Brown ‘Slipped’ Through

Posted September 9, 2005 at 6:32pm

In his June 2002 confirmation hearings to become second in command of the nation’s emergency management agency, Michael Brown received effusive praise from Members of Congress, including Sen. Joe Lieberman (D-Conn.), who lauded Brown’s management experience and pledged to move his nomination quickly through the Senate.

But six months later, when he was tapped to head the Federal Emergency Management Agency, the Bush administration never sent the Senate Brown’s nomination as the newly created Homeland Security undersecretary for emergency preparedness and response, which includes overseeing FEMA.

A provision in the 2002 law creating the Homeland Security Department allowed officials whose duties were to remain the same in the new organization to skip Senate confirmation, according to a Congressional Research Service report titled “Filling Presidentially Appointed, Senate-Confirmed Positions in the Department of Homeland Security,” as well as conversations with lawmakers and aides.

“He just slipped right through,” said Lieberman, who was chairman of the Senate Governmental Affairs Committee in 2002, in a recent interview. “There was a question at the time, but we decided that probably [the administration] had a right to do that.” The question came, he said, because “his was really an elevation rather than a transfer.”

Indeed, when Bush signed the Homeland Security Act on Nov. 25, 2002, Brown was still deputy director of FEMA. Then-FEMA director and former Bush campaign director Joe Allbaugh did not announce his intent to resign until mid-December of that year.

But the wording of the law appears to leave room for interpretation on the need for the Senate to consent to Brown’s promotion once Allbaugh left.

“Nothing in this act shall be understood to require the advice and consent of the Senate to the appointment by the President to a position in the Department of any officer whose agency is transferred to the Department pursuant to this Act and whose duties following such transfer are germane to those performed before such transfer,” the law states.

Only a handful of other officials in the new department skipped Senate confirmation in a similar way, but Brown was the only one whose position changed from being a subordinate to a director, according to the CRS report. The other individuals CRS identifies who did not have to be reconfirmed by the Senate were Robert Bonner, who was confirmed as Commissioner of the U.S. Customs Service in 2001 and whose job title was simply changed to commissioner of U.S. Customs and Border Protection when his agency merged with Homeland Security; Thomas Collins, commandant of the Coast Guard; and R. David Paulison, United States fire administrator.

How Brown ascended the ranks of FEMA, despite what many have called thin to non-existent emergency management experience, might not be an issue if Brown hadn’t come under fire, primarily from Democrats, for the federal government’s perceived failures in responding to the devastation caused by Hurricane Katrina two weeks ago. On Friday, Homeland Security Secretary Michael Chertoff replaced Brown as head of the relief efforts along the Gulf Coast with Coast Guard Vice Adm. Thad Allen.

It’s well known that Brown got his first job as general counsel of FEMA through his long-standing friendship with Allbaugh. At the time, Brown’s appointment did not require Senate confirmation, so the decade he spent as the head of the International Arabian Horse Association and his lack of emergency management experience appears to have raised no eyebrows within Congress at the time.

Lieberman noted that by the time Brown’s nomination as deputy director of FEMA came before his panel in 2002, Brown had already been with the agency a little more than a year and had been endorsed by several emergency management officials from around the country.

“He was an acceptable candidate,” Lieberman said.

Lieberman explained that with hundreds of executive nominees to vet, the Senate often defers to the president’s judgment as long as “the person is within the acceptable range.”

Indeed, as a resident of Colorado, Brown was enthusiastically introduced at the 2002 hearing by his home-state Sens. Wayne Allard (R) and Ben Nighthorse Campbell (R).

At the time, both Allard and Campbell noted Brown’s previous work at the IAHA and the fact that he graduated from little known universities, such as the Central State University in Oklahoma and the Oklahoma City University School of Law. And both gave Brown unequivocal endorsements.

“I want to join my colleague from Colorado … in strongly endorsing President Bush’s nominee for deputy director of the Federal Emergency Management Agency,” Allard said in a statement read before the committee. “I believe that Mr. Brown has valuable experience and familiarity with insurance law, energy issues, land use and environmental law, practical skills that have and will serve him well at FEMA.”

Allard spokesman Angela de Rocha said Friday that Allard “routinely” introduces nominees who hail from Colorado and that he has not yet come to a conclusion about who, if anyone, is to blame for the mishandling of Katrina relief efforts.

“He prefers to withhold judgment until he’s had time to review everything,” de Rocha said.

Still, Lieberman said Brown’s ascension from deputy director to undersecretary with control over FEMA within the new Homeland Security Department did raise a few red flags in early 2003. Ultimately, Brown’s promotion went through without Senate confirmation, because of the provision in the law, to which Lieberman had objected when it was offered by then-Sen. Fred Thompson (R-Tenn.) during committee deliberations on the bill in 2002. At the time, Thompson was the ranking member on the panel.

“It was a new agency, and its leaders should be accountable to the Senate and the public,” said Lieberman spokeswoman Leslie Phillips. However, Thompson prevailed during floor consideration of the bill in getting the language adopted, Phillips explained.

At the same time that Sen. Susan Collins (R-Maine) was taking over the chair of the Governmental Affairs Committee from Lieberman in January 2003, Bush initially indicated that he would send the Senate Brown’s nomination. In an interview Thursday, however, Collins deferred questions about Brown’s nomination to Lieberman, saying she wasn’t chairwoman at the time that Brown was initially confirmed. Based on a transcript of the 2002 hearing, it appears that she was among several committee members who did not attend.

Ultimately, the Bush administration did not send up Brown’s nomination in 2003, but it is unclear when that decision was made. The CRS report noted that as late as March 3, 2003, FEMA press releases were still referring to Brown as acting undersecretary. As of press time, spokespeople from the Homeland Security Department and FEMA had not returned calls seeking comment.

Still, Lieberman said he was unsure whether Brown’s nomination to head FEMA, had it come before the Senate in 2003, would have generated any more examination than it did in 2002.

“Probably he would have gotten more scrutiny,” Lieberman said, “But the honest answer is, I don’t know.”

Even Senate Minority Leader Harry Reid (D-Nev.) acknowledged that, in hindsight, Brown’s résumé — which some news reports last week indicated might have been embellished — should have attracted more scrutiny from the Senate.

“We didn’t have any indication at the time that would tell us what a dismal failure he would be,” Reid said. “That’s why almost all of the president’s nominations go through. It has to be something really egregious” to hold them up.

But some, such as Collins and even Lieberman, have cautioned others not to jump to conclusions about who or what is culpable for the government’s failings.

Said Collins last Monday, “We need to look at the leadership as well. It obviously is not my role to determine who the head of FEMA is, but we’re certainly going to take a tough look at the agency and how it performed.”