[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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20402-0001




        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.]


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