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89–036 PDF 2004

S. Hrg. 108–235

NOMINATIONS OF JOE D. WHITLEY AND PENROSE

C. ALBRIGHT

HEARING

BEFORE THE

COMMITTEE ON 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON THE

NOMINATIONS OF JOE D. WHITLEY, TO BE GENERAL COUNSEL, DEPARTMENT OF HOMELAND SECURITY; AND PENROSE C. ALBRIGHT, 

TO BE ASSISTANT SECRETARY OF HOMELAND SECURITY FOR PLANS, 

PROGRAMS, AND BUDGET IN THE SCIENCE AND TECHNOLOGY 

DIRETORATE, DEPARTMENT OF HOMELAND SECURITY

JULY 29, 2003

Printed for the use of the Committee on Governmental Affairs

(

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

ARLEN SPECTER, Pennsylvania 

ROBERT F. BENNETT, Utah 

PETER G. FITZGERALD, Illinois 

JOHN E. SUNUNU, New Hampshire 

RICHARD C. SHELBY, Alabama 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

RICHARD J. DURBIN, Illinois 

THOMAS R. CARPER, Deleware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

MICHAEL D. BOPP, Staff Director and Counsel 

JOHANNA L. HARDY, Senior Counsel 

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Counsel 

JENNIFER E. HAMILTON, Minority Research Assistant 

AMY B. NEWHOUSE, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Collins ................................................................................................. 1 

Senator Lautenberg .......................................................................................... 2

Senator Bennett ................................................................................................ 6

Prepared statement: 

Senator Akaka .................................................................................................. 23

WITNESSES 

TUESDAY, JULY 29, 2003

Hon. Zell Miller, a U.S. Senator from the State of Georgia ................................. 4

Hon. Saxby Chambliss, a U.S. Senator from the State of Georgia ...................... 5

Joe D. Whitley, to be General Counsel, Department of Homeland Security ...... 8

Penrose C. Albright, to be Assistant Secretary of Homeland Security for 

Plans, Programs, and Budget in the Science and Technology Directorate, 

Department of Homeland Security ..................................................................... 10

ALPHABETICAL LIST OF WITNESSES

Albright, Penrose C.: 

Testimony .......................................................................................................... 10

Biographical and professional information requested of nominees with 

attachments ................................................................................................... 79

Pre-hearing questionnaire and responses for the Record ............................. 97

Chambliss, Hon. Saxby: 

Testimony .......................................................................................................... 5

Miller, Hon. Zell: 

Testimony .......................................................................................................... 4

Prepared statement .......................................................................................... 24

Whitley, Joe D.: 

Testimony .......................................................................................................... 8

Biographical and professional information requested of nominees .............. 25

Pre-hearing questionnaire and responses for the Record ............................. 39

APPENDIX

Post-Hearing Questions for Mr. Whitley from: 

Senator Lautenberg .......................................................................................... 127

Senator Akaka .................................................................................................. 129

Senator Bennett ................................................................................................ 131

Post-Hearing Questions for Mr. Albright from: 

Senator Collins ................................................................................................. 132

Senator Lieberman ........................................................................................... 137

Senator Lautenberg .......................................................................................... 138

Senator Coleman .............................................................................................. 139

Senator Akaka .................................................................................................. 140

Senator Sununu ................................................................................................ 143

(1)

NOMINATIONS OF JOE D. WHITLEY AND 

PENROSE C. ALBRIGHT 

TUESDAY, JULY 29, 2003

U.S. SENATE, COMMITTEE ON GOVERNMENTAL AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 9:34 a.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Susan M. Collins, 

Chairman of the Committee, presiding. 

Present: Senators Collins, Bennett, and Lautenberg. 

OPENING STATEMENT OF CHAIRMAN COLLINS 

Chairman COLLINS. The Committee will come to order. 

Today, the Committee on Governmental Affairs is holding a 

hearing to consider two nominations for the Department of Homeland Security: Joe Whitley, to be the General Counsel, and Penrose 

Albright, to be the Assistant Secretary of Homeland Security for 

Plans, Programs, and Budget in the Science and Technology Directorate. 

Mr. Whitley, if confirmed as General Counsel, will face many 

challenges. As the chief legal officer of the Department, the General Counsel is responsible for providing legal direction to and coordination of the various components of the Department. The General Counsel also provides legal advice to the Secretary and other 

senior officials while managing the Office of the General Counsel. 

The Department of Homeland Security is responsible for carrying 

out laws as diverse as customs and emergency response. Immigration laws, for example, are carried out by three separate bureaus 

within the Department. Ensuring consistency in their interpretation and application will be a challenge for the new General Counsel. 

I am also concerned, as are many members of the public, about 

the protection of privacy and civil liberties as we battle the terrorist threat. The General Counsel will need to advise and provide 

leadership in defining the legal parameters under which programs 

affecting these fundamental liberties must operate. 

Another challenge for the General Counsel will be the Department’s development of its new personnel system. The General 

Counsel will help to ensure that those charged with creating and 

implementing the new plan carry out their obligations consistent 

with merit system principles and due process. 

There clearly are many complicated and important legal issues 

related to the new Department. The General Counsel must be 

someone who possesses the strong leadership skills, exceptional 

2

legal talent, and experience to take on these challenges successfully. Mr. Whitley is well qualified for these far-reaching responsibilities. 

Mr. Albright’s position will be vital to the Science and Technology Directorate’s efforts to secure our communities. I look forward to working closely with him as he helps to identify research 

and develop products and services to prevent and respond to any 

future terrorist threats. 

From developing more effective radios for our first responders to 

researching sensors to detect radiological devices, innovative technologies are a focal point of our homeland security efforts. Coordination among research and development efforts will be key to the 

Department’s success. In addition to overseeing the research efforts 

within the Department, Mr. Albright must work with numerous 

other agencies outside of the Department. I look forward to hearing 

from him how he plans on working, for example, with the National 

Institutes of Health, which spends several times as much as the 

Department on biodefense efforts. 

We must also work to establish cooperative relationships with 

the private sector and with our research universities. By partnering with companies and the academic community, the Department can truly maximize Federal homeland security dollars. 

I want to emphasize to the nominee the importance of working 

with our small business community, which often has the most innovative ideas and solutions to confront our homeland security challenges. For example, in my home State of Maine, there are a number of innovative sensor technology companies that have developed 

products to help secure our ports, borders, and food supply. We 

want to make sure that the Department reaches out beyond the 

Beltway to tap the creative energy of our small businesses. I look 

forward to hearing from Mr. Albright on these and many other 

issues relating to the responsibilities for which he has been nominated. 

Again, I think we are very fortunate today to have two highly 

qualified nominees appearing before the Committee. Before turning 

to the two distinguished Senators who are here to introduce the 

nominee, I would like to turn to Senator Lautenberg for any opening comments that he might have. 

OPENING STATEMENT OF SENATOR LAUTENBERG 

Senator LAUTENBERG. Thank you, Madam Chairman. 

I have to say it feels pretty good to be sitting this close to the 

middle of the dais rather than at the end. There was a time in my 

life when I used to sit here regularly. Now I sit there regularly. 

I am pleased to welcome our first two nominees, Penrose 

Albright and Joe Whitley, to this confirmation hearing. I have not 

had an opportunity to meet with either one, but based on their 

backgrounds, these are very well-qualified people for the posts. 

Dr. Albright has been nominated to serve as Assistant Secretary 

of Homeland Security for Plans, Programs, and Budget, and he is 

truly a rocket scientist. And it must feel pretty good to be the barometer of what stands for intellect and achievement because we 

use the term here too frequently talking about one another, I think. 

And so it is nice to meet a real rocket scientist, I must say. 

3

Dr. Albright holds a Ph.D. in theoretical physics, has spent much 

of his career working on missile ballistics, but also managed programs in molecular biology while at DARPA. This experience will 

come in handy. And your position, the position you are about to assume, falls under the Science and Technology Directorate at the 

Department of Homeland Security and will be one of your many responsibilities. Also, you will be asked to be on the leadership group 

that tries to develop vaccines, antidotes, diagnostics, and therapies 

against biological and chemical weapons. 

And Mr. Whitley has been nominated for a very important post, 

DHS General Counsel, and, of course, as such, you are going to be 

Secretary Ridge’s chief legal adviser and oversee the work of some 

1,500 DHS lawyers. Now, that is really a job. I am sure you will 

do well, Mr. Whitley. You have got a lot of experience. You have 

had extensive public and private sector experience and served as 

Acting Associate Attorney General under the former President 

Bush. Your activities are worthy of the American Bar Association. 

That affiliation apparently hasn’t damaged your reputation with 

the current administration. 

Seriously, these are important positions that we are filling. 

Bringing many disparate agencies under one roof at DHS has not 

been an easy task. It is very complicated. And the changes that are 

under way are, in fact, revolutionary in character in many ways, 

to take people from so many departments and bring them together 

under one management. 

So I want to know what progress has been made on that front, 

and I also want to know about DHS policies regarding labor rights 

of its personnel, civil liberties, and gun control. In all candor, I 

have to say that the DHS color-coded homeland security advisory 

system is kind of a mystery. Today we hear in the public media 

that there is an increased risk of attack on Americans by terrorists. 

And I noted that at the same time they decided not to change the 

color of the advisory. And, frankly, before, what we got was color 

warnings without even as near a direction as an attack on American soil. That is not very specific, but it is a lot more than simply 

saying we are going to go from yellow to orange or what have you. 

And I assume that the parties who are involved in protecting our 

citizenry have been advised on more specific things. 

I had offered an amendment to the DHS appropriations bill that 

the Senate passed last week asking the Department to report back 

to Congress on whether the color system really is doing any good. 

And I am anxious to hear the results of that. 

So I look forward, Madam Chairman, to hearing from the nominees on these and other important issues, and it is a wonderful 

thing that we have two candidates who represent the kind of 

achievement and responsibilities that they do. 

Thank you very much. 

Chairman COLLINS. Thank you very much, Senator. It is a great 

pleasure to have you in the capacity as the Ranking Member today. 

Senator LAUTENBERG. Can we effect a permanent change? 

Chairman COLLINS. Perhaps if you came to my side of the aisle, 

we could work a deal on that. [Laughter.] 

I am very pleased to welcome two of our distinguished colleagues 

who are here today to introduce Mr. Whitley. We are very pleased 

4

1The prepared statement of Senator Miller appears in the Appendix on page 24. 

to be joined by Senator Zell Miller of Georgia and Senator Saxby 

Chambliss, also of Georgia. We will start with you, Senator Miller, 

to introduce the nominee. 

TESTIMONY OF HON. ZELL MILLER,1 A U.S. SENATOR FROM 

THE STATE OF GEORGIA 

Senator MILLER. Thank you, Madam Chairman, Senator Lautenberg, and Senator Bennett. It is an honor to be here with my good 

friend and colleague, Senator Chambliss, to appear before you to 

present Joe Whitley, whom President Bush has nominated to be 

the General Counsel for the Department of Homeland Security. 

Madam Chairman and Members of the Committee, this is not 

just a constituent. This is not a casual acquaintance. This is a man 

I know very well. I have watched his work up close for many years. 

And I recommend him as highly as I possibly can to this Committee and to the full Senate. 

Joe Whitley has been to Washington before. He served as Acting 

Associate Attorney General at the Department of Justice between 

stints as the U.S. Attorney in two out of Georgia’s three districts, 

where, as I said, he did an outstanding job. He wins plaudits from 

all sides as being, as someone wrote me, competent and wise, quiet 

and cautious. Another one described him as self-effacing and understated. 

Madam Chairman, self-effacing and understated, Washington 

needs some men like this. 

This newly created position requires someone who can provide 

Secretary Ridge with sound counsel. Senator Lautenberg mentioned that this is a Department that consists of 1,500 lawyers, 

180,000 employees merged from 22 different agencies. It is going 

to have to have someone who can bridge together contending factions. It is not going to be an easy job. It is going to be difficult. 

But Joe Whitley, I am confident, can do this. He is shrewd, he is 

tough, he is Marine tough. He is also a consensus builder. I can 

tell this Committee, after watching him for many years in some 

very tough situations, he has a unique ability to bring people together, and that is what is needed around here more than any 

place I have ever seen. 

Madam Chairman, as we continue to transform our government 

to protect our homeland, we need the hardest worker, we need the 

sharpest mind as the first General Counsel and top lawyer of this 

new Department. We need someone with enormous judicial talent 

and someone with sharp legal skills. We need someone who is dedicated beyond measure. 

Madam Chairman and Members of the Committee, I submit to 

you that I have just described Joe Whitley, and I give you my 

strongest endorsement for his confirmation as General Counsel of 

the Department of Homeland Security. 

Chairman COLLINS. Thank you very much, Senator, for those 

high words of praise for our nominee. Senator Chambliss. 

5

TESTIMONY OF HON. SAXBY CHAMBLISS, A U.S. SENATOR 

FROM THE STATE OF GEORGIA 

Senator CHAMBLISS. Thank you, Madam Chairman, Senator Lautenberg, and Senator Bennett. I am very pleased to be here with 

my good friend and my colleague, Senator Miller, to present to you 

Joe Whitley, who has been nominated as General Counsel to the 

Department of Homeland Security to serve with our friend, Secretary Tom Ridge. Joe brings extensive experience to this important position, both from his work in private practice as well as at 

the Department of Justice. Like myself, Joe is a member of the 

Bulldog Nation, having graduated from the University of Georgia 

with both an undergraduate degree as well as his juris doctorate. 

Joe began his career in public service with the U.S. Department 

of Justice and has served that organization in various capacities. 

I first met Joe Whitley when he was U.S. Attorney for the Middle 

District of Georgia, having been nominated by President Reagan 

for that position. That is the particular district that I practiced law 

in for 26 years, so I got to know Joe well back in those days. 

He then was nominated in an unusual situation. It is not very 

common to have someone serve as U.S. Attorney in two districts, 

Federal districts, but Joe was nominated to be U.S. Attorney for 

the Northern District by George H.W. Bush. He was then promoted 

in the first Bush Administration to serve as the Acting Associate 

Attorney General, which is the third-ranking official at DOJ. Those 

are just the highlights of a career at DOJ that spans five attorneys 

general that Joe served under. 

Mr. Whitley also achieved great success in the private sector. He 

became a partner with the prestigious Atlanta law firm of Alston 

and Bird where his duties included chairing the firm’s government 

investigations and compliance group. In this capacity, he represented and defended both individuals and corporations in cases 

ranging from government investigations to complex civil litigation 

matters. Outside of his employment, Joe Whitley has been very active in the American Bar Association. He frequently lectures at 

ABA programs, including environmental crime, computer crime, 

and health care fraud seminars. 

Joe has chaired several continuing legal education programs on 

topics ranging from white-collar to cyber crime and health care 

fraud. All these activities demonstrate Joe’s dedication to improving the legal profession, and I am confident he will work just as 

hard in this regard as General Counsel to the Department of 

Homeland Security. 

On a very personal note, as I say, I have known Joe for a couple 

of decades and have had the opportunity to see Joe operate in the 

courtroom and outside the courtroom. Joe Whitley is not just one 

heck of a lawyer. Joe Whitley is a heck of a man. And I am just 

excited as I could be about having Joe Whitley return to public 

service, and particularly in this position, this newly created position of General Counsel at the Department of Homeland Security. 

He and his wife, Kathy, of course, have been living in Atlanta, and 

while they are excited about moving here, we should all be excited 

about having a man of his caliber to serve in this capacity. And I 

am very pleased to introduce him and recommend him to this body 

today. Thank you very much. 

6

Chairman COLLINS. Thank you, Senator. I am sure the nominee 

is very grateful for your endorsement as well as Senator Miller’s. 

That sort of bipartisan support bodes well for his confirmation. 

I want to thank both Senators from Georgia for being with us. 

I know you each have other engagements, so I am going to excuse 

you at this point so that you can keep your commitments. Thank 

you for being with us this morning. 

Before turning to our nominees, I want to call on Senator Bennett if he has any opening remarks he wishes to make. 

OPENING STATEMENT OF SENATOR BENNETT 

Senator BENNETT. Thank you very much, Madam Chairman, and 

I will take advantage of your courtesy, because I have to follow 

Senator Miller immediately up to the Banking Committee, to say 

to Mr. Whitley that I have a particular problem which I hope you 

will address and that you will get back to me on before the confirmation vote is taken. I will give you a quick background. 

Since 1999, when I was heavily engaged in the Y2K issue, I have 

had conflicting statements from the administration officials regarding the applicability of the Defense Production Act to critical infrastructure protection. I was interested that Senator Saxby Chambliss referred to your background in cyber crime, so you have an 

understanding of what it is I am talking about. 

During the Y2K activities, the administration, admittedly then 

the Clinton Administration, said as a matter of law the Defense 

Production Act may not be used to protect and restore computer 

systems affected by Y2K. Now, on June 5 of this year in a Banking 

Committee hearing, the administration, admittedly now the Bush 

Administration, testified that the Defense Production Act may be 

used for critical infrastructure protection, particularly in the time 

of attack. 

I have tried to find out the reason for these contradictory positions because they are not ideological. It is not a liberal position 

that the Clinton people would take or a conservative position that 

the Bush people would take. And I have been told it boils down basically to how the General Counsel feels. And if the General Counsel thinks one way, then the lawyers say, OK, that is the way it 

is going to be. And if he says, no, I am the other way—so you can 

understand why I am raising this issue while you are here in your 

confirmation process. 

I am concerned because if we do indeed have an incident of some 

kind of cyber attack against this country that shuts down our critical infrastructure, I don’t want an internal debate within the Department of Homeland Security of saying, well, can we use the Defense Production Act or can’t we? Does it apply or doesn’t it? I 

think the decision ought to be made now when there is no crisis 

pressing on us so that appropriate plans can then go forward from 

that decision as to how we respond or how we deal with it. 

Now, I have asked this administration in writing for a response, 

and I have not received a response in writing. I have asked the 

question in open hearing, as I say, and administration official said 

yes, absolutely, Senator, the Defense Production Act does apply. 

So my concern is if you could take the time, I would appreciate 

it if you would respond in writing so that we have more than just 

7

the record of a witness in a hearing as to whether or not you would 

support including specific language in the Defense Production Act 

reauthorization that makes it clear that DPA can be used for critical infrastructure protection and restoration. 

The reason there is a time limit on this, Madam Chairman, is 

that DPA expires on September 30, 2003. And I would like to get 

this resolved and get the understanding firmly nailed down before 

that time. So it is felicitous that we have Mr. Whitley before this 

Committee. His confirmation will take place in this time frame, 

and I will follow up with something in writing if you would like, 

but that is my main issue here this morning. Other than that, I 

accept at full face value all of the wonderful things that Senators 

Miller and Chambliss have said about you. I don’t know what being 

part of the Bulldog Nation means. I don’t think that is an Indian 

tribe, but from where I come from in Utah, sometimes reference to 

one kind of a Nation or another does imply connection with a Native American group. And you perhaps could explain that to us if 

it is important. 

But I do appreciate, Madam Chairman, your allowing me to do 

this now, and I do have to run off to the Banking Committee. Mr. 

Whitley, I congratulate you on your willingness to accept an appointment in public service. I know you don’t make nearly as much 

money in this as you do elsewhere. I am sorry to put this right on 

your lap first thing, but we do have the deadline that is in the law, 

and we have to deal with it. 

Mr. Albright, you get a free ride. Thank you. [Laughter.] 

Chairman COLLINS. Thank you, Senator Bennett. 

Mr. Whitley’s background has already been highlighted by the 

two introductions that he received. I want to provide a little more 

of an introduction for Mr. Albright, who has an equally impressive 

career in science. As Senator Lautenberg pointed out, he does have 

a Ph.D. in physics. He currently serves as senior adviser to the 

Under Secretary for Science and Technology at the Department of 

Homeland Security. Prior to that, he served as Assistant Director 

of Homeland and National Security in the Office of Science and 

Technology Policy. During that time, he also served as Senior Director for Research and Development in the Office of Homeland Security. He has served as a program manager at the Defense Advanced Research Projects Agency, known as DARPA, and several 

other positions as well. 

Both nominees have filed responses to a biographical and financial questionnaire, answered pre-hearing questions submitted by 

the Committee, and had their financial statements reviewed by the 

Office of Government Ethics. Without objection, this information 

will be made part of the hearing record with the exception of the 

financial data, which are on file and available for public inspection 

in the Committee offices. 

Our Committee rules require that all witnesses at nomination 

hearings give their testimony under oath, so I would ask the two 

nominees to please stand and raise your right hand. Do you swear 

that the testimony you are about to give to the Committee will be 

the truth, the whole truth, and nothing but the truth, so help you, 

God? 

Mr. WHITLEY. I do. 

8

Mr. ALBRIGHT. I do. 

Chairman COLLINS. You may be seated. 

Mr. Whitley, we are going to start with you this morning. I 

would first invite you to introduce any family members that you 

may have present with you and then proceed with your statement. 

Mr. WHITLEY. Thank you, Madam Chairman. Behind me is my 

wife, Kathy, my daughter, Lauren, and my son, Thomas. And I am 

very glad to have them here with me this morning. Thank you very 

much. 

Chairman COLLINS. We welcome them as well. 

Mr. Albright, I am going to give you the opportunity to introduce 

your family members now also, and then we will come back to Mr. 

Whitley for his statement. 

Mr. ALBRIGHT. Thank you, Madam Chairman. Behind me is my 

wife, Jamie; my daughter, Courtney; my son, Chris; my daughter, 

Meredith; and my father and mother are in the row behind me. 

Chairman COLLINS. How nice, and we welcome them as well. 

And we hope we didn’t embarrass Courtney too much by being introduced, but we really are happy to have your whole family with 

you today. 

Mr. Whitley, you may proceed with your statement. 

TESTIMONY OF JOE D. WHITLEY, TO BE GENERAL COUNSEL, 

DEPARTMENT OF HOMELAND SECURITY 

Mr. WHITLEY. Thank you, Chairman Collins, Senator Lautenberg, and Senator Bennett, and distinguished Members of the Committee who are not here with us today. I am honored to appear before you. I am very grateful to President Bush for nominating me 

to serve as the first General Counsel of the Department of Homeland Security. 

Some years ago, after having served five different Attorneys General from both political parties, I left public life. I believed then I 

would not return to government service. However, the events of 

September 11, 2001, and a few conversations with a number of people whose views I respect, among them Secretary Ridge, convinced 

me that I should accept the challenge of building the Office of General Counsel at DHS. 

If I am confirmed by the Senate, I look forward to working with 

this Committee and other Members of the Senate and House of 

Representatives in making the DHS Office of General Counsel an 

effective and responsive legal arm of the Department for the benefit of the American people. 

Over the last several weeks, I have had the opportunity to meet 

with some of you and hear your thoughts about the future of this 

critical Department. I fully understand and respect the importance 

of the role reserved to Congress to oversee the evolution of DHS. 

I look forward to working with all of the Members of this Committee to establish a relationship that will better enable the Department to fulfill its role as the protector of the American people. 

Also, I have had the pleasure of meeting with some of your staff, 

and I wish to commend them for the dedication, the knowledge, 

and the skill they have demonstrated during this process. 

Congress took a bold and historic step to establish the Department of Homeland Security. As a consequence, for the first time in 

9

the history of this country we have a Federal Department whose 

primary mission is to protect the American people against terrorist 

attacks on American soil. Now just 6 months into the life of this 

new Department, we are at the beginning of the largest and most 

significant transformation of government in over half a century, 

merging 22 separate work cultures, operating procedures, management structures into one cohesive organization. 

While much has been accomplished, considerable work remains, 

much of it dealing with implementing the Homeland Security Act 

and related legislation. If confirmed, I will commit myself to developing the legal infrastructure needed to make America more secure, to prevent the entry of terrorists and instruments of terrorism into the United States, while at the same time protecting 

the rights and liberties of U.S. citizens and lawful visitors to the 

United States. 

Almost every action taken by DHS employees has a legal impact. 

As President Bush has stated, we have a huge responsibility, and 

that is to protect and defend America while protecting our great 

liberties. The President and Secretary Ridge have given the Department a clear mission. In addition to protecting America’s assets, DHS must also protect America, our way of life, our constitutional framework, and basic civil liberties that we revere, including 

our freedom of speech and our right to dissent. 

The General Counsel, as the chief legal adviser to the Secretary, 

will and must play a significant role in ensuring that the Department protects and enhances our civil rights and civil liberties, 

while at the same time preventing future terrorist incidents. To 

that end, together with the Department’s Office for Civil Rights 

and Civil Liberties and the Privacy Office, I will carefully review 

any data-mining, intelligence gathering, or programs to enhance information collecting or sharing by DHS and balance our mission 

needs with the privacy rights and civil liberties guaranteed to the 

American people under our Constitution. 

During my earlier service in Washington, I had the pleasure of 

being the Justice Department’s representative on the Terrorism 

Working Group that met weekly to plan how better to predict domestic terrorist activity. I came to appreciate the men and women 

who daily devoted their lives to this effort. But I also came to appreciate the need for better coordination and communication among 

all of those involved in our efforts to prevent future terrorist incidents. 

If confirmed, I will work to foster better coordination and communication within the DHS Office of General Counsel and our client offices. I expect to structure the office along the lines of the 

DHS management structure. Each of the five directorates headed 

by an Under Secretary will be served by an Assistant General 

Counsel within the Office of General Counsel. Counsel within other 

DHS components will also report to the Office of General Counsel. 

We will create a culture in which every attorney is thinking about 

how his or her job fits into the larger responsibility of protecting 

America. 

To be successful, we will need to implement management systems that facilitate coordination, collaboration, and team work. I 

10

hope to encourage in all DHS lawyers a strong sense of pride about 

working together in the public interest. 

Before I close my preliminary remarks here today, I should say, 

like many Americans, I stand on the shoulders of prior generations 

of family, friends, and business associates, some of whom are here 

today as my guests and many of whom could not be here. To them, 

let me say a few words of thanks and praise and appreciation. 

I am most grateful that Senators Miller and Chambliss of Georgia would take time away from their busy schedules to introduce 

me here today. 

To my extended family and my mother, Mary Jo Whitley, who 

made all of this possible for me, I hope to make you proud, as we 

say in Georgia. 

In life, it is good to have a partner who is smarter and more gifted than you are to make you better than you might otherwise be, 

and my wife, Kathy, has been that person for me in my life. 

Finally, I would like to thank our two children, Lauren and Tom, 

for their support and love they have given us both. 

With that, Madam Chairman, I thank you for allowing me to 

make this opening statement. If the Senate confirms me, I look forward to serving the President, the Members of this Committee, and 

the American people to the best of my ability. I look forward to the 

opportunity to answer your questions here today as well as those 

of your colleague, Senator Lautenberg. 

Thank you very much. 

Chairman COLLINS. Thank you. Mr. Albright. 

TESTIMONY OF PENROSE C. ALBRIGHT, TO BE ASSISTANT 

SECRETARY OF HOMELAND SECURITY FOR PLANS, PROGRAMS, AND BUDGET IN THE SCIENCE AND TECHNOLOGY 

DIRETORATE, DEPARTMENT OF HOMELAND SECURITY 

Mr. ALBRIGHT. Thank you, Chairman Collins, Senator Lautenberg, and distinguished Members of the Committee who could not 

be present this morning. It is an honor to appear before you today 

regarding my nomination as Assistant Secretary for Plans, Programs, and Budget in the Science and Technology Directorate of 

the Department of Homeland Security. I am most honored to have 

been nominated for this position by the President and thank him 

and Secretary Ridge for their confidence and support. 

The President has stated on a number of occasions that our Nation’s advantage in science and technology is a key to securing the 

homeland against the threat of terrorism. Just as science and technology have been crucial to our ability to defeat past and present 

enemies overseas, so, too, will it work to defeat those who would 

attack our homeland and disrupt our way of life. 

Our Nation is blessed with a vast scientific and technological enterprise. There are companies, universities, institutes, and government labs of all sizes that conduct research and development over 

a very broad range. That enterprise must be harnessed in support 

of homeland security. 

To do this, the President and Congress established the new Department of Homeland Security and created within it the Science 

and Technology Directorate. It serves as the Federal lead for homeland security research and development and works with private 

11

and public entities to assure a research and development effort of 

sufficient size and scope to counter the threat of modern terrorism. 

Creating and guiding this effort is a major undertaking, and if confirmed, I will be pleased and honored to be supporting Dr. Chuck 

McQueary, the Under Secretary of Science and Technology, in this 

endeavor. 

A key role of the Assistant Secretary for Plans, Programs, and 

Budget in the Science and Technology Directorate is to be responsible for the Directorate’s planning, programming, budgeting, and 

execution oversight processes. The Assistant Secretary also develops and executes the Directorate’s policies associated with setting 

and promulgating standards for homeland security equipment and 

technologies in coordination with other entities of the Department. 

Additionally, the Assistant Secretary develops for the Under Secretary policy options associated with the external research and development community, with State, local, and Federal agencies, and 

with the international community, and acts as the principal deputy 

to the Under Secretary for Science and Technology. 

My education and background provide me a strong base for leading these activities should I be confirmed. In my role as Assistant 

Director for Homeland and National Security in the White House 

Office of Science and Technology Policy, and as Senior Director for 

Research and Development in the Office of Homeland Security, I 

advised the administration on science and technology issues surrounding homeland security and on organizing the Nation’s research and development community on homeland security issues. I 

also led the transition planning activities for the Science and Technology Directorate prior to the formation of the Department. 

Given that experience and my background in analyzing and developing technology options for the national security community, I 

understand both the magnitude and scope of effort required for this 

position. 

Dr. McQueary has stated on many occasions the importance of 

developing and deploying to the field as rapidly as possible new capabilities for enhancing our security. Thus, if confirmed, I will base 

the planning process for the Directorate on a so-called spiral development paradigm. This means that we rapidly field available technology where it is cost-effective to do so, provide upgrades using 

near-term technologies available from the labs and private sector, 

and yet at the same time assure a long-range research and development effort aimed at meeting the full set of requirements. 

These requirements must be developed in close coordination with 

the user community, the other Directorates within the Department, 

and the State and local public safety communities. Dr. McQueary 

has pointed out that these front-line operators are the customers 

for the Science and Technology Directorate, and if confirmed, I will 

assure that our plans are the result of a close and continuous working relationship with these entities. As our customers, they will define the problems we need to address and the parameters for defining success. 

Much of the research, development, test, and evaluation activities relevant to homeland security occur in other Federal agencies, 

such as the National Institutes for Science and Technology, the Department of Health and Human Services, and the Department of 

12

Defense. The Science and Technology Directorate must coordinate 

with these activities to define a national strategy for homeland security research and development. If confirmed, I will work closely 

with my peers in these agencies and with the White House to develop a national plan and strategy to develop countermeasures for 

chemical, biological, radiological, nuclear, cyber, and other emerging threats. 

Should the Senate confirm my appointment, I would welcome the 

opportunity to work with the Congress and this Committee to accomplish the important mission of homeland security before us. 

Thank you for your consideration of my nomination and for the 

honor of appearing before you today. I am happy to answer any 

questions you may have. 

Chairman COLLINS. Thank you very much, Mr. Albright. 

There are three standard questions that are asked of all nominees that I will proceed to at this time. Is there anything you are 

aware of in your background which might present a conflict of interest with the duties of the office to which you have been nominated? Mr. Whitley. 

Mr. WHITLEY. No, ma’am. 

Chairman COLLINS. Mr. Albright. 

Mr. ALBRIGHT. No. 

Chairman COLLINS. Second, do you know of anything personal or 

otherwise that would in any way prevent you from fully and honorably discharging the responsibilities of the office to which you have 

been nominated? Mr. Whitley. 

Mr. WHITLEY. No, I do not. 

Chairman COLLINS. Mr. Albright. 

Mr. ALBRIGHT. No. 

Chairman COLLINS. And, finally, do you agree without reservation to respond to any reasonable summons to appear and testify 

before any duly constituted committee of Congress if you are confirmed? 

Mr. WHITLEY. Yes. 

Mr. ALBRIGHT. Yes. 

Chairman COLLINS. You passed that round very well. [Laughter.] 

We are now going to proceed to 10-minute rounds of questions 

for both nominees. 

Mr. Albright, if you are confirmed, you are likely to be involved 

in the development of technology used to foster information sharing. You may also be involved in the development of data-mining 

technologies, which have been very controversial. 

From your experience in DARPA, you are probably familiar with 

the controversy surrounding the Total Information Awareness program. What steps will you take in your new position to ensure that 

information-sharing programs and technologies developed by the 

Department of Homeland Security do not raise the same kinds of 

privacy concerns as the Total Information Awareness program at 

DARPA? 

Mr. ALBRIGHT. The Homeland Security Act provided the Department a privacy officer who among her duties includes assuring that 

the activities that we undertake within the research and development piece of the Department, in fact, are consistent with both law 

and tradition in this country in terms of protecting privacy. 

13

As we go about developing or looking into those kinds of programs—and as you point out, we will be involved in that kind of 

activity. After all, one of the rationales for creating the Department 

was to, in fact, bring intelligence data together and to think about 

connecting the dots to some degree. So as we bring together programs that are designed to do that, you have my assurance that 

the privacy officer will be involved right from the very beginning 

in these kinds of activities and will be consulted and will guide the 

activities that we conduct. 

Chairman COLLINS. Mr. Whitley, do you believe that the Privacy 

Act of 1974 is sufficiently up-to-date to address the effect on personal privacy of new technologies such as data mining? 

Mr. WHITLEY. Senator, we will evaluate the application of the 

Privacy Act to those activities once I am confirmed, if I am confirmed, as General Counsel of this Department, and report to you 

if there are any modifications that we think may need to be enacted to protect Americans in their privacy rights. 

Chairman COLLINS. Section 222 of the Homeland Security Act, 

which Mr. Albright actually just referred to, directs the Department’s privacy officer to ensure that the use of technologies sustain 

and do not erode privacy protections. Do you believe that this language provides for any additional protection for personal privacy 

beyond that already covered by the Privacy Act? 

Mr. WHITLEY. I believe it gives us an opportunity, Senator, to set 

a standard that may be higher than what is required by the Privacy Act. I look forward to working with our privacy officer, Nuala 

O’Connor Kelly, in the Department, supporting her efforts to evaluate her undertaking in this effort to make sure privacy rights are 

protected. 

I do believe that we will be seeking to create a higher standard, 

if you will, an appearance and a reality of privacy for Americans 

in things that need to remain private. 

Chairman COLLINS. This is an issue of considerable concern to 

Congress and to the public. I want to follow up, Mr. Whitley, with 

you with a specific program that the Department is in the process 

of developing, and that is the Computer-Assisted Passenger Prescreening System, which is know as the CAPPS–II program. As I 

understand it, this program will match airline passengers’ names 

against commercial and intelligence databases to assess how great 

a risk they pose and determine whether or not they should receive 

additional screening before they board their flight. 

Now, on the one hand, if this is successfully implemented, it 

should dramatically reduce the number of airline passengers who 

receive heightened scrutiny at airports. One of my Senate colleagues and I were traveling together recently, and both of us were 

selected for the special screening at the gate, and perhaps a program like this might allow us to have a more focused approach. On 

the other hand, if the program is not properly implemented, it 

could result in an unwarranted intrusion into the privacy of lawabiding citizens. 

What are you going to do to ensure that we strike the right balance? And a related issue on this is the CAPPS–II program is going 

to rely in part on commercial databases, which may or may not 

have accurate information. I think any of us who have dealt with 

14

constituents’ problems with credit reports or identity theft understand that information is not always accurate. How are you going 

to strike that right balance and ensure the accuracy of databases 

on which the Department will rely? 

Mr. WHITLEY. Senator, let me respond to that and share with 

you some thoughts I have on this. I look forward to working with 

this Committee and also with our privacy officer as I go forward, 

if I am confirmed, in making sure that this CAPPS–II program 

that you are talking about works in an effective way so that people 

who are law-abiding citizens who don’t have any concerns are 

boarded promptly on airplanes so that we can promote the commerce that air transportation brings to our country, both for visitors to this country from out of the country and visitors around this 

country. We simply can’t impede that sort of traffic, so the goal, if 

you will, of the legal support that I will be providing to the privacy 

officer will be with that in mind. 

But, specifically, let me say this about my understanding about 

the CAPPS–II program and what will be done with it, which will 

be very careful implementation of the new procedures, testing them 

to make sure that there aren’t any situations where people are detained who should not be detained or who are not on flights that 

they should be on, so the goal will be to make sure that we create 

a program that is as flawless as possible. There definitely will be 

flaws in any program that has any human involvement in it, but 

we need to minimize those situations where people are not boarded 

on an airplane for reasons that are no fault of their own. And we 

need to make sure that with these programs we are going to be 

pulling information from the private sector that the information is 

looked at in a redundant manner so that we are sure that the information is accurate about the identification of the individual who 

is getting on that airplane. 

We have to balance those privacy rights—and we will do our best 

to do that—against the rights of the other individuals on these airplanes who are expecting a higher degree of safety when they 

board airplanes. So we will deal with that balancing act, and we 

will work with this Congress and with your Committee in making 

sure this program is effective. 

Chairman COLLINS. In light of media reports today indicating 

there are some indications of new plans by Al-Qaeda members to 

attack airlines, this is going to be particularly important that we 

get this right, both to ensure that we are making our airports and 

airlines as secure as possible, but also making sure that we are 

doing so in a fair way and not infringing on the right to travel and 

the privacy rights of law-abiding citizens. 

Mr. WHITLEY. I agree. 

Chairman COLLINS. Mr. Albright, this Committee has had extensive hearings on the needs of first responders, those who are on the 

front lines in the war against terrorism. Your answers to your written questions suggest that, if confirmed, you will focus on homeland security equipment for first responders. How will you work 

with the different agencies that are involved to make sure that 

equipment purchased with Federal funds meets certain standards? 

For example, we have heard at our previous hearings that there 

are five different agencies providing funding for interoperable comVerDate 0ct 09 2002 09:09 Jan 14, 2004 Jkt 089036 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 C:\DOCS\89036.TXT SAFFAIRS PsN: PHOGAN
15

munication systems equipment. Well, if you have five different 

agencies with different technical standards, that only contributes to 

the problem of incompatibility. 

What will you do to make sure that these grant programs are 

better coordinated to help ensure that there are set standards to 

promote interoperability? 

Mr. ALBRIGHT. The Science and Technology Directorate has recently taken on responsibility for management of an OMB e-gov 

initiative called Project Safe Com, which is one of the top Presidential management priorities. And Project Safe Com’s rationale, 

what it is there to do, is, in fact, to set standards for interoperable 

communications between Federal, State, and local entities. And I 

am pleased to say that Project Safe Com has recently had its governance structure and its guidance to Federal grant-giving agencies, the main ones being the Office for Domestic Preparedness, the 

COPS Program, and former FEMA, now Emergency Preparedness 

and Response Directorate within the Department, they have accepted our grant guidance created under Project Safe Com and 

working through the Coalition for Improved Public Safety Communications, which includes all the major first-responder key associations, they have approved that governance structure. They have approved that grant guidance, and that is now being included as we 

start to issue new grants to make grant money available to the 

State and local communities. 

Chairman COLLINS. Thank you. My time has expired. Senator 

Lautenberg. 

Senator LAUTENBERG. Thank you very much, Madam Chairman. 

That is an anomaly I can’t get used to, ‘‘Madam Chairman,’’ but I 

think we have to define ‘‘chairman’’ as kind of a non-gender word 

and let it go at that. 

Mr. Whitley, I had to smile a couple times at things that you 

said. One of them was that you never expected to return to public 

life. And I can tell you firsthand that when I left here 2 years ago, 

the furthest thing from my mind was that I would be sitting back 

here, even though the company is so forthright and as leaderly as 

Susan Collins, my colleague and friend. But I never expected to be 

back here, and I was reminded that I was back when I got my first 

paycheck. [Laughter.] 

You, too, will notice that. It is nice to meet your families. I assume they are in both cases willing to make the big sacrifices that 

you are going to have to make. Don’t prepare dinner at a precise 

time. I caution you about that. 

Dr. Albright, your position, you will be working on the budget of 

the Science and Technology Directorate of DHS, and we have just 

heard some discussion about first responders. And it is, I think, 

going to be a lot easier to coordinate the activities than it is to prepare the first responders for a biological or chemical attack. 

What do you do about something like that? 

Mr. ALBRIGHT. That is an excellent question, Senator. You are 

absolutely correct. It is not enough to create standards for homeland security equipment and to provide grant guidance for homeland security equipment and then, in essence, to throw that equipment over the transom, so to speak, and let them have at it. 

16

What one also needs to do in conjunction with these activities is 

also to develop training tools and provide environments where first 

responders can come and train with these kinds of equipment. 

They are not likely to be frequently engaged in training for a radiological event, for example, so what we have to do, I think, is create 

Web-based tools, for example, where first responders from their 

desktops can get on and go through scenarios and allow themselves 

to be trained for events that may never happen in their entire lifetimes and hopefully won’t ever happen in their lifetimes. 

We have also been discussing the notion of creating sites where 

we could periodically bring first responders, much like the red flag 

kind of activities that the Air Force does out at Nellis. We could 

bring in trainers or bring in first responders, have them run 

through scenarios, and then they can go back and train the trainers. 

But your point is an excellent one, that providing equipment 

without an understanding of how to use it, how to maintain it, or 

how to calibrate it, is crucial. 

Senator LAUTENBERG. It is going to be very tough to get that 

knowledge all the way down to the first-responder level because in 

many instances first responders in one community are quite differently trained than first responders in others, the large urban 

centers versus the more rural communities. 

Mr. Whitley, the questionnaire that you submitted, when asked 

how DHS could ensure that its broad authority over a personnel 

system would protect the rights of Federal employees, you promised in your comments that any new DHS employment system 

would abide by both the legal provision and ‘‘the spirit of the safeguards.’’ I wonder if you could explain what you mean exactly by 

the spirit of the safeguards. 

Mr. WHITLEY. Well, as I am learning this new Department as a 

consultant, one of the things I will be careful to say, Senator, is I 

don’t know the answers to all the questions that you may pose to 

me here today, but I look forward to being more responsive to that 

question later. 

But I will say this: It is my understanding that our human resources design team, which is coordinated by Under Secretary 

Janet Hale, is working on these types of issues together with Secretary Ridge and the Office of Personnel Management to assure 

that we come up with a state-of-the-art new personnel system, if 

that is where we move, so that we will have transparency and accountability, so if people are disciplined in the workplace or they 

are in situations where they need to be held accountable for their 

conduct, they will know what that was and what their rights are 

very clearly. 

And so that is what I mean when I answered that comment, 

which is that the rights of individuals in this system need to be 

clear to them. Accountability needs to be clear to them so that 

when incidents occur, they will understand what they need to do 

to protect themselves. 

Senator LAUTENBERG. I am talking about a broader issue, Mr. 

Whitley, and that is the question of whether or not DHS employees 

have the right to bargain collectively. 

17

Mr. WHITLEY. Some DHS employees, it is my understanding, 

Senator, do currently have a collective bargaining arrangement. As 

you are aware, we are a group of legacy agencies, some of which 

are from former U.S. Customs, some of which are from the Immigration and Naturalization Service. It is my understanding that 

within DHS there are still some of those current—those bargaining 

units. 

Senator LAUTENBERG. Because, as the DHS concept developed, a 

large point of contention was whether or not the employees to be 

hired would have the right to bargain. 

Mr. WHITLEY. Let me say this, Senator, I am aware that the 

human resources design team is a collaborative effort with the 

labor unions in the Department. And one of the things that I understand has happened is that the labor unions or some of the 

labor unions’ leadership have expressed their satisfaction, at least, 

from what I have read and heard, with the direction we are heading in, that they are being brought into the process, that they are 

being respected in the process, and that hopefully in the end they 

will be all together with us on the results we come to. 

Senator LAUTENBERG. I would hope that is true because something as complicated as this amalgamation of all these departments, the numbers are staggering, 150,000 or whatever the round 

number is of employees, the different skills that are going to be 

merged here. Nevertheless, it doesn’t remove their right to have job 

standards, to have compensation, what have you, to fit the norm 

of what is customarily government. This is not a private agency, 

and as a consequence, people have the right, in my view, to expect 

a type of treatment that respects their needs and their interests. 

I noted in some of the reading that I have done that it seems to 

separate local rights for collective bargaining from a national right 

to collective bargaining. And I think that locally the right has been 

removed, but nationally there is some question about whether or 

not they can bargain collectively. 

Mr. WHITLEY. Senator, I look forward to looking into this issue. 

Senator LAUTENBERG. Well, I look forward to working with each 

of you. The assignment is enormous. I come out of the technology 

business, and the best thing that happened to me is that I wasn’t 

the technician. I was more on the marketing side of things, so I 

didn’t stand in the way of success at all. [Laughter.] 

But I would ask who might, in your judgments collectively, be responsible for the plans that affect specifically, let’s say, aviation. 

We have an aviation security bill that was voted upon during my 

absence, and I am not being critical in any way. But I was a committee member of the Pan Am 103 study, and I was an author of 

the report at that time. And, frankly, we went through some 

things—now, this goes back more than 10 years ago—that I think 

would have applied just as well right now. So I would hope that 

you will take a look at that to see as counsel whether you think 

the present plan, which is not only cumbersome but it may have 

to be in this stage of our activities, but we want it to be effective. 

That is the first thing, so no matter how cumbersome, but it is a 

peculiar condition that we run into. 

Yesterday, for instance, I flew down from New Jersey, and when 

I got to the airport a half-hour before the flight, I was told that the 

18

flight had been shut down, closed, for its trip to Washington, 35 

minutes of lying time. And this was a half-hour before the scheduled departure. And they said, well, it was closed down, not because it was oversold but because there was a security concern now 

established. And I don’t know whether that meant—and I am not 

revealing anything here—that there was an alert from DHS that 

said give us time to check the passenger roster more carefully. But 

it was a frightening prospect because we had a vote here, had everything scheduled for it. Anyway, finally—and I promise you I 

didn’t kick and scream. I know better than to do that. You can do 

that when you are a private citizen. You can’t do that when you 

are public. But I would appreciate it if you would look at that. 

Madam Chairman, we have lots of questions that we would like 

to have answered. I am sure I speak for you as well as myself. So 

if we will keep the record open, I would ask each of you to respond 

as promptly as you can and to wish you both well. You are excellent candidates, and I appreciate the fact that you have taken on 

an assignment that has significant risks but has great opportunities for our safety and our public being. So thank you. 

Chairman COLLINS. Thank you, Senator. 

I, too, have a number of additional questions that I am going to 

submit for the record. There are a couple, however, that I do want 

to ask you here. 

Mr. Whitley, you mentioned in your statement the importance of 

congressional oversight in helping the new Department be effective, 

and it is the most massive reorganization of the Federal Government in half of a century. Your office will play an important role 

in responding to congressional requests, and there are times when 

the Department or its IG may be conducting its own investigation 

into an issue that is of interest to Congress. 

Legally, do you believe that there are any cases in which it is appropriate for the Department to withhold information from Congress because the Department or its Inspector General is already 

conducting a parallel investigation? 

Mr. WHITLEY. Senator, I am not aware of any prohibition on information sharing with this Committee or other parts of Congress, 

if requested, if there is a parallel investigation underway. 

Chairman COLLINS. It is important that we do have access to information in order to carry out our oversight responsibility, so I am 

pleased to hear your response. 

Mr. Albright, just a couple of closing questions to you. There are 

many small technical companies in both the Senator from New Jersey’s State and my State who find it very difficult to penetrate the 

bureaucratic maze to do business with the Federal Government. 

Yet many of these small companies—I am thinking of some small 

sensor companies in Maine, for example—have products and services that would be extremely valuable to the new Department of 

Homeland Security. 

What steps will you take to make sure that the new Department 

makes contracting opportunities available to the small business 

sector? The large companies have several experts and contracting 

officers and previous relationships and the ability to monitor contracting opportunities. But for small firms that may have exactly 

the cutting-edge invention or technology the Department needs, it 

19

is a daunting task to figure out how to do business with the new 

Department. 

Mr. ALBRIGHT. Absolutely. It has been clear from the outset that 

a great part of the research and development community that 

needed to be engaged in Homeland Security was, in fact, comprised 

of what we call non-traditional government contractors. Those 

could be very large businesses such as pharmaceutical firms, or 

they can be many smaller businesses as well. 

What we have done is several things. Congress gave us in the 

Homeland Security Act under Title 3 something called a technology 

clearinghouse function. And what we have done is entered into a 

partnership with something called the Technical Support Working 

Group, which was an entity that was formerly comprised or led by 

the Departments of State and Defense, and it was aimed at getting 

small businesses in particular engaged in rapid prototyping activities and taking off-the-shelf or nearly off-the-shelf technologies and 

putting them in the hands—initially for the special operations community. 

What we have done is we have engaged the Technical Support 

Working Group in our endeavor as well, and they recently released 

a broad agency announcement that got over 3,000 responses on a 

wide variety of near-term technologies that we wanted to see for 

the various user communities that comprise our customer base. 

Now, the intent with TSWG is to create an environment that is 

very small business friendly. So, for example, the way it operates 

is when you respond to the initial solicitation, you send in a single 

piece of paper that indicates what it is you are trying to sell. 

The advantage to that is it gives the government an opportunity 

to perform very rapid triage on those kinds of proposals, while at 

the same time sparing the expense of the smaller companies, in 

particular, from engaging in a very expensive bid and proposal 

kind of activity. So what we do is we have a staged process with 

the TSWG where they send in a single sheet. If that is something 

that is of a priority for the government to invest in, we will then 

come back and ask them for a white paper. And we don’t really get 

to a full proposal until fairly late in the process. 

The intent also by this fall is to allow businesses to track the status of that proposal electronically. They will get a PIN number 

when they submit that proposal into the Department. Then they 

will be able to sign on to a website, enter their PIN, and they will 

find out precisely where they are in the evaluation process. 

Now, the other thing that happened was that you granted us 

other transactions authority within the Homeland Security Act, 

and that is very important for non-traditional contractors because 

it allows us a freer hand in negotiating intellectual property rights 

between someone who is under government contract and the government, and it also allows those contractors to manage their finances under generally accepted accounting rules as opposed to 

very specific government accounting rules and regulations. Many of 

these companies are not interested in overturning their entire accounting system just to deal with the Federal Government. 

So we have tried to make this as small business friendly as we 

possibly can. And, of course, as you know, there is also a special 

assistant to Secretary Ridge for the private sector who is engaged 

20

certainly with the small business community, has been conducting 

business roundtables throughout the country, and we expect to continue that. If confirmed, I will certainly participate in those kinds 

of activities. 

Chairman COLLINS. Thank you. I am going to follow the lead of 

the Ranking Member today and submit the rest of my questions for 

the record. Without objection, the record will be kept open until 5 

p.m. today for the submission of your answers to our questions and 

any other statements for the record. 

Senator LAUTENBERG. Five p.m. today? 

Chairman COLLINS. Yes. They would like to be confirmed before 

we go home. 

Senator LAUTENBERG. Well, I think the modesty raised when the 

question of confirmation comes up, as we would say, you, I think, 

are rather shoo-ins. 

Chairman COLLINS. Did you have another one that you wanted——

Senator LAUTENBERG. I do, if I may. 

Chairman COLLINS. Absolutely. Go ahead. 

Senator LAUTENBERG. Mr. Whitley, two laws have been passed in 

the last couple of years. First, the ATS, the Aviation and Transportation Security Act of 2001, federalized the airport screeners as 

part of TSA. And then the Homeland Security Act of 2002 transferred some TSA employees to the Department of Homeland Security. 

Now, there is some confusion here about the labor status of these 

Federal workers. Will they be, do you think, considered full employees of DHS or will they remain part of a separate personnel 

system within DHS? 

Mr. WHITLEY. Senator, this is an issue that you broached with 

me that I have not studied or looked at, candidly. But what I will 

do is I will look at that issue and try to respond to your question. 

I will be dealing with lots of labor-related issues, I am sure, in 

the performance of my duties, and I will have on my staff, if I am 

confirmed, people who are very capable in these areas. And, unfortunately, I don’t have a response to your question, but I will get 

you a response. 

Senator LAUTENBERG. Well, if you would take a look at that and 

get back to us, I would appreciate it. 

Mr. WHITLEY. Thank you. 

Senator LAUTENBERG. Another question for you, Mr. Whitley. A 

CRS report that I requested revealed that known terrorists on the 

State Department’s list can easily purchase weapons such as M–

16s or .50-caliber assault weapons in the U.S. civilian market. 

After complaining about that, the Department of Justice now crosschecks gun purchases to see if the purchaser is on the terrorist 

watch list. 

Do you believe that any individual whose name is on the terrorist watch list should have the freedom to purchase weapons legally in the United States? 

Mr. WHITLEY. I haven’t studied this issue, Senator, but as a practical matter, no, I don’t think anyone who is designated as a potential terrorist should be purchasing firearms. 

21

Senator LAUTENBERG. Do you think that DHS or other authorities ought to be notified when a person on a terrorist watch list attempts a gun purchase? 

Mr. WHITLEY. Senator, any avenue where we can have better 

communication about potential purchases or acquisitions of weapons by people who are in the category that we deem to be dangerous, we should have that kind of communication. Again, I 

haven’t studied this issue, Senator, but I am——

Senator LAUTENBERG. I will trust your good judgment and check 

on it once in a while. 

Mr. WHITLEY. I certainly will. One of the things that we want to 

do is protect all Americans, and there are certain rights that Americans have certainly to bear arms. But at the same time, those 

rights have constraints on them, and this right is something we 

need to evaluate in terms of these individuals who are acquiring 

these types of weapons. 

Senator LAUTENBERG. Well, if we have the liberty of detaining 

suspected terrorists without charge for a period of time, certainly 

we ought to say, hey, you just can’t walk up like any other lawabiding citizen in the United States and exercise the right to buy 

a gun. That is kind of simple common sense to me. 

Mr. WHITLEY. Thank you, sir. 

Senator LAUTENBERG. Dr. Albright, do you think that—and I 

don’t mean to insult the system, but the color war, I will call it, 

security assessment system can be enhanced to provide accurate, 

specific warnings to the general public? And what can DHS do to 

instruct Federal and local agencies to respond more effectively just 

do a lot of hard work there? But if you will answer the first part 

of that, can we have a security alert system that tells people 

enough to put them on guard without totally terrorizing our population into questions like: Dare I go to New York with my family 

for a vacation? Dare I put my children on the school bus? Can I 

plan a vacation trip? I mean, people are concerned, and I worry 

about the effects of scare without fact, and yet there is an enormous responsibility of DHS and all of us in government to tell people what they can do to protect themselves. Is it possible to achieve 

both ends of the goal, tell people what to worry about and at the 

same time not frighten them into inaction or otherwise? 

Mr. ALBRIGHT. Well, this is an issue that I personally haven’t 

studied in any great depth. The Information Analysis and Infrastructure Protection Directorate are the people who provide the intelligence information. And I think it is certainly or it is my understanding, at least, that it is certainly within the intent of what Secretary Ridge and the Department would like to do to provide perhaps more focused alerts and to perhaps make them more regional 

in nature or infrastructure-specific. I think the Secretary has testified to that effect in the past. 

One area that we are expecting to invest in within the Science 

and Technology Directorate, should I be confirmed, is in some behavioral research studies that actually get at these kinds of issues. 

There have been experiments done for decades looking at how people respond to imminent natural disasters, for example, hurricanes, 

that sort of thing, how people responded during the blitz during 

World War II, for example. We ran experiments in Germany after 

22

World War II on air raid sirens, for example, and how people responded to that sort of thing. 

And your point is well taken that the concern you have is that 

by constantly raising the alert status, people get inured to the 

threat level and either start to ignore it, which is obviously something we don’t want to see happen, or change their behaviors in a 

way that we don’t necessary want to see either. 

So that is an area of research that the Department has already 

entered discussions with the National Science Foundation and with 

some of the social and behavioral sciences communities to investigate. 

Senator LAUTENBERG. I would close with this, Madam Chairman. 

Is there a department there that devotes its time to acronyms? 

[Laughter.] 

Because it seems to me that you have got a batch of them there, 

and I just hope everybody remembers what the code for the short 

name is. 

Thank you very much. 

Chairman COLLINS. Thank you. 

I want to thank both of our nominees for appearing today and 

for their forthright answers to our questions. I also want to thank 

both of you and your families for your willingness to step forward 

and once again serve your country. We are very fortunate to have 

people well qualified and with your background who are willing to 

do yet another stint in the public sector. So thank you for being 

with us today. 

As I mentioned, the record will be kept open until 5 p.m. today. 

This hearing is now adjourned, but I would alert people we are 

going to go immediately into a new hearing. 

[Whereupon, at 10:49 a.m., the Committee was adjourned.] 

(23)

A P P E N D I X 

PREPARED OPENING STATEMENT FROM SENATOR AKAKA 

Thank you Madam Chairman for holding this hearing. Today, we are considering 

the nominations of two individuals to very important positions in the Department 

of Homeland Security (DHS). 

The first is Joe Whitley who has been nominated to be the General Counsel. If 

confirmed, Mr. Whitley will serve as the chief legal officer of the Department. He 

will provide legal policy, oversight, advice, and direction throughout the Department. While the General Counsel of any agency has great responsibility and challenges, the first General Counsel at DHS faces unique challenges. The new agency 

is just organizing. Many of its programs and policies are not yet in place. This is 

particularly important in the context of the development of the new human resources system and the critical infrastructure protection program. 

As my colleagues know, I am an advocate for the rights and benefits of Federal 

employees, including whistleblowers. I would urge Mr. Whitley to ensure that whistleblowers have the same rights as other Federal employees and the right to bring 

concerns involving critical infrastructure information to Congress. Federal employees must have fair treatment and due process, including having final decisions made 

by a neutral decisionmaker, when appealing personnel decisions. 

Our second nominee is Penrose Albright, who, if confirmed, will be the Assistant 

Secretary of Homeland Security for Plans, Programs, and Budget within the Science 

and Technology Directorate. Mr. Albright will guide science and technology policy 

and oversee the execution of the Science and Technology Directorate budget. 

The Directorate plays an important role in setting the direction of this nation’s 

policies and spending on homeland security technologies. I look forward to working 

with Mr. Albright to ensure that there are sufficient resources available for homeland security technologies, particularly for defense against biological and nuclear attacks. 

I say this because of my concerns that the Administration’s policies on science and 

technology spending are not balanced. For example, the Administration has requested $9 billion for a national missile defense system, but we still lack funds to 

protect our citizens and our agricultural base from a bio- or agroterrorist attack. It 

will cost billions of dollars more to increase our capability to respond to an adequate 

level. 

Similarly, the Administration wants $21 million to explore advanced concepts for 

new nuclear weapons, even though we are not doing enough to protect ourselves 

from a terrorist attack using a dirty bomb. I have sponsored several GAO reports 

that examined U.S. and international efforts to control and secure radioactive sealed 

sources. However, the GAO has determined that we have done a poor job in tracing 

and controlling these sources. Several tens of millions of dollars would go a long way 

toward improving the control and security of radioactive sealed sources in this country and abroad. 

It is not Mr. Albright’s responsibility to set spending priorities for this Administration. However, he will be an important and influential voice in setting those priorities. 

Thank you again Madam Chairman for holding this hearing. I look forward to 

hearing from the nominees and discussing these important issues further.

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