    [Senate Hearing 111-637]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 111-637

               NOMINATIONS OF IVAN K. FONG AND TIMOTHY W. MANNING

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

                                    HEARING

                                   before the

                                  COMMITTEE ON
                   HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                              UNITED STATES SENATE

                                     of the

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

     NOMINATIONS OF IVAN K. FONG TO BE GENERAL COUNSEL, U.S. DEPARTMENT OF
     HOMELAND SECURITY, AND TIMOTHY W. MANNING TO BE DEPUTY ADMINISTRATOR
     FOR NATIONAL PREPAREDNESS, FEDERAL EMERGENCY MANAGEMENT AGENCY, U.S.
                        DEPARTMENT OF HOMELAND SECURITY

                                 APRIL 30, 2009

                                   __________

           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              TOM COBURN, Oklahoma
    THOMAS R. CARPER, Delaware           JOHN McCAIN, Arizona
    MARK L. PRYOR, Arkansas              GEORGE V. VOINOVICH, Ohio
    MARY L. LANDRIEU, Louisiana          JOHN ENSIGN, Nevada
    CLAIRE McCASKILL, Missouri           LINDSEY GRAHAM, South Carolina
    JON TESTER, Montana
    ROLAND W. BURRIS, Illinois
    MICHAEL F. BENNET, Colorado

                      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 Akaka................................................    11
    Prepared statements:
        Senator Lieberman........................................... 23, 27
        Senator Collins..............................................    25
        Senator Voinovich............................................    29

                                   WITNESSES
                            Thursday, April 30, 2009

    Hon. Jeff Bingaman, a U.S. Senator from the State of New Mexico..     1
    Hon. Sherrod Brown, a U.S. Senator from the State of Ohio........     2
    Ivan K. Fong to be General Counsel, U.S. Department of Homeland
      Security.......................................................     5
    Timothy W. Manning to be Deputy Administrator for National
      Preparedness, Federal Emergency Management Agency, U.S.
      Department of Homeland Security................................    15

                         Alphabetical List of Witnesses

    Bingaman, Hon. Jeff:
        Testimony....................................................     1
    Brown, Hon. Sherrod:
        Testimony....................................................     2
    Fong, Ivan K.:
        Testimony....................................................     5
        Prepared statement...........................................    31
        Biographical and financial information.......................    36
        Responses to pre-hearing questions...........................    54
        Letter from the Office of Government Ethics..................   104
        Responses to post-hearing questions for the Record...........   105
    Manning, Timothy W.:
        Testimony....................................................    15
        Introduction statement submitted by Senator Tom Udall........    30
        Prepared statement...........................................   113
        Biographical and financial information.......................   117
        Responses to pre-hearing questions...........................   128
        Letter from the Office of Government Ethics..................   174
        Responses to post-hearing questions for the Record...........   175

               NOMINATIONS OF IVAN K. FONG AND TIMOTHY W. MANNING

                                  ----------

                            THURSDAY, APRIL 30, 2009

                                         U.S. Senate,
                               Committee on Homeland Security
                                      and Governmental Affairs,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:02 a.m., in
    room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
    Lieberman, Chairman of the Committee, presiding.
        Present: Senators Lieberman and Akaka.

                OPENING STATEMENT OF CHAIRMAN LIEBERMAN

        Chairman Lieberman. Good morning. The hearing will come to
    order. I want to apologize to the nominees and my colleagues
    who are here because I was held up at a previous meeting. I
    apologize for being late. And I decided on the walk over that
    my penitence for this tardiness would be that I would not force
    Senators Bingaman and Brown to hear my opening statement,
    though we will send copies of it to your offices because I know
    you are interested in reading it.
        But, anyway, I thank you for being here, and if it is OK,
    we will go to Senator Bingaman for the introduction and then to
    Senator Brown.

    TESTIMONY OF HON. JEFF BINGAMAN, A U.S. SENATOR FROM THE STATE
                             OF NEW MEXICO

        Senator Bingaman. Well, thank you very much, Mr. Chairman,
    for letting me participate in your hearing and introduce Tim
    Manning.
        He is President Obama's nominee for Deputy Administrator
    for National Preparedness at the Federal Emergency Management
    Agency (FEMA). He is currently the State Director of New
    Mexico's Department of Homeland Security. Before that, he was
    the Director of the Governor's Office of Homeland Security.
    Before that, he was our State Director of Emergency
    Preparedness. And prior to all of those positions, he has had
    many other very impressive jobs, as a firefighter, emergency
    medical technician, rescue mountaineer, hazardous materials
    specialist, and hydrogeologist.
        He was raised just outside of Chicago and received his
    bachelor's degree in geology from Eastern Illinois University.
    In 1994, he moved to New Mexico. He has lived in our State
    since then with his wife, Sarah, and their daughter, Katie.
        Since coming to New Mexico's Department of Homeland
    Security, he has met and exceeded all expectations. He has
    proven himself as a true professional. He is obviously
    extremely steeped in the needs of our State and has had the
    occasion, while serving in our State government, to respond to
    natural disasters of all kinds. So I think he is extremely well
    qualified for this position for which the President has chosen
    him, and he will serve the Nation extremely well in this new
    role at FEMA.
        Obviously, New Mexico will be sorry to see him leave, but
    we think, for the good of the country, it is an excellent
    appointment.
        So thank you again for letting me introduce Mr. Manning,
    and I hope your Committee is able to recommend him to the full
    Senate for confirmation quickly.
        Chairman Lieberman. Thank you, Senator Bingaman, for an
    excellent introduction.
        Senator Brown, welcome.

    TESTIMONY OF HON. SHERROD BROWN, A U.S. SENATOR FROM THE STATE
                                OF OHIO

        Senator Brown. Thank you, Mr. Chairman. This is my first
    time in front of your Committee. It is a pleasure to be here.
        I am thrilled to introduce Ivan Fong, the nominee for the
    position of General Counsel at the Department of Homeland
    Security (DHS). Particularly with the way things are in our
    country today, it is an especially important appointment, and I
    am honored to introduce him. I had the pleasure of meeting
    Sharon, Caroline, and Caitlin a moment ago, and also Mr. Fong's
    parents and brother-in-law, and it seems like a wonderful
    family. They live in Dublin, Ohio. We are, as Senator Bingaman
    said, in his case with Mr. Manning, sorry to see him leave the
    State. We hope to convince his family to stay in Ohio also, but
    that is certainly their decision.
        Ivan's qualifications for this job are solid and clear. Let
    me give you a brief snapshot. He is currently the Chief Legal
    Officer and Secretary for Cardinal Health, which is the single
    largest company in my State. It is located in the Columbus
    area. He has had a history of public service. When he was in
    the private sector, he lived in the Chairman's State.
        His history of public service, he was Deputy Associate
    Attorney General for the Department of Justice (DOJ) during the
    Clinton years. He played a key role in civil litigation and
    enforcement matters. He has testified before Congress on issues
    such as Internet access to chemical safety information, online
    pharmacies, and electronic signatures in contracting. Most
    importantly, or equally importantly, he was the primary author
    and editor of a ground-breaking report on cyber crime policy
    titled ``The Electronic Frontier: The Challenge of Unlawful
    Conduct Involving the Use of the Internet.'' He returned after
    his service in the government to the private sector and has
    held positions with both General Electric and Cardinal Health
    in Columbus, as I said.
        Ivan holds bachelor and master of science degrees in
    chemical engineering from the Massachusetts Institute of
    Technology (MIT), his law degree from Stanford, and he was a
    Fulbright scholar at Oxford in the United Kingdom. I could go
    on. You get the picture. He clearly is ready for this job to
    face these challenges. His experience as a litigator, a
    manager, and an expert in cyber security and other emerging
    security issues will enable him to well serve that agency and,
    most importantly, the people of our great country.
        I recommend him to you, Mr. Chairman, and hope the
    Committee will quickly recommend him to the full Senate for
    confirmation. Thank you.
        Chairman Lieberman. Thanks, Senator Brown.
        The two of you have spoken very eloquently about the two
    nominees. These are two extraordinarily well qualified nominees
    for the positions for which they have been nominated, and I
    must say, though I know some people have found some of
    President Obama's nominations to be controversial for policy
    matters, generally speaking, I think the quality of the
    nominees has really been very high, and that is certainly true
    of these two. These two people may actually be qualified for
    the position for which they have been nominated. This is
    reassuring.
        Senator Bingaman and Senator Brown, I know you have busy
    schedules. I thank you for taking the time. Your testimony and
    introduction matters a lot to the Committee, and we will
    certainly understand if you have to depart. Thank you.
        We are going to proceed first with Mr. Fong's nomination,
    so I will ask Mr. Manning to drop back. Am I seeing double over
    there? [Laughter.]
        You are confusing me a little. This holds real potential
    for the way in which you can be handling double crises at the
    same time. You will explain that when we come to you, Mr.
    Manning. Thank you.
        We are going to move now to the nomination of Ivan Fong. I
    do want to state for the record that Senator Collins, the
    Ranking Member, who rarely misses a meeting or a hearing, has a
    conflicting hearing before the Appropriations Committee with
    Secretary Gates, I believe, and she sends her regards to the
    two nominees and her regrets not to be here.
        Ivan Fong has been nominated to serve as General Counsel of
    the Department of Homeland Security. As I indicated, he has an
    impressive record both academically and professionally and a
    breadth of experience that will serve the Department of
    Homeland Security and the General Counsel's office very well.
    He has both a bachelor's and a master's degree in chemical
    engineering from MIT, where he was elected to Phi Beta Kappa.
    He received his Doctor of Jurisprudence with distinction from
    Stanford Law School and was president of the Stanford Law
    Review. He was a Fulbright scholar at Oxford University,
    clerked for Federal Appeals Court Judge Abner Mikva and Supreme
    Court Justice Sandra Day O'Connor. That is quite a curriculum
    vitae.
        After a period at the law firm of Covington and Burling,
    Mr. Fong joined the Clinton Administration Justice Department
    as a Deputy Associate Attorney General where he oversaw civil
    litigation, environmental matters, and technology issues. As
    Senator Brown indicated, he was the principal author of a
    seminal report on cyber crime titled ``The Electronic Frontier:
    The Challenge of Unlawful Conduct Involving the Use of the
    Internet.''
        Mr. Fong returned to the private sector after his DOJ
    experience, I am pleased to say, living for a few years in
    Connecticut and working for a great company, General Electric,
    and most recently serving as the Chief Legal Officer at
    Cardinal Health, which is a Fortune 20 company. We are grateful
    that you are now willing to return to public service. The
    position of General Counsel is obviously a critical one at the
    Department, and the challenges and issues you will confront are
    likely to be as diverse and varied as the challenges faced by
    the Department as a whole.
        Yesterday, Secretary Napolitano was before us to testify
    about the Department's central role, really designated by
    statute and Presidential directive as the incident manager for
    such events for the entire Federal Government, and there are
    important and, I would say, fascinating ethical, governmental,
    and legal questions that are raised by this current H1N1 flu
    epidemic.
        First and foremost, the General Counsel, of course, must
    advise the Secretary and manage the legal functions of the
    Department. But the General Counsel must also ensure that the
    fundamental rights of the American people are protected as the
    Department carries out its mission.
        The General Counsel also occupies a central position with
    respect to the relationship and interaction between the
    Department and Congress. The General Counsel must counsel the
    Secretary on how the laws Congress passes should be interpreted
    and implemented and also has an important part in guiding the
    Department's interactions and relationships with the other
    Federal agencies and departments with which it partners to keep
    us all secure. Good lawyers help their clients reach their
    goals quickly and with a minimum of risk. But I think you know,
    Mr. Fong, that the mark of a great lawyer is not just the
    desire ``to get to yes,'' but to do so with the courage and
    wisdom to know also when to say no.
        Indeed, the responsibilities of--and burdens placed upon--a
    lawyer in government service are different from those in the
    private sector, and I speak here as one who was privileged for
    6 years to be the Attorney General of Connecticut. The private
    sector lawyer has the luxury, so to speak, of being singularly
    focused on his or her client's needs. The government lawyer has
    the obligation to look beyond the immediate needs of the agency
    and to consider the broader public interest and the fidelity to
    the laws of the country.
        From all that I know about you, I am confident, Mr. Fong,
    that you understand these responsibilities and will carry them
    forward as the General Counsel at the Department.
        Let me now proceed to some formal parts of the hearing.
    Ivan Fong has filed responses to a biographical and financial
    questionnaire, answered pre-hearing questions submitted by the
    Committee, and 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.
        Mr. Fong, our Committee rules require that all witnesses at
    nomination hearings give their testimony under oath, so I would
    ask you at this time if you would 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. Fong. I do.
        Chairman Lieberman. Thank you very much. Please be seated.
    I would welcome an opening statement and, at whatever time you
    feel appropriate, the introduction of the family that you have
    with you today.

       TESTIMONY OF IVAN K. FONG \1\ TO BE GENERAL COUNSEL, U.S.
                    DEPARTMENT OF HOMELAND SECURITY

        Mr. Fong. Thank you, Mr. Chairman. Let me also thank
    Senator Brown for his warm introduction and for his support, as
    well as that of Senator Voinovich, who I understand could not
    be here today.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Fong appears in the Appendix on
    page 31.
    ---------------------------------------------------------------------------
        It is a great honor and privilege for me to be here this
    morning as the nominee to be the General Counsel of the
    Department of Homeland Security. I thank the President and
    Secretary Napolitano for their confidence in me, and I thank
    the Committee for taking up this nomination.
        I also want to thank and recognize members of my family,
    without whose love and support I would not be here today. First
    and foremost, I owe an immense and immeasurable debt of
    gratitude to my wife, Sharon, who has sacrificed greatly and
    supported me in all that I have done, to allow me to be here
    before you today.
        Although our oldest daughter, Kelley, who is away at
    college in California, is unable to be here today, I am
    grateful that our younger two daughters, Caitlin and Caroline,
    are able to be here to share in this event. I am so very proud
    of all of them, and they, like my wife, will be sacrificing in
    their own ways to allow me to pursue this significant
    opportunity for public service.
        I also want to introduce a few other members of my family
    who are here, including my parents, Jeffrey and Elizabeth Fong,
    both of whom are career civil servants with the National
    Institute of Standards and Technology, and from whom I learned
    the values of education and hard work, a love of learning, and
    the importance of giving back to one's community. My brother-
    in-law, Cliff Ty, is also here, as well as a number of others
    whose friendship and support mean so much to me.
        I believe that public service--and, in particular, service
    to one's country--is among the highest of callings. I also
    believe that protecting the security of the American people is
    of singular importance--and one of the greatest challenges we
    face as a Nation today. And it is precisely that mission and
    challenge that brings me here today: The opportunity to work
    with the dedicated men and women of the Department who perform
    their duties, day in and day out, with diligence and
    professionalism; the opportunity to collaborate and coordinate
    with other Federal agencies in the broad work of the Department
    in achieving our shared mission of preventing, protecting
    against, responding to, and recovering from terrorist incidents
    and natural disasters; and the opportunity to partner with
    State, local, international, and private sector representatives
    to protect our critical infrastructures and to help prepare for
    and respond to disasters of all kinds.
        As you know, the General Counsel is the chief legal officer
    of the Department. It is a weighty responsibility and one that
    I take seriously. If confirmed, I pledge to work tirelessly to
    build upon the progress that has been made to strengthen the
    Department and to help it to be successful in achieving its
    goals.
        My unique blend of professional experiences prepares me
    well, I believe, for this role. As you indicated, I bring over
    two decades of experience as a lawyer and litigator in private
    practice, as a Deputy Associate Attorney General with the
    Department of Justice, and as a general counsel and chief legal
    officer of large, complex organizations in the private sector.
    These positions have given me broad substantive experience in
    litigation and regulatory law, legal and policy experience in
    areas such as privacy and cyber security, and leadership skills
    directly related to the responsibilities of the chief legal
    officer of the Department and the mission of homeland security.
        Those experiences have brought me here today, where I
    believe the role of General Counsel is a natural extension of
    the positions I have previously held.
        Specifically, I believe that the position of General
    Counsel has three principal components:
        First, the General Counsel is primarily responsible for
    providing legal advice and support to the Secretary, her senior
    leadership team, and the Department as a whole. Much of the
    day-to-day legal advice and services are, of course, provided
    by the career legal staff, who not only have the specific
    substantive experience, but who also give that advice in the
    context of the operational realities associated with
    implementation of the Department's programs. My role, if I am
    confirmed, would be to ensure that the legal advice given is as
    sound as possible, that I apply my best professional judgment,
    and that legal services are provided in a timely and responsive
    manner.
        Second, the General Counsel, working through the lawyers in
    the Department, also helps ensure that the Department complies
    with applicable laws and regulations, including laws protecting
    civil rights, civil liberties, and privacy. I share this
    Administration's commitment to protecting our security while
    also protecting the civil rights, civil liberties, and privacy
    rights of all Americans. I do not take those important
    commitments lightly. Indeed, not only do I believe that they
    are not incompatible, but I also believe that while protecting
    both our security and our values is difficult, it is precisely
    our country's commitment to rise to that challenge that makes
    us different. In the same vein, given the importance, in our
    constitutional system of government, of congressional oversight
    over the Executive Branch, I also believe the General Counsel
    has an important responsibility to facilitate full cooperation
    in providing appropriate access to the information Congress
    needs to fulfill its legislative and oversight
    responsibilities.
        Third, the General Counsel is responsible for leading and
    managing the Department's lawyers and legal staff, helping them
    to be as effective and efficient as possible, and promoting a
    culture in which they are trusted problem-solvers, proactive
    advisers, and strategic partners to those whom they support. I
    believe my experiences as a chief legal officer will help me,
    if I am confirmed, communicate a clear strategic vision for the
    legal department; align the legal department around a common
    set of goals and objectives; promote integration of the
    headquarters and component legal departments; and recruit,
    develop, and retain outstanding legal talent at all levels of
    the organization.
        In addition, I believe the General Counsel can also play a
    broader role in helping foster a more unified DHS by
    coordinating cross-functional and cross-component efforts,
    streamlining program implementation, and forging department-
    wide solutions to shared challenges.
        I would like to close by making two points. First, growing
    up in an immigrant family, I believe I have a special
    appreciation for the American dream. The opportunity to serve
    as DHS General Counsel is, for me, the fulfillment of the best
    that this country has to offer. It is a powerful proposition:
    That with hard work, perseverance, education, the support of
    family and friends, and no doubt some luck, I now have an
    opportunity to give back, in a small but significant way, to
    the country that has given me and my family so much.
        Second, I want to close by reiterating how deeply honored I
    am to have been nominated for this position and to appear
    before this Committee today. I am humbled by the challenges
    that lie ahead, though I am confident that under Secretary
    Napolitano's leadership and with your assistance and support,
    we will work together to meet those challenges.
        Indeed, this Committee has shown extraordinary leadership
    in creating and standing the Department up during its formative
    years, and I know that there is extensive expertise here. If
    confirmed, I look forward to working collaboratively and
    constructively with this Committee, and I will do my level best
    to ensure that the Department works closely with you.
        Thank you again, Mr. Chairman, for this opportunity to
    appear before you, and I would be pleased now to answer any
    questions you may have.
        Chairman Lieberman. Thank you very much, Mr. Fong, for an
    excellent opening statement. I was thinking, as you mentioned
    the word ``luck,'' that my mother, who also came from an
    immigrant family, always told my sisters and me that luck comes
    to those who work hard for it. And I would guess that is the
    case with you.
        I am going to start my questioning with the standard
    questions we ask of all nominees. First, 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. Fong. No.
        Chairman Lieberman. 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. Fong. No.
        Chairman Lieberman. And, third, 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. Fong. Yes.
        Chairman Lieberman. Thank you. We will now go to the
    questions. Let me begin with a broad question. Your office is
    going to have a very wide array of challenges competing for its
    attention--threats to critical infrastructure, a growing sense
    and awareness of threats to our cyber networks, potential
    vulnerabilities on mass transit at our ports, preventing weapon
    of mass destruction (WMD) attacks, obviously responding to
    natural disasters now, being involved in the response to a flu
    epidemic, perhaps a pandemic, border security, immigration
    matters, and on top of all that, the challenge of managing
    1,700 lawyers dispersed among the many components of a still
    new and very large Department.
        So, if confirmed, what will be your top priorities? What
    issues do you intend to focus on first?
        Mr. Fong. Thank you, Mr. Chairman, for highlighting, I
    think, one of the significant challenges of any of these senior
    roles within the Department of Homeland Security given the
    breadth of issues that it faces. I would say that my primary
    priority will be, first, to learn as much as I can about the
    Department and the issues that you have articulated. I believe
    that working closely with the Secretary and the senior
    leadership team that she has assembled will be very important
    to allow me to align the mission and goals that I will be
    developing for the legal department so that, as you said
    earlier, the lawyers can give advice informed by the issues
    that the Department will be facing.
        In addition, I believe that protecting our security is
    perhaps the greatest issue, and I include within that the cyber
    security issues that have been the subject of much discussion
    recently. Obviously, the H1N1 flu issues are very critical this
    day and age. In addition, securing our borders remains a
    priority for the Secretary. As you know, the Southwest border
    violence issues have not gone away. And there are many others.
        So I agree with you that there will be many balls to
    juggle, but I believe also that my experiences have given me
    the confidence to know that, working with others, I will be
    able to prioritize and focus, I believe, on the most critical
    issues that the Department faces.
        Chairman Lieberman. Good. Let me ask you a related
    question, but different. We all understood when we created the
    Department of Homeland Security that there were clear
    advantages which motivated us to bringing a lot of different
    departments together to coordinate our response to emergencies
    and disasters, natural and unnatural, to prevent them and also
    to be ready to respond, but that we were bringing together 22
    different agencies that had different histories--indeed, you
    might say different cultures.
        As you have prepared to assume this position--and, again,
    going back to the 1,700 lawyers--what is your sense of whether
    the General Counsel's office has made progress integrating the
    attorneys from across the Department? And if confirmed, what
    steps would you take to advance that process?
        Mr. Fong. Senator, I believe that the legal department has
    the advantage of having had more integration than other parts
    of the Department. As you may know, because the General Counsel
    is the chief legal officer, the prior Administration had an
    organizational structure in which virtually all the lawyers in
    the Department report up to the General Counsel. And so I
    believe that we are a step ahead in that sense, but I also
    believe that there is still great opportunity to further
    integrate the lawyers into a more cohesive and unified whole.
    And my experiences in particular at General Electric and
    Cardinal Health have given me experience doing precisely that.
    General Electric has many components, but under the leadership
    of then-General Counsel Ben Heineman, there was very much a
    sense that it was one legal department.
        Likewise, when I arrived at Cardinal Health, Cardinal
    Health had grown through acquisitions, and so there were
    components of Cardinal Health that were also relatively siloed
    and not used to working with the rest of the organization. And
    I believe we made great progress in unifying the company and
    its lawyers through principally, I would say, three means.
        The first is for the leader to set a clear vision--I think
    that is very important--so that everyone in the organization
    understands the direction where the group or the team is
    headed.
        Second, I believe it is important to communicate a
    strategy. How is the team going to get there?
        And then, third, what are the priorities so that everyone
    is aligned on some common goals? Otherwise, each of the
    components will have its own goals, and there is more of a
    likelihood that different parts of the organization will be
    going in different directions.
        I know it is a tall order, given the size and the breadth
    of the Department, but I know Secretary Napolitano and the
    Deputy Secretary and the rest of the senior leadership team is
    committed to forging a more unified Department of Homeland
    Security. And I certainly will contribute to that goal.
        Chairman Lieberman. That is excellent, and it is a good
    reminder that the lawyers in the General Counsel's office all
    report up to the General Counsel, though in different agencies,
    and I wish you well in that.
        Let me go on. The Government Accountability Office (GAO)
    and the Department's Inspector General (IG) play a really
    crucial role in assessing the Department's operations, and they
    are also important in advising Congress and helping Congress
    fulfill our oversight obligations, as obviously we are, in the
    Senate side, the oversight committee of the Department.
        Unfortunately, the Department and the General Counsel's
    office, in particular, have in the past received poor marks for
    the level of cooperation provided. GAO has told us that of all
    the departments and agencies with which it works, DHS has been
    the slowest to respond to routine requests and is the most
    frequent to inject lawyers in the process.
        The Inspector General has in the past reported similar
    problems, though more recently they tell us that is improved.
    And I must say that the Committee itself has had a couple of
    rounds with your predecessors as General Counsel in the
    Department.
        So I want to ask you whether you will commit to reviewing
    the Department's policies for working with the GAO, the IG,
    and, in fact, this Committee--and, of course, our colleagues in
    the House--to streamline them to the maximum extent practicable
    and thereby obviously achieve a goal of having better, more
    open, more transparent relationships.
        Mr. Fong. Mr. Chairman, I very much believe in the
    importance of congressional oversight in our system of checks
    and balances. I fully commit to reviewing the management
    directives relating to the Department's interactions with the
    GAO. As you may be aware, the management responsibility for
    interactions with GAO now resides with the Under Secretary for
    Management. I will, as indicated, if confirmed, review the
    procedures by which the Department responds not only to the GAO
    but also to the Inspector General and this Committee to make
    sure that we are facilitating appropriate access to the
    information that the GAO or the IG or this Committee needs.
        I further will, if confirmed, encourage others to
    cooperate. I believe in full cooperation, and I believe my
    experience and record in private practice indicates that in
    analogous situations, I believed that it was important to have
    a dialogue to understand what it was that was being requested
    so that the lawyers could play a constructive role in
    identifying which witnesses actually may be helpful in
    determining or obtaining the information and which documents
    were going to be the most relevant.
        It is true that there are circumstances in which lawyers
    must be present or must review documents to preserve classified
    or national security law enforcement-sensitive information. But
    I also believe that a process of accommodation will allow the
    GAO or the IG or this Committee to obtain the information it
    needs without compromising those interests.
        Chairman Lieberman. Well said. Thank you. One last
    question, and then I will yield to Senator Akaka. I know you
    have this unusually relevant background in cyber security with
    the book that I mentioned and the work that you have done. We
    are in a moment now in history when there are a couple of
    realities we are dealing with. The first is that it is very
    clear that our governmental and private sector cyber systems
    are under constant attack from a wide array of antagonists,
    from individual hackers to foreign governments, to organized
    crime groups, to terrorist groups.
        And the second reality, unfortunately, is that our
    defenses, both in the Federal Government and in the private
    sector, are inadequate to the task--that is to say, the
    attackers always seem to be a step or two ahead of us.
        During a hearing that we held on this subject just 2 days
    ago, we heard testimony that the U.S. Computer Emergency
    Response Team (US-CERT), the operational arm of the National
    Cyber Security Division within DHS, did not have sufficient
    authority to fulfill its mission to protect both Federal and
    private networks. In one instance, we received testimony that
    the US-CERT did not even receive responses from any Federal
    agencies when they were attempting to determine how badly the
    .gov networks had been affected by a recent so-called worm.
    That obviously is unacceptable. So some of the problem here
    rests with the legal authority of US-CERT, which is in the
    process of entering into agreements with other agencies to
    monitor their networks.
        This Committee feels very strongly that the Department of
    Homeland Security has a unique and centrally important role in
    cyber security as we beef up under the President's leadership
    our resources here. And I wanted to ask you what steps you
    believe the Department should take to fulfill this role and how
    you, as General Counsel, intend to help.
        Mr. Fong. Mr. Chairman, I share this Committee's view that
    cyber attacks and cyber security are some of the most
    important, if not the most important, challenges that the
    Department and this country face from a security standpoint. I
    believe the threats are real and that they are serious.
        If confirmed, I will do everything I can to ensure that we
    improve our capabilities, our preparedness, and our ability to
    prevent, detect, and respond to cyber attacks. If confirmed, we
    will work with the other Federal agencies, with this
    Administration, which, as you know, recently completed a 60-day
    review on this topic; and if confirmed, I will look forward to
    working closely with those individuals to implement the
    recommendations from that study.
        I recognize the Committee's views regarding the Department
    of Homeland Security's leadership role, and I agree that there
    should be clarity and coordination, drawing upon the expertise
    of the other Federal agencies, ensuring that US-CERT and other
    components have the legal authorities they need to get the job
    done. So the steps I would take would be to review the
    recommendations from the President's recent study, to review
    the legal authorities of the relevant Department of Homeland
    Security components to make sure that we are able to, as I
    said, do everything possible to prepare for and respond to
    these kinds of attacks and make sure that we have the
    capabilities.
        I believe that this is an area where the challenges are not
    going to be solved overnight. It is going to take time and
    resources and expertise. But I am also confident that the
    Department has the capability to achieve leadership in this
    role.
        Chairman Lieberman. Thanks very much. I hope, as you begin
    your review, that when you see areas particularly related to
    cyber security where you think the Department needs additional
    statutory authority, you will feel comfortable in working with
    the Committee on that. My own reaction--and I think it is
    shared by Senator Collins--is that as we ramp up both with
    resources, now that the President has recommended dollars be
    increased, but also in response to this 60-day review that
    Melissa Hathaway did, we will probably want to act
    legislatively to give you some additional authority, and
    obviously, we want to work with you as General Counsel in that
    regard.
        Mr. Fong. Thank you.
        Chairman Lieberman. Thank you very much.
        Senator Akaka, I am delighted that you are here. Senator
    Akaka is one of the senior Members of the Committee, but
    obviously a young man--certainly young at heart and mind.

                   OPENING STATEMENT OF SENATOR AKAKA

        Senator Akaka. Thank you very much for those remarks, Mr.
    Chairman. I want to thank you for holding this hearing.
        And I also want to congratulate you, Mr. Fong, on your
    nomination, and I want to welcome you here to the Committee,
    and also welcome your family and your friends and your
    supporters who are here with you this morning.
        I want to tell you that I appreciate reading about you and
    also listening to what you are saying today because many things
    that you are espousing here is music to my ears, and I am so
    glad to hear you say them.
        As you know, during the last Administration, the General
    Counsel's office often seemed to view oversight as an
    unnecessary burden instead of a useful way of improving
    government programs. And I am encouraged by your statement on
    the importance of congressional oversight, and if confirmed, I
    hope you will encourage greater transparency and accountability
    throughout the DHS.
        Additionally, I want to note that I appreciate your
    emphasis on protecting civil rights, civil liberties, and
    privacy rights, along with the security of all Americans, as
    well as your view that collective bargaining rights can help
    Federal agencies run as effectively as possible and focus on
    their missions. This is refreshing to me, and I welcome your
    perspectives.
        Mr. Fong, DHS hires approximately one-quarter of new
    employees through the Federal Career Intern Program. This
    allows the Department to keep employees on probation for an
    extra year and to bypass the standard competitive hiring
    process, which includes veterans' preference and other
    protections. The intern program is intended to help agencies
    develop employees needing in-depth agency-specific training.
    However, many of the employees that DHS hires as interns
    receive very little formal training.
        Will you review DHS's use of this program to ensure that it
    complies with competitive hiring laws and the Executive Order
    that created it?
        Mr. Fong. Thank you, Senator Akaka, for your kind remarks.
    As I indicated, I believe that one of the roles of the General
    Counsel is to ensure that the Department's programs are
    operating in compliance with applicable laws. I also believe
    that it is important for these kinds of programs to be applied
    in a fair and responsible way. So I am happy to work with you
    and the Committee to understand whether there are specific
    concerns or other questions you may have so that I can make
    sure that I am responsive to the concerns that you have raised.
        Senator Akaka. Mr. Fong, as an aside, I note that your two
    Senators, Senators Voinovich and Brown, did speak up for you,
    and we really cherish their leadership here, and I am glad to
    tell you that kind of support is strong support for your
    nomination.
        Mr. Fong, DHS policy allows laptops and other electronic
    devices to be searched at the border without suspicion. And
    there have been complaints, as you know, about laptops being
    detained for long periods of time and information being copied
    from laptops. As you know, there was a bill introduced by
    Senator Feingold in the 110th Congress to restrict border
    searches of electronic equipment and require privacy
    protections.
        Courts have ruled that the Constitution permits what DHS is
    doing. Nevertheless, these searches may have significant
    implications as many people keep sensitive information such as
    medical and financial records on their laptops.
        Will you commit to reviewing this policy to ensure that, at
    a minimum, strong privacy protections are included?
        Mr. Fong. Senator, I share your deep interest and concern
    for the protection of privacy and civil liberties. I
    understand, as you indicated, that courts have held that
    privacy interests are significantly reduced at the border. At
    the same time, I recognize, as you do, that individuals may
    store very personal information on their laptops. As a result,
    I would look forward to working with you to make sure that the
    balance between our law enforcement needs and our border
    security needs are appropriately weighed against the relevant
    privacy interests.
        In particular, the Office of Civil Liberties and Civil
    Rights and the Office of Privacy at the Department, I
    understand, have reviewed the Department's guidance in this
    area, and if confirmed, I would look forward to working not
    only with the components but with those offices to ensure that
    the appropriate balances are struck.
        Senator Akaka. Mr. Chairman, may I ask another question?
        Chairman Lieberman. Please go right ahead, Senator Akaka.
        Senator Akaka. Mr. Fong, a June 2008 report by the National
    Academy of Public Administration revealed that 40 percent of
    the DHS Office of General Counsel executive positions were
    vacant. That was one of the highest executive vacancy levels in
    the Department. Additionally, more than one-third of the
    executive positions that were filled were political
    appointments.
        I expressed concern at Mr. Coldebella's July 2008
    confirmation hearing for this post that the vacancies could
    leave a leadership vacuum during the transition between
    Administrations. I would appreciate any update you are able to
    provide on the office's functioning during the transition, its
    executive vacancy rate, and your plans to address any remaining
    staffing problems.
        Mr. Fong. Well, thank you, Senator, for that question. It
    is extremely important, I have learned in my experience, to
    attract and retain the best talent possible. The only way I can
    possibly do my job is to surround myself with the best possible
    talent. And so it is a very high priority of mine, if I am
    confirmed, to do exactly that. It is something that I have a
    passion for and, as I indicated, is critical to achieving the
    goals that I have outlined.
        I have not been privy to the specific statistics regarding
    turnover and vacancy rates. I can tell you that in the limited
    time that I have had to work in preparation for these hearings,
    the lawyers are outstanding, they are dedicated, very
    professional, very knowledgeable, and I look forward to working
    with them to fill the vacancies.
        I am also aware that recently, or at least in the past
    several years, there has been a move to convert some of the
    previously non-career senior positions into career positions,
    which I believe is an appropriate direction. But as I said, I
    will, if confirmed--and as you can appreciate, I have a limited
    ability prior to the confirmation to do anything along this
    front--move promptly to fill the positions that are currently
    vacant.
        Senator Akaka. I want to thank you very much for your
    response, and I want to tell you that what you just said and
    the passion you expressed will make Senator Voinovich from your
    State very happy because he is a champion of personnel, and I
    know he would be happy to hear that. So I just want to say as I
    close here that from what I have read, from what I have heard,
    and from what you have said, you do have my support for your
    nomination.
        Mr. Fong. Thank you.
        Senator Akaka. Thank you very much, Mr. Chairman.
        Chairman Lieberman. Thank you, Senator Akaka.
        Mr. Fong, I think you know that Senator Akaka has been a
    great partner with Senator Voinovich in unsung work but which
    is really critically important on the personnel of the Federal
    Government and on human capital management. And it strikes me
    that since both of your parents are Federal employees, you can
    appreciate the significance of that.
        You have given excellent answers to our questions. I think
    it is time to move on to Mr. Manning, but I want to thank you
    for appearing before the Committee. Thank you for being willing
    to come back into public service. I congratulate you on the
    good fortune of having such a wonderful family of all the
    generations that are with you today.
        We are going to keep the record of this hearing open until
    12 noon tomorrow for the submission of any additional
    statements or questions from the Committee Members, and we are
    going to try very hard to move your nomination and Mr.
    Manning's as quickly through the Senate next week as we can
    because we know Secretary Napolitano needs both of you on duty.
    So, with that, I thank you, and you are free to leave at this
    time.
        Mr. Fong. Thank you very much, Mr. Chairman.
        Chairman Lieberman. Thank you.
        Mr. Manning, please return to the witness table. Good
    morning, and welcome to part two of our hearing today. I want
    to thank you, Mr. Manning, as we consider your nomination to be
    Deputy Administrator for FEMA in charge of National
    Preparedness, for your willingness to serve and your proven
    record of service for many years. As Senator Bingaman said in
    introducing you, you have served in a number of positions
    directly relevant to national preparedness, most recently as
    Director of New Mexico's Department of Homeland Security and
    Emergency Management and as Homeland Security Adviser to the
    Governor.
        I also want to point out that you have had some front-line
    experience, having worked as a firefighter and a rescue
    mountaineer on a voluntary basis.
        With this experience, Mr. Manning would bring to FEMA the
    perspective of a State official and a first responder, which
    certainly will help strengthen the coalitions between the many
    entities that need to be involved in preparing for disasters.
        The current public health emergency around H1N1 flu
    demonstrates again very clearly that, in times of crisis, we
    need response and preparedness officials who know what they are
    doing and that the functions of prevention and protection must
    be closely integrated with preparedness and response.
        In 2006, following this Committee's extensive investigation
    into the bungled response to Hurricane Katrina, we brought
    forth legislation to strengthen the agency so that it would be
    capable of responding to a disaster as catastrophic as
    Hurricane Katrina proved to be, but also the host of other
    disasters, natural and unnatural, that the Department responds
    to.
        The Post-Katrina Emergency Management Reform Act gave FEMA
    the responsibility to lead our efforts to prepare for and
    respond to disasters of all kinds.
        One of our most important proposals to remake FEMA into a
    world-class disaster response agency was to join preparedness
    and response capabilities, which had previously been divided.
    We do not want FEMA to be in the position again where it is
    trying to build the kind of teamwork and logistical relief
    operations among all levels of government in the midst of the
    chaos or confusion that inevitably follows a disaster. And, of
    course, that happened during Hurricane Katrina.
        Mr. Manning, if you are confirmed, it seems to me that one
    of your key responsibilities will be to make sure that this
    important provision of the Post-Katrina Act is fully
    implemented and that FEMA's preparedness capabilities are fully
    integrated into and across all stages of emergency management,
    including mitigation, response, and recovery. And I would like
    to discuss that with you during the question-and-answer period.
        We have to be prepared at all levels of government, and
    that is going to be the specific responsibility that you will
    have. We do not want ever to have to hold hearings in this
    Committee which ask the question we asked over and over again
    after Hurricane Katrina, which is, ``Why were we not
    prepared?''
        Let me now move to the formal part of the hearing. Mr.
    Manning has filed responses to a biographical and financial
    questionnaire, answered pre-hearing questions submitted by the
    Committee, and 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.
        As you know, Mr. Manning, our Committee rules require that
    all witnesses at nomination hearings give their testimony under
    oath, so I would ask you at this time if you would 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. Manning. I do.
        Chairman Lieberman. I thank you very much. Please be
    seated. You may proceed with your statement and the
    introduction of family or friends who are with you today.

    STATEMENT OF TIMOTHY W. MANNING \1\ TO BE DEPUTY ADMINISTRATOR
    FOR NATIONAL PREPAREDNESS, FEDERAL EMERGENCY MANAGEMENT AGENCY,
                  U.S. DEPARTMENT OF HOMELAND SECURITY

        Mr. Manning. Thank you, Mr. Chairman and good morning.
    Members of the Committee, thank you for allowing me to be here
    this morning. I have prepared remarks I would like to submit to
    the record as well.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Manning appears in the Appendix
    on page 113.
    ---------------------------------------------------------------------------
        Thank you for allowing me to be here this morning as the
    nominee for Deputy Administrator of the Federal Emergency
    Management Agency for National Preparedness. First I would like
    to thank Senator Bingaman for his kind introduction a few
    moments ago. I have worked with the Senator for many years
    helping New Mexicans, and I am honored to have had him here
    with me today. I am also honored to have a number of my friends
    and colleagues with us here today from the National Emergency
    Management Association, the International Association of
    Emergency Managers, the National Governors Association, and a
    number of my other friends and colleagues from the Homeland
    Security Consortium.
        But, most importantly, I am pleased and honored to be
    joined by my family: My brother, Dan, Mr. Chairman, whom you
    acknowledged earlier; my parents, Terry and Lynn Manning. They
    have passed on the lessons they have learned from their parents
    and given a lifetime of public service and dedication to the
    community, and they have instilled that responsibility in my
    brother and me, and it is only with their encouragement and
    support, and the sacrifice of my wife, Sarah, and my daughter,
    Katy, that I am able to be here today, and I thank them for
    that.
        I have been fortunate through my time as the Director of
    Homeland Security and Emergency Management for the State of New
    Mexico to have had the opportunity to serve my governor and the
    people of my State. And I am honored to be afforded the
    opportunity by the President now to serve my country.
        Over the past many years, the Nation has been through a
    series of very trying times, most recently with the outbreak of
    the H1N1 influenza. These events have shown us the selfless
    courage of our first responders, our fellow citizens, and the
    resilience of our national fabric.
        They have also shown us the weaknesses in our system of
    disaster preparedness, response, and recovery. The American
    people have come together to address these weaknesses, and we
    are a stronger Nation for it.
        One of the most crucial pieces of this reform was the Post-
    Katrina Emergency Management Reform Act, the most important
    development in emergency management since the enactment of the
    Stafford Act. It provides FEMA a mission and sets goals for a
    broad-based framework to protect the American people through a
    comprehensive and integrated program of prevention, mitigation,
    preparedness, response, and recovery for natural disasters,
    acts of terrorism, accidents, and all other hazards, regardless
    of cause. And I am eager, if confirmed, to be part of its full
    implementation.
        I believe a strong and resilient Nation can only be built
    on a solid foundation of preparedness, a system that transcends
    all phases of emergency management and homeland security and is
    rooted in strong partnerships, partnerships between cities,
    counties, States and territories, tribal governments, the
    Federal Government, the private sector, and, most importantly,
    the American people. And I believe this is achievable.
        Emergency management and homeland security are fields in
    which no one level of government can succeed at going it alone;
    no one agency has a solution. The whole government is required,
    and close integration between agencies at the Federal, State,
    tribal, and local level is required to be successful.
        Mr. Chairman, Members of the Committee, thank you for
    allowing me to be here today. If confirmed, I look forward to
    working with the Committee and with my colleagues to more fully
    prepare the Nation to withstand severe events, respond to and
    recover from natural disasters, and protect against acts of
    terrorism.
        I respectfully request your recommendation to confirm my
    nomination to be the Deputy Administrator of the Federal
    Emergency Management Agency.
        Thank you, and I would be pleased to answer any questions
    you may have.
        Chairman Lieberman. Thank you, Mr. Manning. Thank you for
    that excellent opening statement.
        Let me start with the questions that are standard for the
    Committee. First, 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. Manning. No.
        Chairman Lieberman. 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. Manning. No.
        Chairman Lieberman. And, third, 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. Manning. Yes.
        Chairman Lieberman. Thank you. I always wonder when the
    first two questions invite the ``No'' response whether people
    listen enough to the third question to answer ``Yes.'' But you
    passed the test. Let me proceed, and Senator Akaka and I will
    do 7-minute rounds of questions.
        In the wake of Hurricane Katrina, I mentioned the
    investigation that we carried out, and many of the
    recommendations have been implemented pursuant to the law. I
    should think that the Department is in much better shape today,
    and FEMA is in much better shape. And as I mentioned in my
    opening statement, one of the most important aspects of the
    legislation, I think, is to rejoin preparedness and response,
    putting them both under FEMA.
        In testimony before this Committee about a year ago, the
    Inspector General of the Department of Homeland Security, Mr.
    Skinner, concluded that FEMA was better prepared for a
    catastrophe--and I mention ``catastrophe'' in the gruesome
    language of this business as compared to a ``disaster''--better
    prepared for a catastrophe than it was in 2005, and Mr.
    Skinner, in more recent testimony, was kind enough to credit
    the Post-Katrina Act for his conclusion.
        I wanted to ask you generally, if confirmed, what will you
    do to ensure that the new enhanced FEMA, as envisioned by the
    Post-Katrina Act, continues to be strengthened? In particular,
    how will you make sure that the requirement that rejoins
    preparedness with response is fully implemented?
        Mr. Manning. Thank you, Mr. Chairman. I believe that the
    reforms that came from the Post-Katrina Act have immeasurably
    strengthened FEMA and emergency management in general. I
    believe preparedness is a function that transcends all of the
    other phases of emergency management. I believe it transcends
    all of the other domains of homeland security. I think it is
    the beginning and the end and the middle of everything else it
    is that we do.
        If confirmed, I very much look forward to working through
    the Administration, working with the agency, to bring
    preparedness into the response phase, not just looked at as a
    function that gets you ready to respond, but actually helps you
    respond and work hand in hand during the response to identify
    things that are going well, things that could go better and
    adjust while the response is happening and improve our
    preparedness programs after the fact. I believe that
    transcendence across the entire spectrum of emergency
    management, the entire arc of our government programs is as
    important as any other function of emergency management, and I
    will work diligently to bring it there.
        Chairman Lieberman. Good. Let me ask you, in that regard,
    what you see as the role of the National Preparedness
    Directorate in bringing together and improving Federal
    preparedness efforts and just the comprehensive whole of
    government in the way that you have described in your
    statements.
        Mr. Manning. Well, as I understand in my experience in New
    Mexico working in preparedness programs and what I hope to
    bring to the National Preparedness Directorate is both the
    attention during the quiet times--during the peace times, if
    you may--to preparing our responders to not just respond to a
    disaster, but to recover from that disaster and to mitigate
    against disasters coming in the future, and to protect against
    attacks. My firm belief is that preparedness is something that
    we have to work to bring to the fore in every daily function
    throughout government, throughout the homeland security
    community.
        I believe that during the disaster response, the National
    Preparedness Directorate's primary responsibility is threefold:
    One is the mission that was envisioned by the Post-Katrina Act
    to be that part of FEMA that looks past the current crisis,
    that looks toward the crisis of tomorrow and ensures that the
    agency and the American people are prepared to deal with what
    is coming on the horizon.
        I believe it also has the responsibility to closely work
    with responders today to ensure that we are better prepared
    tomorrow.
        And, ultimately, I firmly believe as a State Director of
    Homeland Security that we are all, at the beginning and the end
    of the day, emergency managers. And we all must be prepared to
    pitch in for the response itself when required, and if
    confirmed, I will bring that ethos to the Directorate.
        Chairman Lieberman. Excellent. Let me ask you to bring all
    that and all your experience to bear on the current H1N1 flu
    crisis. Yesterday, as you know, Secretary Napolitano appeared
    before us.
        The Secretary related that all components of DHS are
    actively involved, including FEMA, primarily at this point in
    getting information out to the public and facilitating the flow
    of information between Federal and State governments, and of
    course, the Secretary is, as we say in the vocabulary, the
    National Incident Manager.
        There is a real danger, if you follow the progress of the
    flu, that this will develop into a pandemic. It certainly seems
    to be the judgment of the World Health Organization as it
    raises the alert level. Let me just ask you generally, as we
    approach this possibility, what role do you think FEMA is
    likely to play if this outbreak grows much bigger beyond the
    public communication activities and coordinating activities
    that the Secretary is playing? And what are some of the things
    that FEMA and the National Preparedness Directorate, in
    particular, will need to do together with key Federal, State,
    and local entities to prepare now for the possibility of a
    pandemic, which, as we heard yesterday, might not happen now,
    but might happen during the next flu season?
        Mr. Manning. Thank you, Mr. Chairman. As I understand, the
    mission of the National Preparedness Directorate at the current
    time is working closely with the response functions at the
    Office of Health Affairs and the Health and Human Services
    Department on the future planning, working and bringing the
    expertise on preparedness and planning to bear, looking past
    today and tomorrow and in the next week into the fall.
        I believe that the National Preparedness Directorate and
    FEMA's expertise in general is that facilitation, that bringing
    of diverse partners together to a coordinated response. And as
    you mentioned, sir, the Homeland Security Presidential
    Directive 5 conveys to the Secretary the role of the Principal
    Federal Officer for domestic incident management, and in
    support of that, the Federal Emergency Management Agency's role
    in supporting the subject matter expertise. Health and Human
    Services, the public health community are the experts in how to
    deal with the propagation and the promulgation of disease.
        What FEMA can bring to the table is the expertise in
    bringing these partners together to help implement the steps
    required from the public health community.
        Chairman Lieberman. Excellent. Thank you. My time is up.
    Senator Akaka.
        Senator Akaka. Thank you very much, Mr. Chairman.
        Mr. Manning, I want to congratulate you on your nomination
    and thank you for being here today. I also want to add my
    welcome to you, your family, friends, and supporters who are
    here. Your nomination, without any doubt, comes at an important
    time.
        The H1N1 flu outbreak is growing every day, and hurricane
    season is around the corner. As you look at what is possibly
    coming, your kind of work is very important to our Nation. You
    will be confronting these challenges, as well as many others,
    if you are confirmed. In particular, I hope you will focus on
    management issues, such as the high vacancy rate at FEMA.
        Based on your background and experience, I believe you are
    highly qualified to join Mr. Fugate, pending his confirmation,
    in tackling these issues and supporting FEMA's mission. As I
    said to Mr. Fugate during his confirmation hearing, I would
    encourage you to reach out to all the various stakeholders and
    to engage their perspectives and to be a strong advocate for
    ensuring that FEMA has the resources it needs.
        To follow up on the Chairman's questions about the recent
    outbreak of H1N1 influenza, as the Senator from Hawaii, a
    geographically remote part of the United States, I have a
    unique perspective on threats such as H1N1 flu. Hawaii faces
    distinct challenges in preparing for a possible pandemic flu
    outbreak. For example, positioning equipment may be more
    difficult because everything has to arrive in Hawaii by air or
    sea cargo, and Hawaii cannot rely on neighboring States for
    assistance in the way that other States can. What is more, an
    outbreak on the Mainland can be more easily avoided in Hawaii.
        How would you address the distinct challenges present in
    emergency preparedness and response to a public health threat
    for a geographically remote location like Hawaii?
        Mr. Manning. Thank you, Senator. I believe that from my
    experience, coming from a State, the primary role of FEMA in a
    situation where you have the diverse requirements of a number
    of States spread over a large geographic area is in working
    closely with those States and addressing the needs, the support
    requirements of the governors and the various States. Hawaii
    has a number of unique challenges to it, similar to those faced
    by Alaska and the Pacific Islands.
        I believe that the National Preparedness Directorate has
    been working with the University of Hawaii to provide
    additional planning, expertise, and training to the people of
    Hawaii and working with the States throughout the Western
    United States on some of the geographically challenging issues
    of time and distance. I believe that working through a
    comprehensive preparedness program where providing additional
    assistance and training on logistics and things, planning in
    regard to staging equipment, materiel, and medicine is
    something that can go a long way toward helping in that sort of
    a situation, and if confirmed, I would look forward to working
    very closely with the people of Hawaii and any of the other
    areas throughout the West that have the long time and distance
    requirements to deal with in logistics planning and training
    endeavors.
        Senator Akaka. Over the past few years, Mr. Manning, State
    and local governments have developed emergency response plans
    of their own for pandemic influenza outbreaks. We also have a
    national strategy for pandemic influenza. These plans'
    effectiveness certainly will be reviewed in light of the
    current H1N1 outbreak.
        What do you believe needs to be done to review State and
    local emergency preparedness plans? And what role do you
    believe FEMA should play in such a review?
        Mr. Manning. Senator, I believe that there has been an
    incredible amount of work done toward planning for a pandemic
    influenza in the past number of years, and I believe we are
    more well prepared for this than we have been for any foreseen
    eventuality maybe in the past many years.
        I believe firmly in accountability and measurement of
    standards, in working with States and local governments to
    ensure that their planning efforts are adequate and work with
    their neighboring communities and neighboring States.
        I believe my experience in that regard through a number of
    different initiatives will provide me the assistance I need to
    be able to ensure that we do that in the most appropriate,
    effective, and efficient manner possible.
        I believe that capturing the actions, the after-action
    reviews of actual disasters as well as exercise, is the most
    effective way to measure whether a plan works or not. I think
    that having a plan is a very important first step, but
    understanding and using that plan is the most important step.
    And it is in this measurement that we will know whether our
    communities are adequately prepared.
        Senator Akaka. Mr. Chairman, may I follow up here. I have a
    follow-up request for you. I understand that the Pacific area
    office has struggled to find a qualified candidate to lead the
    office, and the regional office has been covering for the
    position in the interim. And so I would ask for your commitment
    to look into this and see what you can do to help recruit a
    qualified person to fill that position. Thank you very much,
    Mr. Chairman.
        Chairman Lieberman. Thank you, Senator Akaka.
        I just have one more question, Mr. Manning, about the
    National Exercise Program, and as you know this does not have
    to do with personal fitness, but with the preparedness
    exercises that are done in testing roles and responsibilities,
    capabilities, and plans.
        The Post-Katrina Act gave FEMA the authority to administer
    the National Exercise Program, but it seems to me and many
    others that there remains a great deal of work to be done on
    the program. Obviously, one of the key purposes is to identify
    areas of weakness so that we can learn from them in these
    exercises and improve on performance.
        The Department's recent Federal Preparedness Report noted
    that the evaluation and improvement phase of the preparedness
    cycle is the least mature, and I must say, recent exercises
    bear this out.
        It has been a year and a half after the TOPOFF 4 exercise,
    and we still have not seen an after action report. So none of
    the Federal, State, and local participants are able to learn
    from the exercise, which obviously weakens the effectiveness of
    the exercise and impairs our ability to be prepared.
        I wanted to ask you if you are aware of this and what you
    intend to do, if confirmed, to expedite the after action and
    correction action process?
        Mr. Manning. Yes, Mr. Chairman. I have been briefed on that
    particular issue, and as a State Director and a neighbor to one
    of the venues of TOPOFF, I am familiar with the report.
        I believe that the evaluation and improvement portion of
    the cycle is the most important, that it is only through
    evaluation of real-world events and exercises that we can
    improve our response. And that is ultimately why we are here.
        I understand the concerns of the community in drafting
    those reports. However, we need to get a quick answer. And if
    confirmed, I will work toward getting, at the very least, a
    quick answer immediately following an exercise while a more in-
    depth report is developed.
        Chairman Lieberman. Good. Thank you very much for your
    testimony, for your willingness to serve. You will be a great
    combination with Mr. Fugate, whom we heard last week and hope
    to have confirmed quickly. And I hope to do the same with you.
        We are going to--as I said with Mr. Fong--without
    objection, keep the record open until 12 noon tomorrow for the
    submission of any written questions or statements for the
    record. And then it would be my intention, working with Senator
    Collins, to see if we can do an off-the-floor, as we call it,
    vote on your nomination and get you out to the floor as quickly
    as we can. But I thank you and I thank your family. I
    congratulate your parents on producing such an admirable son--I
    assume the same for your brother. I take your nod to be an
    affirmation of that, which we will enter forever into the
    congressional record.
        Anyway, thank you very much. I look forward to working with
    you. The hearing is adjourned.
        [Whereupon, at 11:29 a.m., the Committee was adjourned.]

                                A P P E N D I X

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