[Senate Hearing 113-142]
[From the U.S. Government Printing Office]
S. Hrg. 113-142
NOMINATIONS OF HON. STEVAN E. BUNNELL AND SUZANNE E. SPAULDING
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
NOMINATIONS OF HON. STEVAN E. BUNNELL TO BE GENERAL COUNSEL, U.S.
DEPARTMENT OF HOMELAND SECURITY AND SUZANNE E. SPAULDING TO BE UNDER
SECRETARY FOR NATIONAL PROTECTION AND PROGRAMS, U.S. DEPARTMENT OF
HOMELAND SECURITY
__________
SEPTEMBER 18, 2013
Available via the World Wide Web: http://www.fdsys.gov/
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Committee on Homeland Security and Governmental Affairs
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
THOMAS R. CARPER, Delaware Chairman
CARL LEVIN, Michigan TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin KELLY AYOTTE, New Hampshire
HEIDI HEITKAMP, North Dakota JEFF CHIESA, New Jersey
Richard J. Kessler, Staff Director
John P. Kilvington, Deputy Staff Director
Deirdre G. Armstrong, Professional Staff Member
Mary Beth Schultz, Chief Counsel for Homeland Security
Stephen R. Vina, Deputy Chief Counsel for Homeland Security
Matthew R. Grote, Senior Professional Staff Member
John G. Collins, Professional Staff Member
Deanne B. Millison, Counsel
Keith B. Ashdown, Minority Staff Director
Christopher J. Barkley, Minority Deputy Staff Director
Daniel P. Lips, Minority Director of Homeland Security
Sarah Beth Groshart, Minority Counsel
Laura W. Kilbride, Chief Clerk
Lauren M. Corcoran, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Carper............................................... 1
Senator Coburn............................................... 3
Senator Johnson.............................................. 19
Senator Chiesa............................................... 22
Prepared statements:
Senator Carper............................................... 39
Senator Coburn............................................... 41
Senator Kaine................................................ 44
Senator Warner............................................... 45
WITNESSES
Wednesday, September 18, 2013
Hon. Mark R. Warner, a U.S. Senator from the State of Virginia... 6
Hon. Tim Kaine, a U.S. Senator from the State of Virginia........ 7
Kenneth L. Wainstein, Partner, Cadwalader Wickersham and Taft:
Testimony.................................................... 8
Prepared statement........................................... 46
Stevan E. Bunnell, to be General Counsel, U.S. Department of
Homeland Security
Testimony.................................................... 10
Prepared statement........................................... 50
Biographical and financial information....................... 54
Letter from the Office of Government Ethics.................. 71
Responses to pre-hearing questions........................... 74
Responses to post-hearing questions.......................... 98
Letters of support........................................... 241
Suzanne E. Spaulding to be Under Secretary (for National
Protection and Programs), U.S. Department of Homeland Security
Testimony.................................................... 12
Prepared statement........................................... 107
Biographical and financial information....................... 112
Letter from the Office of Government Ethics.................. 138
Responses to pre-hearing questions........................... 141
Responses to post-hearing questions.......................... 231
Letters of support........................................... 275
NOMINATIONS OF HON. STEVAN E. BUNNELL, AND SUZANNE E. SPAULDING
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WEDNESDAY, SEPTEMBER 18, 2013
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:32 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Thomas R.
Carper, presiding.
Present: Senators Carper, Coburn, Johnson, Ayotte, and
Chiesa.
OPENING STATEMENT OF CHAIRMAN CARPER
Chairman Carper. The hearing will come to order.
I am happy that we are here, and have our nominees here. We
welcome you. We got to meet some of your families--parents,
spouses, children--and it is just a joy to meet them and a joy
that they can be here to support both of you. I would say to
the parents that are here, thank you for infusing the kind of
values in this young woman, this young man, and inspiring them
and encouraging them to serve our country in a variety of
capacities. Usually, kids do not turn out well unless their
parents had something to do with it, so moms and dads sitting
in the audience, nice work. Nice work.
Before I turn to Dr. Coburn for any comments that he might
want to make, I want to just give a fairly brief opening
statement and we will get started.
But the other thing I want to do, we have a Bible study
that meets every Wednesday morning. I do not usually get to go
because it is pretty early, eight to nine. I am usually on a
train coming down. Senator Johnson is often there and a number
of our other colleagues. We were reminded this morning of the
folks who have literally laid down their lives in service to
our country and were tragically gunned down just a couple days
ago.
I just want to start this hearing today with a moment of
silence in their memory and thanks and gratitude to them and in
a sense of one, in unity with their families. Will you just do
that. [Moment of silence.]
Thank you.
Well, one of my hopes, one of my aspirations is that we
can, by working together, learn as much as possible from the
tragedy that occurred 2 days ago so that we can prevent or at
least reduce the likelihood of those kinds of tragedies
occurring again in the future. We know that the Department of
Homeland Security (DHS) is going to be doing its part to learn
from this incident, the sadness, and to do its best to ensure
we do not let it happen again.
Today, we consider the nominations of Stevan Bunnell,
President Obama's choice to serve as the General Counsel of the
Department of Homeland Security, and Suzanne Spaulding, the
President's nominee to be Under Secretary for the National
Protection and Programs Directorate (NPPD).
These positions, as we know, are extremely important to not
just the Department, I think, but to the security of our Nation
and its people. The National Protection and Programs
Directorate, for example, is responsible for securing our
Nation's critical infrastructure from cyber attacks. The
General Counsel serves as the Secretary's chief legal advisor
and ensures that the Department's activities are consistent,
one, with the Constitution, and two, with the laws that we pass
here in Congress.
I know that my colleagues and I on the Committee are very
pleased to see the President has put forth nominees to fill the
leadership vacancies in these critical components. The
Administration has made some recent progress, much needed,
toward filling a number of vacancies in the Department, and
from what I understand, the nominations are pending for four of
the eight Senate-confirmed vacancies at the Department of
Homeland Security. Of course, that still leaves four positions
without even a name put forward, including the Secretary and
Inspector General (IG). It is imperative that we get all these
vacancies filled as quickly as possible.
As I said before, the confirmation process is a shared
responsibility. The Administration has the responsibility to
give us the names of excellent people--I think the President
has today--people who are hard working, who are honorable,
capable people who can provide strong leadership, not just at
the Department of Homeland Security but across our government.
My colleagues and I here in the Senate have an obligation
of our own to exercise our advice and consent responsibilities
in a judicious but timely manner. If a nominee is qualified, we
need to move him or her quickly.
This morning, we have before us two people who I believe
are very well qualified. Stevan Bunnell has over 25 years of
experience practicing law, and for 17 of those years, he served
in positions of increasing responsibility as a prosecutor and
supervisor at the Department of Justice (DOJ), including as
Chief of the Fraud and Public Corruption Section and Chief of
the Criminal Division at the U.S. Attorney's Office in
Washington, DC.
In addition to working with a variety of law enforcement
agencies on complex criminal cases, it is my understanding that
Mr. Bunnell has also worked closely on national security issues
with someone we are all very familiar with, and that is Michael
Chertoff, then Assistant Attorney General in the Department of
Justice, later Secretary for the Department of Homeland
Security. Later, Mr. Bunnell left the government for private
practice. He is currently serving as the Managing Partner of
the law firm O'Melveny and Myers in Washington, DC.
Sitting beside him, to his left, to our right, is Suzanne
Spaulding. She comes to us with a rich background in both
government service and work in the private sector. She is
currently serving as the Acting Under Secretary for the
National Protection and Programs Directorate. Before that, she
served as Deputy Under Secretary in the Directorate.
Ms. Spaulding's distinguished career has also included
positions as the General Counsel for the Senate Select
Committee on Intelligence, Staff Director of the House
Permanent Select Committee on Intelligence, and as an attorney
for the Central Intelligence Agency (CIA). She has also had
several years of experience in private practice.
Sitting in the seat that Mr. Bunnell is sitting was Jane
Harman, who sat in that seat last week on the anniversary of
September 11, 2001, and had wonderful things to say about you,
Suzanne, and your service.
In her current post at the Department of Homeland Security,
Ms. Spaulding has brought a direct and engaged management
approach to some of the Department's most important missions.
Over the course of their respective careers, both of our
nominees have shown themselves to be natural leaders. In
addition, both have become widely respected by their peers for
their intellect, for their professionalism, and for their
integrity. I believe these are the types of qualities we want
to see--need to see--in our government leaders.
I would like to ask for unanimous consent to enter into the
record all the letters of support\1\ we received that speak to
the wonderful attributes of our nominees.
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\1\ Letters of support appear in the Appendix on page 240.
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To conclude, I just want to thank both of our nominees for
their willingness to continue to serve--our Nation in these
important responsibilities, important posts, and also again to
thank their families for raising them and for their willingness
to share them with all of us. We know that public service is
not always easy. It is rarely easy. My dad used to say the
hardest things to do are the things most worth doing, so this
is hard work and we are grateful that you are willing to do it
and we thank your families again for their commitment to our
Nation and for being here with us all today.
With that, I turn to my friend, Dr. Coburn, for any
comments he might want to add, and then we are going to
recognize some of our introducers of these folks. Please, Tom.
OPENING STATEMENT OF SENATOR COBURN
Senator Coburn. Thank you. I am going to go out of my
normal realm and actually read my opening statement today
because it covers some areas that I want to make sure are
emphasized.
First of all, I want to welcome you. I think we have two
very well qualified candidates, and I talked with the Acting
Secretary yesterday and assured him I would do everything I
could to move these nominations to the Senate floor.
Leadership vacancies are the biggest challenge right now
facing the Department of Homeland Security. This Committee held
a hearing last week looking at the lessons learned and
challenges facing the Department. We heard from former
Secretary Ridge and other former senior officials about the
many and multiple challenges that DHS faced, from questions
about congressional oversight to mission creep and successful
integration of the Department and its components.
A clear take-away from that hearing was that it is going to
require real leadership to address these problems and create a
well-functioning Department for the next 10 years. And, of
course, the biggest problem there is the vacancies, the 15 key
vacancies, eight of which are Senate approved, seven of which
are not. If DHS is going to address its many challenges and
become a well functioning Department with great morale, it will
require strong and effective leadership atop the Department and
at each component, each office, and each directorate.
I am hopeful that our two nominees under consideration
today will earn the Committee's support and be confirmed. Each
of you has an impressive resume and experience and knowledge
that make you well qualified for the positions to which you
have been nominated.
To Ms. Spaulding, I have really appreciated our meetings,
both at DHS and in my office, and the candid conversations that
we have had about the challenges.
Mr. Bunnell, I have reviewed your background and your
questionnaires, and I understand that you are more than well
qualified for the position to which you have been nominated.
But by earning the trust and the support of our Committee,
we ask for your word and assurance that we will be partners in
working together to fix the Department. Conducting oversight is
our job, and asking questions on behalf of the American people
is one of our Committee's main responsibilities.
Unfortunately, in my experience to date, over the last 8
years, 8\1/2\ years, DHS too often does not cooperate with our
oversight requests and many times has undermined our ability
and what could be a collaborative process to identify and fix
problems.
For example, when the Permanent Subcommittee on
Investigations was doing our investigation into the Fusion
Center program, DHS seemed to use every available tool that
they could, including weak legal arguments, to drag out the
process and undermine the oversight process. The result was
significant in our investigation, which ultimately found some
significant problems. And that was a lose-lose for DHS, the
Congress, and, frankly, the American people who are paying for
the programs. Instead of spending 2 years fixing the problem
and figuring out how DHS's intelligence program could yield
better value for the American taxpayer, we were stuck in absurd
legal debates over document production.
In other cases, I have asked basic questions and did not
receive straight answers from the Department. For example,
during the immigration reform debate, I asked the Secretary
whether or not she could share with me her border sector
specific security plan and provide a congressionally mandated
border security status report. The initial report was due in
Congress in February 2012, which we still do not have. And we
still do not have a sector specific border security plan. And
the information I got was not helpful at all. So, our Committee
in the Senate had to vote on an immigration bill without the
full knowledge and full input of the people who have most of
the knowledge.
Today, I ask you to be partners with our Committee and to
pledge to be cooperative with our Committee and the Congress in
the oversight process.
In the conversations I have had personally with Ms.
Spaulding, I have shared we are not in ``gotcha'' mode. The
problems are too great to play politics with what is going on
at Homeland Security.
And, Mr. Bunnell, as General Counsel, you have the
responsibility of overseeing how the Department and its
components will respond to our oversight requests. I ask you to
commit today to being supportive and cooperative and
transparent with those requests.
The NPPD is a directorate with a troubled track record. We
have had those discussions. The Committee and Congress have had
serious questions about the key initiatives of this
directorate, such as the Chemical Facility Anti-Terrorism
Standards (CFATS) program for chemical facility security, and
last night, I got an update. We have 25 of some 5,000 now
approved. We have not had one onsite visit. We have 25
approved. And none of those are really approved because they
have not been checked against the security lists that we
maintain. So, even though I know we have a good person in there
now, that is a significant problem.
The other thing that came to my mind was what I have heard
in terms of pipeline and what the Transportation Security
Administration (TSA) is doing in terms of withdrawing on
pipelines, which are a vulnerable area for our country. So, I
will talk with you specifically about those things and how we
address them.
We also have questions about some key issues that you will
be responsible for moving forward on which we will discuss in
the questions and answers, and I will not go into those now.
I will just close my opening statement by thanking you both
for your willingness to serve. I look forward to your testimony
and I look forward to a great relationship of collaboratively
working to solve the problems.
Tom and I have a great relationship. We can move a lot of
things to help you, and we can move a lot of things through
this Committee that will help streamline things and help you
actually do your job. But we cannot do it unless you share
information with us. So, for example, on the Integrated Product
and Process Development (IPPD), you have given us some
information, but the people that are cooperating with you in
the private sector, it is not classified information but yet we
cannot get a list of those people so we can talk with them
about what their assessment is of what you are doing. So, doing
good oversight means we actually do good oversight. So I will
be visiting with you.
I thank you again for your service and look forward to your
testimony.
Chairman Carper. Dr. Coburn, thanks very much.
I want to welcome Senator Johnson and Senator Ayotte. Thank
you for being here again. You are very faithful here. I am
grateful for that.
Senator Warner, good morning. Senator Kaine, nice to see
you, third time this morning. I am going to call on you, if you
will, to introduce one of our nominees, and then I will call on
Mr. Wainstein to handle the honors for Stevan Bunnell. Mark
Warner, welcome. How are you?
OPENING STATEMENT OF SENATOR WARNER
Senator Warner. Fine, Mr. Chairman. I thank you and Ranking
Member Coburn, Members of the Committee.
Let me make one quick editorial comment, agreeing with
Senator Coburn. Not just at DHS but across the Administration,
there are way too many positions unfilled at this point, and as
a former Governor, the idea that you would be this far into
your term and not having your whole legislative team filled
out, or your management team, is something that needs to be
addressed.
You get an opportunity in this job to come out and
introduce a number of folks, oftentimes from your State. It is
rare that you get to come by and introduce and present somebody
who has been a friend of over 30 years. Suzanne Spaulding and
her husband, Gary, and their kids, Max and Charlotte, are dear
personal friends of Lisa and I, social friends, business
friends, political friends, and I come here unreservedly
endorsing Suzanne Spaulding to this Committee for her, I think,
very appropriate nomination as Under Secretary for National
Protection and Programs Directorate at DHS.
Suzanne's parents both served in the military. Her brother,
Doug, is here. This is a family who has been all about public
service throughout her whole career. She is somebody, as I have
tried to learn issues around national security and
intelligence, that I have turned to in the Senate, but she is
also, when I was Governor, someone I appointed to the
Commonwealth Panel, where she advised me on issues that are at
the State level very similar to what she will be working with
this Committee on at the national level.
She also, as I think the Chairman pointed out, has a broad
bipartisan background. She worked for a long time for former
Chairman and Senator Arlen Specter, who was a tough taskmaster
on issues. She also worked for previous Virginia Governor Jim
Gilmore on his Committee on Terrorism. Clearly, this kind of
background, bipartisan background, her service with the CIA,
her service in the private sector, I think all recommend her to
the Committee.
As, I think, Senator Coburn has indicated in his comments,
I think you will find someone in Suzanne that will be that kind
of active, engaged; recognizing the very important role that
Congress plays, having had a great deal of her career not being
on an Administration side but sitting behind members such as
yourselves, trying to get out of previous Administrations the
kind of information that I think you and we appropriately
should and deserve to receive as members of oversight panels.
Clearly, in the cyberspace, there is enormous work to be
done. I again want to commend the Chair and the Ranking Member
for moving forward on this issue. I think there is a new sense
that this is an issue area that we cannot continue to punt on.
We have a lot of overlapping jurisdiction, but under your
leadership and the other Committees, a couple of them which I
participate on, I think we are going to get something done.
Suzanne's role at DHS in coordinating those activities, I
cannot think of an area that is of more importance.
So, from a professional endorsement, from a personal
endorsement, from a family who has been all about service, I
unreservedly recommend Suzanne Spaulding for this position and
I hope the Committee will act on her nomination in a judicious
and speedy manner.
Thank you, Mr. Chairman.
Chairman Carper. Thank you. That is a great introduction
and recommendation. We value it. Thank you very much. I know
you have a lot on your plate today, so feel free to depart if
you----
Senator Warner. I want to make sure my dear colleague and
the junior Senator does not mess up his recommendation, as
well, so I will listen to that first and then I will get out of
the way. [Laughter.]
Chairman Carper. I was watching his lips move while you
spoke, so---- [Laughter.]
You guys have been doing this for a while. I do not think
he will mess up.
Senator Kaine. Governor Kaine. Welcome.
OPENING STATEMENT OF SENATOR KAINE
Senator Kaine. Thank you, Mr. Chairman and Ranking Member
Coburn and Committee Members. It is a treat.
This is a real example of the best and brightest, being
here for Suzanne, and I think we often have hearings where it
is about the best and brightest, but I do not remember doing
one where I thought it was the best and brightest who was so
particularly suited for this particular position.
To begin, as my friend, Mark, mentioned, her family has a
great family career in public service, both in civilian public
service and also service in the military, her parents, her
brother, her sister, and Suzanne. We may not do all we need to
do to honor the service of those who serve the country in both
military and civilian capacity. We learned to our horror 2 days
ago that their sacrifices, including sacrifices that you do not
expect to happen, but this family has sacrificed for public
service in some really notable ways and I begin there.
And, second, Mark talked a bit about her background.
Suzanne has worked for 25 years in this field of trying to
advocate for the Nation's security in the private sector and in
the public sector, in the public sector at the Federal level
and at the State level. At the Federal level, in the executive
and in the legislative. In the legislative for Democrats and
Republicans and for the Senate and House. She has touched this
issue from virtually every angle and made it her life's work
and her life's passion.
And in serving in this acting capacity, she has earned the
confidence of this Administration and she has also earned the
confidence of two previous DHS Secretaries, Secretaries
Chertoff and Ridge, who have strongly weighed in on her behalf,
and I think all that speaks very well of her nomination and I
urge her to be considered favorably and promptly.
Chairman Carper. I want to thank you both. If you need to
go, please do. We value your presence. We value your kind
words, generous words about Ms. Spaulding and her nomination.
I am going to turn now, if I could, to Ken Wainstein. I am
going to ask you to turn on your microphone so that we will be
able to hear you. But I understand that you are a partner at
the law firm of--first of all, I understand you are a friend,
maybe a longtime friend, of a former colleague of our nominee,
Stevan Bunnell, and I understand you are a partner at the law
firm of--I want to say it is Cadwalader--how do you pronounce
it?
Mr. Wainstein. Cadwalader Wickersham and Taft.
Chairman Carper. Cadwalader Wickersham and Taft. At least I
got the ``Taft'' right. That is good.
Previously, he served as an Assistant to the President for
Homeland Security and Counterterrorism, for President George W.
Bush. Mr. Wainstein also served as the first Assistant Attorney
General for National Security at the Department of Justice and
as the United States Attorney in Washington, DC. That is a
great resume yourself.
We are delighted that you are here to introduce your
friend, your former colleague, Stevan Bunnell. Please proceed.
OPENING STATEMENT OF MR. WAINSTEIN
Mr. Wainstein. Thank you, Chairman Carper, Ranking Member
Coburn, Members of the Committee. It is an honor to appear
before the Committee today and to introduce my friend, Steve
Bunnell.
As the Chairman just pointed out, I served for over 20
years as a lawyer in Federal service in a variety of different
positions, and in all of those positions, I had the opportunity
and the privilege to work closely with Steve Bunnell.
But before providing my personal perspective on Steve, I
would like to take a moment to just go through his resume and
his objective qualifications for this job.
A Phi Beta Kappa graduate from Yale University and then
Stanford Law School, a prestigious clerkship with a highly
respected D.C. Circuit Court judge, 5 years of stellar service
as one of the standout line prosecutors in the U.S. Attorney's
Office in D.C., public corruption prosecutor, counsel to
Assistant Attorneys General for both the Clinton and the Bush
Administrations, Chief of the whole Criminal Division at the
U.S. Attorney's Office, and then ultimately managing partner at
O'Melveny.
So, those are Steve's pretty incredible credentials on
paper. Let me now explain the reasons why those credentials and
Steve's character add up to what I think is the ideal nominee
for the DHS General Counsel position.
First and foremost, Steve is, quite simply, an excellent
lawyer, one of the very best I have ever worked with. His
analytical skills, his judgment are exceptional and they have
been honed through years of wrestling with tough issues of law
and fairness as a line prosecutor and also tough issues of
national security policy when he served as a high-level Justice
Department official. He has always been the first person I have
sought out whenever I have needed sound and honest advice about
a tough situation.
Besides being a tremendous legal talent, Steve has
exceptional leadership skills, skills that, as Senator Coburn
pointed out, are absolutely critical in a Department like DHS,
but particularly important for a General Counsel who is
responsible for managing an extended group of DHS lawyers
across a wide spectrum of agencies and also responsible for
representing the Department in the interagency process with
strength and credibility.
At every step of his career, Steve has shown himself to be
a natural leader who sets an example for the rest of his
colleagues.
He has also proven himself a true government professional
in the best sense of the word. In other words, he has shown
himself to be a completely apolitical straight shooter, someone
who always subordinates political interests to the mission and
to the needs of the agency that he serves and his country, and
that is a reputation that I think is well reflected in the
letters of support that he has received from all parts of the
political spectrum.
Last and most importantly, Steve is a man of honor. He is a
man who has got the personal character one would want in such
an important and sensitive position. He is universally, and I
mean that, universally respected and admired by all those who
have ever worked with him, from Attorneys General he has worked
with, to Deputy Attorneys General of both parties, to the
counsel and associates at O'Melveny who have flourished under
his inclusive management style.
He has earned that admiration, in part, by just good old
smarts and hard work, but also because he has always conducted
himself in a way that exemplifies the qualities of decency,
integrity, and fidelity to public service. His willingness to
step out of a highly successful law firm practice right now and
into DHS is just the most recent example of his selflessness
and sense of duty.
In sum, I cannot think of a better person to assume this
important position and I am confident that Steve will serve
with honor and with distinction and that the people of our
country will be more secure, both in their safety and in their
civil liberties, thanks to Steve's service as General Counsel.
I, therefore, give him my unqualified recommendation and urge
the Committee to endorse him unanimously.
Thank you, Mr. Chairman.
Chairman Carper. Thanks for those great words. I think we
already had high regard for him before you spoke, and watching
you speak, I was watching his parents and their heads were
going up and nodding ``yes'' in agreement. I know they are
proud.
Should we go ahead and allow Mr. Bunnell and Ms. Spaulding
to actually give their statement? We do not do that, do we? Do
we not swear them in? My script did not look right, so we are
going to do it this way. We are going to swear you in.
I ask you both to stand. I will put you under oath, and
then we are going to ask you to proceed with your statement.
Thanks. Would you rise and raise your right hand, please, and I
would ask you this question.
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. Bunnell. I do.
Ms. Spaulding. I do.
Chairman Carper. All right. Please be seated.
Senator Coburn. May I make a clarification to my opening
statement? I said six. It was 6 percent on the CFATS, not six.
Thank you.
Chairman Carper. Good. All right, Mr. Bunnell. You may
proceed with your statement and please introduce your family
and friends. We have had a chance to meet them in the anteroom,
but please feel free to introduce them for us, too, and then we
will turn to Ms. Spaulding. Thank you. Please proceed.
TESTIMONY OF STEVAN E. BUNNELL,\1\ NOMINATED TO BE GENERAL
COUNSEL, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Bunnell. Thank you, Mr. Chairman, Ranking Member
Coburn, Members of the Committee.
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\1\ The prepared statement of Mr. Bunnell appears in the Appendix
on page 49.
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Let me also thank my good friend, Ken Wainstein, for his
very kind introduction today and his support throughout the
confirmation process.
It is an honor for me to be here today as the nominee to be
General Counsel of the Department of Homeland Security. I thank
the President for his confidence in me and I thank the
Committee for moving forward judiciously and expeditiously on
this nomination, and Suzanne's nomination, as well.
I would also like to thank and recognize the members of my
family who are here today, my wonderful wife, Laura, who has
always been so supportive of my passion for public service
despite the many sacrifices it imposes on her and her own
successful law practice. I do not know how she does it all, but
I do know that she is truly my better half.
We have two sons, Philip, who is in college in California
and could not be here today, and Daniel, who is here and is a
senior in high school. Philip and Daniel are not only my pride
and joy, they are also a reminder to me that the work being
done on homeland security today is not just about keeping us
safe in the present, it is about building a foundation for a
safe, secure, and resilient future for the next generation and
making sure that future generations enjoy not only physical
security, but also the fundamental rights and freedoms that we
all hold dear.
I am grateful that my parents, Fred and Alice Bunnell, are
here today. Both my parents are retired teachers. They
instilled in me and my sisters a strong ethic of service, of
giving back. They continue to be an inspiration to me.
I would also like to thank my two sisters, Becky, who works
for the Centers for Disease Control (CDC) in Atlanta and is
here today, and my other sister, Ann, who is a social worker in
Chicago. I owe them a special thanks, I think, for helping me,
as only siblings can, to learn at a young age how to share
toys, share chores, and work together with people I do not
command or control. [Laughter.]
Those sibling experiences provided a foundation for skills
that have served me well in life so far and are skills I am
sure I will continue to rely on if I am lucky enough to be
confirmed.
Finally, I would like to thank my wife's parents, Rod and
Carla Hills, for being here today and for being role models,
not just for me, but for anyone who aspires to serve our
country with distinction.
Chairman Carper. Did your mother-in-law not have a job in
one of those Bush Administrations a while back?
Mr. Bunnell. She has had so many distinguished jobs, sir, I
would not be able to list them all----
Chairman Carper. All right. It is nice to see all your
family, but I especially would recognize her and her service.
Thank you.
Mr. Bunnell Thank you. Thank you, Mr. Chairman. I think
they serve as a model for anyone who aspires to serve at the
highest levels of government with honor and distinction.
I am excited about the possibility of returning to public
service. I believe my prior experience in government and my
more recent experience managing lawyers in a leading national
law firm have prepared me well for the diverse challenges I
would face if I am fortunate enough to be confirmed.
With respect to the management of lawyers, my experience
includes serving as Chief of the Criminal Division in the U.S.
Attorney's Office in D.C., which is the largest U.S. Attorney's
Office in the country, and now practicing, managing a large
office of a major national law firm.
The General Counsel of DHS has a number of critical roles
and challenging responsibilities. These include providing legal
advice to the Secretary and the senior leadership of the
Department, ensuring that the Department's policies and
operations comply with constitutional, statutory, and other
legal requirements, including the laws that safeguard the
fundamental rights and liberties of the American people, and
leading and managing over 1,800 lawyers and doing so in a way
that promotes morale, high performance, and efficiency. I think
those three things go well together.
If I am confirmed, I would be honored to have an
opportunity to work with and in support of the tens of
thousands of dedicated men and women at DHS who work day in and
day out to carry out that vital mission.
One of the things I loved about being an Assistant U.S.
Attorney, and I mentioned this to Senator Chiesa when we met
last week, I love standing up in court and being able to say,
Steve Bunnell on behalf of the United States. I loved having
the United States as a client. In fact, I loved it so much that
after I left DOJ and when I first went to court as a defense
attorney, I stood up and introduced myself on the record as
Steve Bunnell on behalf of the United States. The judge was
nice about it, but I was actually lucky, I think, not to be
fired by my client. [Laughter.]
If I am fortunate enough to be confirmed, one of the things
that will mean a lot to me is once again being able to say,
accurately, that I am a lawyer for the United States. There is
no better client a lawyer can have.
Mr. Chairman, thank you again for this opportunity to
appear before you and I would be pleased to answer any
questions that you or the Committee has.
Chairman Carper. Thank you. Thank you so much.
Ms. Spaulding, please. Please introduce your family, if you
will.
Ms. Spaulding. Thank you, Chairman.
Chairman Carper. And make sure your microphone is on.
TESTIMONY OF SUZANNE E. SPAULDING,\1\ NOMINATED TO BE UNDER
SECRETARY (FOR NATIONAL PROTECTION AND PROGRAMS), U.S.
DEPARTMENT OF HOMELAND SECURITY
Ms. Spaulding. Thank you. Thank you, Chairman Carper,
Ranking Member Coburn, Members of the Committee, and thank you
for your gracious welcome of my family.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Spaulding appears in the Appendix
on page 106.
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I am very pleased that they could be here today, my
husband, Gary Slaiman; my daughter, Charlotte; my son, Max; one
of my seven siblings, Doug Spaulding, who is here; my nephew,
Joseph Paradis and his son, Cory Paradis, who is himself an
inspiration and a role model with regard to the tremendously
positive and upbeat attitude with which he greets each day. I
am very grateful to my family for their wonderful support and
my children, in particular, who put up with never having a
standard routine when they were growing up with two parents
working, and so it is really a pleasure to have them here and
thank you for welcoming them.
I am honored to be here today with you as the President's
nominee to be the Under Secretary for National Protection and
Programs Directorate at the Department of Homeland Security.
DHS and NPPD, in particular, is at the forefront of the
essential mission of strengthening the security and the
resilience of our Nation's critical infrastructure, from water
to electricity to communications and the information highway,
and even Federal facilities, such as those that distribute
Social Security benefits to Americans all across the country.
We focus our efforts on 16 key critical sectors of our
economy whose vital services and functions Americans rely upon
in their daily lives. Each day, dedicated men and women at NPPD
undertake this mission across the country by safeguarding
Federal facilities, helping critical infrastructure owners and
operators make wise risk management decisions, protecting
civilian government networks, and assisting businesses facing
cybersecurity threats, and providing leadership on the use of
identity management and biometrics to advance our mission.
As Acting Under Secretary of NPPD, and before that as
Deputy Under Secretary, I have been privileged to work with
outstanding Homeland Security officials inside and outside of
government and at both ends of Pennsylvania Avenue who share
our commitment to DHS's mission of safeguarding the Nation. We
understand that effective homeland security can only be
achieved in close collaboration with our partners across the
Federal Government, in State, local, Tribal, and Territorial
Governments, and in the private sector. I have worked hard to
increase the effectiveness of our engagement with these
stakeholders, particularly in the private sector, and pledge to
continue these efforts, if confirmed.
I also understand that maintaining these vital
relationships with the private sector and maintaining the trust
of the American public requires a strong emphasis on
transparency and privacy protection. Working with our Senior
Privacy Officer at NPPD, we endeavor to ensure that everything
we do takes into account the privacy and civil liberties of all
Americans.
Another of my priorities since joining DHS has been
improving management processes and enhancing efficiencies by
better integrating activities across NPPD. These efforts
include co-location of our field forces, leveraging experience
across our components to better understand and mitigate
consequences, and integrating our Operations Centers, the
National Cybersecurity Coordination Integration Center (NCCIC)
and our National Infrastructure Coordinating Center (NICC).
These Operations Centers are good examples of trusted
collaboration across government and the private sector.
NPPD cybersecurity innovation has enabled subject matter
experts, law enforcement and intelligence professionals, and
the private sector representatives to work together on our
operations floor to rapidly piece together unfolding threats,
get mitigation measures to those who can take action, and
strengthening our resilience across critical infrastructures
with human knowledge and machine speed. Continuing to build
DHS's cyber capabilities will be a top priority if I am
confirmed as Under Secretary.
Another area of particular focus has been and will continue
to be the Chemical Facility Anti-Terrorism Standards program,
which has steadily improved since I joined the Department as
Deputy Under Secretary. This important program had suffered
from serious management concerns, but over the last 2 years, we
implemented significant programmatic and management reforms,
and I think it is fair to say that the program has turned a
corner. Having said that, there is much to be done and I pledge
to continue to place a high priority on making CFATS and
effective and efficient program.
None of these mission objectives can be achieved without a
capable and committed workforce. I will continue to make it my
highest priority to empower the dedicated men and women of NPPD
with a clear sense of mission and the tools they need to
advance that mission, including strong leadership and capable
management.
In addition, we must continue to recruit the best and the
brightest to build our capabilities to meet the challenges we
face.
Mr. Chairman, if I may, before I close, I would like to
echo your condolences for the loved ones of the individuals
killed and injured at the shootings at the U.S. Navy Yard on
Monday. This tragedy reinforces our commitment at DHS to be
vigilant and determined as we continue to work to safeguard
Americans and their ways of life.
Thank you very much for the privilege of being here with
you today and I look forward to your questions.
Chairman Carper. Thank you both for excellent statements.
We have been joined by Senator Chiesa. He slipped in. I did
not see him. He is our Senator from New Jersey. He is going to
be with us for at least another month, and we hope longer. He
is just a joy to work with and a real credit to his State, so I
am always happy to be with him.
Dr. Coburn, our staffs have been talking for a couple of
days now, but he and I spoke today about our concerns about the
quality of the background checks that are being performed with
respect to employees of contractors. We have seen with Mr.
Snowden, now we have seen most tragically in the last several
days situations where contractors had background checks
performed, ended up doing work, and creating, as it turns out,
in one case a danger to our country, the security of our
country at a national level, and then most recently just a real
danger to the people who work at the Navy Yard here.
I want to start with you, Ms. Spaulding. Any thoughts you
might share with us? Dr. Coburn and I agreed to hold hearings
soon to actually look at this process to see how we can do
better. And when you have someone who is, in this case, the
deceased, the shooter who is deceased who had the kind of
troubled past that he had, discharged from the Navy, general
discharge, not good, and the kind of arrest record that he had,
it is just very troubling.
Any thoughts you have, at least to start off with this?
Just give us some thoughts that you have with this issue. We
are going to have a full hearing about it, but I would like to
start off with that.
Ms. Spaulding. Thank you, Chairman.
Chairman Carper. If you would, go ahead. There you go.
Ms. Spaulding. Thank you, Chairman. This is a very serious
concern and I understand----
Chairman Carper. But before you do, I will ask you three
questions. You answered these before, but I am going to ask you
again, and then I will recognize you again for your testimony.
This is for both of you.
Is there anything you are aware of in your background that
might present a conflict of interest with the duties of the
office to which you have been nominated?
Ms. Spaulding. No.
Mr. Bunnell. No.
Chairman Carper. The record should show that both have said
no.
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?
Ms. Spaulding. No.
Mr. Bunnell. No.
Chairman Carper. All right. 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?
Ms. Spaulding. Yes, I do.
Mr. Bunnell. I do, too.
Chairman Carper. OK. Editorial comment I would make. There
is a recently released study that indicates again that this
Department falls under the purview and oversight of about, I do
not know, 70 or 80 different Committees and Subcommittees,
which is way too much. We heard time and again, did we not, in
the hearing from Secretary Ridge and others that we have to do
something about that. So, I realize you just agreed to appear
before any Committee or Subcommittee of Congress or reasonably
respond. We are going to try to make sure that number is
somewhat reduced so you can actually do your job.
OK. Back to the question at hand, if you will, background
checks.
Ms. Spaulding. Yes. Thank you, Chairman.
Chairman Carper. Contractors.
Ms. Spaulding. I understand that the President has asked
for an interagency review of that process and our Office of
Security at the Department of Homeland Security who is
responsible for the clearances for our workforce, I am sure we
will be a part of that process. And the Federal Protective
Service, which is responsible, again, for the security of our
Federal facilities all across the country, will be looking at
their processes very carefully in the wake of Monday's events,
as well.
Chairman Carper. All right. Mr. Bunnell, any thoughts,
please.
Mr. Bunnell. I do not purport to be an expert on these
issues at this point, but I would add that this is an issue
that is not limited to DHS. Background checks, obviously, are
an issue across the government. I believe the Office of
Personnel Management (OPM) plays a major role in managing that,
and so I think it is an area where--I am sure the Committee
will explore the need for greater consistency and the quality
standards across the board.
Chairman Carper. My colleagues have heard me say more times
than they want to remember, one of my guiding principles is do
everything well, try to do everything well. I like to say, if
everything I do, I know I can do better. I think that is true
of all of us. I think that is true of all Federal programs. And
this is one area where we have to do better. There are a lot of
people depending on us, counting on us.
Mr. Bunnell, if I could, as General Counsel of the
Department, if confirmed, your office is going to have a wide
array of challenges competing for your attention. Included are
threats to critical infrastructure, cyber attacks, airport
security, responding to disasters, border security, just to
name a few. You will also have the considerable challenge of
managing 1,700 lawyers dispersed among the many components of
still a fairly new, fairly young and very large Department.
I would like for you to talk with us a little bit today
about your past roles at the U.S. Attorney's Office in
Washington, the Department of Justice, and also in private
practice, just explain for us, if you will, how those different
assignments and different posts have helped to prepare you for
such a broad mission, and particularly an office with so many
attorneys. That is a lot of cats to herd.
Mr. Bunnell. That is a lot of cats to herd, and lawyers are
notoriously catty, or squirrelly, depending on which animal you
want to pick.
Chairman Carper. I have never heard that said about
Senators. [Laughter.]
Mr. Bunnell. You would not hear it from me. [Laughter.]
Senator Carper. Many of them are lawyers. [Laughter.]
Mr. Bunnell. As you pointed out, Mr. Chairman, I have had
experience in leadership and management roles in different
settings and different size sort of groups and organizations.
One of the take-aways from those experiences is the kind of
basic principles of good leadership and management are
applicable in most settings.
So, I think focusing on the mission and being clear in
terms of what the purpose of somebody's work is and the values
that come with that. So there are certain things which are not
negotiable. Integrity, honesty, dedication, you have to have a
certain amount of that. That is not negotiable.
And then you have to be clear as a leader in terms of where
we are going, and you start with the end and you reverse
engineer back. And that, to me, I think, that kind of big
picture works with everybody and works in all settings.
And communicating and generating a sense of purpose amongst
the people that you are overseeing and leading, making them
feel that they are building a cathedral. They are not just
cutting stone. And finding ways to communicate that, even with
respect to seemingly routine things, because the way things get
accomplished is by everybody pulling an oar and then working
together as a team. That ethic, that kind of mindset is
critical.
My personal approach is very people-focused. When I was
Chief of the Fraud and Public Corruption Section in D.C., I
came into that job, it was viewed as a place that needed to be
sort of energized and more active in terms of outreach. And I
sat down and met individually with every person that I was
supervising. Actually, I had a little sheet and I went through
with them and I asked them, what it is about your job that you
find rewarding? What are the things you feel you are good at?
Where are the areas that you want to develop as a lawyer? What
are the things that are holding you back? What are the
frustrations? What can I do as your manager to make you more
effective? And that is not only good for morale. You get ideas
on how to improve things and you act on it.
And I think I would take that same approach. Obviously, it
will be at a higher altitude in a much larger setting, but I
would do that with the people that I am going to interact with
directly and I would also look for managers and leaders in the
sort of chain who understand that and I would make sure they
get the training and the guidance to be effective.
Chairman Carper. All right. Thank you.
A followup question, if I could, and then I am going to
yield to Dr. Coburn. Talk to us just a little bit about your
goals. You already mentioned this a little bit, but I want to
ask you to come back and followup on it a little bit more. Just
talk to us about your goals as General Counsel and just mention
more fully some of the things you hope to accomplish in this
role in the Department. Just complete the picture, if you will.
Mr. Bunnell. Sure. Well, I mean, obviously, one important
goal is to be an effective and valued advisor to the Secretary
and the senior leadership, and that is obviously a top priority
of the role. Making sure that the Department and its operations
comply with the Constitution and the rule of law, that is
fundamental to the role of the General Counsel. That has got to
be a top priority.
With respect to substantive issues, that is going to be
driven by the missions of the organization. I mean, the legal
function is in service of the larger missions. So I want to
understand how best the legal function can serve those
missions.
And echoing something that Dr. Coburn said in his opening
statement, I mean, a part of being a public servant is being
accountable to the public and I embrace that. I do not view
that as a distraction. I view that as inherent in the role. And
if you are in the public service business and you do not want
to be held accountable to the people, there is a problem there.
So, one of my goals is to make sure that mindset is
instilled into our work and our culture as much as possible
within the Office of General Counsel (OGC), and to the extent I
can influence larger parts of the Department, because I really
think that is fundamental to good, open, transparent
government. It is the way the American people get confidence in
what we do.
Chairman Carper. All right. Thank you for those responses.
Dr. Coburn.
Senator Coburn. Thank you.
Are both of you aware of the Japanese-initiated management
style called Continuous Process Improvement? Have you ever
heard of that?
Mr. Bunnell. I cannot say I have, sir.
Senator Coburn. That is how Toyota became the largest auto
business in the world, and I will just share with you a short
little vignette. I have been trying to put this into the
Department of Defense (DOD) for years, and one segment of the
Air Force yesterday that handles about $45 billion a year in
expenditures has now instituted that and some things that have
come about through that, because the real problem in DHS is
morale and morale is a function of management. Actually, it is
a sign of poor management. When you have low morale, you have
bad management.
This division in the Air Force cut $1.6 billion beyond the
sequester this year and is the happiest group in the Defense
Department around the country. And the reason they did it is
they used smart management techniques.
So, one of the things I would like to hear from each of
you, go and find out about this management style that Mr.
Toyoda actually implemented, and every major business 25 years
ago in this country started doing, and we have very little of
it in the Federal Government, but what it does is it creates
buy-in from the lowest person on the chain, much as you
described. But it is a technique that actually streamlines your
organization.
The other benefit, as we all know, is the Pentagon is the
only agency that cannot audit itself, and this segment of the
Air Force is now auditable, because you cannot manage what you
cannot measure.
What I would like is a commitment that you would at least
look at that in terms of incorporating it into both managing
1,700 lawyers, but also the thousands of people that are under
you, Ms. Spaulding, that are going to require a leadership
change. What it does is it does exactly what Steve described in
terms of getting buy-in and building a team. So I would love to
see you do that.
I am going to spend a few minutes with you, Steve, if I
can, just going through a list of questions, and if I do not
finish them, I will submit them for the record.
One area in particular is the EB-5 program at Regional
Centers are business entities that receive $500,000
contributions from each EB-5 investor, visa applicant, pool
them and make investments in businesses that are supposed to
create jobs. They are allowing somebody the ability to come in.
In a briefing to my staff, the United States Citizenship
and Immigration Services (USCIS) officials told us that they
could not shut down a Regional Center based on fraud or
national security concerns, that they did not have the ability
to do that. That is, even if they were concerned that the
Regional Center was committing crimes or helping spies or
terrorists get into the country, they could not shut it down.
In August, USCIS leadership told us that they could not
shut down an EB-5 Regional Center based on fraud or national
security concerns. That is their testimony to my staff.
In your questionnaire, you stated that USCIS had the
authority to deny a regional application when a Regional Center
applicant fails to demonstrated that the Regional Center will
promote economic growth. Are there any other circumstances
under which you believe USCIS has the authority to deny a
Regional Center application or investor application?
Mr. Bunnell. Thank you, Dr. Coburn, for that question. I
have a general understanding of that program. I know it is a
complicated program. It had various iterations over a period
of, I believe, about 20 years, and I think it is definitely a
program that could benefit from examination.
My understanding of exactly what the legal authorities are
to act with respect to fraud and national security risks, which
I can certainly see how there could be some, I do not have a
specific view at this point. I just have not had an opportunity
to have the inside perspective. But you have my commitment that
I will look at that. It is obviously a front-burner----
Senator Coburn. I will forward the rest of these questions.
It is interesting. Congressional Research Service (CRS) told us
that they believe you have the authority to do that now, even
though USCIS says they do not, or they have been told they do
not. So I will forward you a list of questions for the record,
if I may, and have you look at it. It is not fair to pin you
down on details of that in this hearing.
Mr. Bunnell. Yes. Well, I will say that I would welcome an
opportunity not to be a naysayer as an attorney and be able to
tell people you can do something you thought you could not do.
Senator Coburn. OK. A key provision of the Department of
Homeland Security Appropriation Act of 2013 requires the
Department to provide this Committee with copies of reports
sent to the House and Senate Appropriations Committees. Tom and
I actually got that put in so we could actually know what is
going on. Oftentimes, we send reports to the Appropriations
Committee that are not shared with anybody else, especially the
Committee that has the responsibility for it. Yet, some
components in DHS have informed my staff that they interpret
this section only to cover those reports signed by the
Secretary, not the other reports that are going up, excluding
any reports issued to the Appropriations Committees by those
underneath them, like the Deputy Secretary and heads of the
components.
I am especially troubled by that because that was not the
intent of Congress. That was not why we put it in. Tom and I
are not looking for things to criticize. We are looking for
things to fix. And so I would appreciate your response to that,
No. 1, and if you do not feel like responding to it now, a
comprehensive response on the record afterward.
Mr. Bunnell. Well, let me just say that I can certainly
appreciate the frustration that situation creates. My sense is
that it is related to the problem that I think you both have
highlighted, of we have so many different Committees operating
at the same time, maybe fighting for their turf more than they
are fighting for making DHS as efficient and focused as it can
be.
I will certainly take a look at the specific legal issue
and also, frankly, look at ways that we can reach
accommodations that allow the Committee to get the information
that you need to do your job without perhaps antagonizing some
other component of the Congress. It is obvious, we are sort of
going to be, I think, in the middle a little bit on some of
these issues. That is my sense.
But I appreciate what your frustration is and we certainly
want to work with you.
Senator Coburn. Well, I would just remind you that this
Committee's authority is the broadest in the Congress. This is
the Committee on Homeland Security and Government Affairs, and
we have broadened that specifically, intentionally, in this
Committee in the areas that we have gone.
So you have my commitment, and I think probably I can speak
for Tom, we are not going to be asking you questions that are
not important to us. We are not going to give you extra work to
do. And I have not talked with Tom Carper on this yet, but I
think you have way too many Committees demanding information
from you, and as far as the Senate, I am going to work, and I
hope Tom will work with me, to limit the number of Committees
that you have to respond to so that, in fact, you can spend
more time managing your Department rather than being on the
Hill.
Mr. Bunnell. We would all appreciate that very much, I am
sure.
Chairman Carper. All right. Thank you. And I look forward
very much to working with you on that, Tom.
I am going to go to Senator Johnson----
Senator Johnson. Thank you, Mr. Chairman.
Chairman Carper [continuing]. And then yield to Senator
Chiesa.
OPENING STATEMENT OF SENATOR JOHNSON
Senator Johnson. Let me just give a couple of statistics
that Senator Coburn was just talking about. The Aspen
Institute, a task force organized by that organization, said
that the Department of Defense, which has a budget 10 times the
size of the Department of Homeland Security, reports to 36
Committees. The Department of Homeland Security reports to over
100. And in the 112th Congress, there were 289 formal hearings.
So I think the first thing we ought to do is look inward and
say, what does Congress need to do to become far more effective
and efficient in our oversight capability.
Let me start out, first of all, by thanking both of you for
being willing to serve. In my short time here in Congress, I am
always impressed--I am heartened by the fact I am impressed by
the quality of the individuals that are willing to serve their
Nation when I realize there are far more lucrative things that
you can be doing with your careers. So, I truly appreciate
that.
Ms. Spaulding, you talked about the essential mission of
the Department, and I agree with that. In order to actually
accomplish that essential mission, the Department also has to
be very efficient and effective, which, by and large, is not an
attribute that we apply to government. I have certainly learned
in my business career that the maximum point of managerial
influence is at the point of hiring.
I want to expand a little bit on what Senator Coburn talked
about, the oversight capability. I understand how inefficient
it is, but also how critical it is. I am a novice when it comes
to oversight compared to Dr. Coburn, but one area--and, by the
way, from my standpoint, you never know what area you are going
to be asked and really asked to look at in terms of oversight.
In my case, with my former Subcommittee, it started with
the hearing on Cartagena. As a business person, if we have that
kind of problem in my business, I would have gotten to the
bottom of that in a week. It has been a year and a half and I
still have all kinds of unanswered questions. And as we have
gone down that rabbit hole, trying to figure out what happened
in Cartagena, and looking at internal investigations and
reports of investigations by not only Secret Service, but then
the Office of Inspector General (OIG), there are many troubling
aspects.
So, I guess, first of all, Mr. Bunnell, I would like to ask
you, what do you believe is the role of the Department of
Homeland Security General Counsel in relation to the Inspector
General?
Mr. Bunnell. Well, I will start by saying that as a former
Federal prosecutor, I spent a lot of time working with
Inspector General offices and I understand the importance, not
only of their role as sort of one of the--it is kind of a
three-legged stool of oversight. There is the direct oversight
from the Committee, there is the Government Accountability
Office (GAO), and there is the IG. I think those three things
are working well together. You get a powerful engine of
oversight. And an element of that for the IG is they need to be
independent. They need to have credibility. They need to come
in and ask hard questions of people that they do not otherwise
have to please in their day-to-day lives.
So, the relationship needs to be collaborative and
cooperative but, in some ways, arm's length, because there
needs to be some independence there. I mean, I would see the
General Counsel Office's role really being on the prevention of
waste, fraud, and abuse, primarily trying to make sure that
your processes and procedures reduce risk. And then if there is
a specific instance, an allegation that something, some
wrongdoing has occurred, I would assume that would normally go
in the first instance to the IG for their investigation and the
IG would have to work with the OGC folks and would have to work
with the IG to make sure the IG is getting everything they
need.
Senator Johnson. Let us say there is, hypothetical, a
specific investigation being undertaken by the Inspector
General. Would the Department of Homeland Security General
Counsel have any role in terms of advice in that type of
investigation?
Mr. Bunnell. Well, I think my understanding is that the
Inspector General has his own counsel, his or her own counsel,
and that person is independent, does not report to the General
Counsel. But we would certainly be available, and, I assume,
would often be--``we'' being the Office of General Counsel, if
I am fortunate enough to be confirmed--the expertise of the
General Counsel's Office would certainly be available to the IG
if they want to understand the way a statute has been
interpreted and they need to drill into a specialized area.
Senator Johnson. Yes. I am not an attorney, but I think the
Inspector General Act of 2008 States that the IG shall obtain
legal advice from a counsel either reporting directly to the
Inspector General or another Inspector General.
Mr. Bunnell. Right.
Senator Johnson. So, I guess the question I am asking is
should the General Counsel of the Department of Homeland
Security have any contact with the Inspector General during any
particular report, or should it be totally separate?
Mr. Bunnell. Well, I do not think a total wall of
separation would normally be necessary. I think there is a lot
of value in making sure that the--the Inspector General has an
enormous challenge when they have a specific case. The agents
working on that case need to come up to speed on the
intricacies of a particular operational area, particular
authorities, and if they have questions or they have requests
to be briefed on something, I mean, it strikes me as a good
idea to have the General Counsel do that so it is done right
and it is done quickly so they do not have to spend 6 months
learning the area before they can figure out what happened.
Senator Johnson. But, again, why would you not have a
totally independent counsel to the Inspector General providing
that advice as opposed to--again, I am concerned because I
think we have seen what I would believe would be improper
contact between the Inspector General's Office and the General
Counsel of the Department of Homeland Security. I am highly
concerned about that and I am trying to figure out what that
wall of separation really ought to be to maintain the
independence of the Inspector General.
Mr. Bunnell. Yes. I am obviously not privy to the specifics
that are troubling you, and I can certainly imagine situations
where the communication would not be appropriate. But just as a
broad brush matter, I do not see a problem with having the IG
have an opportunity to seek advice from OGC. Otherwise, there
is a danger that you then have to essentially replicate the
expertise of OGC inside the IG, to a certain extent, and that
might not be efficient. So, there is a balance there, as there
are in many things. But there certainly should not be an effort
by OGC to influence the outcome of and investigation----
Senator Johnson. That would be a bright line problem, I
mean, improper, if not illegal.
Mr. Bunnell. Absolutely. The IG is the person who is
supposed to find out what the facts are.
Senator Johnson. OK. Thank you, Mr. Bunnell.
Senator Coburn. Could I just ask a followup, which begs the
question, leadership at the General Counsel's Office ought to
give very strict instruction for cooperation with an IG
investigation, would you agree?
Mr. Bunnell. Absolutely.
Senator Coburn. All right.
Mr. Bunnell. In fact, lawyers sometimes get a bad rap in
terms of being kind of something that slows down, say, the
production of documents or providing information. One, they can
be proactive in raising that to a top priority for the people
in the operational components, and two, sometimes they can help
focus in--the goal is not to sort of produce a dump truck of
information and then let the IG find the needle in the
haystack. Sometimes you can hone in on, what is your priority?
Let me get you that first. And that will actually--if you do
that in good faith, you facilitate development of the facts,
and that is in everyone's interest.
Senator Johnson. Can I make one last point?
Chairman Carper. Sure.
Senator Johnson. Again, getting back to the efficiency of
oversight, what I have certainly seen during this whole
Cartagena investigation and our efforts at oversight is by not
having the cooperation of the Department or the Inspector
General's Office, it has just forced us to ask for more and
more and more documents, things that--I recoil. I mean, when I
see the request for information, I do not want to go down that
road.
So I guess that would be my point, is if we can really have
that cooperative relationship, and again, I have the greatest
respect for Senator Carper and Senator Coburn and really for
this Committee wanting to be cooperative because we understand
that essential mission. So I guess I am just really asking at
this moment of hiring to, please, get your commitment to be
transparent. Work with us so that we do not have to overburden
you with all those types of requests, because that is the
natural reaction. When I become suspicious and I am not getting
the answers, that is when you start really digging, and I
really do not want to go down those roads, quite honestly.
Thank you.
Chairman Carper. Senator Chiesa, you are recognized,
please.
OPENING STATEMENT OF SENATOR CHIESA
Senator Chiesa. Thank you, Mr. Chairman, and good morning
to both of you and congratulations. I certainly appreciated the
chance to meet with you and to discuss your credentials, which
I think are, for both of you, outstanding.
And the fact that you are willing to make this commitment
to public service is a really great thing, especially when your
mission is keeping us safe, because when you boil down your
Department's mission, it is keeping the people that live in
this country safe. It is an overwhelming task and it seems like
we are reminded almost weekly about the different threats that
are out there, and we know that through the great efforts of
the Department, so many of them get squashed before anything
happens.
And I also want to make sure that I thank your families,
because I know that any time you enter into these positions,
the demands are great, and without the support of your
families, you cannot do it. So, thanks to the families, as
well, for their commitment and their willingness to let you do
this, because I know you have to ask for permission. I have had
to do it throughout my career, so I understand that.
We had a chance to talk about a number of things and I want
to start with Ms. Spaulding to talk about cybersecurity. It is
something we hear about and something that we know is sort of
creeping into our everyday lives. You and I have a chance to
discuss a little bit the importance of the Department reaching
out to the private sector and having those discussions. Could
you talk to the Committee a little bit about your thoughts in
interacting with the private sector to make sure that we are
doing everything we can as a Department to eliminate or reduce,
as best we can, the threats of cybersecurity.
Ms. Spaulding. Absolutely. Thank you, Senator. And you are
absolutely right. As I indicated in my opening statement, there
is probably no more important collaboration in cybersecurity
than what needs to take place between the government and the
private sector. And we work at this every day to improve,
continue to improve that relationship and our ability for the
government and the private sector to understand the comparative
advantages that each of us brings to the table to meet this
challenge.
And we do not operate in the same environments. We do not
necessarily assess risk and manage risk in the same way. But we
do have a shared goal and it is on that basis that we need to
continue to come together with a clear sense of those roles and
responsibilities based on those comparative advantages, a
clearly developed work plan, and a clear understanding of our
priorities and our shared goals.
As I indicated, our National Cybersecurity and
Communications Integration Center, our operations floor, has
seats for cleared private sector representatives who are there,
then, to see the information as it comes in, to help us
understand that information, help us to quickly develop
mitigation measures and get that out much more broadly
throughout the critical infrastructure sectors. And that
actually has worked very well, but we need to continue to work
that.
We need to continue to have these relationships at all
levels. So, particularly in the energy sector, we have worked
very hard to sustain a working relationship with the Chief
Executive Officer (CEO) level. Those individuals are in a
position to assess risk across the enterprise, and so it is
particularly important that they understand the nature of the
threats that we see and that they face and be able to make
those resource allocation decisions and ensure that the folks
that work for them are making wise decisions.
But also at the Chief Information Security Officer (CISO)
and Chief Information Officer levels, very technical ways that
we work with them and make sure that we are providing them
with, for example, machine readable threat indicators that they
are able to very quickly put into their systems, that we are
working collaboratively on spurring innovation and developing
technology.
So those relationships are critically important and they
are a high priority for us.
Senator Chiesa. Good. I know they will continue to be while
you are serving.
Mr. Bunnell, you and I had a chance to talk about
information sharing. It is something that this Committee is
focused on all the time because we know that unless important
and carefully vetted information gets where it needs to get, we
can have problems in our security.
What I wanted to talk to you about is what role can you
play as the General Counsel and the chief advisor to the
Secretary in making sure that the Secretary and the other key
leaders who have access to the information that we need to stay
safe are sharing it in a way that is meaningful and is
accomplishing the mission of making sure that information is
getting where it needs to get as quickly as possible?
Mr. Bunnell. Well, I could not agree more that information
sharing is one of the sort of core missions of DHS, and one of
the reasons it was created was to promote more of that. I
remember in the wake of September 11, 2001, one of the roles
that I had at DOJ was to try to draft some guidelines to help
implement some of the information sharing provisions of the
PATRIOT Act, which involved the ability of Federal prosecutors
to share grand jury material with the intelligence community or
share Title III wiretap information with the intelligence
community. You would think that would be simple, but it
actually was an enormous process, a lot of stakeholders, a lot
of perspectives. So, I think I am sensitive to how what seems
easy, share information, can actually be difficult to
implement.
I think there is an important role for the lawyers, which
is to figure out how to define sharing that everyone is
comfortable with and protect information so you are respecting
the concerns of whoever collected it, and finding ways to
reduce classification on information that is in the national
security realm so it can be shared more broadly, and hopefully
having clear, widely accepted kind of channels that everybody
is comfortable with, because one of the things you see is that
some of the turf instincts--which, by the way, come from pride
in your work oftentimes, so it is not necessarily an unhealthy
thing that people feel a proprietary sense about their sources
and methods. I think that is sort of a healthy thing there you
do not want to squash. But that sort of pride can sometimes
shape somebody's view of what is authorized for sharing.
And so there is a role for the lawyers sometimes to say,
no, actually, there is a way to share this information legally,
and I use the example of grand jury information. Preexisting
documents are not grand jury protected. It is the actions of
the grand jury that--I am speaking to you as a former Assistant
United States Attorney (AUSA), so you know that Rule 6(e)
covers that. So you can find a way to share the content of
something that is involved in a grand jury investigation
without violating the legal prohibition on sharing grand jury
information, and it really requires an attitude that needs to
be instilled and sometimes some good lawyering, but sometimes
it is just really common sense.
Senator Chiesa. Sure, and I hope that you will do
everything you can so that pride never interferes with making
sure this information is getting where it needs to get and that
you create as clear of channels as you can while you are there
for that information flow to be as accessible to everybody as
possible.
So, thank you, and thank you, Mr. Chairman.
Chairman Carper. You bet.
Let us stick with cybersecurity for a while. I am glad you
raised that. Let me just ask, Ms. Spaulding, would you just
reflect on what Mr. Bunnell just said and add to, take away,
edit, editorial comment. Please.
Ms. Spaulding. Well, I will not make any editorial comment,
on the advice of my counsel. I am a lawyer in recovery, and I
am not practicing currently, and I am very respectful of that
line.
But I applaud the direction in which Mr. Bunnell is going
with his remarks as an advocate for information sharing, and
understanding that it is, indeed, at the core of our mission
throughout the Department, but particularly in NPPD. That is
what we are all about. We are all about getting information out
to our stakeholders, again, whether at the State and local,
tribal and territorial government level or, most importantly,
in the private sector.
And so, we very much appreciate having our counsel close at
hand to make sure that we are, again, respecting the privacy
and any legal restrictions in place on information sharing, but
helping us find a way to accomplish that mission because it is
absolutely vitally important. And also at the Federal level,
that we exchange information in a very timely way with our
Federal inter-agency partners.
So that is absolutely essential for our mission. We, as you
know, Senator, would like to see Congress enact some clearer
legal authority to clarify the ability for that two-way
information exchange between the private sector and the
government, and then we would look to our attorneys to make
sure that we are implementing it in an appropriate way.
Chairman Carper. We have three committees in the Senate
that share jurisdiction in the cyber world. They include
Intelligence, they include Commerce, and this committee, as
well.
I think of a comprehensive cyber policy as having at
least--being comprised of six discrete pieces. One of those is
a critical infrastructure and whoever came up with the idea of
the National Institute of Standards and Technology (NIST) being
the one to help develop the framework to lead us to best
practices within the protection of our critical infrastructure,
I think made a very good choice.
Another piece is information sharing, which we are talking
about here, between private sector entities and also with us in
government, to make sure that there is a good flow of
information and that we are incentivizing folks within the
private sector--especially those that are dealing with their
own controlled critical infrastructure--to follow those best
practices and not to feel that they are going to be put out for
public ridicule for having screwed up or not provided the very
best protection of those elements of the critical
infrastructure that they control.
Another piece is the government domain, the .gov domain,
what kind of job that we are doing protecting that, not just
doing it like taking a photograph once a year and saying OK,
how are we doing on this 1 day, but to make sure we are doing
continuous monitoring.
Another piece where we want to make sure that DHS, the
department that you all hopefully will help lead, that they
will have the ability to hire good talent and retain good
talent in the cyber world. There is a need for a better job in
research and development (R&D). We think we have a role in
helping that.
And finally, there is an area that involves data
disclosure, not so much our domain in this committee but it is
certainly an important element.
Dr. Coburn and I have been working with our staffs and
trying to work on--we call it the Federal Information Security
Management Act (FISMA)--which deals with the .gov domain. We
are trying to figure out for the Department of Homeland
Security, what kind of clear statutory authority do you need?
Could you, either one of you or both of you--but I will start
with you, Ms. Spaulding--just talk about how we can help, at
the legislative side, in this area?
Ms. Spaulding. Mr. Chairman, thank you very much and thanks
to both you and Senator Coburn for all of your hard work in
trying to help us move this forward in an appropriate way.
You have well articulated key areas where we need some
help, and FISMA is one of those. And what that does currently
is authorizes, under the guidance and policy direction of the
Office of Management and Budget (OMB), DHS to work with the
departments and agencies across the Federal Government to
assess their networks, assets and systems.
Currently, that assessment takes place every 3 years and
produces a fat notebook result, a checklist that leads to
report cards that get published in the newspaper for these
agencies.
What we are working toward, as you know, is this continuous
diagnostics and mitigation, which would be out on the
departments' and agencies' systems to assess and diagnose the
health of their networks and systems and assets from a
cybersecurity perspective and provide them with an analytic
result within 1 to 3 days, as opposed to every 3 years. Every 3
days or so that would give them a refreshed view of the
security of their network systems and assets.
This would be a tremendous advancement, but the statute
provides limited flexibility and without changes we believe we
will still require that three-ring binder at the end of the
day.
In addition, there are some departments and agencies, well
most departments and agencies--and indeed, 23 of the Chief
Financial Officer (CFO) Act agencies 23 of the 23--have entered
into memorandums of understanding (MOUs) to implement the
continuous diagnostics and mitigation (CDM) program. But there
are some departments and agencies who have legal constraints
that they believe get in the way of allowing DHS to move
forward with them on CDM. And so clarification of that
authority would be extremely helpful, as well.
Chairman Carper. I am going to dwell on this for just a
moment. There was some discussion on this a week ago during our
hearing on the anniversary of September 11, 2001. I want to
stay on it just for a little bit.
Unlike the specific authority that defines the Federal
Bureau of Investigation (FBI) or the National Security Agency's
(NSA) work in the cyber world, the Department of Homeland
Security's authority comes really more through vaguely written
laws. Clarifying DHS's existing roles to mitigate against and
respond to cyber attacks is something that some of us really
hope to address in the legislation that is working its way
through here.
Let me just ask, how important is it for Federal agencies
like DHS to have clear, explicit lines of statutory authority
for its activities?
Ms. Spaulding. Senator, thank you very much, it is vitally
important. Departments and agencies, again in the .gov world,
who want to collaborate and participate in these efforts need
to be mindful of their legal authorities. They all have wise
general counsels who are looking carefully at the authority.
And so while we may be able to make a very reasonable argument
that the authority is there, they may disagree without clear
statutory authority.
The same is true in our interaction with the private
sector. Particularly these days private sector general counsels
are looking very carefully to ensure that as they share
information, collaborate with the government toward these
shared goals of cybersecurity that the government is
approaching them in ways that are completely consistent with
their legal authority. And that is appropriate and that is what
we expect.
But as a result, we need to make sure that that legal
authority is very clear so they are not reluctant to do what is
appropriate and to safeguard our networks and systems.
Chairman Carper. Thanks. When we come back on the next
round, Mr. Bunnell, I am going to explore with you information
sharing. How do we incentivize folks to do that? What kind of
liability protections are called for? Just be thinking about
that. Dr. Coburn.
Senator Coburn. Thank you.
Will you give us a list of those agencies that seem to
think they have a statutory problem? Because another way to
skin this cat may be changing some of their statutes, rather
than change. . . .
One of my big concerns, and I have voiced it in a lot of
hearings, is when Homeland Security was created, it was created
to be a counterterrorism force. In your testimony, you talked
about all-hazards. I will just put this up and you can contest
the statement or not. This country does not have enough money
for Homeland Security to be an all-hazards agency. There is not
enough money. There is not ever going to be enough money.
So my priority, as Ranking Member on this Committee, is to
get us back to being very good at what our primary goal is,
which is counterterrorism.
I just would wonder about your thoughts on that. We have
spent $35 billion on grants to States for things other than
counterterrorism, and we do not have any metrics on that. So we
do not know if we are any safer or not, because there has been
no measurement, no assessment, no accounting for that.
What are your thoughts on my statement about concentrating
on counterterrorism first and foremost, rather than being an
all-hazards agency? And what the NPPD is really about
counterterrorism; correct? I mean, that is what the NP--
protectorate--is about.
What are your thoughts on that?
Ms. Spaulding. So Senator, counterterrorism continues to be
one of the Department's absolute highest priorities. And I
attend every week an interagency meeting on counterterrorism
and engage with our folks who are focused on counterterrorism
on a regular basis. And we are very involved with their
activities, and that is a key part of NPPD's mission. There is
absolutely no question about it.
Having said that, cybersecurity is also a very key part of
our mission, and one that is of growing importance.
Senator Coburn. That is counterterrorism.
Ms. Spaulding. As I indicated in my opening statement, I
believe that the overarching mission of NPPD is to strengthen
the security and resilience of our Nation's critical
infrastructure.
And as I said, that is a focus on making sure that the
functions that the American public relies upon are not
disrupted by either a terrorist attack, physical sabotage, or
by a cyber incident. But understanding how to assess and
mitigate those risks requires that we understand the
consequences of those disruptions. That is a critical part of
that total risk assessment and risk management decisionmaking.
At NPPD, we have been working on that since the inception
of the Department. In our Office of Infrastructure Protection
(IP) with our critical infrastructure owners and operators to
understand the ways in which those functions can be disrupted,
the interdependencies across critical infrastructure sectors,
the cascading consequences. Those consequences more often will
result from a hurricane, a flood, an earthquake, from other
natural disasters. And understanding our ability to be in there
working with those critical infrastructure owners and operators
to understand the impact of those disruptions is a critical
part of informing how we understand the impact, potential
impact, of cyber incidents, the potential impact of sabotage.
So I really think that a holistic approach to understanding
our critical infrastructure sectors and the ways in which we
can mitigate those consequences. It is important to address the
threats. It is important to understand and address the
vulnerabilities. But it is equally important to understand and
work on finding ways to mitigate those consequences, which is
ultimately what it is all about.
Senator Coburn. I guess where I take exception, I think the
likelihood of a counterterrorism event or a cyber event, which
is counterterrorism, is much more likely than a natural
disaster. One of the reasons we have not seen it is because we
have been good and lucky so far.
The other thing I would say, in response to your question,
is we are going to understand what is going to be needed to
mitigate if we look at the cyber threat and the
counterterrorism threat because the results are the same. If
you disrupt a pipeline, you disrupt a water supply, if you
disrupt electricity transmission. We learn what needs to be
done to mitigate if we play those scenarios out.
I believe our concentration ought to be there instead of
the other areas.
One question I have, and I have several other questions
that I will get for you for the record and give you time to
respond to them.
Some duplicative efforts that we are doing that compete
with the private sector, and how we handle that and make sure
it is there, some of the alert and indicator services offered
through the NPPD's Enhanced Security Services (ESS), the
Engineering Consulting Service (ECS), and the Industrial
Control System Cyber Emergency Response Team (ICS-CERT)
parallel services that are already offered in the private
sector.
While the Federal Government has this real important role
to play in cybersecurity, should we be providing services at
taxpayer expense that the private sector is already out there
marketing? How do we handle that?
Ms. Spaulding. That is a very good question, and it is
something we are very mindful of. We have no desire to compete
with the private sector marketplace. Quite the contrary, our
goal is to promote that marketplace and to drive innovation in
that marketplace so that is there to meet the needs of the
private sector and our critical infrastructure owners and
operators.
Having said that, we are also mindful that we have an
obligation to ensure that these services and this information
is available to businesses of all sizes. The mom and pop shops
and the small businesses find very valuable the free
vulnerability assessment tools, for example, that the
Department can provide.
And so that is what we balance, as we go forward here. We
try to lead the marketplace. We try to push the marketplace. If
the marketplace catches up and can deliver these goods and
services, I completely agree with you, we should get out of
that business and move on to the next thing.
Senator Coburn. One final question. There are several open
recommendations from the IG on cyber. Two of them date back to
2010. One, establish a consolidated multiple classification
level portal that can be accessed by Federal partners that
includes real-time incident response related information and
reports. That is one, and I know you are working on that. We
have had those conversations, so you do not. . . .
Establish a capacity to share real-time Einstein
information with Federal agencies to assist them in analysis
and mitigation.
Comment on the second one, if you would. I think you agree
with those recommendations. We have had conversations about
that.
Ms. Spaulding. We do, indeed, Senator. And we are working
hard to close those recommendations, to accomplish the
objectives reflected in those recommendations and to close them
off. And I believe we have provided to the Committee, to your
staff, the status of each of those recommendations. And I share
your interest in getting those closed as quickly as possible.
I will say that NPPD has placed a very high priority over
the last couple of years on closing open recommendations. We
closed 127 recommendations over the last couple of years, but
we need to continue to really push that process.
Senator Coburn. Thank you. The rest of my questions I will
submit for the record.
Chairman Carper. OK, thank you.
Mr. Bunnell, I telegraphed my pitch, information sharing
liability protection. Any thoughts, please?
Mr. Bunnell. Well, one sort of--first of all, as we have
discussed, it is obviously kind of a core focus of what DHS is
all about, is being good at information sharing.
It occurs to me that there is sort of a management phrase
that says you have to go slow to go fast, that I think sheds
some light on how you go about promoting that.
Chairman Carper. Here in the Senate of late, we are doing a
really good job of going slow. My hope is that some day soon it
will be going fast.
Mr. Bunnell. Well, you have to walk before you can run,
right?
What that phrase means to me is that you, in times of
crisis, you invest in clarifying roles. You invest in a plan so
you are ready to respond. And you invest in relationships
whether it is within DHS or whether it is external to DHS--in
ways that build trust. So that when something happens, when the
fire alarm goes off and people have to go to the incident, they
know that their colleagues have their back. They know that
everybody is working together as a team and everybody's role is
defined.
So just as a kind of broad brush way of thinking about it
that, I think, is one of the critical elements. And it is a
strategy that the legal function has to be a participant in but
by no means is the only participant.
That may have been a little bit more broad than you were
interested in, but that is how I--as a sort of approach--that
is my mindset coming into it.
Chairman Carper. That was a little more broad than I had
hoped for. Talk to us more specifically, if you will, about the
kind of liability protection that might be needed to incent
private sector entities that are involved in owning and
managing critical infrastructure, and those that are not, to
share information. Can you just be more specific, please?
Mr. Bunnell. I, to a certain extent, would defer to
Suzanne.
Chairman Carper. And I will ask her the same question. This
is one of the issues that is dividing. On the Intelligence
Committee you have the Chair of the Committee, you have the
Ranking Republican. This has been dividing them as they try to
find common ground. It has been dividing them for months.
Anything you can do to help us narrow that divide would be
great.
Mr. Bunnell. I am generally aware of things like the SAFETY
Act, which are designed to reduce the concerns that the private
sector might have about liability associated with the things
that we want the private sector to do to make the country
safer.
In terms of the specific provisions of that law or other
laws that need to be looked at or enhanced, I am not in a
position today to get very granular with you other than that I
completely agree with you to the extent that the focus is we
need to have clear swim lanes, we need to have clear authority.
It needs to be simple and clear for it to maximize its
effectiveness.
So in that regard, I would echo some of the things that
Suzanne said earlier. She has a better sense of the practical
reality obviously in the critical infrastructure space.
I do think that--well, the legal issues are--you have to
have them, but they are the beginning and not the end of the
problem.
Chairman Carper. Suzanne Spaulding, can you add anything to
that?
Ms. Spaulding. Well, you are absolutely right, Senator. We
do need to ensure, with regard to information sharing, that we
have very clear authorities. I think that the best protection
against liability is to have absolutely clear authority in
statute for that information exchange, clearly defined
parameters for that exchange, what is appropriate, what is not
appropriate, clearly defined privacy protections within that
framework.
But it may be that in order to appropriately incentivize
that information sharing, that some targeted liability
protection may be needed. I think what I would urge is that be
very targeted because the system creates liability for good
public policy reasons, generally. And so any liability
protection that goes into place should be very targeted.
But the information sharing, as we have talked about today,
is absolutely vital. And so we very much appreciate your work,
Mr. Chairman, and the Committee's work to find a way forward on
this.
Chairman Carper. Thank you.
If you all are confirmed, and I hope you will be, we will
talk about this some more, I am sure.
I want to come back to the issue of morale. Every Wednesday
morning there is a bipartisan breakfast that maybe--I do not
know--10 or 20 Senators participate in, Democrat and
Republican. It is called a prayer breakfast. There is some
prayer and there is some scripture, people of different faiths.
But there is just a lot of personal sharing. It is a good way
for us to get to know one another better.
I usually do not get to go because it is from 8 to 9, and I
am usually on a train. I go back and forth almost every night
to Delaware and it is hard for my train to get here before 8:45
unless I get up at about 3 in the morning and I do not do that
often.
But anyway, they asked me to speak this morning. It was a
real honor for me to share with my colleagues.
One of the things I talked about was an NPR study that came
out about a year ago. They had done a survey around the world--
someone, not NPR, but someone else. They were just reporting on
it on NPR. The question that was asked in the survey was what
do people like about their job. What is it that makes people
like their work?
People had all different kinds of answers, as you might
imagine. Some folks said they liked getting paid. Some folks
said they liked getting to go on a vacation. Some folks like
the pension. Some folks said they were happy they had health
care. Some people said they liked the people they worked with.
Others said they liked the environment in which they work.
But do you know what most people said? Most people said the
thing that caused joy or satisfaction in their work, for most
of them, was that they felt like the work they were doing was
important and they felt like they were making progress.
My admonition to my colleagues this morning was that the
work that we are doing here is very important. We are not
making the kind of progress that we need to make.
I love to ask people who have been married a long time the
secret to being married a long time. I get great answers, I get
hilarious answers, and I get some very poignant answers, as
well. Among the best answers I have ever gotten are the two
C's, communicate and compromise.
That is not only the secret for a long union between two
people, it is also the secret to a vibrant democracy.
Now, that is a long lead-in to the morale challenges that
we face at the Department of Homeland Security. Dr. Coburn
talked a bit about management as part of the solution. That is
part of it. A big part of it is leadership. Frankly, we do not
have any Senate-confirmed leadership at the top of the
Department, as you know.
Secretary Janet Napolitano has run off to California to run
the University of California system. It is a great job, she
will do well. She did a very fine job, along with Jane Holl
Lute, in running this Department for the last 4 years. A lot of
progress--GAO reports a lot of progress in the terms of the
high-risk list, a lot of things have been addressed. It is an
auditable--the finances are auditable now, and my hope is we
will get an unqualified audit within the year. So real progress
is being made.
In terms of morale for employees, I think it is right at
the bottom.
So one of the things I think we need to do is confirm the
leadership through good people that the President has
nominated. He needs to nominate somebody to be secretary and he
has not done that yet. He has nominated someone, I think a very
good person, to be the deputy secretary.
Senator Johnson was talking about the IG's office in the
Department of Homeland Security. We have not had a confirmed IG
for over 2 years. We have had one nominated, that nomination
was stalled by someone in this Committee, and then that person
finally gave up and the Administration gave up and that
nomination was withdrawn. Maybe for good reasons. I am not here
to judge the quality of the candidate.
Another person was vetted for the position of OIG head, a
person from California, apparently a good person. They got near
the end of the vetting process and said I do not think I want
to do that, I do not want to get into that mess in Washington.
Why would I move my family to Washington to put up with all of
this? Don't any of you get cold feet here. That person said
enough, I do not think I want to do that.
So now we have not had a confirmed Inspector General in
this department for 2 years. The one who is Acting, if you
will, as the Inspector General is under investigation by a
Subcommittee of this Committee. They are allegedly doing their
own investigation of the President's nominee for Deputy
Secretary of the Department of Homeland Security. I do not know
if you know him at all, Alejandro Mayorkas, Ms. Spaulding.
But some of our colleagues are wrestling with how to
proceed on the nomination, whether to proceed or not. The last
inspector general who was confirmed by the Senate actually sent
a very strong letter in support of Alejandro Mayorkas.
If you know him at all, if you can share any insights into
his abilities, his work ethic, his integrity, that would be
great.
Ms. Spaulding. Thank you for that opportunity, Mr.
Chairman.
I did not know Alejandro Mayorkas before he was nominated
to this position. But as part of his preparation we, at NPPD,
had the privilege to bring him up to speed on our issues. And
as you know, they are very complex issues. There is a lot of
activity underway in NPPD. We had a number of briefing sessions
with him.
I found him to be incredibly engaged, clearly passionate
about this mission area, very smart, a very quick study, and a
very decent individual. I was very optimistic about the kind of
leadership that Alejandro would bring to the Deputy Secretary
position.
I am grateful for the work that you are doing to try to
move forward on his confirmation and I urge the Committee to do
that.
Chairman Carper. I said to some of my colleagues, here we
are a week after September 11, 2001. We are in the midst of
this crisis at this time with Syria, we are going to start
firing rockets at them. We have this terrible tragedy two miles
away at the Navy Yard. We do not have a confirmed Secretary, we
do not have a confirmed Deputy Secretary. It is not a good
situation.
I feel a sense of urgency and it is just important that all
of us feel that sense of urgency.
I want to ask, to me one of the elements affecting
workforce morale, you have these 22 disparate agencies we have
kind of glommed together to create the Department of Homeland
Security less than a decade ago. They are, for the most part,
still scattered to the winds. On Monday, on my way into D.C.
from Delaware the Senate was shut down, the Capitol was shut
down--at least on our side--for a while. So as we drove in--
normally I take the train but as we drove in from Southern
Delaware I said the Capitol is shut down for a while, why don't
we go to the Department of Homeland Security and actually get
briefed there.
As you know, the agencies are scattered throughout
Washington. But most of the folks are, a big part of the folks
are--including the Secretary's office and some of the senior
leadership, it is like a rabbit's warren to get from one place
to the other.
If you get confirmed, Mr. Bunnell, you might want to get a
GPS or something. It will help you navigate through that
system, because it is not easy.
But there is an effort to try to create a campus at St.
Elizabeth's and to actually, over time, bring everybody in. How
important is that, in terms of enhancing morale? And if we want
to really be one DHS, how important is that to getting us to
that spot? We have the Coast Guard there. They just had the
ribbon-cutting a month or so ago. They are there. It is a
beautiful start.
Your thoughts on that?
Ms. Spaulding. Mr. Chairman, NPPD alone is in, I believe,
10 different buildings just in the National Capital Region
(NCR), which presents some significant challenges. As I
indicated, one of my priorities is integrating our activities
across NPPD, helping all of our components and the folks that
work in NPPD understand how their missions relate, how they can
leverage each other's resources and expertise in these
difficult budget times. We have to do that. That is a critical
part of our efficiencies. And it is made more difficult and
more challenging by being physically spread out around the
region.
So being able to come together, as much of DHS as could fit
within that St. Elizabeth's compound, would I think make a very
significant difference and be of significant help in bringing
this still very young department together.
Chairman Carper. Mr. Bunnell, any thoughts on this?
And also, the other question I am going to ask you, is to
talk a little bit about your own leadership style and how that
might be seen as affecting--hopefully positively--the morale of
the folks that you would be leading. Go ahead, please.
Mr. Bunnell. Sure. Let me just first put in a quick plug
for Ali Mayorkas. I know you asked about it before.
Ali used to be a law partner of mine.
Chairman Carper. Is that right? Oh, that is right.
Mr. Bunnell. I feel like--I will say, when people ask me
why do you want to do this job, one of the reasons is there are
people like Ali Mayorkas at the Homeland Security Department,
and I would love to work with people like that.
I think he is as good as it gets, in terms of public
servants. He had an outstanding reputation when he was the U.S.
Attorney in L.A. He was a career guy that was made the U.S.
Attorney. That does not happen very often.
In fact, my introducer, Ken Wainstein, who does not really
have a dog in this fight, reminds me that he actually has
written a letter in support of Ali, and knows Ali. I do not
know if you have anything you would like to say on the record,
since we have been invited to put in a plug for Ali.
He would be a wonderful Deputy Secretary.
Chairman Carper. Mr. Wainstein, I did not realize that.
Thank you. We have received a lot of letters.
Mr. Wainstein. Thank you, Mr. Chairman. I appreciate the
opportunity.
I was a law partner with Ali as well, at O'Melveny and
Myers. But I knew of him as the U.S. Attorney.
As Steve said, some of the things that I have described
about Steve, that made me so fond and have such admiration for
Steve, apply to Ali as well.
Long-time career guy. He was in the trenches in the U.S.
Attorney's Office and rose up to become the U.S. Attorney. He
looks at an issue apolitically. He looks at what is best for
the mission and what is best for his agency. He did that in the
U.S. Attorney's Office. He jumped into what is a very difficult
job at the beginning of this Administration and has done a
fabulous job with it, hence the promotion or hopeful promotion.
But he has done it in a way that showed that he has really put
the mission and management above anything else.
That is the kind of person you want at DHS. I am
disappointed that there has been a delay, but I know Ali and I
know that this issue is going to go away and he is going to do
a bang-up job.
Chairman Carper. From your lips to God's ears. That would
be good. Thank you all for saying that.
Let me turn to management, your own leadership style and
how it might enhance morale and, frankly, be an example to
other leaders in the department, please. Ms. Spaulding.
Mr. Bunnell. Was that to me?
Chairman Carper. Excuse me, go ahead, and then I will come
back to Mr. Bunnell.
Mr. Bunnell. I am sorry.
Ms. Spaulding. Mr. Chairman, thank you for your emphasis on
this. This employee morale has been an issue that I have spent
a great deal of time and focus, effort and energy on, as has
the team around me within NPPD.
The employee survey results from 2010 were being analyzed
by the team when I came on board in 2011. The results had just
come out. They were already hard at work understanding those
results, trying to make sure they understood what the workforce
was trying to tell them, and implement an action plan to
address those concerns.
So for example, a clear reflection of concern about the
quality of leadership, particularly at the supervisor and
secondary supervisor level within NPPD. And so we have beefed
up our training of our supervisors and came up with a
leadership and a performance culture training class which I
have been fortunate enough to participate in. I go in the
morning, I talk with the students in the class, our supervisors
that are there, about my leadership goals and management
objectives, and listen to their concerns. I come back at the
end of 2 days to hear the results of what they have gotten out
of the class. It is a terrific step forward for us in making
sure that we have equipped our supervisors who have stepped up
to this responsibility with the tools they need to do a good
job.
As I tell them, I think we often in Washington have an
image of leadership that is an organization with the leader at
the top of the pyramid and everybody in the organization is
working to support that leader. I realized years ago that that
was a fundamental misconception and we need to flip that
pyramid on its head.
As leaders, we need to remember that we are there to
empower and enable the individuals who are out there getting
our mission done. I am a firm believer that it is our
responsibility to do everything that we can to make sure, as I
said, that they have a clear sense of mission. I totally agree
with you that these people who have chosen public service,
which I think is so honorable, did so because they wanted to
make a difference.
I feel a tremendous obligation to make sure that I do
everything that I can so that at the end of the day, when they
leave work, they feel as though they are making progress, that
they are making a difference, that they are part of a team and
an effort and a mission that is bigger than themselves and that
matters.
So I could not agree more.
Chairman Carper. That is great.
Ms. Spaulding. It is absolutely important.
I would just add, just to clarify the record, one of the
areas where leadership has been particularly important, is with
our CFATS program, our Chemical Facility Anti-Terrorism
Standards program, where we brought on new leadership just
before I came onboard.
The current leadership there, David Wulf, has really done
an outstanding job.
The statistics, which I want to clarify for the record, on
the progress they have made over the last 2 years, they have
actually authorized seven----
Chairman Carper. You are anticipating my next question and
my last question perfectly. So just go right ahead, and then I
will come back to Mr. Bunnell. We are going to close with
CFATS.
Ms. Spaulding. I appreciate your indulgence because the
team has worked so hard to make this kind of progress, I think
it is important to get into the record.
They have authorized over 700 site security plans of
chemical facilities across the country. They have inspected
over 400, and they have approved nearly 300 site security plans
for our facilities across the country.
They have made remarkable progress in streamlining and
expediting that process without sacrificing the national
security imperative.
Having said that, we know that we need to do even better
because the bulk of our work needs to be done at tiers three
and four and, while we have nearly completed the highest risk
tiers, we have a lot still to get through and we are working
hard to come up with processes that will allow us to get
through those much more quickly.
And we are working closely with our private sector
stakeholders on that effort.
Thank you.
Chairman Carper. I said earlier, if it is not perfect, make
it better. Thank you for making it better, and for everybody
that has been a part of that.
Mr. Bunnell, leadership? Very brief on this, very brief.
Mr. Bunnell. Sure.
Chairman Carper. Leadership and morale.
Mr. Bunnell. I would just commend you for your role in
trying to find a campus where everybody can get together. One
of the things that I have found that is very helpful, in terms
of promoting morale, and I think it is part of my management
style, is management by walking around.
And right now----
Chairman Carper. I try to do that myself, always have.
Mr. Bunnell. Then you know how valuable and effective it
can be.
Right now, I think DHS is in a situation where, at least
for the leadership, it is management by driving around or
flying around. And that is a level of challenge that we do not
need on top of all of the challenges, the history and size and
all of the other things.
So I think once we get everybody in the same place, that
will help a lot. Because it is those small, casual interactions
that build morale as much as the big speeches. So I commend you
for that.
In terms of things that I will do within OGC, I do not know
specifically what, if any, morale issues there are in OGC as
opposed to the Department writ large, but I will certainly be
focused on it because morale is not just about feeling good. It
is about doing your job well, performing well, being efficient.
That is what makes people feel good about their jobs. And that
happens to be good for the American taxpayer, too.
Chairman Carper. OK. That is a good note to close on.
We have some other questions for the record. The hearing
record will remain open until noon tomorrow for the submission
of statements and questions for the record. I would just ask
that you respond promptly to those.
My hope is to move these nominations quickly. That is, I
think, a goal that is shared by Dr. Coburn.
Both--Mr. Bunnell, both you and Ms. Spaulding, have filed
responses to your respective biographical and financial
questionnaires. You have answered pre-hearing questions
submitted by the Committee, had your financial statements
reviewed by the Office of Government Ethics. Without objection,
this information will be made a 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.
With that having been said, we thank you both for your
presence today, your preparation for this hearing, for your
answers, and for the answers you will provide to subsequent
questions that are asked.
Again, to all the family members that are here, moms, dads,
spouses, children, other friends and admirers, thank you for
being here to have their back during the course of what I think
has been a very good hearing.
Mr. Wainstein, especially thank you for your comments on
Ali Mayorkas and actually for, Steve, for yours and Suzanne,
too. We need to provide leadership for this department and we
need to provide it soon. This is a shared responsibility. The
White House, the President needs to do his job, we need to do
ours.
And on that, I will say class dismissed, the Committee is
adjourned.
Thank you.
[Whereupon, at 11:31 a.m., the Committee was adjourned.]
A P P E N D I X
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