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ADMINISTRATIVE LAW, ADJUDICATORY ISSUES,

AND PRIVACY RAMIFICATIONS OF CREATING

A DEPARTMENT OF HOMELAND SECURITY

HEARING

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JULY 9, 2002

Serial No. 96

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman 

HENRY J. HYDE, Illinois 

GEORGE W. GEKAS, Pennsylvania 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

JOHN CONYERS, JR., Michigan 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

BOB BARR, Georgia, Chairman

JEFF FLAKE, Arizona, Vice Chair

GEORGE W. GEKAS, Pennsylvania 

MARK GREEN, Wisconsin 

DARRELL E. ISSA, California 

STEVE CHABOT, Ohio 

MIKE PENCE, Indiana 

MELVIN L. WATT, North Carolina 

JERROLD NADLER, New York 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

MAXINE WATERS, California

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN JENSEN-CONKLIN, Counsel 

DIANE TAYLOR, Counsel 

PATRICIA DEMARCO, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 

(III)

C O N T E N T S 

JULY 9, 2002

OPENING STATEMENT 

Page 

The Honorable Bob Barr, a Representative in Congress From the State of 

Georgia, and Chairman, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 1

The Honorable Melvin L. Watt, a Representative in Congress From the State 

of North Carolina, and Ranking Member, Subcommittee on Commercial 

and Administrative Law ...................................................................................... 2

The Honorable George W. Gekas, a Representative in Congress From the 

State of Pennsylvania .......................................................................................... 3

The Honorable Maxine Waters, a Representative in Congress From the State 

of California .......................................................................................................... 3

The Honorable Mark Green, a Representative in Congress From the State 

of Wisconsin .......................................................................................................... 4

The Honorable Mike Pence, a Representative in Congress From the State 

of Indiana .............................................................................................................. 4

The Honorable Sheila Jackson Lee, a Representative in Congress From the 

State of Texas ....................................................................................................... 4

WITNESSES 

Mr. Mark W. Everson, Controller of the Office of Federal Financial Management, Office of Management and Budget 

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 9

Professor Jeffrey S. Lubbers, Fellow in Law and Government, Washington 

College of Law, American University 

Oral Testimony ..................................................................................................... 12

Prepared Statement ............................................................................................. 14

Professor Peter P. Swire, Professor of Law, Ohio State University, Visiting 

Professor at George Washington University 

Oral Testimony ..................................................................................................... 19

Prepared Statement ............................................................................................. 21

(1)

ADMINISTRATIVE LAW, ADJUDICATORY ISSUES, AND PRIVACY RAMIFICATIONS OF 

CREATING A DEPARTMENT OF HOMELAND 

SECURITY 

TUESDAY, JULY 9, 2002

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 11:45 a.m., in 

Room 2141, Rayburn House Office Building, Hon. Bob Barr, presiding. 

Mr. BARR. I would like to call this hearing of the Subcommittee 

on Commercial and Administrative Law of the House Committee 

on the Judiciary to order. 

On September 11th, 2001, our Nation was shocked by attacks 

such as we have not witnessed since the War of 1812 and December 7, 1941. A new awareness crystallized that day, that the vast 

oceans surrounding our continent would no longer afford or offer 

the protection which they afforded in our past, even during times 

of world war. 

President Bush and both Republican and Democrat congressional 

leaders are in agreement that a unified entity, the Department of 

Homeland Security, should be constituted to focus on the protection 

of our Nation from the dangers threatening us from abroad. 

We in the Congress have a crucial role in scrubbing the details 

of this new proposed department to guarantee as smooth a launch 

as possible and to provide as high a likelihood of success as possible. Destined to be one of the largest in the Federal Government, 

the new department, and its creation, presents a host of challenges, 

hardly insurmountable, but certainly necessary to understand and 

address. 

This Subcommittee is concerned primarily with issues relating to 

administrative law, including the issuance of agency regulations 

and the operation of the agency adjudicative process. The efficiency 

of agency procedures goes hand-in-hand with its fairness and accountability, and we have sought to ensure both. We have also 

sought to preserve the role of the Congress in the lawmaking process by examining whether or not agencies have, in the rulemaking 

process, stayed within the bounds of specific congressional intent. 

Most recently, this Subcommittee considered H.R. 4561, which 

now has 31, make that 32, bipartisan cosponsors to ensure agencies 

2

will consider how proposed regulations affect the privacy interests 

of our citizens. 

As introduced, H.R. 5005, the Homeland Security Act of 2002, 

presents many questions of policy and detail, such as: 

How will the amalgamation of the divergent entities into the new 

department affect their respective administrative procedures? 

How will the rulemaking exceptions to the Administrative Procedure Act be interpreted and applied in the issuance of proposed 

rules? 

Does the Congress need to examine and amend such other related provisions as the Contracts Dispute Act to ensure the new 

agency has the necessary discretion to properly protect matters of 

national security? 

What steps will be taken to ensure the privacy of personally 

identifiable information as the new agency establishes necessary 

databases that coordinate with other agencies of the Government? 

Does the proposed legislation deprive employees of the new department of basic protections, such as those provided for under the 

Whistleblower Protection Act? 

Today, we will hear from witnesses who will contribute their expertise and analysis to the discussion of these ideas and assist us 

in making recommendations as to how H.R. 5005 can be improved. 

I believe it is a fair statement to say the Members of this Subcommittee, on both sides, want to do everything in their power to 

ensure the new Department of Homeland Security will function administratively as intended. 

I look forward to hearing from the witnesses today and to working with my colleagues afterward to make the Department of 

Homeland Security an agency to promote the safety and well-being 

of every American. 

I would now like the honor to call on the distinguished Ranking 

Member, Mr. Watt, from the State of North Carolina, for any opening statement. 

Mr. WATT. Thank you, Mr. Chairman and Members of the Committee. 

Let me, first, apologize to the Chairman, and the witnesses, and 

the Committee Members for being late. Unfortunately, I had a 

group of students in my office, and I was trying to do two things 

at one time, and it is sometimes difficult to do that, I have found. 

I want to thank the Chairman for convening this very important 

hearing and putting a special focus on the issue of privacy as we 

deal with the creation of a Homeland Security Department and tell 

them how important I think that focus could be. 

Perhaps the most difficult issue that our country has struggled 

with over the years has been finding the appropriate balance between the rights of Government and the rights of individuals, including their privacy rights. The struggle has been going on for 

years and years. Even before there was a more concentrated focus 

on the issue of privacy in many different contexts, we have been 

dealing with this balance between the rights of Government versus 

the rights of individuals. The events of September 11 made that debate even more difficult because we now understand that if the 

Government is to provide some semblance of protection to its citizens, in some cases, that will involve sacrificing personal liberties 

3

or could involve sacrificing personal liberties, including the privacy 

of its citizens. 

Again, in this more general context of the debate about the rights 

of Government versus the rights of individual citizens, superimposed on that now is a concentration on protecting citizens from 

terrorism, a very, very difficult issue. 

I especially thank these three witnesses for being here and being 

the point persons, the first people who will, at least in front of this 

Subcommittee, try to put a framework around some of these issues, 

and I look forward to hearing your testimony and look forward to 

working with the Chairman and other Members of the Committee 

as we try to craft the policies that will walk this kind of delicate 

line between what the Government needs to do, and must do, to 

protect its citizens from terrorism and protecting the rights of individual citizens, including their privacy rights and other constitutional rights guaranteed to them. 

I thank the Chairman, again, for convening the hearing, and I 

yield back the balance of my time. 

Mr. BARR. I thank the distinguished Ranking Member. 

The gentleman from the Commonwealth of Pennsylvania, Mr. 

Gekas, the distinguished former Chairman of this body, is recognized for any opening statement he might have. 

Mr. GEKAS. I thank the chair. 

Several of us have been, for several years now, attempting to try 

to formalize an independent core of administrative law judges, 

much as the State of Maryland has, and other States have, implemented, so that assignments can be forthcoming to this group of individuals so that they can operate where assigned, with a blank 

piece of paper in front of them, so to speak, without preconceived 

notions of what their particular bureau or where they are employed 

might want them to do or have in mind. 

I am interested in following through with the testimony that at 

least the first two gentlemen will be supplying with respect to the 

role of the administrative law judge and that the transfer of these 

functions into new Homeland Security might develop even further 

problems unforeseen in what the duties and responsibilities will be 

of the administrative law judge and whether or not that individual 

will be beholden to external forces in the fulfillment of their duties, 

et cetera. 

So I believe that this particular phase of the transfer to Homeland Security is more important than we are giving it in a priority 

of importance. So I am eager to hear their testimony and to work 

with anybody and everybody to make sure that the administrative 

law judge is placed in a position of implementing what is to be required here. 

I thank the chair. 

Mr. BARR. Thank you. 

The gentlelady from California, Ms. Waters, is recognized for any 

opening statement she might have. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

I am simply witnessing this attempt to create this conglomerate 

with a lot of suspicion and questions about whether or not we are 

reacting in a way that would help people to feel safer or whether 

4

or not we are actually accomplishing the ability to provide real security. 

I am concerned about privacy. I am concerned about not only all 

of the information that Government stores now in so many different ways, but what that is going to mean now that we are moving into this Homeland Security Agency. I am concerned about how 

we determine the sharing of information and at the same time protect privacy. 

So I am going to listen to what you have to say today and reserve 

my comments and actions, relative to this entire proposal, to a 

later date. 

Thank you very much, Mr. Chairman. 

Mr. BARR. Thank you. 

The gentleman from Wisconsin, Mr. Green, is recognized for any 

opening statement he might have. 

Mr. GREEN. Thank you, Mr. Chairman. 

Just very briefly, the issues that are being raised today, especially with respect to privacy, in many ways are the most important issues in light of September 11. We know, looking back, that 

various parts of the Federal Government had information, but 

other parts of the Federal Government that should have didn’t, and 

so I think that the issues that will be raised are terribly important. 

I think all of us here, on both sides of the aisle, have as our objective making this newly proposed department work, and it is impossible for it to work effectively, and efficiently, and in line with 

our constitutional precepts, unless the issues that are being raised 

today are addressed. 

So, Mr. Chairman, with that, I yield back. I look forward to the 

testimony. 

Mr. BARR. I thank the gentleman. 

The gentleman from the State of Indiana, Mr. Pence, is recognized for any opening statement he might have. 

Mr. PENCE. Thank you, Mr. Chairman. I want to thank you and 

the Ranking Member for holding this hearing. I don’t have any extensive opening remarks, as a new Member of this Subcommittee, 

other than to say how grateful I am that we are looking at these 

issues. 

I want to assure my colleagues on the other side of this panel 

and the other side of the aisle that there are civil libertarians 

throughout this Congress and throughout this majority who share 

the Chairman’s passion for preserving the civil liberties of Americans as we go about the business of this reorganization. 

I thank the gentlelady for her passion, and I wish to assure her, 

and the Chairman, and the Ranking Member that I share it, and 

I am pleased to be here. 

Mr. BARR. Thank you for that extremely eloquent opening statement. [Laughter.] 

The chair is very pleased to note the presence of a Member of 

the full Committee, though not a Member of this Subcommittee, 

the gentlelady from Texas, Ms. Sheila Jackson Lee. With unanimous consent, the gentlelady from Texas is recognized for any brief 

opening statements she might have. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

5

It is to applaud both you and the Ranking Member for a very important hearing. As you well know, I joined you on a Committee 

that we both were on, just prior to this, on the Crime Subcommittee, and the issues of privacy were very much before us, and 

might I add to those issues, of course, the issues of civil liberties 

and due process. 

The President has asked us to live life as we have lived in the 

past, to go on with our lives, and I think that is an important instruction for the American people. That means, to me, that we go 

on with our values of due process, civil liberties, the ability to secure our borders, but as well to have rights to those who are detained. Family members should be able to know where detainees 

are. Detained individuals should have access to legal representation, and questions of whether we use a military system or a civil 

judicial system, I think, Mr. Chairman, are very important as well 

because I have faith in our judiciary. I think our system of laws 

will protect us if we have the right framework. 

Let me conclude, Mr. Chairman, by simply saying, in a previous 

hearing, we had an issue of airline pilots armed with guns, and I 

understand that legislation, as you indicated, will be on the floor. 

I will not suggest that we have a disagreement on security, but I 

certainly have disagreement on that particular tool and utilization 

of airline pilots. 

But all of these themes run through the question of securing the 

safety of our, if you will, our bodies and the safety of our free ingress and egress throughout the United States of America, and I 

think this hearing is extremely important to be able to respond to 

that, respond to how we treat people as they go through the security entry and exit in the airports, all of that plays upon our constitutional rights and Bill of Rights. 

Thank you very much, Mr. Chairman, for allowing me to be 

present at this hearing. 

Mr. BARR. We are delighted to have you, Ms. Jackson Lee. 

At this time, all Members, having had time for opening statements, we will now turn to the heart of the matter, which is to 

hear from our very distinguished panel of witnesses today. I would 

like to very briefly introduce each one of the witnesses to the Subcommittee, and to the public that is here, and to the public atlarge. 

Our first witness today is Mark Everson, who appears on behalf 

of the Administration. Mr. Everson is the nominee for deputy director for Management at the Office of Management and Budget. 

OMB’s main mission, of course, is to assist the President in overseeing the preparation of the Federal budget and to supervise its 

administration in Executive Branch agencies. In addition, OMB 

oversees and coordinates the Administration’s information and regulatory policies. In each of these areas, OMB’s role is to help improve administrative management to develop better performance 

measures and coordinating mechanisms and to reduce any unnecessary burdens on the public. 

Mr. Everson currently serves as the controller of the Office of 

Federal Financial Management at OMB, which provides direction 

and leadership to the Executive Branch on financial management 

matters. He also serves as vice chairman of the President’s ManVerDate Jan 17 2002 09:33 Oct 10, 2002 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 G:\WORK\COMM\070902\80552.000 HJUD1 PsN: 80552
6

agement Council, which is charged with improving Executive 

Branch management. 

Obviously, just from that very, very brief and cursory introduction, it is obvious to everybody that, Mr. Everson, you are here as 

a very, very accomplished witness who can provide unique insights 

into the matters before us, and we thank you for being here. 

Our second witness today will be Professor Jeffrey Lubbers. Professor Lubbers is a fellow in Law and Government at American 

University’s Washington College of Law. He teaches courses in administrative law, Federal legal institutions, and alternative dispute 

resolution or ADR. Professor Lubbers has taught at the University 

of Miami School of Law, Washington and Lee University School of 

Law, and Georgetown University Law Center. 

Prior to joining American University, Professor Lubbers was the 

research director for the Administrative Conference of the United 

States from 1982 until its closure in 1995. The Administrative Conference was the Government’s principal advisory agency on procedural improvements in Federal programs. As research director, 

Professor Lubbers developed and directed various studies and 

spearheaded efforts to formulate recommendations on a wide variety of administrative law subjects. He worked with congressional 

Committees and agencies to seek implementation of administrative 

conference recommendations. 

Professor Lubbers has coauthored a number of noteworthy works 

on administrative law and brings that unique background to bear 

on the important matters before us today. 

Professor, we thank you very much for taking time and bringing 

your expertise here today. 

Our final witness on this panel today will be Professor Peter 

Swire. Professor Swire is associated at the Moritz College of Law 

of the Ohio State University, where he teaches courses on privacy 

and the law of cyber space, among other subjects. He is also the 

editor of ‘‘Cyber Space Law Abstracts.’’ Prior to teaching law, Professor Swire served as the chief counselor for Privacy at OMB during the Clinton administration. In 

that capacity, he coordinated Administration policy regarding the 

use of personal information in the public and private sectors and 

served as the point of contact with privacy and data protection officials in other countries. 

He was responsible for coordinating the Administration’s policies 

on such matters as medical, financial and Internet privacy, issues 

relating to encryption technology and the treatment of public 

records and computer security. 

Professor Swire also has written extensively on the subject of privacy and has lectured frequently on medical privacy and other topics. Professor Swire, as you can tell just from the opening statements here, I think you will find many folks here on this Subcommittee who are very much in accord with your concerns about 

privacy, share them, and we welcome that perspective especially in 

consideration of the Department of Homeland Security before us 

today. We appreciate your being with us. 

In terms of the time limits and procedures that we will follow 

today, we would like each one of the witnesses, please, to limit 

their oral statements to 5 minutes. Your complete statements, writVerDate Jan 17 2002 09:33 Oct 10, 2002 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 G:\WORK\COMM\070902\80552.000 HJUD1 PsN: 80552
7

ten statements, and any additional materials that you wish to have 

included as part of the official record will be so included, and the 

official record will be kept open—how many days, Counselor? Seven 

days for any additional materials that Members might request or 

which you believe, on reflection, is appropriate to include as part 

of the record. 

After we have each one of the witnesses make their opening 

statement, then we will have the Members of the Subcommittee on 

both sides, alternating back and forth, provide questions. There 

may very well be some additional questions that we won’t get to 

today that we will submit in writing. We would appreciate your 

very quick, because we are all on a short time frame on this legislation, hoping to get it to the President for his signature by September 11 of this year, so we would appreciate your very prompt 

response to any additional questions. 

Again, thank you for being with us, and, Mr. Everson, we will 

begin the opening statements with yours. 

Make sure that you all pull the mikes just as close as possible 

so that not only can everybody in the room here, but the court reporter can pick it up, too, please. 

STATEMENT OF MARK W. EVERSON, CONTROLLER OF THE OFFICE OF FEDERAL FINANCIAL MANAGEMENT, OFFICE OF 

MANAGEMENT AND BUDGET 

Mr. EVERSON. Thank you, Mr. Chairman, Members of the Committee. I am pleased to be here to discuss these important issues, 

as you have indicated. 

The President’s proposal to create a Department of Homeland Security brings together many of the elements of the Executive 

Branch critical to securing the homeland. To accomplish its vital 

mission, the Department must be agile and responsive, utilizing 

21st century management techniques to respond to this 21st century threat. 

The proposal gives the new Secretary wide latitude in redeploying resources, both human and financial. In addition, our proposal provides the Secretary reorganizational authority in order to 

enhance operational effectiveness as needed. 

The Administration is also requesting flexibility in the hiring 

processes, compensation systems and practices, and performance 

management to recruit, retrain and develop a motivated, high-performance and accountable workforce. The Department needs flexible procurement policies to encourage innovation and rapid development and operation of critical technologies vital to securing the 

homeland. 

There are sufficient legal protections in current law and in the 

proposed legislation to ensure that neither this Administration, nor 

any future Administration, will abuse the flexibilities granted the 

Department. The Department’s personnel system will be grounded 

in the longstanding principles of equity, merit and fitness of title 

5, and will be sufficiently flexible to meet the changing needs of our 

war against terrorism. Specifically, I want to assure the Subcommittee that employees of the new department will retain whistleblower protection and other basic rights like equal pay for equal 

work and fair and equitable treatment. 

8

The Administration seeks to bring this same approach, preserving the rights of individuals and institutions under the law, 

while giving the new department enhanced flexibility to all areas 

of the Department’s management. Under the proposed legislation, 

laws governing Executive Branch agencies, including those relating 

to administrative procedures and privacy, will apply to the components of the new department. In addition to the flexibilities we are 

requesting in the areas of personnel, procurement, and property 

management, we are requesting specific narrow exemptions from 

the Federal Advisory Committee Act and some relief from the Freedom of Information Act. 

The APA will apply to the Department, as a whole, in the same 

manner as it currently applies to the Executive Branch agencies. 

It is worth noting that Congress, in the public interest, has already 

exempted certain of the component agencies from the APA. An example would be certain Coast Guard functions that are military in 

nature. 

The Administration’s proposal ensures continuity of administrative actions during the transfer of functions to the new Department. In particular, section 804 provides the completed administrative actions of an agency will not be affected by the transfer of an 

agency to the new department. Likewise, pending proceedings of 

agencies that are transferred to the new department will continue 

under preexisting procedures. 

The Administration will pay particular attention to the integration of the adjudicative processes and personnel into the new Department of Homeland Security. We anticipate that adjudicatory 

and review entities transferred will continue to function as they do 

today, but perhaps with a new name on the door. While many of 

the agency functions that will be transferred to the new department do not have a substantial adjudicative element, three agencies do have significant adjudicatory components—the INS, U.S. 

Customs Service and the Coast Guard. 

Our proposal provides for a 1-year transition period, giving the 

Administration time to ensure that the transfer is thorough and rational. Within the Transition Planning Office, which the President 

created by Executive Order on June 20, we expect there will be a 

team composed of lawyers that will make up the new department. 

They will advise on a series of legal questions pertaining to the Department, including the transfer of these functions. 

The Privacy Act, which you have mentioned, is one of several 

statutes protecting individuals from Government misuse of private 

information. The Administration’s proposed bill would not—would 

not—create any new exceptions or exemptions from the Privacy Act 

or any other privacy statutes. The Privacy Act will apply to specific 

components in the new department in the same way that it applied 

before those entities will have been transferred into the new department. 

The Privacy Act notices previously issued by these entities will 

remain in force. Within that framework, the components transferred into the Department will be permitted to share records with 

each other when necessary to perform their functions. Additionally, 

information sharing with law enforcement entities will be governed 

by existing law. 

9

The Administration will work to identify the steps necessary to 

ensure proper protection of the privacy and security of information. 

Another area of interest to the Committee is the Federal Advisory Committee Act. The new department will have a significant 

need to establish and use the services of advisory committees on 

highly confidential and sensitive homeland security matters. 

We are asking for some exceptions here. The exceptions are needed to enable the Department of Homeland Security to secure the 

services of individuals who are qualified to serve, but who might 

be reluctant to do so within the existing constraints of the Federal 

Advisory Committee Act. The complexity associated with compliance with FACA could be a deterrent to timely counsel from experts. 

That concludes my remarks, Mr. Chairman. 

[The prepared statement of Mr. Everson follows:]

PREPARED STATEMENT OF MARK W. EVERSON

Mr. Chairman and Members of the Committee, I am Mark Everson, Controller of 

the Office of Federal Financial Management in the Office of Management and Budget. I am also Chairman of the President’s Management Council and the President’s 

nominee for Deputy Director for Management in OMB. Thank you for this opportunity to appear before you today. 

The President’s proposal to create a Department of Homeland Security brings together many of the elements of the Executive Branch critical to securing the homeland. With the Department’s creation, we will minimize redundancies and improve 

efficiencies so that we can respond effectively to the terrorist threat. Terrorists are 

opportunistic, agile, and driven. This means that as we identify and strengthen one 

vulnerability, terrorists will work to uncover another. Their modes of attack are inherently flexible as their only true constant is destruction and mayhem. Our response must be equally flexible. In other words, to accomplish its vital mission, the 

Department of Homeland Security must be agile and responsive, utilizing 21st century management techniques to respond to this 21st century threat. 

The President’s proposal gives the new Secretary wide latitude in re-deploying resources, both human and financial. In addition, it provides the Secretary reorganizational authority in order to enhance operational effectiveness, as needed. The Administration is also requesting flexibility in hiring processes, compensation systems 

and practices, and performance management to recruit, retain, and develop a motivated, high-performance, and accountable workforce. The Department needs flexible 

procurement policies to encourage innovation and rapid development and operation 

of critical technologies vital to securing the homeland. 

There are sufficient legal protections in current law and in the proposed legislation to ensure that neither this Administration nor any future administration will 

abuse the flexibilities granted the Department. The Department’s personnel system 

will be grounded in the longstanding principles of equity, merit and fitness of Title 

5, and will be sufficiently flexible to meet the changing needs of our war against 

terrorism. Specifically, I want to assure the Subcommittee that employees of the 

new department will retain whistleblower protection and other basic rights like 

equal pay for equal work and fair and equitable treatment. 

The Administration seeks to bring this same approach—preserving the rights of 

individuals and institutions under the law while giving the new Department enhanced flexibility—to all areas of the Department’s management. Under the proposed legislation, laws governing Executive Branch agencies, including those relating to administrative procedures and privacy, will apply to the components of the 

new Department. In addition to the flexibilities we are requesting in the areas of 

personnel, procurement and property management, we are requesting specific narrow exemptions from the Federal Advisory Committee Act and some relief from the 

Freedom of Information Act. 

ADMINISTRATIVE LAW ISSUES

A subject on which you specifically requested my testimony relates to ‘‘administrative law issues’’ and the new Department. I will therefore discuss how the Administrative Procedure Act and related law will apply to the new Department; and how 

10

1See, e.g., United States v. Venture Melendez, 186 F. Supp. 2.d 55, 58 (D. P.R. 2001) (finding 

that ‘‘the Coast Guard’s regulations were exempt from the notice-and-comment rule making and 

advance publication requirements set forth in the [APA] because such requirements do not apply 

to the military affairs of the United States.’’). 

we will attempt to reconcile all the varied and unique administrative law functions 

of the components that will comprise the Department. 

The Administrative Procedure Act 

The Administrative Procedure Act (the ‘‘APA’’) requires that Executive Branch 

agencies follow a set of basic procedures to ensure that they receive adequate public 

input when they issue regulations. The statute’s procedures ensure appropriate public oversight, if you will, of the Executive Branch’s regulatory function. The APA will 

apply to the Department as a whole in the same manner as it currently applies to 

Executive Branch agencies. It is worth noting that Congress, in the public interest, 

has already exempted certain of the component agencies from the APA. Thus, those 

administrative functions that are currently exempt from the APA will remain exempt when they are transferred to the new Department. For example, certain U.S. 

Coast Guard functions are exempt from the APA because they involve ‘‘a military 

or foreign affairs function of the United States’’ under § 553(a)(1).1 Because the 

Coast Guard will continue to perform the same functions after it is transferred to 

the new Department, the exemption for its functions will remain unchanged. 

The Administration’s proposal ensures continuity of administrative actions during 

the transfer of functions to the new Department. In particular, Section 804 provides 

that completed administrative actions of an agency will not be affected by the transfer of an agency to the new Department. Likewise, pending proceedings of agencies 

that are transferred to the new Department will continue under pre-existing procedures. With its traditional expertise in administrative law and management, OMB 

is well-positioned to facilitate the new Department’s transition in this regard. DHS 

will have to work with OMB to ensure proper compliance with the regulatory regime Congress has established in the APA. 

ADJUDICATIVE PROCESSES AND PERSONNEL

The Administration will pay particular attention to the integration of the adjudicative processes and personnel into the Department of Homeland Security. We 

will work to ensure that the new Department has the necessary adjudicatory processes and personnel to support the entities and functions that are transferred to the 

new Department. In addition, we will seek to ensure that ongoing adjudicative processes are disrupted as little as possible during the transition. We anticipate that adjudicatory and review entities transferred will continue to function as they do today, 

but perhaps with a new name on the door. 

While many of the agency functions that will be transferred to the new Department do not have a substantial adjudicative element, three agencies do have significant adjudicatory components—the Immigration and Naturalization Service (INS), 

the U.S. Customs Service, and the U.S. Coast Guard. 

The Immigration and Naturalization Service: INS’s Immigration Court system adjudicates benefits claims, waivers, and other cases regarding immigration status, including deportation proceedings. Aggrieved persons may appeal these cases to the 

Executive Office of Immigration Review (EOIR). Both INS’s Immigration Court system and EOIR will be transferred to the new Department. 

The U.S. Coast Guard: Under 15 U.S.C. § 1541, Administrative Law Judges of the 

U.S. Coast Guard decide cases concerning marine resource conservation law, among 

other issues. These decisions are appealed first to the Commandant of the Coast 

Guard, then to the National Transportation Safety Board. This situation will remain 

the same under the President’s proposal. 

The U.S. Customs Service: Generally speaking, the U.S. Customs Service offices 

resolve many legal claims relating to imported merchandise. Appeals of decisions related to imported merchandise are currently made to Customs Officers, and ultimately to the Commissioner of Customs. The transition of these functions will be 

relatively straight-forward. As in the previous examples, the rights of appeal granted in the Customs Service’s administrative procedures will transfer to the new Department. 

Other entities transferred into the new Department will require ALJs. The Administration intends that the transfer of all adjudicatory and review functions will 

be a seamless operation, that existing procedures and practices will continue at the 

new Department, and that no pending matters are disrupted. In order to ensure 

that all of the necessary adjudicatory and review entities are transferred along with 

the agencies they support, Section 802 of the bill gives the President the authority 

11

to transfer these programs to the new Department. And our proposal provides for 

a one-year transition period, giving the Administration time to ensure that the 

transfer is thorough and rational. Within the Transition Planning Office, which the 

President created by Executive Order on June 20th, we expect there will be a legal 

team comprised of lawyers from components that will make up the new Department. 

They will advise on a series of legal questions pertaining to the new department, 

including the transfer of adjudicatory and review components into the new Department. 

PRIVACY RAMIFICATIONS OF CREATING THE DEPARTMENT OF HOMELAND SECURITY

The Privacy Act is only one of several federal statutes protecting individuals from 

government misuses of private information. Other statutes ensure the privacy of 

certain information, such as tax information, medical information, confidential business information, and census responses. Generally speaking, the Privacy Act restricts the government from making private information public, and requires agencies to publish notices describing any records system they maintain about individual 

citizens. The Act permits government agencies to use or share information with 

other Government entities only for specific and limited purposes, such as law enforcement. 

The Administration’s proposed bill would not create any new exceptions or exemptions from the Privacy Act or any other privacy statutes. The Privacy Act will apply 

to specific components in the new Department in the same way that it applied before those entities were transferred to the new Department. The Privacy Act notices 

previously issued by these entities will remain in force. Within that framework, the 

components transferred into the Department will be permitted to share records with 

each other when necessary to perform their functions. Additionally, information 

sharing with law enforcement entities will be governed by existing law. 

An important component of the President’s proposal is to establish in the new Department of Homeland Security the responsibility to receive and analyze law enforcement information, intelligence, and other information in order to understand 

the nature and scope of the terrorist threat to the American homeland and to detect 

and identify potential threats of terrorism within the United States. The President’s 

proposal recognizes the importance of privacy protections with respect to this function, and therefore, the Administration’s proposal includes a specific provision requiring the Secretary to ‘‘ensure that any material received pursuant to this section 

is protected from unauthorized disclosure and handled only for the performance of 

official duties.’’

The Administration will work to identify the steps necessary to ensure proper protection of the privacy and security of information. Although the general counsel of 

an agency often handles privacy issues, we recognize the special importance of these 

issues in the homeland security context and are examining options for establishing 

a specialized privacy officer within the new Department. 

Finally, I would like to note the important role that OMB will occupy in ensuring 

that the new Department safeguards the privacy of the information that it collects 

and maintains. OMB issues implementing guidance for the Privacy Act (available 

at http://www.whitehouse.gov/omb/ inforeg/infopoltech.html) and assists the agencies on an ongoing basis as they carry out the Act’s requirements. OMB also reviews 

agency implementation of the Privacy Act through OMB’s review under the Paperwork Reduction Act of the agencies’ proposed collections of information. The Act also 

provides OMB with Executive Branch-wide authority with respect to information security—i.e., the protection of federal information from loss, misuse, or unauthorized 

access or modification. OMB’s information security role was strengthened in 2000 

with the enactment of the Government Information Security Reform Act, which 

amended the Paperwork Reduction Act by adding a separate subchapter dedicated 

solely to information security. Improving the federal government’s information security practices has been a management priority at OMB, and we have been working 

with the agencies to improve their information security programs and plans. 

FEDERAL ADVISORY COMMITTEE ACT

Another area of interest to this Subcommittee, where the Administration is seeking flexibility, is in the requirements of the Federal Advisory Committee Act. The 

new Department will have a significant need to establish and use the services of 

advisory committees on highly confidential and sensitive homeland security matters. 

The Central Intelligence Agency and the Federal Reserve Board have similar requirements to maintain confidentiality regarding the sensitive areas in which they 

work, and they were specifically exempted from the Federal Advisory Committee Act 

for this very purpose. The Administration’s proposal makes clear that public notice 

12

be given for the establishment of such committees. These exceptions are needed to 

enable the Department of Homeland Security to secure the services of individuals 

on its advisory committees who are highly qualified to serve, but who might be reluctant to do so within the constraints of the Federal Advisory Committee Act. The 

complexity associated with compliance with FACA could be a deterrent to timely 

counsel from experts. I would note, however, that any individuals serving on advisory committees for the new department would remain subject to criminal conflictof-interest prohibitions within Title 18 with respect to any particular matter that 

directly involves the Department. 

CONCLUSION

Balancing the needs and mandates of a new Department of Homeland Security 

will pose a substantial challenge. We believe that the planning must begin immediately. Accordingly, we have already begun constructing a transition team to prepare a detailed plan for transition. As I am sure you appreciate, this process will 

take several months, and will require significant work with each of the agencies involved. In that effort, we will ask our team to study your questions and recommendations carefully in the areas we are discussing today. We will also seek assistance from experts in many relevant areas and will seek input from agency general counsels on matters unique to particular agencies. The transition team will 

study the many issues regarding administrative law, adjudication, and privacy that 

will arise during the Department of Homeland Security’s transition and beyond. I 

wish to thank the Chairman and the Members of the Subcommittee for the opportunity to address these important issues, and I look forward to working with you 

on these and other important questions regarding the creation of the Department 

of Homeland Security.

Mr. BARR. Thank you very much, Mr. Everson. 

Professor Lubbers, please? 

STATEMENT OF JEFFREY S. LUBBERS, FELLOW IN LAW AND 

GOVERNMENT, WASHINGTON COLLEGE OF LAW, AMERICAN 

UNIVERSITY 

Mr. LUBBERS. Thank you, Mr. Chairman. It is an honor to be 

back before this Committee once again. 

I share the general consensus that this initiative is vital to our 

national security, and 20 years from now I suspect we will look at 

this department as a natural part of our Government, just as we 

now do the Departments of Defense, Transportation and Energy, 

which were products of similar reorganizations, but there will certainly be some growing pains. It is healthy to acknowledge that 

any attempt to reorganize and consolidate so many diverse aspects 

of our Executive Branch into a new entity will undoubtedly raise 

complex issues of Administration and administrative law that, if 

not handled appropriately, could cause severe problems down the 

line. 

Mr. BARR. Could you pull your mike a little bit closer to you, 

please. 

Mr. LUBBERS. Sure. Major agencies to be transferred to the new 

Department of Homeland Security which I will call DHS, include 

the U.S. Customs Service, the INS, Secret Service, Animal Plant 

Health Inspection Service or APHIS, the Coast Guard, the new 

Transportation Security Agency, and FEMA, along with numerous 

smaller parts of various departments. 

I do not address the policy choices that were made, as far as 

transferring certain agencies or programs and not others, but I 

would like to make eight basic points in my summary testimony 

this morning. 

First, the mundane details are sometimes the most important 

ones. An expert on the creation of the Transportation Department, 

13

Alan Dean, has said that in addition to setting up an organizational structure, lines of authority, staffing and clear missions, ‘‘We 

made a great point of having a complete and accurate phone book 

on people’s desks. We also made sure to have a messenger and 

routing system in place early on. These things sound very mundane, but things won’t work without them.’’

Second, some of the agencies to be transferred clearly have some 

functions that are unrelated to homeland security, and Congress 

should think about ways for the DHS to spin off or send these functions back to the transferring agencies, when appropriate, so they 

don’t get short shrift. 

Third, it should be remembered that each of the major administrative agencies that are to be transferred to the DHS have their 

own special organizational rules and rules of practice and procedure. Some of these are formal and are codified in a Code of Federal Regulations, others are memorialized in agency memoranda 

and guidance documents. Extracting these and redoing them under 

the auspices of the DHS will be a big job. 

Fourth, as several people have mentioned, there are some issues 

involving administrative adjudication. The agencies to be transferred have a number of different types of adjudicative responsibilities. The Coast Guard and APHIS conduct formal, on-the-record 

adjudications and have the need for administrative law judges and 

formal rules of practice. The Transportation Security Agency has 

authority to assess civil money penalties, as does the Customs 

Service, which has a large number of adjudications, but does not 

use administrative law judges. The INS employs about 300 asylum 

officers, along with an Administrative Appeals Unit for some cases, 

and the related, but independent, unit in the Department of Justice, the Executive Office of Immigration Review, employs 220 immigration judges, 3 administrative law judges for certain types of 

cases, and a 23-member Board of Immigration Appeals. 

The bill seems to intend that all of these immigration-related adjudicators be transferred to the new department. This raises some 

special issues since the Executive Office of Immigration Review 

was established in 1983 as a means of creating a nationwide system of immigration courts and an appeal structure that was independent of the INS. 

So, whether, and to what extent, these adjudicatory programs 

should be combined will require careful decisions about staffing 

and procedures. 

Fifth, there are some issues involving administrative rulemaking. 

The bill simply provides that the Secretary has the power to promulgate regulations hereunder. This means, as Mr. Everson said, 

that the APA’s notice-and-comment procedures, and their exemptions, would apply to DHS rulemaking. However, all of the agencies 

to be transferred have their own statutory and administrative requirements for rulemaking that will have to be integrated, and the 

parent departments of these agencies have their own ways of clearing regulations internally and with OMB. So I think there needs 

to be a central regulatory oversight within the Office of the Secretary of the new department. A good model is the similar unit 

that is within the Department of Transportation. 

14

Sixth, some issues relating to the Office of General Counsel. The 

bill provides for a general counsel to be the chief legal officer of the 

Department. I think there will be some special challenges in organizing this office, due to its central importance and in view of the 

need to integrate the various OGCs within the various agencies 

that are being transferred. One thing I will note is that the appointment of the DHS general counsel is not subject to Senate confirmation, unlike all of the other Cabinet Secretary’s general counsels. So I think that that should probably be done here as well. 

Seventh, all I will say about privacy is that, given its importance, 

I think it would be wise for the bill to mandate that one of the 

specified officials to be appointed under the bill take the lead on 

privacy issues within the Department’s jurisdiction. 

My last suggestion is for a Transition Task Force, and it sounds, 

from Mr. Everson’s testimony, that they are moving in that direction, but I think that given all of the potential problems that might 

arise, I would hope that the bill would authorize or even instruct 

the Secretary to establish an Interagency Transition Task Force 

made up of designees of the Departments that will be transferring 

agencies to DHS. 

If I can close with analogy, Mr. Chairman, I think that extracting and moving these agencies is somewhat similar to a kidney 

transplant. The recipient will be much stronger if the operation 

goes well, but the surgeons must great pains not to harm the 

donor, the recipient or the organ itself. 

So thank you for the opportunity to discuss these issues, and I 

would be pleased to work with the Committee or the Committee 

staff as you move forward with this bill. 

Thank you. 

[The prepared statement of Mr. Lubbers follows:]

PREPARED STATEMENT OF JEFFREY S. LUBBERS

Mr. Chairman and Members of the Committee: 

I am pleased to be here this morning to discuss potential administrative law concerns that might arise in consideration of and implementation of the Homeland Security Act of 2002. I share the general consensus that this initiative is vital to our 

national security. Twenty years from now, I suspect we will look at this Department 

as a natural part of our government, just as we now do the Departments of Defense, 

Transportation and Energy, but there will certainly be some growing pains. And it 

is healthy to acknowledge that any attempt to reorganize and consolidate so many 

diverse aspects of our executive branch into a new entity will undoubtedly raise 

complex issues of administration and administrative law that, if not handled appropriately, could cause severe problems down the line. 

My perspective is based on a long involvement in administrative law issues. At 

my former agency, the Administrative Conference of the United States, where I 

served for 20 years, we conducted many studies of administrative procedure problems in various federal agencies and tried to keep a government-wide perspective 

about these concerns. We appeared often before this Subcommittee and always appreciated its genuine interest in ‘‘good government’’ reforms. 

Background 

The draft bill, entitled the ‘‘Homeland Security Act of 2002,’’ creates a new Cabinet-level Department of Homeland Security (DHS), which places under one roof numerous agencies, offices, and programs or parts thereof that relate to four general 

missions, each with its own Undersecretary: (1) Information Analysis and Infrastructure Protection, (2) Chemical, Biological, Radiological, and Nuclear Countermeasures, (3) Border and Transportation Security, and (4) Emergency Preparedness 

and Response. It also creates a fifth Undersecretary for Management. 

Major agencies to be transferred include the U.S. Customs Service, Immigration 

and Naturalization Service (INS), Secret Service, Animal Plant Health Inspection 

Service (APHIS), Coast Guard, the new Transportation Security Agency (TSA), FedVerDate Jan 17 2002 09:33 Oct 10, 2002 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 G:\WORK\COMM\070902\80552.000 HJUD1 PsN: 80552
15

eral Emergency Management Agency (FEMA), along with numerous smaller parts 

of the Departments of Commerce, Defense, Energy, Health & Human Services, and 

Justice. These transfers shall take place when the President directs, but no later 

than the ‘‘transitional period’’ of twelve months after the effective date of the Act, 

(which is 30 days after enactment). I do not address the policy choices that were 

made as far as transferring certain agencies or programs and not others. However, 

as others have noted, some of the agencies to be transferred clearly have some functions that are unrelated to homeland security and the Congress should think about 

ways for the DHS to spin off or send these functions back to the transferring agencies when appropriate. 

The bill gives the new Secretary of DHS broad authority. Section 102(a)(1)(3) provides that ‘‘All functions of all officers, employees and organizational units of the 

Department are vested in the Secretary.’’ But in § 102(b)(1), the bill also provides 

that the Secretary may delegate any of his functions to any officer, employee, or organizational unit of the Department. Thus, for the most part, although these various agencies are transferred to DHS with their current statutory authorizations intact, the Secretary is ‘‘vested’’ with all the functions of these agencies, except to the 

extent he chooses to delegate his authority to the subordinate officers. In addition, 

under § 733, he may reallocate functions among the offices of the Department (including transferred statutory entities if he gives Congress 90 days’ notice). The only 

transferred offices that, according to the bill, must remain intact in the Department 

are the Secret Service and Coast Guard. Moreover, all high-level appointees (those 

serving at the Executive Levels II-V) in the transferred agencies are to lose their 

positions at the time of transfer. 

Other than the Secretary and the five Under Secretaries, the only officers specifically provided for in the bill include not more than six Assistant Secretaries who 

are to be Presidentially appointed/Senate-confirmed, an Inspector General, the Commandant of the Coast Guard, and the following Presidentially appointed (but not 

Senate-confirmed) officials: a General Counsel, not more than 10 (additional) Assistant Secretaries, a Director of the Secret Service, a Chief Financial Officer, and a 

Chief Information Officer. In view of the heightened concerns about privacy issues 

relating to collection of information, it may be wise for the bill to mandate that one 

of these officials take the lead on privacy issues within the Department’s jurisdiction. 

The bill contains very few procedural provisions. It gives the Secretary the power 

to ‘‘promulgate regulations hereunder’’ [§ 102(b)(2)], and to ‘‘make contracts, grants, 

and cooperative agreements, and to enter into agreements with other executive 

agencies...’’ [§ 102(b)(3)]. It provides a broad exemption from the Freedom of Information Act for ‘‘Information provided voluntarily by non-Federal entities or individuals that relates to infrastructure vulnerabilities or other vulnerabilities to terrorism and is or has been in the possession of the Department’’ [§ 204]. And it authorizes the Secretary to establish advisory committees without regard to the requirements of the Federal Advisory Committee Act as long as their establishment, 

purpose, and membership is announced in the Federal Register. Finally, the bill 

[§ 804] provides that completed administrative actions of a transferred agency shall 

not be affected, and that pending proceedings in an agency shall continue to the 

same extent that they would have if transfer had not occurred. 

General considerations 

Obviously, there are many details to think about in these sorts of major reorganizations. In preparing for this hearing, I read an article quoting an expert on the 

creation of the Transportation Department in 1966, Alan Dean, a senior fellow at 

the National Academy of Public Administration, who served as Assistant Secretary 

for Administration during that Department’s first four years. He said that in addition to setting up an organizational structure, lines of authority, staffing and clear 

missions, executives are well-advised to focus on smaller things, too. ‘‘We made a 

great point of having a complete and accurate phone book on people’s desks. We also 

made sure to have a messenger and routing system in place early on. These things 

sound very mundane, but things won’t work without them.’’

Beyond these vital day-to-day matters, each of the major administrative agencies 

that are to be transferred to the DHS (Customs Service, INS, Secret Service, 

APHIS, Coast Guard, TSA, and FEMA) have their own special organizational rules, 

and rules of practice and procedure. Some of these are formal and are codified in 

the Code of Federal Regulations, others are memorialized in agency memoranda and 

guidance documents. Extracting these and redoing them under the auspices of the 

DHS will be a big job. Moreover, this will not just be a paperwork exercise. Three 

quick examples may illustrate some of the problems here.

16

1. The Animal Plant Health Inspection Service (APHIS) now in the U.S. Department of Agriculture enforces several statues including the Plant Protection Act and the Lacy Act. Hearings held under these statutes are required 

to be heard by Administrative Law Judges (ALJs), and the Department currently maintains a small staff of ALJs to hear these cases and those that 

arise under many other statutes enforced by other components of USDA. Appeals from ALJ decisions go to a special Judicial Officer who hears cases on 

behalf of the Secretary. After transfer to the DHS, new hearing and appeal 

procedures for these cases would have to be devised.

2. The Coast Guard, now a part of the U.S. Department of Transportation, 

issues rules and decides enforcement adjudications (both formal and informal). The dockets for these actions are maintained by DOT’s central computerized docket system—one of the most advanced in the federal government. 

Although the Coast Guard is supposed to be transferred intact to the DHS, 

what will happen to its dockets? Will these electronic files have to be extracted somehow from the DOT docket system? Or will DHS ask DOT to continue to maintain these dockets (as well as those of the just-created Transportation Security Agency (TSA))?

3. The legislation for the TSA, [Pub. L. 107–71] placed it within the U.S. Department of Transportation and, (in § 115) established in that Department a 

Transportation Security Oversight Board, chaired by the Secretary of Transportation. Will this Board now be moved to the DHS and will its makeup 

have to be changed?

These examples are symptomatic of the challenges involved in extracting subagencies from larger agencies. Many of these agencies have shared functions with 

their parent departments. Many of them also have been delegated certain functions 

that could have been delegated elsewhere in their department. For example another 

of DOT’s modal agencies, the Research and Special Programs Administration, has 

regulatory jurisdiction over the transportation of hazardous materials. This agency 

must work closely with the Coast Guard and TSA, and extracting the latter two 

agencies from DOT might require new arrangements or delegations. 

I am quite sure that many of these agencies currently have responsibilities based 

not only on statute, but on Secretarial delegations. If the DOT Secretary, within his 

discretion, has delegated certain functions to either the Coast Guard or to the TSA, 

will those delegations remain in effect after the transfer? Are they ‘‘frozen’’ at that 

point? Or can such delegations be revoked, either before or after transfer? I note 

that there is a provision in the bill, (§ 804(d)) which states:

References relating to an agency that is transferred to the Department in statutes, Executive orders, rules, regulations, directives, or delegations of authority

that precede such transfer or the effective date of this Act shall be deemed to 

refer, as appropriate, to the Department, to its officers, employees, or agents, 

or to its corresponding organizational units or functions. (emphasis added).

But this provision will probably not resolve the many delegation problems that are 

likely to arise, as the transfers become imminent. 

Issues involving administrative adjudication 

As indicated above, the agencies to be transferred have a number of different 

types of adjudicative responsibilities. The Coast Guard and APHIS conduct formal 

on-the-record adjudications, and thus have the need for ALJs and formal rules of 

practice. The TSA has authority to assess civil money penalties, as does the Customs Service, which has a large number of adjudications, but none that require 

ALJs. The INS employs about 300 asylum officers-non-ALJ adjudicators—along with 

an Administrative Appeals Unit for some cases. And INS’ related but independent 

unit in the Department of Justice—the Executive Office of Immigration Review 

(EOIR)—employs 220 so-called ‘‘immigration judges,’’ three ALJs for certain types 

of cases, and a 23-member Board of Immigration Appeals. The bill seems to intend 

that all of these immigration-related adjudicators be transferred to DHS. This raises 

some special issues since the EOIR was established in 1983 as a means of creating 

a nationwide system of ‘‘immigration courts’’ and an appeals structure that is independent of the INS. 

Moreover, the bill (§ 802) provides that ‘‘When an agency is transferred, the President may also transfer to the Department any agency established to carry out or 

support adjudicatory or review functions in relation to the agency.’’ The scope of this 

provision is unclear. It would seem to apply to DOJ’s Board of Immigration Appeals, 

but will this Board and the rest of EOIR continue to be independent of the INS (or 

of DHS)? And does this provision also apply to the USDA’s Judicial Officer? 

17

In short, whether and to what extent, these adjudicatory programs should be combined will require careful decisions about staffing and procedures. 

Issues involving administrative rulemaking 

The bill simply provides that the Secretary has the power to ‘‘promulgate regulations hereunder’’ [§ 102(b)(2)]. This means that the APA’s notice-and-comment procedures would apply to DHS rulemaking, absent other statutory requirements. However, the agencies to be transferred all have their own statutory or administrative 

requirements for rulemaking that will have to be integrated. For example, the TSA’s statute contains a number of specific and unusual rulemaking provisions. The Coast 

Guard’s regulations, in 33 C.F.R. subpart 1.05, set forth that agency’s policies and 

procedures regarding rulemaking. Moreover, the parent departments of these agencies (DOT, USDA, DOJ and Treasury) all have their own ways of clearing regulations internally, with OMB, and with the Regulatory Information Service Center 

(which publishes the semi-annual Unified Agenda of Federal and Deregulatory Actions). 

These problems are hardly insuperable, but they will also require careful planning. Given the complexity of the rulemaking process, with the many applicable 

statutory and Executive Order requirements, a central regulatory oversight office, 

within the Office of the Secretary, would be beneficial. A good model is the office 

within the Office of the Secretary of the Department of Transportation, which serves 

as the clearance and oversight point, as well as a source of expert guidance, for all 

regulations issued by the various modal units within DOT (including the TSA and 

Coast Guard). 

The Office of General Counsel 

Section 103(d) provides for a General Counsel to be the chief legal officer of the 

Department. There will be special challenges in organizing this office, due to its central importance in advising the Secretary, and in view of the need to integrate the 

various offices of general counsel (OGCs) within the agencies to be transferred. 

First, I note that the appointment of the DHS General Counsel is by the President but is not subject to Senate confirmation. The appointment of every other Cabinet Department General Counsel (or equivalent), plus some sub-cabinet GCs, is currently subject to Senate confirmation, and in view of the importance of this office, 

I think this one should be too. 

Second, a decision will need to be made as to how to organize this office. Will the 

subagencies maintain their own OGCs (with only a small central office) or will the 

responsibility be centralized entirely within a DHS Office that has various functional divisions? The Departments of HHS and Labor currently use a highly centralized approach, while DOT has a more decentralized structure with ‘‘chief counsels’’ in the various modal units and a smaller OGC within headquarters. I don’t have 

a strong view on this matter; the different departments should be consulted on this 

for advice. But in either case, there will be a need for a highly qualified group of 

lawyers in the headquarters office to deal with the sensitive privacy, disclosure, 

rulemaking, and personnel issues that are sure to arise. 

Suggestion: A Transition Task Force 

Given all of the administrative, procedural, strategic, and technical issues that 

will inevitably come up during such a major consolidation, I would suggest that this 

bill authorize or even instruct the Secretary to establish an interagency Transition 

Task Force, made up of designees of the departments that will be transferring agencies (which I will call ‘‘donor departments’’) to the DHS. Experts from each of these 

departments should be convened to advise the Secretary on the transition. Of 

course, the Secretary and the Task Force should also consult with officials from the 

agencies that are being transferred, but to minimize turf battles I would suggest 

that the Task Force be made up of representatives of the donor departments instead 

of the transferring agencies. It will be inevitable that officials and staffs of the 

transferred agencies will jockey for attention and power within DHS, especially 

since, except for the Secret Service and the Coast Guard, these agencies will be subject to reallocation and reorganization. But the experts from the donor agencies, 

lawyers and administrators alike, can be a more objective source of advice to the 

DHS Secretary and General Counsel about the many ‘‘sunken logs’’ that are out 

there. 

Miscellaneous comments, arranged by section of bill: 

Section 2(5)—The definition of ‘‘Executive agency’’ incorporates the definition in 

5 U.S.C § 105: ‘‘an Executive department, a Government corporation, and an independent establishment.’’ ‘‘Independent establishment’’ is defined in 5 U.S.C § 104, as 

‘‘(1) an establishment in the executive branch (other than the United States Postal 

18

Service or the Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent 

establishment; and (2) the General Accounting Office.’’ Thus, it would seem to cover 

independent regulatory agencies as well as the GAO. This may be important, given 

the Secretary’s authority to demand information from executive agencies. Section 

203 specifies that:

The Secretary shall have access to all reports, assessments, and analytical information relating to threats of terrorism in the United States and to other areas 

of responsibility described in section 101(b), and to all information concerning 

infrastructure or other vulnerabilities of the United States to terrorism, whether or not such information has been analyzed, that may be collected, possessed, 

or prepared by any executive agency, except as otherwise directed by the President. (emphasis added).

The term ‘‘executive agency’’ might otherwise be read to exclude certain relevant 

independent agencies. Three that come to mind are the Nuclear Regulatory Commission, the National Transportation Safety Board, and the United States Chemical 

Safety and Hazard Investigation Board. It might still be wise to mention those specifically if that is the Committee’s intent. 

Nevertheless, the use of the definition of 5 U.S.C § 105 raises a few problems. 

Does Congress really want the GAO to be included as an executive agency for this 

purpose? Furthermore, this definition would exclude the U.S. Postal Service, a curious omission in light of the anthrax scare. It may be preferable to use the more familiar broad definition of ‘‘agency’’ in the Freedom of Information Act, 5 U.S.C. 

§ 552(f)(1):

‘‘agency’’ as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled 

corporation, or other establishment in the executive branch of the Government 

(including the Executive Office of the President), or any independent regulatory 

agency

Section 103—Why are two classes of Assistant Secretaries created? This section 

provides for not more than six Assistant Secretaries who are to be Presidentially 

appointed/Senate-confirmed, and not more than 10 (additional) Assistant Secretaries 

who are to be Presidentially appointed, but not Senate-confirmed. 

Section 204—This section provides that ‘‘Information provided voluntarily by nonFederal entities or individuals that relates to infrastructure vulnerabilities or other 

vulnerabilities to terrorism and is or has been in the possession of the Department 

shall not be subject to [the FOIA].’’ This phrase ‘‘that relates to’’ seems too broad. 

It might provide an exemption from all of FOIA for a 100-page document that has 

only one page relating to security concerns. I would change the wording to ‘‘to the 

extent that it relates to infrastructure vulnerabilities . . . ‘‘This would accord with 

the usual FOIA principle that exempt material be segregated, to the extent feasible, 

from non-exempt, releasable material. 

Section 402(4). I believe the Coast Guard becomes part of the military during time 

of war. I assume that this is not supposed to change, but perhaps that needs to be 

clarified. 

Section 403(b)—This section provides that ‘‘[t]he Secretary of State may refuse a 

visa to an alien if the Secretary of State deems such refusal necessary or advisable 

in the interests of the United States.’’ This seems to provide almost limitless discretion, and could allow refusals for cultural, political, or completely arbitrary reasons. 

It would seem more appropriate to add the word ‘‘security’’ before ‘‘interests.’’

Section 731—This section exempts advisory committees from the provisions of the 

Federal Advisory Committee Act (FACA). It may raise questions about such committees already chartered under FACA by the transferred agencies. Would such committees receive an immediate exemption from FACA at the time of charter? Or 

would they continue to have to operate under FACA because they were not established by ‘‘the Secretary.’’

Section 803(d)(2). This provision seeks to eliminate the need for a second confirmation hearing for someone assuming the same or similar position in an agency 

after it is transferred to the Department. However there seems to be a drafting 

glitch here because it refers to ‘‘any officer whose agency is transferred to the Department pursuant to this Act’’ without also specifying that such officer has previously been confirmed by the Senate for the earlier position. 

If I can close with an analogy Mr. Chairman, extracting and moving these agencies is somewhat similar to a kidney transplant. The recipient will be much stronger 

if the operation goes well, but the surgeons must take great pains not to harm the 

donor, the recipient, or the organ itself. 

19

Thank you for your opportunity to discuss these issues with you. I would be 

pleased to try to answer any questions or to work with your staff as you continue 

to consider this important legislation.

Mr. BARR. Thank you. The chair presumes that you have a medical degree in that case. 

Mr. LUBBERS. No, sir. [Laughter.] 

Mr. BARR. The chair is pleased to recognize, for the final opening 

statement of this hearing, Professor Swire. 

STATEMENT OF PETER P. SWIRE, PROFESSOR OF LAW, OHIO 

STATE UNIVERSITY, VISITING PROFESSOR AT GEORGE 

WASHINGTON UNIVERSITY 

Mr. SWIRE. Thank you, Chairman Barr, Congressman Watt and 

other distinguished Members of this Committee. It is an honor and 

a serious responsibility to testify today here on this subject. 

I share the views of many Americans that it is vital to take new 

measures to protect against terrorism, including by improving the 

security of our critical infrastructures and other computer systems. 

Indeed, a major focus of my current academic research has been in 

the area of improving computer security and network systems. In 

the time available to testify today, however, I will focus on my concerns with the recent Administration proposal. A more detailed 

written statement and a list of my specific recommendations is 

available for the record and copies are available on the tables here. 

As you said, Mr. Chairman, I am a professor of law at the Moritz 

College of Law of the Ohio State University. I live in the Washington, D.C., area and head the new summer program of that law 

school. From March 1999 until January 2001, I served as the Clinton administration’s chief counselor for Privacy in the U.S. Office 

of Management and Budget. 

I have studied the Homeland Security Act of 2002, as proposed 

by the Administration, and offer two metaphors for what I have 

found. 

First, the truck metaphor. When it comes the information sharing, I believe the proposal is all accelerator, but with no brakes. 

The bill puts the pedal down when it comes to spreading around 

sensitive personal information in hopes of reducing terrorism, but 

the bill has essentially no safeguards to put on the brakes—either 

to prevent harm to individuals or to stop a power grab over time 

by an unaccountable agency. For a vehicle as big as the new Homeland Security Department, nonstop acceleration and no brakes may 

lead to a mighty big crash in the future. 

Second, the haystack metaphor. I share the concern expressed in 

this Committee recently that the new information sharing proposals are like piling more hay on top of an already enormous haystack. All of that new hay makes it that much harder to find the 

needle. Better analysis of existing data is likely the keys to success 

here, and the Congress should probe hard to learn whether adding 

new piles of information and reshuffling the bureaucratic boxes will 

really add to the quality of the analysis. 

In the time available for my oral statement, I will make three 

types of points. 

First, the bill needs better institutional checks and balances for 

privacy and other issues. These safeguards should be added both 

20

within the Department and also in OMB or other parts of the Executive Office of the President. 

Second, the bill should be amended to add language that allows 

the Department, in the future, to be effective in carrying out its 

missions other than antiterrorism, such as Emergency Management and the Customs Service, and to give due consideration to 

other values, such as privacy, freedom of information, commerce 

and others. 

Third, the safeguard described by Mr. Everson in his testimony, 

in his written testimony, turn out to be considerably weaker than 

they might appear. 

Turning to the institutional checks and balances, I believe a senior official should be appointed within the Executive Office of the 

President to coordinate policymaking and privacy issues, including 

as they relate to homeland security. I believe H.R. 5005 should explicitly require appointment of a privacy official within the Department of Homeland Security. This will promote congressional oversight over time. And I also support this Committee’s efforts to build 

privacy impact assessments into agency actions. 

Based on my 2 years as essentially the chief privacy officer for 

the Federal Government, it is perhaps not surprising that I believe 

that having an official tasked with privacy protection offers significant benefits. The goal is emphatically not to have privacy trump 

other values. Instead, the goal is to help ensure that issues of proper handling of personal information are well-vetted in the decisionmaking process. 

Many of the worst surveillance proposals occur when no one in 

the process has rigorously considered the potential negative effects 

of a proposal that also offers some advantages. If everyone in the 

process is concerned, for instance, with short-term gains to homeland security, then who will air the long-time concerns about erosions of civil liberties? Who will make sure that the process considers alternatives that are effective on the security side, while also 

respecting privacy and other values. 

Next, there are specific and achievable amendments that can 

build missions and values other than antiterrorism into the bill. 

The current text says that the Department’s primary mission concerns antiterrorism. This language has pernicious effects. For instance, in the event of floods or hurricanes, any FEMA activities 

related to terrorism will be stated by statute to be more important 

than saving American’s lives and properties threatened by these 

other sorts of disasters. 

Similarly, this bill dictates that values such as privacy and civil 

liberties and so on are secondary, by statute, to antiterrorism efforts. Section 101 of the bill can be amended to make antiterrorism 

one mission of the Department without denigrating these other 

missions. 

A related point applies to section 201, concerning the Under Secretary for Information Analysis. He is tasked to oversee the Nation’s information infrastructure without any consideration of matters other than security. Entirely absent is discussion of the educational and commercial benefits that result from the Internet, the 

protection of privacy, the values of an open society and Government 

21

accountability and so on. The bill can, and should, avoid this onesided charter for how to build our infrastructure for the future. 

Briefly turning to the privacy safeguards explained in Mr. 

Everson’s written testimony, I offer four observations. 

First, I note that OMB currently has exactly one civil servant 

and no privacy official tasked with the Privacy Act and privacy policy, generally. 

Second, I commend President Bush for deciding not to cancel the 

Medical Privacy Protections, but I have not been able to find a single example where his Administration has taken any initiative to 

strengthen privacy protections when it comes to Government information gathering and surveillance. 

Third, consolidating all of the many activities into this new department will weaken Privacy Act protection. That act applies primarily to transfers of personal data from one agency to another. 

And, fourth, section 203 of the bill does, indeed, require the Department to protect against unauthorized disclosures and use outside of the performance official duties. My written testimony explains in detail, however, why this language permits a practically 

unlimited expansion of authorized disclosures and disclosures for 

official duties. 

In conclusion, I thank the Committee for the opportunity to testify and to present my views on this issue. Today, less than a year 

after the horrific events of September 11, there is likely no issue 

on the national agenda more important than deciding how we will 

change practices within our borders to assure both security and the 

other important values that define our Nation. 

As an academic who has studied the histories of Government’s 

institutions, I wonder whether the war of terrorism will be as defining a mission 10, 20 or 30 years from now when the Department 

of Homeland Security will quite possibly still be governed by the 

charter you will enact this year. 

You are writing the charter for an agency with unprecedented 

powers to keep watch on every American, powers that will endure 

long after this election cycle is forgotten. I commend this Committee for its careful attention to the issues in the hearing today, 

and I welcome any questions you may have. 

[The prepared statement of Mr. Swire follows:]

PREPARED STATEMENT OF PROFESSOR PETER P. SWIRE

INTRODUCTION

Chairman Barr, Congressman Watt, and other distinguished members of the 

Committee on the Judiciary, it is an honor and a serious responsibility to be asked 

to testify today on the topic of ‘‘Administrative Law, Adjudicatory Issues, and Privacy Ramifications of Creating the Department of Homeland Security.’’ I share the 

views of many Americans that it is vital to take new measures to protect against 

terrorism, including by improving the security of our critical infrastructures and 

other computer systems. Indeed, a major focus of my recent academic research has 

been in the area of improving computer security in networked systems. In the time 

available to testify today, however, I will focus on my concerns with the recent Administration proposal of the Homeland Security Act of 2002, introduced as H.R. 

5005. An attachment at the end of this testimony summarizes my recommendations. 

I also look forward to responding to any questions you may have where I can be 

of assistance. 

22

BACKGROUND OF THE WITNESS. 

I am Professor of Law at the Moritz College of Law of the Ohio State University. 

I reside in the Washington, D.C. area and head the new summer program of the 

law school. As a professor, I teach courses on privacy, the law of cyberspace, and 

other subjects, and serve as the editor of the Cyberspace Law Abstracts. My web 

page is at www.osu.edu/units/law/swire.htm, and many of my writings are available 

there. My e-mail is swire.1@osu.edu, and phone at (240) 994–4142. 

Relevant to today’s topic, I am currently researching privacy and technology 

issues for the Liberty and Security Initiative of the Constitution Project. This Initiative is a bipartisan effort of prominent citizens who are seeking ways to achieve 

both security and civil liberties in the wake of the events of September 11. I also 

act as a consultant to the law firm of Morrison & Foerster, primarily on issues of 

medical privacy. In my testimony today I am reflecting solely my personal views, 

and I have not been paid in any way to prepare this testimony. 

From March, 1999 until January, 2001 I served as the Clinton Administration’s 

Chief Counselor for Privacy, in the U.S. Office of Management and Budget. This position was in OMB’s Office of Information and Regulatory Affairs (‘‘OIRA’’), which 

has long had important responsibilities under the Privacy Act, the various computer 

security statutes, and for federal information policy more generally. Relevant to today’s topic, I played a lead role in coordinating federal agency practices with respect 

to privacy and personal information. I served on the White House E-Commerce 

Working Group, worked extensively on critical infrastructure issues including the 

Federal Intrusion Detection Network (FIDNet), and worked more generally at the 

intersection of computer security and privacy issues. In 2000 I chaired a White 

House Working Group on how to update wiretap and surveillance laws for the Internet age. 

GENERAL COMMENTS ON THE HOMELAND SECURITY ACT OF 2002. 

I have studied the Homeland Security Act of 2002, H.R. 5005 as proposed by the 

Administration, and offer two metaphors for what I have found. 

First, the truck metaphor. When it comes to information sharing, I believe the 

proposal is all accelerator but with no brakes. The bill puts the pedal down when 

it comes to spreading around sensitive personal information in hopes of reducing 

terrorism. But the bill has essentially no safeguards that put on the brakes—either 

to prevent harm to individuals or to stop a power grab by an unaccountable antiterror agency. For a vehicle as big as the new Homeland Security Department, nonstop acceleration and no brakes may lead to a mighty big crash in the future. 

Second, the haystack metaphor. I share the concern, expressed in this Committee 

recently, that the new information sharing proposals are like piling more hay on top 

of an already enormous haystack. All that new hay makes it that much harder to 

find the needle. Better analysis of existing data is likely the key to success here, 

and the Congress should probe hard to learn whether adding new piles of information and reshuffling the bureaucratic boxes will really add to the quality of the analysis. 

Taking the haystack image a bit further, the extra-big piles of hay (all that personal information) can get very old and dried-up sitting in those government storage 

facilities. When a drought or dry season comes around, as it inevitably will, the fires 

will be far worse than otherwise. Lots and lots of Americans may get burned if there 

is careless storage or handling of all that additional hay. The unprecedented collection and dissemination of personal information about Americans puts us at new risk 

when there is next a drought of self-control or common sense in the Department 

of Homeland Security. 

THE DEPARTMENT’S SKEWED INCENTIVES AND LACK OF INSTITUTIONAL SAFEGUARDS. 

Moving from metaphors to the usual language of Washington policy debates, my 

central point today concerns the skewed incentives of the new Department when it 

comes to information gathering and sharing. Having served in the federal government, I am acutely aware that where one sits often determines where one stands. 

For instance, the CIA thinks that intelligence information is paramount, the FBI 

stresses effective law enforcement above all other values, and the Commerce Department instinctively understands the effects of a policy proposal on business. For 

employees of the new Homeland Security Department, a simple look at the name 

of their department will tell them all they need to know about how their success 

or failure will be measured. Why would any rational person in the Department fall 

on their sword to protect privacy, civil liberties, commerce, the rights of immigrants, 

or any other value except for anti-terrorism? All of the incentives are to place antiVerDate Jan 17 2002 09:33 Oct 10, 2002 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 G:\WORK\COMM\070902\80552.000 HJUD1 PsN: 80552
23

terrorism efforts at the pinnacle. And that mandate will continue for many years, 

until a future Congress one day takes up the arduous task of reorganization. 

A related, key point is the lack of institutional safeguards to keep the instincts 

of the new Department in check. In my specific comments below, I suggest a number of ways to create institutional safeguards both within the Department and in 

other parts of the federal government. At this point in the testimony, I highlight 

two proposals. First, a senior official should be appointed within the Executive Office 

of the President to coordinate policymaking on privacy issues, including as they relate to homeland security. Second, a Chief Privacy Officer should be included among 

the statutory offices in the new Homeland Security Department, alongside the Chief 

Financial Officer and Chief Information Officer. 

Based on my two years as essentially the Chief Privacy Officer for the federal government, (perhaps not surprisingly) I believe that having an official tasked with privacy protection offers significant benefits. The goal is emphatically not to have privacy trump all other values. Instead, the goal is to help ensure that issues of proper 

handling of personal information are well vetted in the decisionmaking process. 

Many of the worst surveillance proposals occur when no one in the process has rigorously considered the potential negative effects of a proposal that also offers some 

advantages. If everyone in the process is concerned, for instance, with short-term 

gains to homeland security, then who will air the long-term concerns about erosion 

of civil liberties? Who will make sure that the process considers alternatives that 

are effective on the security side while also respecting privacy and other values? To 

take one example, there is little or no evidence in H.R. 5005 itself that privacy values were even discussed among the drafters. If privacy had been discussed, then 

there were numerous places where clarifying language, of the sort I propose below, 

might easily have been included. 

With the Office of Management and Budget testifying here today, I hope they will 

not take it amiss if I suggest that OMB, and especially its Office of Information and 

Regulatory Affairs, is likely the single best place to house this sort of privacy official. OMB has long had responsibility for overseeing agency compliance with the 

Privacy Act. Its responsibility for the clearance of agency Congressional testimony 

and other statements gives OMB important leverage in ensuring that single-mission 

agencies, such as Homeland Defense, make policy while considering a broader range 

of concerns. OMB also has, in my experience, an exceptionally dedicated and capable 

group of civil servants. For these reasons and others, I believe OMB can play a constructive role going forward in checking the runaway tendencies of the Department 

of Homeland Security. Privacy and other values can be considered better in the 

OMB setting, where there is longstanding experience in balancing competing concerns. OMB’s role in the budget process and its oversight of agency regulations also 

mean that an agency will have less success seeking only the narrow interests of that 

single agency without regard for other concerns. 

One particular reform to consider is whether proposed Homeland Security changes 

in data flows within the federal government or especially outside of the federal government should be subjected to cost/benefit requirements along the lines of Executive 

Order 12, 291 (issued by President Reagan) and Executive Order 12,866 (issued by 

President Clinton). The current Administration has insisted on rigorous cost/benefit 

analysis of other federal agency proposed actions, and we deserve to hear the Administration’s views on whether this sort of careful analysis should be skipped for issues 

of Homeland Security. Aspects of such analysis would presumably include the direct 

economic burdens created by new Homeland Security initiatives, as well as the burdens placed on privacy, commerce, civil liberties, and other values of an open society. 

COMMISSION ON PRIVACY AND PERSONAL FREEDOM

The last comprehensive review of privacy issues at the federal level was conducted 

in the mid-1970s, resulting in passage of the Privacy Act and the creation of the 

Privacy Protection Study Commission, which issued its report in 1977. The President or the Congress should create a new Commission on Privacy and Personal Freedom to review privacy issues in the context of homeland security and new information technologies and recommend changes in law and policy. I have previously had 

my doubts about the usefulness of proposals to create privacy study commissions, 

in part due to my perception that such commissions could be used as an excuse to 

delay implementation of effective privacy protections. In light of the events of September 11, however, and the pressing issues those events have posed for homeland 

security, surveillance, and privacy, I believe this sort of study commission is now 

appropriate. 

24

ADMINISTRATIVE LAW AND RULE OF LAW CONCERNS

Before turning to some specific textual concerns with H.R. 5005, permit me to 

comment briefly on some administrative law aspects of the proposal. I am concerned 

that this major reorganization would reduce the effectiveness of the legislation that 

Congress has enacted over time to specify how the various agencies should carry out 

their functions. Even if we assume that officials in the new Department wish to follow every Congressional enactment to the letter, there will inevitably be some play 

in the joints as the officials seek to make old language work in new settings. The 

scope of agency discretion is likely to increase as a result of the reorganization. 

The reorganization thus poses risks to the effectiveness of existing legislation and 

of judicial review to assure the rule of law within the new Department. For instance, the famous Chevron case requires judges to give deference to an agency that 

adopts any ‘‘permissible’’ interpretation of a statute. Under the proposed bill, the 

scope of Chevron deference would seem to increase due to the agency’s need to adapt 

pre-existing statutory language to the setting of the new Department. The scope of 

that deference would seem to increase even more because H.R. 5005 treats anti-terrorism to be the ‘‘primary’’ mission of the Department. The agency would thus have 

a statutory basis for arguing that an especially broad set of interpretations is ‘‘permissible’’ when pursuing any anti-terrorism goal. If the Committee does not wish to 

grant the new Department this especially sweeping ability to interpret existing statutes as it sees fit, the Committee may wish to consider amendments that limit the 

degree of deference owed to the Department’s statutory interpretations. Notably, language could be inserted in the savings provision in Section 804(d). The new language 

might directly state that courts, in reviewing the Department’s actions, are to give 

the same degree of deference to the Department as they would have to the predecessor 

components of the Department under existing law. In this way, the Congress could 

assure that the same degree of judicial review and rule of law will continue to apply 

to the Department’s interpretations of existing statutes. Without such language, the 

Department may take the position that it deserves significantly enhanced deference 

from courts in the interpretation of the governing statutes. 

SOME LESSONS FROM CURRENT RESEARCH INTO HOMELAND SECURITY AND PRIVACY. 

Current research for the Liberty and Security Initiative of the Constitution 

Project sheds light on possible pitfalls from the current version of the Homeland Security Act of 2002. 

One of my efforts with the Constitution Project has been to study the way that 

wiretap laws operate at the state level. A preliminary survey of state wiretap laws 

and current proposals to amend the laws is now available at the web page of the 

Constitution Project, www.constitutionproject.org. A substantially more detailed 50-

state survey will be available there shortly. For the topic of homeland security, my 

research to date on state wiretap laws indicates systematic weaknesses in protecting 

information at the state level as well as the importance of creating institutional 

checks and balances within an information-sharing process. 

The study of state wiretaps is illuminating because the standards for a judge 

issuing a wiretap order are the same for federal and state wiretaps under the Electronic Communications Privacy Act. The major difference in practice appears to the 

due to the greater institutional checks and balances at the federal level. There, we 

have a history of scrutiny of wiretap orders by the Congress, the press, and civil 

liberties groups and we have had institutional protections such as approval by senior Justice Department officials and significant training required of the agents and 

prosecutors who seek such wiretaps. In many states, our survey shows that these 

institutional safeguards are lacking. 

Given the absence of institutional safeguards, authorization of state wiretaps and 

information derived from those wiretaps is often handled less carefully than for federal wiretaps. Previous researchers, such as Susan Landau and Whitfield Diffie in 

their book ‘‘Privacy on the Line’’, have found that many required state wiretap reports are missing or apparently quite inaccurate. These shortcomings are important, 

because a majority of all domestic wiretaps take place under state law, under orders 

signed by state judges. These shortcomings take on new importance in light of a 

study released this spring finding that the number of state wiretaps has jumped a 

startling 50 percent in the past year alone. 

Proposals to amend state wiretap laws should seek effective ways to build institutional checks and balances into the surveillance process. Effective institutional 

checks, beginning but not ending with strong Congressional oversight, will be needed for the new Department of Homeland Security. New proposals for information 

sharing with state and local officials also need to contain institutional safeguards 

for the sensitive information that is being shared. 

25

Another ongoing topic for the Constitution Project concerns national ID proposals 

and the history of why the federal government has repeatedly decided not to create 

such an identification system. My current view is that our lack of a national ID card 

today is due partly to popular sentiment (which has opposed such cards) and partly 

due to a political dynamic where the proponents faced a heavy burden in creating 

such a system. My preliminary view is that creation of a Department of Homeland 

Security would change the political dynamic. The new Department will be under 

strong internal and external pressure to adopt new biometric and other identification systems. The heavy burden may thus shift to those who are skeptical of a new 

national identification system. If the large and powerful new Department puts its 

muscle behind such a system, who inside or outside of the federal government will 

be similarly well organized to oppose it? 

Many reasons have been given to date for doubting the desirability of creating a 

national ID card or national ID system. For instance, there are concerns about cost, 

discriminatory treatment of minorities, the inability to create a system that would 

actually identify individuals in a trustworthy way, and the likely mission creep over 

time as the card was used for an ever-expanding number of applications. To the extent the Members are concerned about a shift to a national ID system, then there is 

greater reason to oppose or be more cautious in support of the new Department of 

Homeland Security. The Congress may wish to consider ways to reduce this concern, 

such as by stating that no funds shall be spent to create or advocate for a national 

identification system. 

COMMENTS ON SPECIFIC SECTIONS OF THE HOMELAND SECURITY ACT OF 2002, H.R. 5005. 

Section 101(b)(1), anti-terrorism as the ‘‘primary’’ mission of the Department. The 

current text says that the Department’s ‘‘primary’’ mission will be duties connected 

to preventing, minimizing the damage from, and assisting in the recovery from terrorist attacks. One problem with this formulation is that it necessarily makes ‘‘secondary’’ all the other functions of the agency components that are transferred into 

the new Department. As one notable example, administration of the entire enormous body of immigration laws is secondary under this statute to the activities of 

the INS with respect to terrorism. Similarly, the many domestic responsibilities of 

FEMA will now all be subordinated, according to this statute, to FEMA’s terrorismrelated activities. In the event of floods, hurricanes, fires, and the rest, any FEMA 

activities related to terrorism will be stated by statute to be more important than 

saving Americans’ lives and property threatened by these other sorts of disasters. 

The new Department would contain a wide range of important government functions, including the INS, FEMA, the Coast Guard, the Customs Service, and many 

others. Making terrorism the ‘‘primary’’ mission, with the other tasks of these agencies as ‘‘secondary,’’ will have some predictable consequences. First, the proposed reorganization will likely result in less leadership focus, and likely less effective implementation, of the non-terrorism goals in these areas. By statute and by the organizational form of the new Department, there would be less leadership focus on 

goals such as administering the immigration laws, responding to natural disasters, 

assuring search and rescue and other coastal priorities, and achieving revenue-raising and commercial goals in the customs area. Second, the Administration insistence 

that there will be zero budget effect from the reorganization will accelerate this loss 

of focus on the INS, FEMA, Coast Guard, Customs and other missions of the new 

Department. Based on my experience working at OMB, I simply do not believe that 

a steady-state budget can pay for all of the new anti-terrorist activities and also 

maintain current ability to achieve existing missions. I believe honesty compels us 

all to recognize a choice: the Department will either reduce the Government’s ability 

to achieve existing missions, or cost a lot more money, or both. 

The current language, with anti-terrorism as ‘‘primary’’ and everything else as 

‘‘secondary,’’ would also affect privacy, civil liberties, and other values. This hierarchy of values, with terrorism more important than all the other missions of the 

Department and all the other values implicated by the Department’s ongoing activities, is made a permanent part of the statutory charter of the Department. Future 

Secretaries of the Department may feel constrained to treat these ‘‘secondary’’ activities and values in a ‘‘secondary’’ way according to the Congressional intent as 

reflected in the text of Section 101(b)(1). 

My strong recommendation is thus to rewrite Section 101 to make clear that antiterrorist activities are one mission of the Department. The ‘‘primary’’/‘‘secondary’’

language, however, should be deleted. This amendment would avoid a threat to the 

rule of law, where future Secretaries of the Department might appeal to the ‘‘primary’’ mission of the Department to trump contrary missions as created by other 

statutes, such as in the areas of immigration, emergency preparedness, and privacy. 

26

This amendment would also provide greater flexibility in future budgets, permitting 

the Department and Congress to respond to the needs of that year rather than seeking to constrain future Congresses to the priorities of this year. The bill should also 

likely contain authorization for new funds, unless the Congress specifically wishes to 

reduce the budget available to the INS, FEMA, Coast Guard, Customs Service, and 

other existing functions. 

Section 103, Other Officers. The current text specifies the creation by statute of 

various officers, including a Chief Financial Officer and a Chief Information Officer. 

Due to the special responsibilities of this Department, I believe the statute should also 

require creation of the office of Chief Privacy Officer. This step would not take the 

place of effective inter-agency oversight by OMB or some other part of the Executive 

Office of the President. Having a Chief Privacy Officer, however, would help create 

a better vetting process within the Department. Proponents of new surveillance 

plans and data sharing would more consistently have to explain both the benefits 

of their proposals and why their proposals cannot be carried out in ways that are 

more consistent with privacy and similar values. Creation of the Chief Privacy Officer position by statute would also increase the likely effectiveness of Congressional 

oversight of the Homeland Security Department on privacy and related issues. It 

would be more difficult for the Department to bury these concerns many layers deep 

in the bureaucracy, and the Chief Privacy Officer would be available to testify before 

the oversight committees. 

In considering the creation of the Chief Privacy Officer (‘‘CPO’’) position, I have 

heard the suggestion that the existing Chief Information Officer (‘‘CIO’’) position 

would address privacy concerns. I do not agree. I have great respect for the role and 

capabilities of CIOs, based on my participation in CIO Council activities while in 

OMB, my writing for CIO Magazine, and similar activities. The functions of the 

CPO and CIO positions, however, are entirely different. The CIO oversees the crucial task of ensuring that an organization’s hardware and software effectively carry 

out the missions of that organization. In my experience, however, CIOs and their 

staff do not feel that it is their responsibility or particular competence to lead a 

process for deciding how to weigh concerns such as effects on Homeland Security 

vs. effects on privacy and civil liberties values. The CIO plays a primarily technological role, rather than the primarily policy role taken by a CPO. 

Section 201, Under Secretary for Information Analysis and Infrastructure Protection. The current text defines seven responsibilities of the Under Secretary for Information Analysis and Infrastructure Protection. I have myself worked extensively on 

infrastructure protection issues, as a government official, as a private citizen, and 

as an academic researcher on encryption, firewall, and other topics. I agree wholeheartedly that the United States government and the private sector must continue 

to strive mightily to improve all aspects of infrastructure protection and computer 

security. 

With that said, the current statutory text addresses only a fraction of the crucial 

issues that the new Under Secretary should consider. The current text essentially 

focuses on assessing and correcting the vulnerabilities of the critical infrastructure 

and increasing information flow among those involved in computer security. Entirely absent is any discussion of the many other values at stake in the construction 

of the information infrastructure. For instance, there is no concern stated for educational or commercial benefits that result from the Internet or other information 

technologies. There is no mention of the importance of protecting individual privacy 

in the exchange of all this information. There is no mention of the values of government accountability, the Freedom of Information Act, or the many other ways that 

well-designed information structures can enhance an open society and the preservation of civil liberties. 

In response, supporters of the current text might say ‘‘that’s not my Department.’’

The bill concerns the Department of Homeland Security, and the concerns about 

education, commerce, privacy, government accountability, and civil liberties should 

simply be handled elsewhere in the government. I respond, however, that the Department centrally tasked with ‘‘a comprehensive national plan’’ for information infrastructure should clearly be tasked to include those other issues and values in the 

process. 

My recommendation is to rewrite Section 201 to take explicit account of these and 

similar values in defining the mission of the Under Secretary for Information Analysis and Infrastructure Protection. Consideration of the values mentioned here should 

be included explicitly within the definition of what the Under Secretary should consider. The Under Secretary might also be tasked, for instance, to consult with the 

other relevant agencies (Commerce, Education, Justice, etc.) when making plans for 

critical infrastructure and information sharing. The new language should not reduce 

the existing responsibilities of other agencies to take action in these areas. As the 

27

Committee looks for language that achieves these goals, one helpful source would 

be the National Plan for infrastructure protection released in early 2000. That Plan 

was prepared under the supervision of Dick Clarke, who now leads the Bush Administration’s cyber-security efforts. In both the Plan’s overview and in its chapter on 

privacy and civil liberties, there is extensive discussion of the ways that multiple 

values should be considered in decisions about how to construct the Internet of the 

future and the nation’s critical infrastructures more generally. 

Section 203, Access to Information. The current text, in Section 203(3), states that ‘‘the Secretary shall ensure that any material received pursuant to this section is 

protected from unauthorized disclosure and handled and used only for the performance of official duties.’’ The text also discusses the importance of protecting intelligence sources and sensitive law enforcement information. 

At first read, it might appear that the language about ‘‘unauthorized disclosure’’ and ‘‘performance of official duties’’ might offer protections for individual privacy, 

by limiting the ways that data in the hands of the Department might be used. Upon 

a closer read, however, protections are almost entirely lacking. First, the limit on 

‘‘unauthorized disclosure’’ does nothing to limit ‘‘authorized disclosure.’’ Because the 

bill in general places few or no limits on authorized disclosure, the Department in 

the future would be essentially free to authorize almost any information sharing. 

Second, the requirement that data be used ‘‘for the performance of official duties’’ is similarly weak. Persons working in the Department, seeking in some way to fight 

terrorism, could justify almost any use or disclosure of information as part of the 

performance of official duties. For example, releasing data to a state or local official 

might in some way help detect a terrorist, justifying almost any release of data. 

Third, the bill provides no apparent remedy or enforcement action if releases are 

made beyond those permitted under Section 203(3). Fourth, as discussed elsewhere 

in this testimony, the Department is currently proposed in a form where essentially 

all the incentives are in the direction of sharing sensitive personal information widely, in hopes that the sharing may incrementally help detect or prevent terrorist action. These incentives are likely to push in the direction of expanding what counts 

as ‘‘authorized’’ use and ‘‘performance of officials duties’’ over time. 

Taking these factors together, Section 203(3) becomes a recipe for essentially unrestricted sharing of sensitive personal information, with no apparent incentives to 

limit such sharing and no remedies if the sharing goes too far. My recommendation 

is that language be added to the text that says that the Secretary ‘‘shall ensure that 

any material received pursuant to this section be used or disclosed in order to minimize the risk of harm to individuals from inappropriate use or disclosure of personally identified information.’’ Because this sort of language will not in itself create remedies or change the incentive structure facing the Department, additional steps are likely warranted to assure 

careful handling of sensitive personal information. One approach to create accountability is given by H.R. 4561, the ‘‘Federal Agency Protection of Privacy Act,’’ which 

has been introduced by Chairman Barr and supported by the Ranking Member Representative Watt, as well as by a considerable number of other Members of Congress. 

I support the use of privacy impact assessments, which are the central provision of 

H.R. 4561, and hope that they will become standard practice within a Department 

of Homeland Security and in other settings where there is significant use or disclosure of personally identifiable information. 

Other parts of this testimony discuss ways to create accountability for the handling 

of personally identifiable information through actions by the Office of Management 

and Budget. This role for OMB might be spelled out in Section 203 or elsewhere in 

the bill. 

Section 204, Information Voluntarily Provided. Section 204 of the bill states that 

‘‘information provided voluntarily by non-Federal entities or individuals that relates 

to infrastructure vulnerabilities or other vulnerabilities to terrorism and is or has 

been in the possession of the Department shall not be subject to section 552 of title 

5, United States Code.’’ This provision would create an enormous and unjustified exception to the Freedom of Information Act (FOIA), and should be deleted from the 

bill. 

The question of how, if at all, to craft a FOIA exception for critical infrastructure 

protection information has been the subject of heated debate for the past several 

years. I worked on this issue while serving in OMB, and have followed the debate 

in the time since. The text of Section 204 reads like the fantasy of one fringe of the 

debate—the fringe most dedicated to limiting disclosure of information to the public. 

For instance, information that would clearly be open to the public through FOIA requests to other Federal agencies would be hidden away if the Department happened 

to receive it. The secrecy would be permanent. There are no procedural limits or 

review procedures for whether the benefits of releasing the data outweigh the risks. 

28

The broad scope of the ‘‘relates to’’ language in the text deserves particular attention. Many Members of Congress will recognize that this same ‘‘relates to’’ language 

has been at the heart of the ongoing debates about a Patients’ Bill of Rights. In that 

setting, application of state law remedies has been preempted in many instances because the state laws ‘‘relate to’’ ERISA benefits. Under the current proposal, FOIA 

would no longer apply to ‘‘information that relates to infrastructure vulnerabilities 

or other vulnerabilities to terrorism.’’ The scope of this FOIA exception is almost unimaginably vast. 

The text of Section 204 is troubling not only because its substance is so extreme 

compared to the extensive debate that has already occurred on this topic, in both 

Houses of Congress. It is troubling as well because of the apparently slipshod manner in which such an important topic was inserted into the Homeland Security bill. 

Inclusion of this extreme text, without any of the nuance that many federal offices 

have gained during previous rounds of discussions on the issues, suggests one of two 

possibilities: Either the text was inserted without the benefit of learning from the 

experts in the Executive Branch on the subject, or else those with expertise were 

simply overruled by the drafters. It would be useful to learn, for instance, what role 

the OMB Office of Information and Regulatory Affairs, the Commerce Department 

Critical Infrastructure Assurance Office, and the FOIA office in the Department of 

Justice played in the vetting of this most amazing legislative language. 

My recommendation is that Section 204 be deleted in its entirety. 

CONCLUSION. 

In conclusion, I thank the Committee for the opportunity to testify and present 

my views on these issues. Today, less than a year after the horrific events at the 

World Trade Center and the Pentagon, there is likely no issue on the national agenda more important than deciding how we will change practices within our borders 

to assure both security and the other important values that define our Nation. As 

an academic who has studied the history of government institutions, I wonder 

whether the War on Terrorism will be as defining a mission ten, twenty, or thirty 

years from now, when the Department of Homeland Security will quite possibly still 

be governed by the charter that Congress enacts this year. You are writing the charter for an agency with unprecedented powers to keep watch on every American, 

powers that will endure long after this election cycle is forgotten. I commend this 

Committee for its careful attention to the issues in the hearing today, and I welcome 

any questions you may have.

Mr. BARR. Thank you very much, Professor, and I do appreciate 

the amount of detail that you have in your written statement, expounding on these privacy concerns. We appreciate the research 

you have done in that area and sharing the results with this Subcommittee. We will use that and anything else you care to submit 

to us. 

Mr. SWIRE. Thank you, sir. 

Mr. BARR. At this time, I would like to take a brief recess from 

the work on H.R. 5005. The witnesses are excused for a few minutes. What we are going to do, since we have a reporting quorum 

here at the Subcommittee, is take up the Federal Protection of the 

Privacy Act very briefly to report that out. So the witnesses may 

relax for a few minutes. And then we’ll come back—as soon as we 

take care of this, reporting this bill out—we’ll then come back and 

take care of questions. 

[Recess.] 

Mr. BARR. Obviously, the efficiency of the Subcommittee surprises them. It surprised me, too. 

While we’re waiting for Mr. Everson, I’d like to recognize the distinguished Vice Chairman of the Subcommittee, the gentleman 

from Arizona, Mr. Flake, for any opening statement he might have. 

Mr. FLAKE. No statement, Mr. Chairman. I just appreciate being 

here and listening to the testimony, and I’ll have some questions. 

Thank you for——

Mr. BARR. We appreciate your attendance and your leadership. 

29

[Pause.] 

Mr. BARR. The efficiency—this is a new day in terms of the efficiency of the Subcommittee on Commercial and Administrative 

Law. Let the world beware. 

We’ll now turn to questions, which will be asked in 5-minute increments by Members, alternating back and forth from one side to 

the other. The Chair recognizes himself for 5 minutes. 

Mr. Everson, in your prepared remarks, you stated that employees of the new department would retain whistleblower protection, 

along with other basic rights. Although not specifically within the 

jurisdiction of this Subcommittee, this is an area that has generated some controversy and concern. 

Where in the proposed legislation are these protections set out? 

Mr. EVERSON. Mr. Chairman, if you go to the section that deals 

with the human resource management system, which is section 730 

of the bill, it says—it’s very brief—‘‘Notwithstanding any other provision of this title, the Secretary of Homeland Security may, in regulations prescribed jointly with the Director of the Office of Personnel Management, establish and from time to time adjust a 

human resources management system for some or all of the organizational units of the Department of Homeland Security, which 

shall be flexible, contemporary’’—and here are the key words—‘‘and 

grounded in the public employment principles of merit and fitness.’’

Those are specific principles that are articulated in title 5, and 

we chose deliberately to place this personnel management section 

within title 5 in our proposal. And as you may or may not know, 

there are nine specifically delineated protections in title 5 in this 

area, and one of them is the whistleblower protection. 

Mr. BARR. Should we be concerned with the use of the term 

‘‘may’’ in line 6? That’s line 6 on page 35 of the bill that I have 

before me. I don’t know whether your language is exactly the same. 

Mr. EVERSON. No, I—this is simply indicating that as—when the 

department takes—springs to life, everything is going to be transferred over as is, so the various systems that you have, the same 

rights and protections will be in place for the employees as they’re 

coming over from Customs or APHIS or wherever. This is simply 

saying may in the future or at the time of creation, time of effect, 

make proposals to make changes along these lines. I don’t think 

you need to be concerned about ‘‘may.’’ Mr. BARR. So it is the—I mean, we certainly will take, as you 

have also, a very close look at this language. But it is your testimony on behalf of the Administration that those full protections, 

whatever protections there are in current law, will be transferred 

in toto to the offices and the employees in the new Department of 

Homeland Security? 

Mr. EVERSON. Absolutely. That is—that is correct. 

Now, the way—you would have specific ramifications if you 

changed the way the hiring practice works. It’s not to say that the 

hiring practices wouldn’t be a little bit different if instead of having 

to pick the top—from the top three people, if you had a broader category where you could pick from a larger pool, there would be 

changes, of course. But that’s—that has nothing to do with the nine 

core principles, as I said, of protection for a whistleblower or—and 

in terms of drawing people regardless of race or sexual orientation, 

30

all the various issues that are out there. So, no, there won’t be any 

changes. 

Mr. BARR. Okay. In other words, absent any specific changes to 

existing laws or procedures regarding hiring, transfer, firing, or 

whatever——

Mr. EVERSON. Right. 

Mr. BARR [continuing]. You know, the full panoply of rights that 

now are enjoyed by and adhered to employees of any of these departments will not be changed. 

Mr. EVERSON. That’s correct, sir. 

Mr. BARR. Okay. If, in fact, any of us, when we look at this language with even more carefulness than we have and we see anything that we want to make a little bit more directive in that regard, would you object to that? 

Mr. EVERSON. We’d be happy to work with the Congress on that. 

It’s very important to us. Somehow this has been mischaracterized 

as an attempt to shut off these rights, and it couldn’t be further 

from the truth. So we’d be happy to work with you. 

Mr. BARR. Thank you. We appreciate that assurance very much. 

Professor Swire, if you could—and, again, I appreciate your including a great deal more detail in your written testimony since we 

didn’t have time to go into it today. But could you touch on one aspect of it that is of concern to many of us, and that is a national 

ID card? I notice you talk about that in your written testimony. Do 

you see a back door open somewhere here that would facilitate and 

move us further in the direction of a national identification card for 

U.S. citizens? 

Mr. SWIRE. I said in my testimony I think that this could really 

shift the institutional weight of the political process in that direction. If you imagine yourself being a senior official in this new department and your job is homeland security and you’re supposed 

to track down and keep track of every darn thing that happens inside the homeland, it’s going to be awfully tempting to have biometric identifiers, very strong ID, very strong cards of a lot of 

sorts. And up until now, that instinct has been scattered through 

a lot of different parts of the Government. But now national ID will 

seem like a natural outgrowth, I believe, of this department’s mission. And I think over time, perhaps helped by vendors who want 

to sell this system, perhaps helped by all the other conveniences 

that can come by a standard ID, we could get a bigger and bigger 

push, and we won’t have some of the institutional roadblocks we’ve 

had up until now for that. 

Mr. BARR. And I’d like unanimous consent to process for one additional minute. Thank you. 

Mr. Everson, you’ve heard the concern, and I know you’ve followed testimony and proceedings in the past where we’ve dealt 

with the issue of a national ID. Does the Administration have any 

intent to move forward with a national ID card in any of the legislation or authorities that they’re submitting here? 

Mr. EVERSON. It is not specifically contemplated in terms of the 

proposal, but I think it’s undoubtedly something that will be looked 

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cerns that this Committee has spoken to this morning need to be 

addressed in any consideration of that issue. 

Mr. BARR. Moving to a national ID is—it’s not just a procedural 

or a regulatory mechanism. It’s very much substantive. 

Mr. EVERSON. Yes. 

Mr. BARR. Would it be appropriate—would you agree that if, in 

fact, the Administration at some point decides that it wants to 

move down that road in some fashion that it would be best to do 

so by a specific legislative proposal? 

Mr. EVERSON. I’m not sure, sir, that I know all the details of the 

law that would govern that. I can only say to you that, clearly, any 

proposal of that sort would—important as it is, would clearly need 

to be publicly aired and very—it would engender a very real debate 

because of the many issues that you and your colleagues have spoken to. I’m not sure whether it would require legislation or not. 

Mr. BARR. Would the Administration be opposed to any specific 

amendments to this piece of legislation to at least maintain the status quo currently, in other words, not use this legislation setting 

up the Department of Homeland Security as a vehicle to move us 

down that road, for example, a prohibition on any funds being used 

for that? 

Mr. EVERSON. I’m not sure that that wouldn’t carve out a very 

narrow area that would be inconsistent with the approach we’ve 

taken in the overall crafting of the legislation. What we’ve tried to 

do, as I indicate in the testimony, is bring things over, and intact. 

The approach we took in terms of constructing the department, getting to this issue of non-homeland responsibilities, was very much 

to say bring in the entities, and then over time if you needed to 

deal with the issues of perhaps transferring pieces back, as my 

panelists talked about, address those over time. 

I would be reluctant to advise you to already carve out specific 

prohibitions when what we—all we’ve tried to do here is have a 

very broad statement recognizing that specifics will clearly be delineated as time goes on. 

Mr. BARR. This is clearly an area that we’ll have to devote some 

attention to. 

I appreciate the indulgence of the Committee and the witnesses 

for additional time and at this point would recognize the distinguished Ranking Member for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

The positions of the Administration, Mr. Everson, and the positions of Professor Swire seem to be substantially at odds in a number of respects, and what I’d like to do is use this time to try to 

reconcile them to the extent that they are reconcilable. 

Mr. EVERSON. Certainly. 

Mr. WATT. And ask you and him a couple of questions, if I could. 

First of all, the issue that he raises, Professor Swire raises on 

page 7 of his testimony, may be more semantic than real, but I 

think is an issue that we need to address in the mock-up of this 

bill; and, that is, to the extent that anti-terrorism is the primary 

mission of this new agency, everything else obviously becomes the 

secondary or tertiary or some other ‘‘ary’’ mission. 

32

Do you see—is that intentional? Or is this just semantic as you 

see it? Is there a real substantive problem here as you see it? Or 

is this just something we’re dealing with words on? 

Mr. EVERSON. I think it’s a point that needs to be considered and 

understood, but there was a clear feeling on the part of the Administration as we worked to develop the proposal that we wanted to 

have a large department accountable to the American people for 

having a primary mission of securing the homeland. That means 

that when you have a Secretary in front of you or an Under Secretary or an Assistant Secretary, they know that first and foremost 

they are responsible for protecting the homeland. 

It does not mean in any way, shape, or form that the other areas 

entrusted to those officials under law will not be executed. But 

right now, as you know, there are over a hundred different agencies and units that are working on this, and many of them, they 

don’t have homeland security as the primary role. 

We are suggesting that that needs to be—there needs to be a tipping, if you will, of their focus so that that is being considered. 

Mr. WATT. They don’t have that as their primary role because it’s 

not their primary role. I mean, FEMA’s primary role is not homeland security. It is addressing natural and other disasters. 

Mr. EVERSON. Yes. 

Mr. WATT. I would hate to think that, for example—and, again, 

I’m trying to figure out the extent to which this is substantive rather than just semantic. But I would hate to think that at the height 

of a hurricane in this country, when the resources of the Government should be focused at dealing with the devastating impact of 

that hurricane, that somebody from FEMA would call anybody in 

the Department of Homeland Security and get a response, well, you 

know, that just ain’t my job. 

Mr. EVERSON. Sure. 

Mr. WATT. Well, it’s ain’t my job 360 days of the year, but for 

those 5 that the hurricane is uppermost in people’s mind, I would 

like to think that the hurricane would be the most important priority of this thing—not to the exclusion of terrorism. I mean, we 

don’t want somebody to walk in the back door and engage in a terrorist attack in the middle of a hurricane either. 

Mr. EVERSON. Right. 

Mr. WATT. But it does seem to me that this could be reconciled 

simply by emphasizing the importance of all of these missions, 

which from time to time, day to day, hour to hour, one might have 

a higher priority; the other one might have a secondary priority. 

Mr. EVERSON. Right. We agree entirely with that. It’s just simply 

a question——

Mr. WATT. Finding the right words. 

Mr. EVERSON. I’m sorry? 

Mr. WATT. Finding the right words, then, maybe——

Mr. EVERSON. That’s right. Maybe that’s it. And the example you 

cite, it brings me to one other point, if I might indulge—if the Committee would indulge me for just a moment. 

We’ve requested in here rather significant transfer authority for 

the Secretary to be able to respond to exactly what you’re talking 

about. There may be an absolute imperative for homeland programs to be retained within Coast Guard or within Customs or 

33

some particular unit, and there would be a likely squeeze if something happened if you weren’t able to replenish resources to do just 

what you’re talking about, serve both missions. Because if you look 

at our proposal, the analysis we did, budgetarily it’s about $37.5 

billion is the request in 2003 for all these pieces. Only about twothirds of it is homeland-related. So you’re exactly right. 

Mr. WATT. I guess bottom line, though, the question I’m asking 

is, if we start messing with the words in this bill, is the Administration going to go ballistic on whether we think at this moment 

in time the political rhetoric of anti-terrorism being the primary 

mission——

Mr. EVERSON. Right. 

Mr. WATT [continuing]. Is the politics of that going to outweigh 

the practicality of what we’re talking about here? Can we get this 

back to some realistic phraseology that takes all of these things 

into account as priorities? 

Mr. EVERSON. I’m confident that we’d be happy to look at any 

language you propose there, because it goes back to the same point 

you made earlier about balance on the issues of privacy and everything else. Clearly, there’s a balance here about the very mission, 

delivery of the mission and the other statutory areas. So we’d be 

happy to work with you on that. 

Mr. WATT. I think Professor Swire wants to respond to that. I 

know I’m over time but——

Mr. BARR. We’d be happy to hear briefly from Professor Swire, 

and then we’ll move on. We’ll probably have time for another round 

of questions. 

Mr. SWIRE. The name of the department will be the Department 

of Homeland Security. That sends a very big message. And my concern is at the level of statutory mandate of what each official is allowed to consider or supposed to consider, you don’t need the primary down there. You’ve already got the title. You’ve got the message. You don’t, I don’t think, need to say that everything else is 

secondary. 

Mr. LUBBERS. May I just add a word? I think there’s an inevitability that there’s going to be some overinclusiveness and underinclusiveness in this new department. There are some functions 

that are not being transferred that I wonder why they may not be. 

I mean, there is an agency called, for example—not to single them 

out, but the Defense Nuclear Facility Safety Board. It’s not being 

transferred. And there are other agencies that you might think perhaps should be in the new department. 

On the other hand, there are functions within some of these 

agencies, as we’ve discussed—horticultural functions in APHIS or 

boating safety in the Coast Guard or hurricane disaster relief in 

FEMA—that perhaps don’t necessarily need to be in the new agency. 

So I think maybe the answer is to try to come up with a mechanism, maybe a year down the road, if we’re putting all these new 

functions in this new department, for a study to be transmitted to 

the Congress saying what things that were not put in the agency, 

in the new department, should be put in it and which ones should 

be spun off. And I think—so maybe a mechanism to sort of force 

34

a report to the Congress somewhere down the road to think about 

these issues might be one way of crystallizing that issue. 

Mr. BARR. Thank you, Professor. 

The Vice Chairman of the Committee, the Subcommittee, the 

gentleman from Arizona, is recognized for 5 minutes. 

Mr. FLAKE. Thank you, Mr. Chairman. Thank you for all your 

testimony. 

Mr. Swire, you talk a lot about an officer within the new department to look at privacy, and that was a role that you served in the 

Clinton administration. Can you give me some concrete examples 

of what you were able to stop or ways you were able to intervene 

without divulging anything that need not be divulged? But give me 

some examples of where—what this officer might do? 

Mr. SWIRE. Well, I promise you I was busy. My wife reports to 

me that I was busy during the 2 years there, sir. 

One example that comes to mind that was reported in the press 

was something called the Federal Intrusion Detection Network—

FIDNet. And as originally conceived and reported in the New York 

Times, this was going to be a great vacuum cleaner for data around 

the Internet that was going to get sent straight to the FBI. 

I don’t think that was ever the proposal, but by working the privacy people and the tech people and the security people together, 

we came up with an amended proposal that was adopted, and that 

was able to meet the Government computer security needs without 

raising all these privacy, civil liberties alarms. And that one was 

put into effect. 

So by having someone in the room to talk about how we can 

watch our Government computer systems without at the same time 

spying on citizens, that’s an example. 

Another example would be cookies on Federal websites. There 

was a problem with the National Drug Control Office creating a 

database that potentially could have been used to scan which 15-

year-olds did searches on the Internet for marijuana and cocaine 

and stuff, even though they said they weren’t doing it. And we 

were able to work a policy for the Federal Government that’s still 

in effect that the Government would not use these cookies to track 

people at Federal websites unless very good safeguards were in 

place. 

Mr. FLAKE. Is it enough to have someone within that agency appointed by the President who, some might argue, might not want 

to contradict the objectives of the office? Or does this need to be 

somebody outside? 

Mr. SWIRE. I think both are very helpful. Having someone in the 

inside, there can be a certain frankness of discussions, and you can 

look at options when they’re still in a very early flexible stage within the department or within the Administration. And often we 

could find ways in the clearance to meet the goals of the agency 

or the people who are proposing a project and avoid the explosions 

on privacy that might otherwise have happened. That’s the internal 

role. 

An external role, by Congress through oversight, by other watchdog groups, by the press, is absolutely essential. But having someone on the inside allows you to avoid problems before they become 

big problems. 

35

Mr. FLAKE. Professor Lubbers, do you have any thoughts on that 

as someone within the agency as opposed to someone with an oversight reporting role elsewhere that’s not necessarily within? Or do 

you need both? 

Mr. LUBBERS. Well, I think that if a presidentially appointed official in the department were assigned that responsibility, that 

would be a big help. And I don’t know if it’s necessary to do more 

or not. But I think if that were—if that person were instructed that 

that was his or her prime responsibility in the department and had 

a reporting responsibility to Congress on those matters, that would 

go a long way. 

Mr. FLAKE. Back to Professor Swire for a minute. You mentioned 

the metaphor of a car, all accelerator, no brake. Who needs to put 

on the brakes? Do the brakes need to be here within the legislation 

or we can forget it after that? Is this the place where it has to happen? I realize you talk about some controls by having someone 

within, the privacy officer or what-not. But is this the place? Is it 

now or never? 

Mr. SWIRE. No. Congress will be here next year, and the press 

will be here next year, and lots of people trying to do good things. 

In this statute, I tried to read it very carefully and find a variety 

of places where you could tweak the statute, meet the worthy goals 

the Administration’s pursuing, and still build some reassurance 

that this wouldn’t drift into too much surveillance over time. 

If we imagine this 30 years from now, when people can authorize 

all sorts of disclosures and have all sorts of uses, how do we keep 

building institutions, Congress and inside, how do we keep doing 

that? This statute is one chance to do some of that, and I tried to 

give some suggestions that I thought would be helpful. 

Mr. FLAKE. I thank the Chair. 

Mr. BARR. I thank the gentleman. 

The gentlelady from California is recognized for 5 minutes. 

Ms. WATERS. Well, thank you very much, Mr. Chairman, and to 

our Ranking Member, I’m very appreciative for this hearing. Despite the fact this seems like a simple, ordinary thing to do, in light 

of the proposed agency, still I believe a little—some of our Members 

are a little bit squeamish about challenging homeland security anything following this attack that we’ve had. And so I think it’s very 

good for this Subcommittee to provide the leadership to look at 

these issues. This is very important. And I want to thank all of our 

witnesses for being here today. 

You know, on the one hand, I recognize that there may be a need 

to do extraordinary things in order to prevent and respond to terrorism. But I just jealously guard my freedom and my privacy, and 

I’m just not—I’m just not willing to start to get flexible. It’s been 

too hard getting some of these freedoms and some of these protections. 

And so I’m very suspicious when people start to talk about flexibility and new powers that won’t be abused by this President or 

this Administration. What people don’t say is what’s going to happen with the next Administration and the next Administration who 

was not here when we had all these lofty goals? 

And so, you know, I don’t agree with Mr. Barr on very much, but 

I kind of like him heading this Subcommittee because he is a proVerDate Jan 17 2002 09:33 Oct 10, 2002 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6601 G:\WORK\COMM\070902\80552.000 HJUD1 PsN: 80552
36

tector of privacy and civil liberties, and that makes up for all of the 

other stuff he’s not. [Laughter.] 

And so at this Committee level, I think we have got to press 

hard, and I appreciate some of the recommendations here today. I 

have to look a little bit closer at, you know, this flexibility and 

start to pull out why—you know, just on procurement, for example. 

I don’t know if you know how many years it’s been to just get fairness and justice and equality in procurement. And to talk about 

flexibility, I know what that means. The good old boys get together 

and they pass around the contracts, and women, minorities, you 

know, just are not in the picture unless we, you know, have a little 

enforcement here. And the other kinds of protections against discrimination I worry about. 

So I have to watch that very closely and rail against, you know, 

giving up those hard-fought gains. And I think it would be very important, if we’re going to have this homeland security agency, to 

have someone who’s dedicated to be the watchdog on privacy. That 

makes me feel a little bit more comfortable. And I think that reasonable people could all agree that that’s something that would 

serve us all well. I mean, if we want to talk about a few checks 

and balances here as we also look at this flexibility, I think that 

would be worth having. 

Let me just say this: I think I’ve—you know, your testimony has 

been very good. I particularly want to get Professor Swire to talk 

about tweaking the legislation, and we have to do it very quickly 

because, you know, we’re going to mark this up. But I think we 

should not wait and think about what we do next year and next 

year and next year. You know, we’re still going to have to improve 

it. We’re going to find problems, loopholes, but we should go after 

it now, and we should create a record on our problems and our concerns. 

So thank you all very much, and if you have a few minutes afterwards, I’d like very much to get with you. 

Mr. BARR. I thank the gentlelady from California. 

The gentleman from Indiana, Mr. Pence, is recognized for 5 minutes. 

Mr. PENCE. I thank the Chairman and to our panelists for their 

testimony today. I’m particularly intrigued by some of the comments Professor Swire made, and I want to direct at least my questions to some of his prepared remarks, but I want to ask the panel 

to respond, if you’d be comfortable. 

I also want to commend my colleagues for focusing the section 

101(b)(1) debate over the use of the term ‘‘primary’’ and ‘‘secondary.’’ You know, Confucius said, ‘‘When words lose their meaning, men lose their liberty.’’ And I feel that those words, Mr. Chairman, should be etched above the debate of 5005 and would commend my colleagues on the other side of the aisle for their, what 

some might consider, pedantic focus on words. It is precisely about 

these words that our children and our grandchildren will experience either the survival or the decline of their liberties. 

With that said, I wanted to ask the panel to talk about that, the 

debate over anti-terrorism as a primary mission of the department. 

Is it your understanding—and I’d just begin with Professor Swire. 

Is it your understanding that for FEMA and other agencies that 

37

fall under the new DHS, that they are to understand that the mission of the Federal Emergency Management is first and foremost— according to the way this statute is currently drafted, is first and 

foremost anti-terrorism and secondarily would have to do with 

emergency management relief and hurricanes and forest fires? 

Mr. SWIRE. I think a dramatic reading of the statute supports 

that, sir. Section 101(a), the beginning, says establish a department. Section 101(b) says the primary mission of the department 

is to prevent terrorist attacks, reduce the vulnerability to terrorism, and minimize damage and assist in recovery from terrorist 

attacks. 

And then at the end of that section, after they’ve gone through 

these things, they say, oh, they remembers in (3)—101(b)(3)—the 

department shall also be responsible for carrying out other functions of entities transferred. We create a department. We said what 

it’s primarily about, and any responsible official honoring congressional intent who reads that section, if that’s what you enact, I 

think would have to say primary job one is homeland security/terrorism; everything else comes second. Or, in fact, in this statute it 

comes third. 

Mr. PENCE. Mr. Everson? 

Mr. EVERSON. I think that as we look to configure the proposal, 

we truly wanted to create an entity that did have as its primary 

mission securing the homeland, to provide that accountability, to 

provide that institutional presence, that coordination. 

I don’t think we shy away from saying that. I think that’s the 

very centerpiece of our proposal. But I do believe that the words 

in section (3) that were just—point (3) that were just read indicate 

that we give very great importance to the other activities that will 

come into the department. We’re not shirking those responsibilities. 

Those are established in law. And we will meet those responsibilities. 

But as you know, across Government there are many overlapping 

programs and a multitude of missions that are executed within departments, be they the Department of Commerce or be they the 

Department of the Treasury or Interior. Any department you can 

drill down and see things that are grouped, and oftentimes there 

is one, let’s say, primary mission that exists or co-exists successfully with other missions. The correct way, we think, to deal with 

this is on a very considered basis. We tried to craft a proposal 

where we would move everything in at once. We felt that the worst 

way to deal with it would be to sever some of those non-homeland 

responsibilities right at this time when you were trying to execute 

these very difficult challenges, but instead to look at, perhaps over 

time, if there were tear lines and you felt that after a period of 

analysis you wanted to bring something back, be it to Agriculture 

or Treasury or some other department, maybe that’s the way you 

would go. But, absolutely, we expect to meet both challenges. 

Mr. PENCE. Well, I want to commend to the panel and to my colleagues’ attention a book entitled ‘‘Crisis and Leviathan.’’ Two 

weeks after 9/11, I distributed a ‘‘Dear Colleague’’ letter to every 

Member of Congress based upon this little known book from 1978 

that chronicles, Mr. Chairman, the fact that in the wake of emergencies, beginning with the Civil War, that two things have hapVerDate Jan 17 2002 09:33 Oct 10, 2002 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 G:\WORK\COMM\070902\80552.000 HJUD1 PsN: 80552
38

pened in American society: number one, Government has become 

bigger at the Federal level, and liberties have become smaller, and 

both of those things became permanent. 

And I’m hoping as we go forward, Mr. Chairman, with these 

hearings and with this debate that we can make it our effort to 

constrain and to limit this new agency and its powers with an eye 

toward preventing that historic trend. 

Thank you. 

Mr. BARR. I thank the gentleman from Indiana. 

I’d like to ask unanimous consent that the gentlelady from 

Texas, a Member of the full Judiciary Committee, be granted 5 

minutes for questions. Without objection. 

Ms. JACKSON LEE. Again, Mr. Chairman, I thank you and Mr. 

Watt for your leadership on this issue. Both of you have certainly 

been particularly eloquent and effective on these questions dealing 

with privacy. And I’m delighted to join this Committee and also 

join in cosponsorship of your legislation. 

This is a difficult travail, a difficult road on which we must travel, and so I think the important parts of these hearings is to convey 

our sentiments back to the Administration, Mr. Everson, and as 

well to see how quickly we can intervene as this rolling train is 

speeding along. And that’s what I’d like to probe today. 

One, I’d like to understand whether the Administration has a position on the national ID card that was raised earlier today. And, 

Mr. Swire, I’d like to know, do we need to be definitive and amend 

the legislation in order to be assured that we express opposition, 

concern, however we can write the language should we be clear on 

a national ID card? Let me ask a series of questions, and then I’d 

like to have you answer. 

The other thing is I have constantly quarreled with this name, 

‘‘Homeland Security.’’ I’m not sure where we pulled it from, but it 

has some negative connotations as it relates to South Africa. And 

I have been hearing Mr. Swire talk about and we all talk about 

when you’re under Homeland Security you can’t do anything but 

homeland security. And so I’m not sure whether or not in this time 

frame a name change—a National Internal Security Department, 

but I’d be interested in—if anyone is familiar with the negative 

connotation, they’ll know the difficulty many of us have had with 

this concept of homeland, though we know semantics are not necessarily keep us from saving lives or doing the job that we have 

to do. 

The last question is, in your testimony, Mr. Swire, on page 5, in 

reading it let me not capture what was said; let me capture what 

I think I have interest in, and that is wiretapping. I have voted in 

the past on issues dealing with child pornography and issues dealing with child predators, and so I want to put that on the record 

so I won’t be inconsistent. I find that distinctive because that is a 

narrowly focused area and I abhor those who victimize children. 

Wiretapping as it relates to homeland security is so broad because 

what is it? What are we trying to get? Do we need some restraints 

as relates to wiretapping under this broad department that we 

have? Do we need some specific language dealing with wiretapping 

because it is so broad? 

39

And my last question is this combining of civilian and military 

agencies such as the Coast Guard, are we getting into, again, dangerous ground by combining military and civilian, particularly as 

it relates to privacy? And I’d start with the Administration. 

Thank you very much, Mr. Chairman, for allowing me to raise 

these questions, and forgive me for having a somewhat, if you will, 

troubled voice here. This room is at a temperature below reason, 

and it may be to keep us functioning on homeland security. 

I will yield to the witnesses. I, again, think this is a very important——

Mr. BARR. If the gentlelady would yield? 

Ms. JACKSON LEE. I’d be happy to yield to the gentleman. 

Mr. BARR. We have many Waffle House restaurants in Georgia, 

being a Georgia corporation, and people always wonder why the 

temperatures in the Waffle Houses are always so cold. It’s so people don’t stay there too long. [Laughter.] 

Ms. JACKSON LEE. And they make a big profit. And I will say if 

you’re headquartered in Georgia, we enjoy the Waffle Houses that 

are in Texas. So we thank you for that. 

Mr. BARR. We thank you. 

Mr. EVERSON. I lived in Texas for 3 years until I came up here 

in 1998—or, rather, came up here last year, and I think it’s just 

as hot here as it is in Texas. 

Ms. JACKSON LEE. Well, you understand my problem then. I’m 

usually hitting a hundred degrees, and I’m very happy at that 

level. 

Mr. EVERSON. Yes, of course. I understand. Let me take a couple 

of these points, and I’m not sure I’ll satisfy you on all of them, but 

let me try to respond. I think there were four of them. 

We don’t think the issue of the Coast Guard and this military 

role that you speak to is any different than it was really in the Department of Transportation where you had a mix of functions within that department. That’s the first point I would make. 

We were very careful in crafting the proposal to make sure that 

the Coast Guard goes over as is. The two elements that come into 

the department that are not subject to any change or any of the 

latitude in our proposal for reorganization are the Secret Service 

and the Coast Guard because we see those as quite clearly distinct. 

So I don’t think that your concerns there really need be that great. 

Ms. JACKSON LEE. The only thing I would say to you is that 

when they come under the Homeland Security, they’ll be thinking 

differently. 

Mr. EVERSON. That gets—clearly, we think that they’re a vital 

resource to be integrated in that border security. That is true. 

You’re right. You’re right in that regard for sure. But there’s no 

change, again, as to how it would interact in times of war or its 

role in the Navy, within the Navy. 

Wiretapping, this doesn’t treat wiretapping at all. I understand 

the concerns that you raise. I think they’re broader and they go to 

the existing legislation, the changes made in the PATRIOT Act and 

others, but nothing that we’re doing here has any impact on that 

area. I understand you’re trying to spot the issue for future discussion, but it is not addressed here. 

40

The same thing with the national ID card. I indicated a few minutes ago that I think that this is something that obviously needs 

to be discussed at some point, as do all potential tools to increase 

our security. But, again, consistent with the theme that you and 

your colleagues on the Committee are speaking to today, the very 

real balancing and weighting of privacy concerns must be a part of 

any debate on that issue. 

Finally, I’m not sure how the name got established, but I think 

it follows on to—basically, it follows on to the creation of the Office 

of Homeland Security that was established under the Executive 

order last October. And it certainly is not intended in any way to 

address or to cause confusion or send a bad message about South 

Africa in any way and the very real issues, the sensitivities that 

you talk to. 

Ms. JACKSON LEE. Thank you. The Administration is not pushing 

a national ID card, to your knowledge? 

Mr. EVERSON. No. But I do want to say that I—I haven’t been 

sitting in the Homeland Security internal meetings. There are lots 

of Committees, and it may very well have looked at this issue. I 

just don’t know. I don’t want you to get the impression that no—

it’s never been discussed. I just don’t know. 

Mr. SWIRE. Do you want me to take a crack at it? On national 

ID in terms of things you could do in the bill, two things come to 

mind. A more modest language change would say that nothing in 

this statute creates any new authority to issue or use national ID 

cards. So it’s clear that this statute itself is not creating anything 

new in that area. A stronger version mentioned in my testimony 

is saying no funds shall be expended, and then you describe what 

that would be for a required national identification card or whatever. 

On wiretaps, my understanding is—I’m not aware of there being 

any wiretap authority here. One thing that may be different is the 

bigger number of people who receive the fruits of wiretaps because 

with the many functions and the discussions about getting raw 

data and various intercept data, there may be a new department 

that has substantial fruits of wiretaps. I’m not sure quite what to 

do with that. 

Ms. JACKSON LEE. Thank you very much. Thank you. 

Mr. BARR. We thank the gentlelady. 

I just have one final question. Then I believe the Ranking Member might have one or two final questions. Then we’ll submit some 

additional materials in writing. 

Mr. Everson, one of the other Members of the Subcommittee was 

asking some questions about a privacy officer, and I don’t think 

that—I know you also said the devil’s in the details. I don’t mean 

to pin you down. Whatever language we might come up with regarding the privacy officer would be acceptable, but is it correct to 

state that the Administration is not opposed to having a privacy officer set forward statutorily in the legislation? 

Mr. EVERSON. Absolutely not. I think that the privacy is a very 

important function, and if you bring us a proposal, I would imagine 

that we would look at it very seriously. 

What we’ve done, as you probably noticed, is we’ve constructed 

the Department a little bit differently as to officials. One of my colVerDate Jan 17 2002 09:33 Oct 10, 2002 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6601 G:\WORK\COMM\070902\80552.000 HJUD1 PsN: 80552
41

leagues on the panel made a reference to this. We have, for instance, not all Senate-confirmed officials. Within the 29, there are 

29 delineated senior officials of the Department. We’ve left 14 of 

those to be nonconfirmed. That includes the general counsel, the official that was mentioned, and we did that because we want to be 

able to get people right on the job very quickly, and we want to 

have the flexibility to get them there. That doesn’t mean there will 

be any less accountability, and certainly all the senior policy and 

operating officials would go through that channel of the Senate 

confirmation. The only counsel I would say is if you delineate or 

you put in a privacy officer, I would hope you not end up with some 

constraint as to how it would be structured within the Department. 

I’ve found, since coming back into Government, that sometimes 

arbitrary solutions can be taken that don’t work as well over time. 

I’ll give you an example: the CFO Act. The CFO Act did a lot of 

very good things in terms of standards that have to be met, and 

establishing accountability. But it says, arbitrarily, that the CFO 

needs to report to the Secretary. That is really not honored in fact. 

And any time you make a very specific reporting relationship as 

opposed to establishing the authority and the responsibility for the 

function, I fear that you can—you can create a situation that just 

doesn’t work over time. 

Mr. BARR. If we were, for example, hypothetically, to propose an 

amendment regarding a privacy officer patterned on an Executive 

memorandum and an implementing OMB directive, that probably 

would not cause you a great deal of heartburn? 

Mr. EVERSON. I’d be hard pressed to argue against that. 

Mr. BARR. Thank you. The gentleman from North Carolina, the 

distinguished Ranking Member is recognized for any final couple of 

questions. 

Mr. WATT. Thank you, Mr. Chairman. I’ll try to be quick. I wanted to not leave the impression that I was just beating up on the 

Administration. I wanted to give equal time to beat up on Mr.— Professor Swire. 

Mr. SWIRE. Thank you, sir. 

Mr. WATT. Page 10 of your written testimony, at the bottom you 

talk about the Freedom of Information Act, and it’s interesting, the 

next to the last sentence on the page, or actually the last full sentence on the page said the text of section 204 reads like the fantasy 

of one fringe of the debate, the fringe most dedicated to limiting 

disclosure of information to the public. Let me suggest that your 

proposal might be—that we ax this whole provision from the statute might be the other fringe of the debate, in this political context 

we’re probably not going to get there. 

So I guess my question is, you obviously looked at some ways, 

this being one fringe, your proposal to take this language out completely being the other end of the spectrum. Are there some ways 

somewhere between those two extremes that you could suggest 

that might enable us to reconcile again? I mean that’s what I’ve 

been trying to do here, reconcile the positions that you all have 

been taking. 

Mr. SWIRE. Yes, Congressman. One of the joys of no longer being 

in Government is I can use words like ‘‘fringe of the debate’’ more 

freely, but there have been extensive discussions. There was first 

42

a Davis-Moran Bill in the House that had some serious flaws to it. 

This year the discussion of that issue has focused, based on the 

people that I’ve been talking to on a proposal of Senator Bennett, 

where there’s quite a detailed proposal, and there’s been many series of meetings about how to find middle ways on this topic. And 

myself and other people have worked on that issue—— Mr. WATT. Let me interrupt you just for a second. 

Mr. SWIRE. Yes. 

Mr. WATT. I’m assuming that the proposal to ax this out is a 

nonstarter with the Administration. Maybe I should have asked 

that question first. I just assumed that I needed to find some middle ground here. Am I correct in that assumption? 

Mr. EVERSON. I think you’re doing fine. [Laughter.] 

Mr. WATT. I kind of had the sense that the Administration probably wasn’t—wasn’t going to be happy if we started talking about 

what he was proposing. 

Mr. EVERSON. Absolutely. 

Mr. WATT. Okay. Then I’m headed the right direction then. 

Mr. SWIRE. Well, there is—I ran into the hall before this hearing 

today. John Tritak, who is the head of the Critical Information Assurance Office for the Department of Commerce, and he was testifying on this at another hearing right now, and he said in the 

hall—and I’m sure that that reflects what he’s saying in the public 

hearing—that this language does need to be reworked substantially 

and that the Administration’s in the process of reworking it, he 

said. 

And so I guess the one thing I’d say there is that people who 

have worked on this from the Freedom of Information side I hope 

can be included in that—in that working through. 

Mr. WATT. Mr. Lubbers, you had a recommendation and then I’ll 

kind of bring closure to this, I think. 

Mr. LUBBERS. Yes, sir, since I’m in between the two fringes here. 

I made a modest proposal on page 11 of my testimony to just add 

a phrase to the language so that it would read: ‘‘Information provided voluntarily by non-Federal entities or individuals, that’’—I’m 

sorry—‘‘to the extent that it relates to infrastructure 

vulnerabilities, shall not be subjection to section 552.’’ That at least 

would allow for segregating material that related to it from the material that did not relate to it in the same document. So if you had 

a 100-page document the agency could not just withhold the entire 

document. 

Mr. WATT. How does that strike you, Mr. Everson, and Professor 

Swire, as a compromise that might be acceptable in the House bill 

without getting into all of the extensive drafting that Senator Bennett is doing, that I presume might get incorporated into the Senate bill, and at least get us into a posture in conference that—I 

mean obviously I could offer an amendment in the markup that 

strikes this whole provision. I think I lose. I acknowledge that in 

my opening comments here. 

Mr. EVERSON. Yes. 

Mr. WATT. I’m trying to find some middle ground here. 

Mr. EVERSON. I think that would move us closer to the middle 

ground, but as Professor Swire indicated, we are looking at this. 

This has been highlighted for us as an area where the language 

43

can be improved upon, so we’re very open to looking at the right 

language there. I do want to emphasize, however, that it has to be 

treated because, as you know, over three-quarters of the infrastructure is in private hands. We need to assure ourselves that that information which is not now in the hands of those who would try 

to direct our infrastructure protection gets into their hands, and we 

need to have some protections where appropriate without interfering with any ongoing regulatory or any other issues that would 

color the protection of this information where it shouldn’t be protected. 

Mr. WATT. Professor Swire, what do you think of the middle 

ground as——

Mr. SWIRE. I think that it addresses one clause of this language. 

There’s quite a number of distinct issues and I’ve been in touch 

with, and perhaps can refer you and your staff to, people who have 

been working pretty much full time on this exact issue for really 

several months. And I think that I would encourage them to be 

very—the people I’ve been working with to be very realistic about 

language that meets the goals of everybody and is politically survivable, but that avoids some of these problems, and I think it 

takes a bunch of work, not just one or two words. 

Mr. WATT. I guess my concern is we got a markup on this bill 

starting tomorrow, and——

Mr. SWIRE. I can call them right now when we leave, and there’s 

people who have lived this issue. 

Mr. WATT. We have got people that have been working on this 

for 2 years. It’s not likely that I’m going to resolve it between now 

and tomorrow, even if Bob and I agree on it, which we probably 

do. 

But anyway, you all have raised some wonderful issues, and I—

I really appreciate you being here and I think just having this 

hearing and getting us focused on some aspects of this bill that 

need to be addressed is just vitally important, particularly given 

the time schedule that the bill seems to be moving on. 

And I want to thank all of you for being here and sharing your 

wisdom with us, and hope we can continue to work in the same 

spirit that this conversation has been conducted today. 

Thank you, Mr. Chairman. 

Mr. BARR. I thank the distinguished Ranking Member. 

This has been an extremely interesting and very, very productive 

hearing. I very much appreciate—speaking not just for myself, but 

for the entire membership of the Subcommittee—the three very 

distinguished witnesses being with us today, and in light of what 

the Ranking Member just said, that this is on a very, very fast 

track, if you all have any specific further recommendations, please 

try and get them to us just as quickly as possible, and we’ll do the 

same in terms of getting any additional questions or proposals to 

you all to take a look at. 

Thank you all again. This hearing is concluded. 

[Whereupon, at 1:25 p.m., the Subcommittee was adjourned.]

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