[Infowarrior] - TSA nominee gave misleading information to Congress, documents show

[Richard Forno]

TSA nominee gave misleading information to Congress, documents show
By Robert O'Harrow Jr.
Washington Post Staff Writer
Thursday, December 31, 2009; 6:05 PM

http://www.washingtonpost.com/wp-dyn/content/article/2009/12/31/AR2009123102257_pf.html
The White House nominee to lead the Transportation Security  
Administration gave Congress misleading information about incidents in  
which he inappropriately accessed a federal database, possibly in  
violation of privacy laws, documents obtained by The Washington Post  
show.

The disclosure comes as pressure builds from Democrats on Capitol Hill  
for quick January confirmation of Erroll Southers, whose nomination  
has been held up by GOP opponents. In the aftermath of an attempted  
airline bombing on Christmas Day, calls have intensified for lawmakers  
to install permanent leadership at the TSA, a critical agency in  
enforcing airline security.

Southers, a former FBI agent, has described inconsistencies in his  
accounts to Congress as "inadvertent" and the result of poor memory of  
an incident that dates back 20 years. He said in a Nov. 20 letter to  
key senators obtained by The Post that he accepted full responsibility  
long ago for a "grave error in judgment" in accessing confidential  
criminal records about his estranged wife's new boyfriend.

His letter to Senate homeland security Chairman Joseph I. Lieberman (I- 
Conn.) and ranking Republican Susan Collins (Maine), which has not  
been publicly disclosed, attempts to correct statements about the  
episode that were made in a sworn affidavit on Oct. 22 and have been  
previously reported.

Southers did not respond to a request for an interview, and his wife  
declined to comment.

Southers' admission that he was involved in a questionable use of law  
enforcement background data has been a source of concern among civil  
libertarians, who believe the TSA performs a delicate balancing act in  
tapping into passenger information to find terrorists while also  
protecting citizens' privacy.

Southers first described the episode in his October affidavit, telling  
the Senate panel that two decades ago he asked a San Diego Police  
Department employee to access confidential criminal records about the  
boyfriend. Southers said he had had been censured by superiors at the  
FBI. He described the incident as isolated and expressed regrets about  
it.

The committee approved his nomination on Nov. 19. One day later,  
Southers wrote to Lieberman and Collins saying his first account was  
incorrect. After reviewing documents, he recalled that he had twice  
conducted the database searches himself, downloaded confidential law  
enforcement records about his wife's boyfriend and passed information  
on to the police department employee, the letter said.

It is a violation of the federal Privacy Act to access such  
confidential information without proper cause. The law says that "any  
person who knowingly and willfully requests or obtains any record  
concerning an individual from an agency under false pretenses shall be  
guilty of a misdemeanor and fined not more than $5,000."

In his letter, Southers said that he simply forgot the circumstances  
of the searches, which occurred in 1987 and 1988 when he was worried  
about his wife and their son, who had begun living with the boyfriend.  
The letter said that "during a period of great personal turmoil, I  
made a serious error in judgment by using my official position with  
the FBI to resolve a personal problem." He did not specify the data  
system he accessed.

"I am distressed by the inconsistencies between my recollection and  
the contemporaneous documents, but I assure you that the mistake was  
inadvertent, and that I have at all times taken full responsibility  
for what I know to have been a grave error in judgment," the letter  
said. "This incident was over twenty years ago, I was distraught and  
concerned about my young son, and never in my career since has there  
been any recurrence of this sort of conduct."

Southers' nomination already has been delayed by partisan bickering.  
Though two Senate committees have endorsed him, and he received  
recommendations from other law enforcement officials, Sen. Jim DeMint  
(R-S.C.) recently held up his approval because of concerns that  
Southers would support the unionization of TSA workers.

White House spokesman Nick Shapiro defended Southers and said the  
changes in his account should not affect his nomination. "Southers has  
never tried to hide this incident and has expressed that these were  
errors he made in judgment that he deeply regretted and an error that  
he made in an account of events that happened over 20 years ago.  
Senators Lieberman and Collins were satisfied with Southers' letter  
and voiced their support for him. Southers' nomination has not been  
held up over this as he has been entrusted with significant and  
increasing responsibilities in the area of homeland security over the  
years since, but he is being held up by Senator DeMint over a  
political issue," Shapiro said.

A spokesman said Senate Majority Leader Harry M. Reid (D-Nev.) will  
work quickly to overcome DeMint's procedural block and force a vote  
when the Senate reconvenes later this month.

People involved in the vetting process for Southers debated the  
significance of the change in his account. But they concluded that he  
was still a good choice. In a statement, a spokeswoman for Lieberman  
said the senator "believes that Erroll Southers is an outstanding  
candidate to lead the TSA. Twenty-two years ago, Mr. Southers  
committed a serious error in judgment. He admitted that error and was  
disciplined for it."

"Mr. Southers was forthcoming about his past censure during his  
nomination process and about errors he made in recalling the details,"  
the statement said. "Senator Lieberman is satisfied that the totality  
of Mr. Southers' career more than qualifies him for the position to  
which he was nominated."

Civil liberties specialists said that the misuse of databases has been  
common among law enforcement authorities for many years, despite an  
array of local, state and federal prohibitions intended to protect  
personal information. Studies have found that police at every level  
examine records of celebrities, women they have met and political  
rivals. Some federal authorities have been jailed for selling records  
to criminals.

Americans seem willing to trade information for more security, but  
only if there are clear limits on how the information is being used.  
Several ambitious security programs, including one for aviation  
screening called CAPPS II (Computer Assisted Passenger Pre-screening  
System), were sharply curtailed when passengers and Congress concluded  
that the databases were too intrusive and not properly overseen. The  
same thing could happen now, after the attempted bombing on Christmas  
Day, if travelers lose faith in the TSA's ability to protect  
information about them, said Michael German, policy counsel at the  
American Civil Liberties Union and a former FBI special agent.

"They're saying we have to do it harder and more," German said about  
the push now for more data surveillance. "The government can only  
succeed if they have the confidence and support of the American  
people. Once that confidence is diminished, the government will be in  
a much tougher position."

In questioning before the Senate Homeland Security and Governmental  
Affairs Committee, Southers has said he understands the need to  
balance security and privacy. Said Collins: "You have taken  
responsibility for your actions. You've acknowledged your mistake in  
the personal conversation that we had in my office. It is important  
that the public have confidence that government officials will not  
misuse the authority that they have."

She added: "If you're confirmed, you're going to have the access to  
databases that have personal information on many, many individuals,  
such as through the secure flight program, and it's going to be  
important for the public to have confidence that you would not, in any  
way, misuse your access to the personal information in those  
databases. So, let me first ask you: Have you ever in the past misused  
your access to databases that the government maintains, other than  
this one incident that led to this censure?"

"No, Senator, I have not," Southers replied.

Collins continued: "Do you commit today that you will respect the  
privacy and civil liberties concerns that people have with regard to  
the personal information in those databases?"

"Yes, Senator, I do," Southers said.