[Senate Hearing 115-360]
[From the U.S. Government Publishing Office]
S. Hrg. 115-360
NOMINATION OF JOHN M. MITNICK
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
NOMINATION OF JOHN M. MITNICK TO BE GENERAL COUNSEL, U.S. DEPARTMENT OF
HOMELAND SECURITY
__________
OCTOBER 3, 2017
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana KAMALA D. HARRIS, California
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Margaret E. Daum, Minority Staff Director
Donald K. Sherman, Minority Senior Counsel
Laura W. Kilbride, Chief Clerk
Bonni E. Dinerstein, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Lankford............................................. 1
Senator Peters............................................... 2
Senator Tester............................................... 5
Senator Hassan............................................... 12
Senator Harris............................................... 14
WITNESSES
Tuesday, October 3, 2017
John M. Mitnick to be General Counsel, U.S. Department of
Homeland Security
Testimony.................................................... 3
Prepared statement........................................... 21
Biographical and financial information....................... 23
Letter from the Office of Government Ethics.................. 39
Responses to pre-hearing questions........................... 44
Responses to post-hearing questions.......................... 62
Letter of support............................................ 66
NOMINATION OF JOHN M. MITNICK
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TUESDAY, OCTOBER 3, 2017
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:35 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. James
Lankford, presiding.
Present: Senators Lankford, Daines, McCaskill, Tester,
Peters, Hassan, and Harris.
Senator Lankford. Good morning. Today we will consider the
nomination of John Mitnick to be the General Counsel (GC) of
the U.S. Department of Homeland Security (DHS).
Before we begin, especially since this is a hearing related
to homeland security and the issues here, I would like for us
to be able to start with a moment of silence in recognition and
memory of those lives that were lost in Las Vegas and those
that are still struggling in the hospital to recover, the first
responders, and other individuals. So let us have a moment of
silence.
[Moment of silence.]
OPENING STATEMENT OF SENATOR LANKFORD
Senator Lankford. Thanks. Mr. Mitnick has had an impressive
career, both the public and private sector, which I believe has
prepared him well for the role which he has been nominated.
The Committee takes these nominations very seriously. We
are pleased to have a strong nominee in front of us.
Mr. Mitnick is currently the Senior Vice President and
General Counsel and Secretary of the Heritage Foundation.
Previously, he served as Vice President and General Counsel of
the Raytheon Company's Technical Services. Mr. Mitnick has
spent considerable time in public service as well, first served
at the Department of Justice (DOJ). Later, he served in the
Department of Homeland Security during its inception in 2002
and 2003 and then advanced to become an Associate General
Counsel for DHS. He also served as an Associate Counsel to
President George W. Bush from 2004 to 2007. He holds bachelor
degrees from Emory University and Oxford University and a juris
doctorate from the University of Virginia School of Law.
The staff interviewed Mr. Mitnick on an array of issues,
and he has thoughtfully and competently answered each question.
The Committee is confident Mr. Mitnick is qualified to be
the General Counsel of the Department of Homeland Security.
I now recognize the Ranking Member, Mr. Peters, for his
opening statement.
OPENING STATEMENT OF SENATOR PETERS
Senator Peters. Well, thank you, Chairman Lankford, and
thank you, Mr. Mitnick, for your willingness to serve. And I
know you have members of your family here that I am sure you
will introduce at the beginning of your testimony, and I am
certainly very pleased and glad that they are here with you
today.
Mr. Mitnick, you have been nominated for a position that
can influence the actions of the Secretary and everyone at the
Department of Homeland Security, and during this nomination
process, it is my hope that you will convey the values and
judgment required to support the DHS mission.
First and foremost in DHS's mission is to safeguard the
American people, our homeland, and our values, and this is a
critical juncture for the DHS, as threats to our national
security abound from both international and domestic terrorism.
And our hearts certainly go out to all those affected in the
Las Vegas shooting this week, and our thanks go out to all of
the first responders who are providing assistance to those
victims.
Millions of Americans have also been affected by the wrath
of Mother Nature as multiple hurricanes battered several
Southern States and island territories off the coast of Florida
in September. Citizens in those areas, particularly in Puerto
Rico and its neighboring islands, are in dire need of
assistance, and with many lacking access to potable water and
food, let alone electricity, these citizens depend on DHS for
survival for their lives.
Still others in our country face a threat of being deported
from the only country that they know. Of course, I am referring
to the Dreamers who came to the United States as children and
by no choice of their own.
If confirmed, Mr. Mitnick, you will be in a position to
influence DHS response to these threats and the needs of
American citizens. I found it comforting that you mention in
your statement your support of your family that is here with
you today, and I trust that you will see the people in need
across the country as a collection of families very similar to
your own as you work tirelessly to protect them and to provide
for them.
I will be asking you a series of questions today designed
to collect a greater understanding of your values and fit for
this very important job, and as the Ranking Member of the
Federal Spending Oversight and Emergency Management
Subcommittee, I look forward to hearing your plans for working
with Congress in the oversight capacity.
You and I both have an interest in serving the public, and
it will be important that we respect one another's roles in
doing so.
I further hope to get a sense of your willingness to
scrutinize Executive Orders (EO) relative to DHS work and
mission. The General Counsel will often find themselves as the
line of defense for the civil liberties that our communities
rely on, and it is an imperative that the individual in that
role is prepared to protect our Constitution and the people of
the United States without bias for a particular political
party.
Thank you in advance for your time and candor today, and
should you be confirmed, I look forward to working with you in
protecting our great nation.
Thank you.
Senator Lankford. It is the custom of this Committee to
swear in all witnesses that appear before them, so if you would
please stand and raise your right hand.
Do you swear the testimony you are about to give before
this Committee will be the truth, the whole truth, and nothing
but the truth, so help you, God?
Mr. Mitnick. I do.
Senator Lankford. Thank you. You may be seated.
Let the record reflect the witness answered in the
affirmative.
Mr. Mitnick, we would be glad to be able to receive your
opening statement. If you would please also introduce your
family, and let us get to know them a little bit better and
then glad to be able to hear about your statement.
TESTIMONY OF JOHN M. MITNICK,\1\ NOMINATED TO BE GENERAL
COUNSEL, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Mitnick. Thank you, Senator.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Mitnick appears in the Appendix
on page 21.
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Chairman Lankford, Ranking Member Peters, and distinguished
Members of the Committee, it is an honor for me to appear
before you today as the President's nominee to be the General
Counsel of the Department of Homeland Security.
I am grateful to the President and Acting Secretary Elaine
Duke for the trust and confidence they have placed in me, and I
thank the Committee and its staff for moving forward
expeditiously on my nomination.
I would also like to recognize and thank the members of my
family who are here today. My wonderful daughter Hadley, who is
taking a few hours off from kindergarten this morning, is
sitting behind me. Hadley is the light of my life, and I feel
very fortunate that she can share this event with me and see
how our government functions. She should have quite a story to
share with her classmates and teachers when she returns to
school this afternoon.
I am grateful to my mother, Dr. Barbara Mitnick, who is
also here. She instilled in me a love of learning early on
when, after graduating from Cornell University and having
children, she resumed her education, ultimately earning a
master's degree and a doctorate in the history of American art
and architecture. She went on to a distinguished career in
scholarship, teaching, and public service, which continues to
this day. She will undoubtedly give us a memorable tour of the
Capitol after this hearing.
I regret that my father, Howard Mitnick, cannot be here
today. He passed away suddenly in March 2012, and I miss his
love and wise counsel every day. He was a lawyer's lawyer, an
astute lifelong student of business, economics, and public
policy, and a true patriot, and I know that this would have
been a proud day for him. I carry his memory with me in
everything that I do.
At this time, I also want to remember my grandparents,
Sydney and Nan Jacobs, and Bernard and Sophie Mitnick. All but
my grandfather Syd were immigrants to our great country early
in their lives, and Syd was the son of immigrants. Their
stories of leaving their homelands to seek freedom and
opportunity in America and working hard to succeed here, while
typical in many ways of a large number of my fellow citizens,
are constant inspirations to me. They raised families, became
pillars of their communities, and built strong foundations for
the generations to come. Theirs was an extraordinary and awe-
inspiring generation, and I consider myself very fortunate to
have known all of them well.
I will always cherish the memory of the day in June 1993
when my grandfather Syd, who was also an attorney, at the age
of 88 realized a dream that he had since I was born by moving
my admission to the U.S. Supreme Court Bar in open court.
If confirmed, it will be a privilege and an honor for me to
return to DHS and work side by side with the Department's more
than 240,000 dedicated professionals to safeguard the American
people, our homeland, and our values.
I say ``return'' because I was there at the beginning. As a
detailee from the Department of Justice in the DHS Transition
Planning Office, I was one of a small group of attorneys tasked
with supporting the establishment of DHS in late 2002 and early
2003. I went on to serve as the Department's first Associate
General Counsel for Science and Technology (S&T) until I moved
to the White House in 2004, where I served successively as
Deputy Counsel of the Homeland Security Council and as
Associate Counsel to the President with primary responsibility
for all homeland security legal matters.
Although it has been many years since I served in DHS and I
have admired from afar the great strides made by the
Department, I am generally aware of the ongoing challenges of
integrating and coordinating its many disparate elements. If
confirmed, I intend to build upon the good work of my
predecessors to ensure that the more than 1,800 talented and
dedicated attorneys in the Office of the General Counsel (OGC)
provide sound, timely, actionable, and consistent legal advice
throughout the Department while also ensuring the protection of
the privacy and other legal rights of Americans.
In doing so, I will employ my 28 years of experience
practicing law at the highest levels in government and the
private sector, which has included supervising senior attorneys
and serving as an integral member of senior leadership teams
that managed organizations ranging from several hundred to more
than 9,000 employees.
I also understand that oversight activities are essential
functions of the Congress that are necessary for the exercise
of its constitutional powers and are also vital to the proper
functioning of the executive branch.
Therefore, if confirmed, I will look forward to working
with you and your staffs in a cooperative manner.
Chairman Lankford, Ranking Member Peters, and distinguished
Members of the Committee, thank you again for this opportunity
to appear before you, and I would be pleased to answer any
questions.
Senator Lankford. Thank you, Mr. Mitnick.
There are three mandatory questions we ask of every
candidate that comes before this Committee, and then after we
go through those three quick questions, the Ranking Member and
I are going to defer to Senator Tester to opening questions
there.
Three quick questions, I will need a yes or no answer on
these.
Is there anything that you are aware of in your background
that might present a conflict of interest with the duties of
the office to which you have been nominated?
Mr. Mitnick. No.
Senator Lankford. Do you know of anything, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Mr. Mitnick. No.
Senator Lankford. Do you agree, without reservation, to
comply with any request or summons to appear and testify before
any duly constituted committee of Congress if you are
confirmed?
Mr. Mitnick. Yes.
Senator Lankford. Great. Thank you.
Senator Tester, you are recognized.
OPENING STATEMENT OF SENATOR TESTER
Senator Tester. Thank you, Mr. Chairman, Ranking Member,
for having this hearing. Most importantly, thank you for being
here today, Mr. Mitnick, and thank you for your willingness to
serve.
There is always a debate in Congress about national
security and civil liberties and where that balance needs to
be. Could you give me your philosophy as--and do not take too
much time--as concisely as you can on where you value each of
those? Is one more important than the other?
Mr. Mitnick. Senator, that is a critical question, and I
think they are both critical issues. And it is important to
strike that balance.
The mission of the Department is, of course, to safeguard
the American people and our homeland and our values, but at the
same time, we have to do that in a way that--if I am confirmed,
that respects privacy and legal rights of Americans. And that
balance has to be struck.
Senator Tester. So let me give you an example. It has been
a few years ago now. There was license plate reader technology
that ICE was planning to expand, and I thought that there was a
potential for some overstepping by the Federal Government on
our civil liberties. And so I fought it until the Department
engaged with the DHS Privacy Office and the Office of Civil
Rights and Civil Liberties.
Are you familiar with those two offices, first of all,
DHS's Privacy Office and the Office of Civil Rights and Civil
Liberties?
Mr. Mitnick. Yes, Senator, I am familiar with them.
Senator Tester. And would it be your intent--let me ask it
this way. What do you believe the roles of those two offices
are in regards to your position?
Mr. Mitnick. I believe those offices have critical roles in
vetting the actions of the Department to ensure that all of the
actions of the Department comply with privacy laws, civil
rights, and civil liberties, and if I am confirmed, I will
ensure that the Office of the General Counsel coordinates
closely with the Chief Privacy Officer and the head of the
Office of Civil Rights and Civil Liberties to carry out that
vetting. And I will ensure that their views are taken into
account.
Senator Tester. And what happens if your boss says, ``John,
you are way out of bounds here. We do not agree with you. We do
not think''--on either side, by the way, on the national
security side or the civil liberties side. What is your
response going to be?
Mr. Mitnick. Senator, throughout my 28 years of practicing
law, I have encountered occasionally situations in which there
was lack of complete agreement, shall we say, between my
superiors and me, and in all of those situations I was able to
resolve those by dealing with the issue objectively and
reasonably. And usually, an accommodation or a mutually
acceptable resolution can be found.
I can envision the situation that might need to be elevated
at some time, but usually, at every point in my career when I
have had one of those situations, I have been able to resolve
them.
Senator Tester. All right. So this is an important job,
your role as General Counsel. The decisions that, well, the
U.S. Customs and Border Protection (CBP) makes at ports of
entry (POE), for example, and others have the ability to affect
the law. Do you believe that there is legal training for the
DHS employees?
And I know that you are limited in this position, although
I did not read your vita to find out if you had ultimate
familiarity with the Department. So you can tell me now. Do you
believe the training for DHS employees at this moment in time
is right?
Mr. Mitnick. Senator, I do not have access to all of the
information about training that goes on within the Department
at this point. I have not been there since 2004.
If I am confirmed, I would look forward to working with my
colleagues in the Office of the General Counsel and the Acting
Secretary and the other senior leaders to survey the types of
training that are provided and to ensure that they are
adequate.
Senator Tester. Would you see it in your role to do an
assessment of the employees across the components of DHS to
make a determination whether they are properly trained in areas
of legal matters?
Mr. Mitnick. Yes. And that is what I had in mind in what I
just mentioned.
Senator Tester. Yep.
Mr. Mitnick. And I think that is a critical role of the
Office of the General Counsel, and one thing that facilitates
that role is that virtually all of the attorneys in the entire
Department, including those in the operational components,
report up to the General Counsel, so that provides the
opportunity for the General Counsel to ensure that the proper
legal guidance is pushed out through all of those elements.
Senator Tester. And I think that from my perspective and I
get the impression from your perspective, too, it is a
critically important component because you can have the best of
intentions, and the folks on the ground, if they do not know
the legal parameters which they work under, could overstep them
pretty quickly.
Mr. Mitnick. I think that is absolutely critical, and it is
a critical part of the role of the General Counsel. And if I am
confirmed, I am going to focus very intently on that role.
Senator Tester. Well, I appreciate your willingness to
serve. I can tell you, it is getting back to the first
question, the question of civil liberties versus national
security it is tough. But the truth is, in your position, if
you understand that and you are willing to analyze and apply
that analysis to the situations, I think we will be fine.
Thank you. Thank you for your willingness to serve.
And by the way, Hadley, I hope you have some great stories
to tell your classes this afternoon. You will have them
riveted, I am sure. [Laughter.]
Mr. Mitnick. Thank you, Senator.
Senator Tester. Thank you.
Senator Lankford. Mr. Mitnick, let me continue on the line
of questioning that Senator Tester had on civil liberties. Let
us talk about some of the things that have come up specifically
on this issue.
One of them is personal information for travelers at ports
of entry. There has been some conversations about individuals
that are crossing into the United States, what access the
United States should have to--whether it be cell phones,
personal information of an American citizen versus a person
that is traveling into the country that is not an American
citizen. Do you have a general perspective on how we balance
out the civil liberties and protecting the Nation there, any
kind of personal information or especially a cell phone or a
device?
Mr. Mitnick. Senator, that is a critical issue. I
appreciate you raising it, and Customs and Border Protection
has very broad authority, as does U.S. Immigration and Customs
Enforcement (ICE), in enforcing the law at the borders, vetting
people and property coming into the United States, and of
course, with the advent of technology, it is possible to bring
an awful lot of information in, in a very small package.
My understanding is that the authority is fairly broad, but
it is, of course, critical to ensure that any searches of
devices respect the privacy rights of Americans and also civil
rights and civil liberties and things like attorney-client
privilege. I know that the various bar associations have raised
concerns about privileged information on those devices.
So, if confirmed, I look forward to taking a close look at
the operational protocols and the training provided to the CBP
and ICE officers at the border to ensure that privacy and civil
liberties are addressed appropriately.
Senator Lankford. OK. Yes. I would just tell you that in an
oversight area, we will come back and ask questions about that
because the unique rights and privileges for Americans to be
secure in their persons, papers, houses, and effects is a
constitutionally protected right, and we want to make sure that
we can continue to abide by that basic constitutional right
protection for Americans as they travel back and forth across
the border.
Talking about borders, in 2006, the Secure Fences Act was
passed. That started a process of putting about 650 miles of
fence on our Southern Border. Of all of that area, there is a
lot of land acquisition as well. 334 cases were filed against
the Federal Government on that. 243 of those have been resolved
in an average time of 3.6 years. The remaining cases are still
pending for an average of 8.5 years. Help me understand how you
will advise DHS because if there will be additional areas,
whether that be tethered drones, technology, roads to access,
or areas where there will be fence or vehicular blocks that
will be there, all of those are going to require land
acquisitions along the border. Help me understand how you will
advise them to keep DHS out of lengthy lawsuits, if at all
possible, so we can actually have a secure border and not
lengthy lawsuits.
Mr. Mitnick. My understanding is that the Office of the
General Counsel is involved in the exercise of eminent domain
with regard to the building of infrastructure at the border,
including the fence, and as a general matter, I think that the
power of eminent domain is one of the most potentially
intrusive powers that the Federal Government and other
governments have. And it needs to be exercised judiciously, and
it seems to me that it ought to be targeted.
So if I am confirmed, one thing I would do in my role as
General Counsel is try to ensure that the impact on private
landowners is minimized, to the extent possible, and hopefully,
that would reduce the amount of time needed to work out the
acquisition of the various property rights.
Senator Lankford. Yes. It does not help for us to be able
to pass a bill dealing with security if the way that it is
implemented creates so many lawsuits that you actually cannot
get it done and we actually do not have real security. So that
will be one of the things we will trust that you will stay
engaged on and will help DHS as they work through the process.
Two other quick questions that I want to be able to have,
and then I want to be able to recognize Senator Peters.
The Federal Emergency Management Agency (FEMA) in the 1990s
was instructed by Congress to allow not-for-profits to also be
engaged in emergency disaster relief, so zoos, museums,
whatever it may be, nonprofits, were allowed to be able to do
that. At that time, FEMA determined that they would not engage
with houses of worship or any religious institution, even if it
was a nonprofit.
Now, the law just states ``nonprofits,'' but it has been
redefined to say ``unless you are a church or a synagogue or a
mosque,'' and then you cannot apply for it, which is very
ironic because in most disaster situations, those community
locations that are also places of worship become the place for
clothing and food distribution and Red Cross shelters and all
those things. But they are not eligible at the end of it for
emergency assistance from FEMA.
The law does not prohibit that. It just says nonprofits. It
has just been reinterpreted in a way by succeeding FEMA folks
and by General Counsels to say we want to prohibit that.
Then along came the Supreme Court. In the Trinity Lutheran
case, earlier this year, they said in a 7-to-2 decision that
the government cannot discriminate against a location simply
because it is a religious location for any kind of benefit.
That if the benefit is open to all, it is truly open to all.
So my question to you is they are going to have to
reexamine this and to be able to determine if a church, a
synagogue, or a mosque that was destroyed in a hurricane or in
a wildfire is also open to emergency disaster relief or not.
I am not asking you to tell me everything about your
opinion on that, but this will probably land on your desk
pretty quickly because, as you have probably seen in the
papers, there are a few disasters that are going on right now.
Help me determine how you are going to work through that
process with them.
Mr. Mitnick. Senator, I appreciate that question. It is a
very important issue and one that I recall coming up
occasionally when I was in the White House Counsel's Office. I
was there for a little over 3 years, and all of the Stafford
Act emergency and major disaster declarations came through me
when they came over from FEMA after coming from the Governors.
And so I have some familiarity with that.
I am aware, though, from that experience that houses of
worship have been some of the most active participants in
providing disaster assistance, and if I am confirmed, I look
forward to working with the very capable attorneys at FEMA to
address that issue.
Senator Lankford. Yes. We look forward to that resolution
being a clear resolution, consistent with the original law that
was passed in the 1990s and with the Supreme Court case that
has already come up, with Trinity Lutheran.
One quick thing on REAL ID, there are a lot of States that
are waiting on waiver decisions. This is one of those things
that is sitting out there. That a lot of States are working
through the REAL ID process. That some of them have worked very
hard to be able to accomplish it. Some of them have not worked
as hard, but all of them are interested to be able to know what
waiver authorities will be given and the timing that those
things will occur from multiple States around the country.
I would only say to you, as you are giving counsel on the
waivers to the Secretary and other individuals, however the
decision has to be made on how to do a waiver and what that
would be, the earlier those decisions can be made the better.
It creates a great deal of uncertainty in States as they wait
until the last minute to be able to get an answer, and so
counsel at the last second is not as helpful as counsel a month
ahead. And I am fully aware that sitting up here from Congress,
we are the last people to be able to complain to someone about
waiting until the last moment. I am fully aware of the irony of
that conversation, but where it can be controlled, it would be
helpful to be able to get decisions earlier rather than later
on any of those waivers on REAL ID.
Mr. Mitnick. Senator, I am very sensitive to that issue. I
know that a lot of those extensions are expiring imminently,
and then there is a date looming out there very soon, I believe
January 22nd or thereabouts, 2018, at which time those secure
IDs that comply with the Act would have to be used to access
Federal facilities and airports.
So I am aware of the time pressure there, and if I am
confirmed in time to address that issue, I commit to you that I
will devote my efforts to that.
Senator Lankford. That would be very helpful.
Senator Peters. Thank you, Chairman Lankford.
Again, Mr. Mitnick, thank you for your willingness to
serve, and I appreciated the opportunity to spend some time
with you in my office as well prior to this hearing.
Mr. Mitnick, do you believe that the DHS should use
partisan political considerations as a basis for deciding how
to respond to inquiries or requests for information from
Members of Congress?
Mr. Mitnick. Senator, I think that, in general, it is
incumbent upon the officials and employees of the Department of
Homeland Security to cooperate with Congress and to respond to
requests for information in the context of congressional
oversight.
That said, there are some exceptions to that, like
executive privilege, which is the President's to invoke, and
also there is occasionally, to my understanding, a need to
prioritize responses because the Department has, of course,
limited personnel and resources.
But I do not think that partisan concerns should apply to
the response to congressional oversight requests.
Senator Peters. So would you commit to respond in a timely
manner to all congressional inquiries and requests for
information from Members of Congress, including requests from
Members in the Minority?
Mr. Mitnick. Senator, I do commit to working cooperatively
with individual Members of Congress, including Members in the
Minority, to respond to requests.
As I mentioned, there could be exceptions to that, such as
executive privilege, and also there is often a need to
prioritize.
So it might be possible in many instances to comply with
deadlines that are applied--in other instances, we might need
to work cooperatively with the requesting Member to work out a
schedule, but I certainly commit to working with all Members to
satisfy their requests.
Senator Peters. Well, you have brought up prioritization a
few times in your answer. How would you prioritize
congressional inquiries? What is that priority? If you could
elaborate, please?
Mr. Mitnick. Senator, if confirmed, first and foremost, I
would work with the Acting Secretary and the other senior
leaders of the Department and also including the Office of
Legislative Affairs to work cooperatively with Members.
I think, at first, there should be an effort to work with
the Congress to work out a comprehensive prioritization if
there are conflicting requests and ask the Members to tell us
which are the highest-priority requests and which are maybe a
little bit lower priority.
If the Department is put in the situation----
Senator Peters. So what Members would you ask to
prioritize? Who would make that decision here in Congress as to
how you would prioritize?
Mr. Mitnick. Senator, if confirmed, I envision that we
would work with all of the Members who are seeking documents
and information.
Senator Peters. Well, every Member will want to be
prioritized at the top. So how do you make that decision?
Mr. Mitnick. Well, then if my first solution to that
problem does not work, if confirmed, the Department will be
left to make some sort of decision about prioritization, but
hopefully, we will be able to arrive at some sort of
understanding or resolution working directly with the Members.
Senator Peters. Are you aware of any White House
instruction that DHS should refuse to respond to inquiries or
requests for information from certain Members or certain
parties within Congress?
Mr. Mitnick. Senator, I am not aware of any direction or
guidance in that regard, and in fact, I am aware that there has
been correspondence between Senator Grassley and Mr. Don
McGahn, the White House Counsel, relatively recently regarding
the Office of Legal Counsel opinion that was issued on May 1,
2017. I have read that correspondence, and I did not see
anything like that in there.
Senator Peters. Do you commit to reviewing any outstanding
congressional inquiries and requests for information and then
reporting back to this Committee on the status of those?
Mr. Mitnick. Actually, I should note that that letter did
not come from the White House Counsel. I believe it came from
Mr. Marc Short, now that I recall.
Senator Peters. OK.
Mr. Mitnick. So it was correspondence from Senator Grassley
and responded to by Mr. Short, I think. I am sorry.
Senator Peters. So the question is, do you commit to
reviewing any outstanding congressional inquiries and requests
for information and then reporting back to this Committee on
the status of those requests, if confirmed?
Mr. Mitnick. Senator, I commit, if confirmed, to work
cooperatively with all Members of Congress to satisfy their
requests for documents and information.
Senator Peters. As you know, the DHS has the largest law
enforcement force in the country, and if confirmed, you would
certainly play a very critical role in reviewing the guidance
that is put out to the agency, across the entire agency. What
would you do to ensure that there is consistent guidance made
that makes it out, actually makes it out to the field to the
men and women who are serving?
We are hearing that guidance that may be coming from
Washington is not getting to the field, and that the different
field offices interpret and follow guidance differently, which
is certainly unacceptable, and I assume that is something you
would want to pick up and I would love to hear your comments as
to how you are going to make sure that it is done in a proper
and consistent manner.
Mr. Mitnick. Senator, not being at the Department now, I am
not aware of those specific problems, but as I mentioned in my
opening statement, I think that it is a critical tool of the
General Counsel that nearly all of the attorneys in the
Department, including those at the operational components,
report up to the General Counsel. And that provides a very
important opportunity to ensure that not only sound, timely,
and actionable advice is pushed out to all of the employees of
the Department, to ensure that the Department complies with
applicable law, but also provides an opportunity to ensure
consistency of legal advice throughout the Department.
So I would work with my colleagues who are actually
embedded in the operational components of the Department to
ensure that the advice is not only consistent, but it is also
provided directly to the very dedicated people who work at DHS
who need it in their day-to-day operation.
Senator Peters. Mr. Mitnick, do you believe that religion
should be a basis for a U.S. counterterrorism or law
enforcement policy, particularly as it relates to the targeting
of individuals with ancestry from Muslim-majority countries?
Mr. Mitnick. Senator, I do not believe that one's personal
religious beliefs should be considered in that context, and so
I think that our approach to counterterrorism should be based
on assessment of risk.
Senator Peters. So how do you reconcile your belief with
the travel ban Executive Orders that have been put forward?
Mr. Mitnick. Senator, I have read the Executive Orders that
you mention, including the one, the proclamation, that was
issued by the President on September 24th, I believe, and I do
not see any reference in those orders to the religious
background of anyone who might be affected by those orders.
They are directed at specific countries based on specific
objective security criteria.
Senator Peters. Well, what would you do if you found a
policy to be inconsistent with current law and inconsistent
with the belief that you just expressed to me?
Mr. Mitnick. Senator, it would depend, I believe, where the
policy originated. With regard to Presidential guidance, a
Presidential policy, I would hope to be--if confirmed--a
participant in the Administration's policy development and
implementation process, with which I am very familiar from my
time in the White House, and participate in that to ensure that
issues like that are addressed in the policy development
process.
If it is something within the Department alone, if I am
confirmed as General Counsel, I would hope that I would have
some direct impact in giving advice on how those policies
should be crafted and contoured in order to avoid legal issues.
Senator Peters. Thank you.
Senator Lankford. Senator Hassan.
OPENING STATEMENT OF SENATOR HASSAN
Senator Hassan. Thank you, Mr. Chairman.
Good morning, Mr. Mitnick. It is nice to see you again, and
I note, among others, that there is a particularly young family
member in the audience, and I just wanted to say good morning,
and thank you very much for sharing. I was not here earlier.
Daughter? Father?
Mr. Mitnick. Yes. This is my daughter, Hadley.
Senator Hassan. OK. So thank you for sharing your dad with
the rest of us. We are very grateful he is willing to serve.
I wanted to ask you, Mr. Mitnick, about a topic that you
and I discussed when we met in my office, which is domestic
terrorism.
We have been struggling, it seems to me, with what
constitutes domestic terrorism versus international terrorism.
If an American on American soil cites a thought or ideology
that originated outside of the United States but acts inside
the United States, for instance, is that domestic or
international terrorism? So do you have a definition, a working
definition, of what distinguishes the two?
Mr. Mitnick. Senator, that is a very important issue, and I
believe it was one that was discussed at the hearing last
Wednesday----
Senator Hassan. Yes.
Mr. Mitnick [continuing]. Which involved Acting Secretary
Duke----
Senator Hassan. Right.
Mr. Mitnick [continuing]. And the Federal Bureau of
Investigation (FBI) Director Christopher Wray.\1\
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\1\ The hearing referenced is HSGAC's September 27, 2017, hearing
``Threats to the Homeland''.
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I would defer to Director Wray, of course, on that issue,
and I believe that, notwithstanding the definitional issue, his
view was that there are more than adequate authorities for the
FBI to go after domestic terrorists under current law.
Senator Hassan. Well, but I think that kind of begs the
question whether the Department of Homeland Security has a role
to play in countering efforts by domestic terrorists to launch
terrorist attacks in the United States. Do you think it does?
Mr. Mitnick. Senator, I do believe that the Department has
a very critical role to play, and for example, I am aware that
the Department has a countering violent extremism (CVE) effort
that is fairly robust. I think the funding is relatively
limited but certainly could be expanded.
Senator Hassan. In your view, is it just a funding issue,
or are there other limitations to the Department's role in
stopping domestic terrorism?
Mr. Mitnick. Senator, not being at the Department now, I am
not aware of any deficiency in legal authorities that the
Department has with regard to addressing domestic terrorism
within the scope of its mission and its role.
Senator Hassan. Right.
Mr. Mitnick. And if I am confirmed, I certainly would be
very interested in becoming more knowledgeable on that and
addressing any possible deficiencies.
Senator Hassan. Well, I think one of the things that we
began to talk about last week with Director Wray was the issue
that there is not actually a criminal offense of domestic
terrorism the way there is international terrorism, and it does
seem to me that this is squarely within the Department's area
and scope of responsibility and should be a part of its
jurisdiction. Domestic terror threats are considerable, and we
have seen a growing presence in our country.
So I would urge you, should you be confirmed, to be looking
at this issue with the Department's leadership because I think
we want to make sure that Americans are safe from both domestic
and international terrorism, and that the Department, with all
of its resources and expertise--in concert, obviously, with law
enforcement, which is the way you operate, anyway--could be
taking on a greater role, and I think needs to be paying more
attention to the issue of domestic terrorism. So I would look
forward to working with you on that.
Mr. Mitnick. Senator, I appreciate that, and I look forward
to working with you as well.
My understanding is that there is very robust information
sharing going on between the FBI and DHS and other law
enforcement entities and the intelligence community (IC).
My understanding is also, though, that the Homeland
Security Act specifically accords the law enforcement function
with regard to terrorism to the Justice Department and the FBI.
So, within those constraints, I certainly look forward to
working with you if I am confirmed to address that issue.
Senator Hassan. Well, and I would look forward to hearing
from you if, as you identify those constraints or others, there
are ways that if we all think it makes sense, we could change
some of those constraints. And I think we are at a critical
juncture. I think we need to be doing more on the domestic
terrorism front. I think we can do that without compromising
our efforts on the international terrorism front, but we should
always be looking for ways to improve and strengthen, and so I
look forward to getting your best assessment, should you be
confirmed, about ways we can make sure the Department has not
only the resources it needs but the authority it needs.
Thank you.
Mr. Mitnick. Thank you.
Senator Hassan. And I yield the rest of my time.
Senator Lankford. Thank you. Senator Harris.
OPENING STATEMENT OF SENATOR HARRIS
Senator Harris. Thank you. Good morning.
Mr. Mitnick. Good morning.
Senator Harris. As you know, the Deferred Action for
Childhood Arrivals (DACA) program was created over 5 years ago,
and it has allowed thousands upon hundreds of thousands of
hardworking young people to have status that defers their
deportation, if they have submitted information about
themselves and undergone an analysis and an investigation about
who they are, their background, are they productive, have they
committed a crime or not. And if they clear that vetting, then
they received DACA status.
You are familiar with the DACA program, I take it?
Mr. Mitnick. Yes, Senator.
Senator Harris. OK. And you are also aware, then, that on
September 5th, without any administrative notice, the Attorney
General (AG) of the United States indicated that the DACA
program was being terminated?
Mr. Mitnick. I am aware that it was rescinded and it is
being wound down. Yes, Senator.
Senator Harris. What do you believe is the significance of
the announcement, given that there was no administrative
notice?
Mr. Mitnick. Senator, not being at the Department now, I do
not have access to the information that was considered and the
legal advice that was given with regard to, for example,
whether the Administrative Procedure Act (APA) or other
requirements were applicable or not.
I am familiar with what was announced publicly, however.
Senator Harris. Those of the DACA recipients that their
DACA status was set to expire by March 5th were given 30 days
to renew, to apply for renewal of their status.
I am asking you this question now as a colleague, a
professional in the law. Part of our responsibility, especially
as public lawyers serving the public interest and with the
public trust, is to concern ourselves with fairness. Would you
agree with that?
Mr. Mitnick. I believe it is incumbent upon any public
servant and particularly an attorney to act with fairness.
Senator Harris. So these young people were given 30 days to
renew their status, and within that 30 days, they would then,
in order to comply with the renewal process, have to gather a
lot of documentation and come up with $495. And I am sure you
know Federal minimum wage is $7.25 an hour, so it is a lot of
money.
What is your perspective on the fairness of that, and do
you have any perspective on whether or not it would be fair to
extend that deadline to give those young people more time to
comply with the requirement that they renew their status?
Mr. Mitnick. Senator, not being at the Department now, I do
not know all of the constraints and all of the issues that were
considered by the leadership, and it would be inappropriate, I
think, for me to express an opinion or second-guess the
leadership of the Department, particularly the Acting
Secretary, in the decision that was made.
I do understand that the Attorney General sent a letter to
the Acting Secretary, I believe, on September 4th expressing
his opinion that the DACA program, as initiated in 2012, is
unconstitutional, and so I do appreciate the fact that the
Department's leadership was operating under some significant
constraints in this regard.
But not being there, I do not know all of the details.
Senator Harris. And I appreciate your point.
The point of my question is to also just have some sense of
what you believe your role would be, if confirmed, and what
your role and responsibility would be to advise your client on
what is not only legally, but based on black-letter law,
appropriate and constitutional, but also what is fair in terms
of the Administration of the great powers of that Department.
So, for example, another related issue is that Acting
Secretary Duke was here recently and testified that the DACA
grantees would need to renew their status by October 5th but
were never individually notified of the change in the policy.
So there were press conferences, but there was never any direct
notification to DACA recipients that the program would be
terminated and they had one month to renew their status. What
is your perspective on the fairness of that process?
Mr. Mitnick. Senator, let me say that my personal belief is
that the DACA recipients are among the most sympathetic of
those who are in this country without legal status, and I
believe that my role as an attorney transcends black-letter
law, as you said, although a distinction must be drawn. In the
private sector, I am accustomed to distinguishing between legal
issues and business issues----
Senator Harris. Sure.
Mr. Mitnick [continuing]. And the analog to that in
government would be a distinction between legal issues and
policy issues, and if I am confirmed, I would hope to have a
seat at the table with the other senior leaders of the
Department and express my views not only on black-letter law
but also on fairness and compassion and acting as public
servants.
Again, I do not know the details or the specific
constraints under which the Department was operating in this
regard, so I cannot really express an opinion about the
specific issue you raised.
Senator Harris. I appreciate your perspective and, in
particular, your understanding of the responsibility we all
have to look at the broad picture and not just the technical
component of the work that we do, so thank you for that.
And then I have a question about the responsibilities which
you would undertake, if confirmed, which are, quote,
``protecting the rights and liberties of any Americans who come
into contact with the Department.''
And increased enforcement and border operations by ICE and
CBP have led to growing reports of racial profiling,
particularly of Latinos. What specifically would you do to
address implicit bias and racial profiling where and when it
exists?
Mr. Mitnick. Senator, I think it is absolutely critical
that the Department of Homeland Security carry out all of its
functions in strict compliance with privacy rights and other
rights of Americans, including civil liberties, and if I am
confirmed, I look forward to reviewing all of the guidance,
including protocols and operational legal guidance provided to
the operational components, including specifically CBP and ICE
and particularly those who have direct contact with the
American people on a daily basis to ensure that all of their
actions and activities comply with those rights.
Senator Harris. And I just have one more question.
Mr. Mitnick. And by the way I think it is critical that I
work with the Chief Privacy Officer and the head of the Office
of Civil Rights and Civil Liberties in that regard.
Senator Harris. I agree.
And one more question which is, will you commit to this
Committee that, if confirmed, you will specifically take a look
at the best practices around training law enforcement on
implicit bias and procedural justice, as the FBI has done that,
for example, as another Federal agency, and commit that you
will urge that all of the members of the Department and
particularly those in the field be trained on implicit bias and
procedural justice?
Mr. Mitnick. Senator, if confirmed, I will look at that
policy and others and ensure to the extent I can within my
authority as General Counsel of the Department that proper
guidance is given and that proper training is given on that
guidance, but of course, I will have to work with the heads of
those components and the other senior leaders in that regard.
Senator Harris. Thank you.
Senator Lankford. Thanks, Senator Harris.
I have a few more questions to be able to wrap up, and then
we will give you an opportunity to make any final statements,
if you choose to make those.
Will you cooperate with the Inspectors General (IGs) as
they work with each individual area of DHS and to make sure
that they have access to the information that they need access
to?
Mr. Mitnick. Senator, I look forward, if confirmed, to
working cooperatively with the Inspector General in the
Department. I recognize that the Inspector General has a
critical role in audits and investigations under the Inspector
General Act and also the relevant provisions of the Homeland
Security Act of 2002, and so I would look forward to working
with the Inspector General in a collegial and cooperative
manner and, within the scope of my authority as General
Counsel, ensure that the Inspector General has all of the
resources needed to accomplish the Inspector General's
function.
I am aware that there is existing guidance within the
Department that I think was issued by the Secretary back in
2008 that provides for cooperation and provision of documents
and information to the Inspector General. So, if confirmed, I
look forward to looking at that, seeing if maybe it needs to be
updated, and working with the Inspector General in that regard.
Senator Lankford. Terrific. Yes. We are on the same team
here, and what I do not want to have is the situation where the
Inspector General is seen as an adversarial role. We are all
trying to deal with all issues there, whether it be
whistleblower protection or whether that be waste in government
or whether that be fraud within an entity. I never want to see
one of our agencies try to protect themselves by blocking out
the Inspector General from their investigation.
DHS has a very unique role in our Federal Government in
working with States for voting and to be able to help those
States in their voting. One of the key criteria, though, is
States run their voting systems, not the Federal Government.
Any counsel that you would give initially or any concerns that
you have to make sure that States are protected to be able to
make decisions that they have to make as States without the
Federal Government trying to overstep its clear boundaries
there?
Mr. Mitnick. Senator, that is a critical issue. I
appreciate you raising it, and I am acutely aware that the
elections in 2018 are looming and there is a need to be
proactive, if I am confirmed.
My understanding, Senator, is that the election
infrastructure--although as you said, it is primarily the
responsibility of State and local governments--was added as an
element of critical infrastructure by the Department, and that
the Department, therefore, is ready, willing, and able, to my
understanding, to work with State and local governments who
request assistance, particularly in addressing possible
cybersecurity threats that could compromise the election system
and election technology.
So if I am confirmed, I would look forward to working with
Acting Secretary Duke and other senior leaders in the
Department to ensure that that assistance is lawfully provided.
Senator Lankford. Yes. We look forward to that as well.
Cybersecurity is also an area that is squarely within DHS. It
is also one of the thorniest issues of the law because
everywhere where you get into the leading edge of technology,
law and policy tend to lag behind on it. Again, this goes back
to one of our earlier questions about Americans being secure in
their houses, papers, persons, and effects. It is a basic
constitutional protection, but you get into the area of
cybersecurity, and attacks both from outside the United States
and within the United States, is a very critical issue for us
in the long term in just our economic security as a nation as
well as our private information and security of that.
Any insight that you can give us into your legal mindset on
cybersecurity issues and any boundaries that you could lay out
in front of us?
Mr. Mitnick. Senator, my personal opinion is that
cybersecurity is one of the greatest threats that we face as a
Nation, and it is a critical role of the Department of Homeland
Security.
I was involved in cybersecurity work when I worked in the
White House, including crafting Presidential direction. Of
course, that was 10 or 11 years ago. So, if confirmed, I look
forward to becoming more knowledgeable about exactly what the
Department's activities are right now.
I do know that the Department has a critical role in
safeguarding the dot-gov domain and has very critical
authorities there and has regulatory authority in that regard,
and I understand that the Department has an absolutely critical
role in working with the private sector and State and local
governments on information sharing with regard to
cybersecurity. And my understanding is there is liability
protection that Congress enacted, which also is assisting now
in the information sharing back and forth between the
Department and the private sector, but I look forward to
working on that issue, if I am confirmed.
Senator Lankford. Great. Terrific.
Senator Harris, do you have any final questions?
Senator Harris. No, thank you.
Senator Lankford. I have one final question on this, and it
is extremely important. I saw in your background, you are a
baseball fan. So Indians or Dodgers in the World Series? Who do
you call? Are they both there and if they are there, or if you
have another option who is in the World Series and who wins it?
Senator Harris. The Giants. [Laughter.]
Senator Lankford. You can pick another option, if you
choose to. I know this is the toughest question of the day.
Mr. Mitnick. Well, being in Washington and having lived
here for 16 years, I have been transformed into a Nationals
fan. So I do not want to say anything that might prejudice--not
that my statements would have any bearing on their success in
the post season, but I do not want to say anything that would
have a negative impact in any way on the Nationals and their
prospects.
I have to admit that I was very impressed by that run that
the Dodgers went on this season until they came back down to
earth, although they still ended up pretty well. It looked to
me like they were going to set a record for number of wins in a
regular season, but they are a formidable team.
Senator Lankford. Pretty remarkable.
Mr. Mitnick. I should mention the Indians had a pretty good
run.
Senator Lankford. Yes, they had a pretty good run as well.
Mr. Mitnick. Yes.
Senator Lankford. Any other final statements that you want
to make before this Committee?
Mr. Mitnick. Senator, I do not have any prepared remarks,
but I do want to thank you for considering my nomination and
the rest of the distinguished Members of this Committee and
also Ranking Member Peters for being here today and meeting
with me yesterday.
I have enjoyed this process, and if confirmed, I look
forward to working cooperatively with all of the Members of
this Committee and other Members of Congress.
Senator Lankford. Terrific. Yes. Thank you for making
yourself available for both meeting with me and the office and
just going through so many questions with some of the other
Members on the dais as well and to be able to go through those
things in our office, in that setting, so we can go into
greater depth on these issues.
We do need a strong counsel there, and so look forward to
having a good, strong counsel in that spot because we need
decisions. We need them made rapidly but accurately as well
through the process.
Just to be able to make this final closing statement, the
nominee has made financial disclosures and provided responses
to biographical and prehearing questions submitted by the
Committee. Without objection, this information will be made
part of the hearing record, with the exception of the financial
data, which are on file and available for public inspection in
the Committee offices.\1\
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\1\ The information of Mr. Mitnick appears in the Appendix on page
23.
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The hearing record will remain open until noon tomorrow,
October the 4th, for the submission of statements and questions
for the record. However, if Members wish to receive responses
to their questions from Mr. Mitnick prior to the Committee vote
tomorrow, they must submit questions for the record by 5 p.m.
today.
Thank you again, Mr. Mitnick, for your work and for being
here and going through this process.
The hearing is adjourned.
[Whereupon, at 10:31 a.m., the Committee was adjourned.]
A P P E N D I X
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