Hearing Of The Senate Homeland Security And Governmental Affairs Committee - Nominations

Statement

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SEN. LIEBERMAN: Good morning. The hearing will come to order.

I want to apologize to the nominees and my colleagues who are here that 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 office because I know you're interested in reading it.

But anyway, I thank you for being here and if it's okay we'll go to Senator Bingaman for the introduction and then to Senator Brown.

SEN. BINGAMAN: Well thank you very much, Mr. Chairman, for letting me participate in your hearing and introduce Tim Manning.

Tim is the president's, President Obama's, nominee for Deputy Administrator for National Preparedness at FEMA, Federal Emergency Management Agency.

He's 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, as an emergency medical technician, a rescue mountaineer, hazardous materials specialist, hydro geologist. And he was raised just outside of Chicago, received his Bachelor's degree in geology from Eastern Illinois University.

In '94 Tim 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's proven himself as a true professional. He's 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's extremely well qualified for this position that the president's chosen him for 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's an excellent appointment. So thank you again for letting me introduce Tim and I hope you're committee's able to recommend him to the full Senate for confirmation quickly.

SEN. LIEBERMAN: Thank you, Senator Bingaman, for an excellent introduction.

Senator Brown, welcome.

SEN. BROWN: Thank you, Mr. Chairman, my first time in front of your committee. Thank you. It's a pleasure to be here.

I am thrilled to introduce Ivan Fong, nominee for position of General Counsel, department of Homeland Security. It's a --- particularly with the way things are in our country today, it's an especially important a point when --- and I'm honored to introduce him.

I had the pleasure of meeting Sharon and Caroline and Caitlin a moment ago and also Mr. Fong's parents and I think brother. It seems like a wonderful family. They live in Dublin, Ohio where, as Senator Bingaman said, we're sorry, in his case with Mr. Manning, we're sorry to see him leave the state. We hope to convince his family to stay in Ohio also but that's certainly their decision.

Ivan's qualifications for this job are solid and clear. Let me give you a brief snapshot. He's currently the chief legal officer and secretary for Cardinal Health, which is the single largest company in my state. It's located in the Columbus area.

He's had a history of public service. He lived in the private zone, in the private sector he lived in the chairman's state. His history of service --- he was the deputy associate to the attorney general for the department of Justice during the Clinton years. He played a key role in civil litigation and enforcement matters.

He's testified before Congress on issues such as internet access to chemical safety information, online pharmacies and electronic signatures and contracting.

He most important, or equally importantly, was the primary author and editor of a groundbreaking report on cyber crime policy entitled 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 in Columbus, as I said.

He holds a --- Ivan holds a Bachelor and Master of Science in chemical engineering from 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 and as a manager and as an expert in cyber security and other emerging security issues will enable him to serve that agency and most importantly the people of our great country, to serve them well.

I recommend him to you, Mr. Chairman. Hope the committee will quickly recommend him to the full Senate for confirmation.

Thank you.

SEN. LIEBERMAN: Thank you, 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've been nominated.

And I must say, though I know some people have found some of the President Obama's nominations to be controversial for matters of policy but generally speaking I think the quality of the nominees has really been very high and that's certainly true of these two. These two people may actually be qualified for the position for which they've been nominated, which is reassuring.

Senator Bingaman, 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're going to proceed first with Mr. Fong's nomination so I'll ask Mr. Manning to drop back. Am I seeing double over there? You're confusing me a little. This holds real potential for the way in which you can be handling doubly crises at the same time. We'll explain that when we come to you Mr. Manning. Thank you.

We're going to move now to the nomination of Ivan Fong.

I do want to state for the record that Senator Collins who rarely --- the ranking member --- rarely misses a meeting or hearing has a conflicting hearing before the appropriations committee with Secretary Gates, I believe, and 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 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.

Has both a Bachelor's and a Master's degree in chemical engineering from the Massachusetts Institute of Technology where he was elected to Phi Beta Kappa. He received his doctorate of juris prudence 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's 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 called 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'm pleased to say serving or working and living for a few years in Connecticut working for a great company, General Electric and most recently serving chief legal officer at Cardinal Health, which is a Fortune 20 company.

We are grateful that you're 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'd say fascinating, ethical, governmental and legal questions that are raised by this current swine flu epidemic.

First and foremost the general counsel, of course, must advise the secretary and manage the legal functions of the department but general counsel must also ensure that the fundamental rights of the American people are protected as the department carries out its mission.

The counsel also occupies a central position with respect to the relationship and interaction between the department and Congress. 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 department 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 a desire to get to yes but to do so with the courage and wisdom to know also when to say no.

Indeed your responsibilities are that the burdens placed on a lawyer in government service are different from those in the private sector and I speak here as one who was privileged for six 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 clients' 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.

The more that I know about you I'm confident, Mr. Fong, that you understand these responsibilities and will carry them forward as the general counsel at the department.

We will 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'd 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.

SEN. 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.

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.

It's 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 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 in college in California, is unable to be here today, I'm 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 ones community.

My brother-in-law, Cliff Ty, is also here as well as a number of others whose friendship and support means 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 disaster. And the opportunity to partner with state, local, international, and private sector representatives to protect the critical infrastructures and to help prepare for a 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 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 in 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'm 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 of the Executive Branch, I also believe that 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 advisors, and strategic partners to those whom they support.

I believe my experiences as a chief legal officer will help me, if I'm 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 legal 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'd 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's 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'm 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.

SEN. 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'm going to start my questioning with the standards questions we ask of all nominees. First, is there anything you're aware of in your background that might present a conflict of interest with the duties to --- of your office to which you've been nominated?

MR. FONG: No.

SEN. LIEBERMAN: Second, do you know of anything personal or otherwise that would in any way prevent you from fully and honorably discharging your responsibilities of the office to which you've been nominated?

MR. FONG: No.

SEN. 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.

SEN. 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, growing sense and awareness of threats to our cyber networks, potential vulnerabilities on mass transit at our ports, preventing WMD attacks, obviously responding to natural disasters, now being involved in the response to a flu epidemic, perhaps a pandemic, boarder security, immigration matters, and on top of all that the challenge of managing 1700 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 their department will be facing.

In addition, I believe that security is perhaps the greatest threat and so I include within that the cyber security issues that have been the subject of much discussion recently.

Obviously the H1-N1 flu issues are very critical this day and age.

The boarder remains a priority for the secretary. As you know, the southwest boarder 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 ones that the department faces.

SEN. LIEBERMAN: Good. Let me ask you a related question but different. We 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 and, indeed, markedly different cultures.

As you've prepared to assume this position --- and again going back to the 1700 lawyers --- what's your sense of how well 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 more integration than other parts of the department, as you my know, because the general counsel in the chief legal officer 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 one 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 general counsel --- 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 has 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's very important so that everyone in the organization understands the direction where the group or the team is headed.

Secondly, I believe it's 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 that's 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.

SEN. LIEBERMAN: That's excellent. It's a good reminder that the lawyers in the general counsel's office all report up to the general counsel although in different agencies and I wish you well in that.

Let me go on. The Government Accountability office and the department's inspector general play a really crucial role in assessing the department's operations. And they're also important in advising Congress and helping Congress fulfill our oversight obligations as, obviously, we're the -- on 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, department of Homeland Security, has been the slowest to respond to routine requests and is the most frequent to inject lawyers in the process. The IG, inspector general, has in the past reported similar problems, though more recently they tell us that's improved. And I must say that the committee itself has had a couple of rounds with your predecessors as general counsel with 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 undersecretary for management. I will, as I indicated, if confirmed, review the procedures by which the department responds, not only to GAO, but 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 focal operation, and I believe my experience and record in private practice indicates that in analogous situations I believe that it's important to have a dialogue to understand what it is that's being requested, so that the lawyers can play a constructive role in identifying which witnesses actually may be helpful in determining or attaining the information and which documents are 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.

SEN. LIEBERMAN: Well, said. Thank you. One last question and then I'll yield to Senator Akaka.

I note you've got this unusually relevant background in cybersecurity with the book that I mentioned and the work that you've done.

We're in a -- now, in history when there are a couple of realities we're dealing with. The first is that it's very clear that we are under -- that is our governmental and private-sector cybersystems -- 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 that the attackers always seem to be a step or two ahead of us.

During the hearing that we held on the subject just two days ago, we heard testimony that the U.S. Computer Emergency Response Team -- so-called US-CERT, the operational arm of the National Cybersecurity Division with DHS -- did not have sufficient authority to fulfill its mission to protect both federal and private networks.

In one instance, we received testimony about US-CERT did not even receive responses from any federal agencies when they were attempting to determine how badly the dot-gov networks have been affected by a recent warning, so-called. That, obviously, is unacceptable. So some of the problem 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 cybersecurity 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 cyberattacks and cybersecurity is one of the most important, if not the most important, challenges that the department and this country faces 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, our ability to prevent, detect and respond to cyberattacks. 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 law, 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 authority 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 sorts of attacks and make sure that we have the capabilities.

I believe that this is an area where it's going to be solved overnight. It's 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.

SEN. LIEBERMAN: Thanks very much. I hope that, as you begin your review, that when you see areas put together related to cybersecurity that where you think the department needs additional statutory authority that you'll feel comfortable in working with the committee on that.

My own reaction -- I think it's shared by Senator Collins -- is that as we ramp up both with resources that -- the president has now recommended dollars be increased -- but also in response to this 60- day review that Melissa Hathaway did, that we'll 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.

SEN. LIEBERMAN: Thank you very much.

Senator Akaka, I'm delighted you're here. Senator Akaka is one of the senior members of the committee, but, obviously, a young man, certainly young at heart and mind.

SEN. AKAKA (D-HI): Thank you. Thank you very much for those remarks, Mr. Chairman, and I want to thank you for holding this hearing. And I also want to congratulate 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're saying today, because many things that you're espousing here is music to my ears and I'm 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'm encouraged by your statement on the importance of congressional oversight. And, if confirmed, I hope you'll 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 the view that collective- bargaining rights can help federal agencies run as effectively as possible and focus on their missions. And let me use another word, and this is refreshing to me, and I welcome your perspectives.

Mr. Fong, DHS hired approximately one quarter of new employees to the Federal Career Intern Program. Now, 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. I, as I indicated, 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's important, particularly, for these kinds of programs to be applied in a fair and responsible way.

So I'm 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've raised.

SEN. AKAKA: Yes, Mr. Fong, as an aside, I note that your two Senators, Voinovich and Brown, did speak up for you, and we really cherish their leadership here. And I'm glad to tell you that that kind of support is a lot of 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 as well and information being copied from laptops.

And there is a bill introduced by Senator Feingold in 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, our border-security needs are appropriately weighed against the privacy interests.

In particular, the Office of Civil Liberties and Civil Rights and the Office of Privacy at the department, I understand, has reviewed the department's guidance in this area. And, if confirmed, I would look forward to working not only with the component, but with those offices to ensure that the appropriate balances are struck.

SEN. AKAKA: Mr. Chairman, may I --

SEN. LIEBERMAN: Oh, please go right ahead, Senator Akaka.

SEN. 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 levels in the department, that is, of vacancy. Additionally, more than one third of executive positions that were filled were political appointments.

I expressed that concern to 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: Thank you, Senator, for that question. It is extremely important, I have learned in my experience, to attract and retain the best talent possible. It is 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 to, if I'm confirmed, do exactly that. It's something I have a passion for, and, as I indicated, is critical to achieving the goal 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've had to work in preparation for these hearings, that the lawyers are outstanding. They are dedicated, very professional, very knowledgeable, and I look forward to working with them to fill the vacancies.

I'm 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, but, if I am confirmed -- move promptly to fill the positions that are currently vacant.

SEN. 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, very happy, because he's a champion of personnel and I know he will be happy to hear that.

So I just want to say, as I close here, to tell you that from what I've read, from what I've heard, what you've said, you do have my support for your nomination.

Thank you very much, Mr. Chairman.

SEN. 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, which is -- but really critically important on 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've given excellent answers to our questions. I think it's 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, congratulate you on the good fortunate of having such a wonderful family of all the generations that are with you today.

We're going to keep the record of this hearing open until noon tomorrow for the submission of any additional statements or questions from the committee members. And we're 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're free to leave at this time.

MR. FONG: Thank you very much, Mr. Chairman.

SEN. LIEBERMAN: Thank you. Mr. Manning, please return to the witness table.

Well, 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 advisor to the governor.

I also want to point out that you've had some frontline experience having worked as a firefighter and a rescue mountaineer on a voluntary basis. 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 swine flu demonstrates again very clearly that in times of crisis we need response and preparedness officials who know what they're doing and that the functions of prevention and protection must be closely integrated with preparedness and response.

As I know you know, 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 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 don't want FEMA to be in the position again where it's trying to build 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're 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 negation response and recovery. And I'd like to discuss that with you during the question- and-answer period.

We've got to be prepared at all levels of government. That's going to be the specific responsibility that you will have. We don't want ever to have to hold hearings in this committee which ask the question we asked over and over again after Katrina, which is why weren't we 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 at 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'd ask you now please to stand, raise your right hand and respond to this question: Do you swear that the testimony you're about to give to our committee is and will be the truth, the whole truth and nothing but the truth, so help you God?

MR. MANNING: (Off mike.)

SEN. 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.

MR. MANNING: Thank you, Mr. Chairman, and good morning.

SEN. LIEBERMAN: Good morning.

MR. MANNING: And, members of the committee, thank you for allowing me to be here this morning. I have prepared remarks I'd like to submit to the record as well.

Thank you for letting me be here this morning as the nominee for deputy administrator of the Federal Emergency Management Agency for National Preparedness.

First, I'd like to thank Senator Bingaman for his kind introduction a few moments ago. I've worked with the senator for many years helping New Mexicans, and I'm honored to have had him here with me today.

I'm 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, National Governors Association and a number of my other friends and colleagues from the Homeland Security Consortium.

But most importantly, I'm pleased and honored to be joined by my family, my brother, Dan -- Mr. Chairman, who you acknowledged earlier -- my parents, Terry and Lynn Manning. They've passed on the lessons they've learned from their parents and given a lifetime of public service and dedication to their community and have instilled that responsibility in my brother and I.

And it's only with their encouragement and support and -- that and the sacrifice of my wife, Sarah and my daughter, Katie -- that I'm 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'm 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'm 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, private sectors, 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. A whole of government solution 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, with my colleagues to more fully prepare the nation to withstand severe events, respond to recover from natural disasters, acts of terrorism, protect against acts of terrorism. And I respectfully request your recommendation to confirm my nomination as the deputy administrator of the Federal Emergency Management Agency. Thank you. And I would be pleased to answer any questions you may have.

SEN. LIEBERMAN: Thank you for that excellent opening statement.

Let me start with the questions that are standard for the committee. First, is there anything you're aware of in your background that might present a conflict of interest with the duties of the office to which you've been nominated?

MR. MANNING: No.

SEN. 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've been nominated?

MR. MANNING: No.

SEN. 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.

SEN. LIEBERMAN: Thank you. I always wonder, when the first two questions invite the no, whether people listen enough to the third to answer yes, but you passed the test.

Let me proceed. Senator -- and I will do a seven-minute round of questions. In the wake of Katrina, I mentioned the investigation that we carried out and many of the recommendations have been implemented pursuant to the law and I actually think the Department is in much better shape today. FEMA's in better shape. And as I mentioned in my opening statement, one of the most important aspects of the legislation, I think, was 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 a more recent testimony was kind enough to credit the act, the Reform 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 Reform 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's the beginning and the end and the middle of all of everything else it is that we do.

If confirmed, I look very much 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 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.

SEN. 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 the way that you described in your statements.

MR. MANNING: Well, as I understand in my experience from 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 from 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 floor in every daily function throughout government, throughout the homeland security community. I believe that during a disaster response, that the National Preparedness Directorate's primary responsibility is, I believe, three-fold: 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 towards the crisis of tomorrow and ensures that the agency and the American people are prepared to deal with what's coming on the horizon.

I believe it also has the responsibility to closely work with the responders that are happening today to ensure that we are better prepared tomorrow and ultimately, I firmly believe, every state director of homeland security, that we are all at the beginning and in 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.

SEN. LIEBERMAN: Excellent. Let me ask you to bring all that, and all your experience, to bear on the current swine flu crisis. Yesterday, as you know, Secretary Napolitano appeared before us. Just, I'm going to self-criticize here. I still haven't gotten over my bad habit of calling it "swine flu". I gather the memo now says we should call it H1N1, which is okay with me.

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, Secretary is the National Crisis -- or as we say in the vocabulary -- Incident Manager. There's a real danger, if you follow the progress of the virus, 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 kind of public communication activities and coordinating activities that the secretary's playing, but I'm talking about FEMA? 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 in 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 and 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 upon the secretary the role of principle 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 promulgation of disease. What FEMA can bring to the table is the expertise in bring these partners together to help implement the steps required from the public health community.

SEN. LIEBERMAN: Excellent. Thank you. My time's up. Senator Akaka.

SEN. DANIEL K. AKAKA (D-HI): 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 and your family and friends and supporters who are here. Your confirmation, without any doubt, comes at an important time. The H1N1 flu outbreak is growing every day and hurricane season is around the corner and so as you look at what is possibly coming, your kind of work is very important to our nation.

You'll 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 stake holders and 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 influenza H1N1, as the Senator from Hawaii, and geographically remote part of the United States, I have the 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 a way that other states can. What's more, an outbreak on the mainland can be more easily avoided in Hawaii. How would you address the distinct challenges presented in emergency preparedness in response to a public health threat for geographically remote locations like Hawaii?

MR. MANNING: Thank you, Senator. I believe that from my experience, coming from a state, that 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 Cocos Islands. I believe the work that the National Preparedness Directorate has been doing with the University of Hawaii to provide the additional planning expertise and training to the people of Hawaii and working with the states throughout the Western U.S. on some of the more 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 regards to staging equipment, material and medicine is something that can go a long ways towards 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 their logistics planning and training endeavors.

SEN. AKAKA: Over the past few years, Mr. Manning, states 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, though.

What do you believe needs to be done to review state and local emergency preparedness plans and what role do you think FEMA should play in such a review?

MR. MANNING: Senator, I believe that there has been an incredible amount of work done towards 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 and maybe in the past many, many years. I believe firmly in accountability and measurement of standards of 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 and effective and efficient manner possible. I believe that capturing the actions, the after-action reviews of actual disasters as well as exercises -- 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's in the measurement of that, we will know whether our communities are adequately prepared.

SEN. AKAKA: Mr. Chairman, may I follow up here? I have a follow-up request for you. 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 that 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.

SEN. LIEBERMAN: Thank you, Senator Akaka. I just have one more question, Mr. Manning, about the National Exercise Program, and as you know, this doesn't have to do with personal fitness, but 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. A year and a half ago after the TOPOFF 4 exercise, an After Action Report -- that is to say, it's been a year and a half 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 want to ask you if you are aware of this and what you intend to do, if confirmed, to expedite the after action and corrective 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. But, 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.

If confirmed, I will work to -- 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 towards getting a, at the very least, a very quick answer immediately following an exercise while a more in-depth report is developed.

SEN. LIEBERMAN: Good. Thank you very much for your testimony, for your willingness to serve. You'll be a great combination with Mr. Fugate who we heard last week and confirmed quickly and I hope to do the same with you. We're going to, as I said with Mr. Fong, without objection, keep the record open until 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 a kind of 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. I thank your family. I congratulate your parents on producing such an admirable son. I assume the same for his brother. I take your nods 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.

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