
this to the Committee staff--if Federal employees ran every 
step of the rulemaking process. I think implementing the laws 
that Congress passes is an inherently governmental function. 
And I have no reason to doubt--and have talked a little bit 
about what my office does in order to train people on how to 
draw that line appropriately between what contractors may do 
and what contractors should not do because the function is 
inherently governmental.
    I will add one additional thing about the rulemaking 
process, which is while it is suboptimal to have non-Federal 
employees write the initial draft of a regulation, the 
rulemaking process at DHS is one of the functions that actually 
has many sets of eyes, not just Federal employee eyes but high-
level Federal employee eyes, on the rulemaking before it is 
signed by the Secretary and put in the Federal Register.
    So I completely agree with the premise, and I agree that 
the Department--I think Ms. Duke testified, amongst others, at 
the hearing that you are referring to. She and I have spoken 
about the many ways that we can further shore up this process. 
But I can tell you that for every significant rulemaking, a 
senior member of my career staff and SES will review the rule, 
and then I will review the rule, and then the Secretary will 
review the rule.
    Senator Collins. I do not doubt that, and I understand that 
the rule is not going to be published without the involvement 
of high-level staff as well as political appointees in the 
Department. But that is still very different when you have a 
private contractor drafting the initial rule. That does not 
strike me as an appropriate function to be contracting out. And 
I would also argue that it is very questionable--and the 
Department has done this as well--that the Department uses 
contractors to do comment evaluation. In other words, we just 
spoke of a rule that is very important in my State. Should that 
be contracted out to review those comments?
    I think, again, that is inherently governmental, and it is 
something that should be done by Federal employees. And the 
problem is when you contract out core judgments or core work 
like preparing regulations and evaluating the comments, it 
casts a cloud over the integrity of the process. It raises 
conflict-of-interest concerns that otherwise would not exist 
when the Department keeps that work fully in-house.
    So I would encourage you to adopt a policy that either 
eliminates that kind of contracting out or certainly curtails 
it significantly. As you yourself have been very forthright in 
saying today, it is inherently governmental and, thus, 
arguably, you are not following the law if it is contracted out 
or you are not following the OMB circular on that issue. And it 
just casts a cloud of suspicion over the integrity of the 
rulemaking process. DHS does not need that. If you need more 
employees to do the work, come to us, and I think you will find 
that we are very sympathetic to that cause.
    Mr. Coldebella. Thank you, Senator. I agree.
    Senator Collins. Thank you, Mr. Chairman.
    Chairman Lieberman. Thanks, Senator Collins.
    Mr. Coldebella, that will be it. In one sense, I think that 
probably is good news to you. In the other sense, you have a 
lawyer's taste for debate, so maybe it could have gone on if we 
did not have to go and vote.
    I want to thank you for appearing before the Committee 
today. I want to again express respect and appreciation that 
your parents and your wife are here. And I want to indicate 
that, without objection, the record of this hearing will be 
kept open until 12 noon tomorrow for the submission of any 
written questions or statements by other Members for the 
record.
    Would you have anything that you would like to say before 
we close?
    Mr. Coldebella. No. I think we have been keeping a pretty 
good list of the requests that were made during the hearing, 
and we will get you answers as soon as possible.
    Chairman Lieberman. I appreciate that very much. Thank you.
    The hearing is adjourned.
    Mr. Coldebella. Thank you.
    [Whereupon, at 11:26 a.m., the Committee was adjourned.]



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