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TSA nominee misled Congress about accessing confidential records

By Robert O'Harrow Jr.
Friday, January 1, 2010; A01

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 had accepted full responsibility long ago for a "grave error in judgment" in accessing confidential criminal records about his then-estranged wife's new boyfriend.

His letter to Joseph I. Lieberman (I-Conn.), chairman of the Senate homeland security committee, and Susan Collins (Maine), the ranking Republican on the panel, attempts to correct statements about the episode that were made in a sworn affidavit on Oct. 22 and have been reported.

Southers did not respond to a request for an interview.

'A serious error'

Southers's 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 been censured by superiors at the FBI. He described the incident as isolated and expressed regrets about it.

The committee approved his nomination Nov. 19. One day later, Southers wrote to Lieberman and Collins saying his first account was incorrect. After reviewing documents, he wrote, 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 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 he simply forgot the circumstances of the searches, which occurred in 1987 and 1988 after he grew worried about his wife and their son, who had begun living with the boyfriend. The letter said: "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."

Partisan divide

Southers's nomination 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's letter and voiced their support for him. Southers's 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 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."

Security vs. privacy

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.

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