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In 2003, as the U.S. Department of Homeland Security (DHS) came into being, Joe Whitley was hired as the first general counsel at an agency charged with protecting American citizens in the wake of 9/11. Not since the Department of Defense was established in 1947 had the federal government undergone such a massive reorganization, pulling together 22 agencies under the auspices of DHS and ushering in a flood of new legislation. Whitley, a Georgia native, had previously served as a U.S. Attorney and acting associate attorney general, the third-ranking position at the Department of Justice. With the arrival of the 10th anniversary of the 9/11 attacks on the World Trade Center and the Pentagon, Whitley, now a partner at Greenberg Traurig, discusses the early days of building the Department’s Office of General Counsel with CorpCounsel.com. Below is an edited version of that conversation. CorpCounsel: How did you go about organizing the General Counsel’s office? Joe Whitley: After I was initially tapped for the position, I went to each major cabinet agency in Washington and met with their general counsel, including Treasury and the Department of Defense. I wanted to find out how they were structured—what it is they did, what they thought worked well, what they thought could be better, and what they’d learned in their experiences as general counsel of a public organization or cabinet agency. I knew that we had, at that time, roughly 1600 lawyers at the Department of Homeland Security, and they were in different components—ranging from the Federal Emergency Management Agency to the Secret Service to Immigration and Customs Enforcement—spread throughout the department. Initially, I looked to the model the Department of Justice sets for how lawyers are managed. I wanted to create a structure that would provide legal services that would be, in essence, consistent with the current services that were being provided by those other components, but that would also create a headquarters to run the entirety of those legal services. CC: How did you think about your mission? JW: The 2002 Homeland Security Act has two lines or so that talk about the Office of the General Counsel at the Department of Homeland Security. To paraphrase, it says: There shall be a general counsel of the Department of Homeland Security who will be the chief legal officer of the department and who will have Senate confirmation. I wanted to make sure my mission was defined. I put together a memorandum that would define my responsibilities, I presented it to DHS Secretary Tom Ridge, and he signed it and executed it. It was more than a bureaucratic exercise—it established that the general counsel would be relevant to the department’s legal operation. I considered the leadership of the department—which includes the Secretary and the Deputy Secretary—to be clients, and we wanted to make sure our attorneys were available to them, particularly in highly sensitive areas like our intelligence operations and things of that nature. CC: Obviously, you needed to spend a good deal of time coming up with a bureaucratic structure. JW: ‘Bureaucracy’ can have a negative connotation, but we wanted to create one that would be adaptable, fluid, and available to the client, in a way that makes the client want to use the services and feel comfortable with them. The operation of government requires compliance with laws and regulations. We had a number of people at the Department, some of whom were trying to find the shortest distance between two points, and sometimes that shortest distance might not be totally in compliance with the law. So we had to find a way to encourage the client to not bypass us, but to use us and let us help them get that shortest possible distance legally. CC: Was part of your job to expand the department’s legal powers? JW: I think a lot of our work was definitional, and that meant making sure that the Department of Homeland Security had the same legal apparatus that other departments had. We needed to grow into a space that was not larger than what was needed, but consistent with what was needed. We were not trying to expand our powers as much as we were making sure we had the regulatory apparatus in place. Like Toys ‘R Us, ‘Regs ‘R Us’ was kind of our motto, because we had such a huge regulatory imperative. The Homeland Security Act put many new laws on the books, but obviously they had to have regulatory underpinnings. CC: How did you think about balancing security needs with placing regulations on the private sector? JW: We did balance that, obviously by working a lot with the Office of Management and Budget. Making sure the regulations were readable, logical, well thought out, and user friendly. The homeland security concept as we viewed it—and I think this is still the same today—is that homeland security is driven significantly by the private sector in the United States. The Department has to provide the private sector the flexibility to do the work it needs to do to continue the capitalistic model we have here in the United States, and at the same time balance that against protecting Americans in their day-to-day lives. That always was on our minds, and I think today continues to be a major part of the department. CC: As time went on, what kinds of things rose up to your desk? JW: In the early days, we kept thinking there would be a moment when we might have another 9/11. We had that sense of urgency just about every day: how do we stand up the Department if there’s no longer a physical department, if there’s no Washington, how do we have a government? Who’s going to be the general counsel in that setting, where would that person come from? Obviously they would come from somewhere outside of Washington, but how do you have a process that gives people an idea about how that would happen? Every department has a contingency plan in place—that is pretty well known, but I haven’t discussed that with the media before. Of the long list of things that came across my desk, I would also mention that I represented the Department working with the 9/11 Commission. That was quite gratifying. Of course, we were a brand-new department, but Secretary Ridge directed us to give the 9/11 Commission as much as we possibly could, and I worked with him on his testimony before the Commission. CC: How do you view the Department today and moving forward? JW: I think going forward we’ll continue to see the integration of functions without sacrificing the strengths of each component. For example, protecting the Coast Guard’s long history of unique and excellent legal advice. Same goes for the Secret Service. Customs is another agency that’s been in existence since the founding of the Republic. Integration had its virtue, but not at the sacrifice of the strengths of the individual components. If I had tried to homogenize this diverse group of legal components, that would not have been the right approach. In terms of coordinating among agencies and not working in silos anymore, there’s been a huge sea change since 9/11, and I think part of that sea change has been the work of government attorneys. See also: “The first GC at Homeland Security,” Daily Report, September 2011.

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