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TSA nominee misled Congress about accessing confidential records

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

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.

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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.


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