A hard-hitting, bipartisan congressional oversight hearing is good government at work — especially if you like blood sports.
It can be a brutal experience for an agency head in the hot seat when Republicans and Democrats are rightly and mutually disgusted with a bureaucracy’s performance and its leaders.
That was the case with Huban A. Gowadia, the acting administrator of the Transportation Security Administration (TSA) at a House Oversight and Government Reform Committee hearing Thursday.
The committee has had petty, partisan, politician-promoting disputes, but this wasn’t one of them.
Outraged members, both red and blue, lambasted TSA’s refusal to provide the independent Office of Special Counsel (OSC) all the documents needed for its whistleblower-retaliation investigations.
The hearing pointed to issues beyond the importance of principled, bipartisan oversight — the lack of transparency, whistleblower revenge, collusion to deny employee rights — that stain many agencies.
Yet TSA, more than others, uses a fictional claim of attorney-client privilege to thwart the special counsel’s work. And a December report by the Department of Homeland Security inspector general cited TSA’s “unjustifiable and … inconsistent and arbitrary” use of the “sensitive security information” (SSI) designation to avoid release of even innocuous material.
Citing reports from “as far back as 2005,” Inspector General John Roth testified that TSA’s “aggressive approach to restricting information from being made public … is deeply rooted and systemic.”
He pointed to examples where the agency’s misuse of security information “bordered on absurd,” including when officials attempted to redact this line — “passengers are not required to remove shoes, belts, laptops, liquids or gels” — from a report, while that information was publicly posted on TSA’s website.
Similarly, TSA considered the entire, blacked-out page of a document to be privileged, including the date.
“There’s simply no basis for federal agencies to assert the attorney-client privilege during an OSC investigation,” Special Counsel Carolyn Lerner said at the hearing.
The IG’s December report was blunt, saying the agency “cannot be trusted to administer the (SSI) program in a reasonable manner.”
Reading that statement during last week’s committee hearing, a head-shaking Chairman Jason Chaffetz (R-Utah) said, “That’s about as damning as it gets.”
TSA’s sorry history with whistleblowers includes losing a Supreme Court case involving retroactive designation of information as sensitive to justify the 2006 firing of air marshal Robert MacLean. But even now, the record shows it can’t be trusted to treat its employees fairly. Rep. Elijah E. Cummings (Md.), the committee’s ranking Democrat, complained about a now-discontinued policy of “forcing employees to move entirely to … new locations as punishment for raising concerns.” Added Cummings, “it was punishment, punishment.”
The whistleblower, attorney-client privilege and SSI issues were bad enough for TSA. Gowadia’s quandary made it worse.
Her inability or unwillingness to answer many questions and her reluctance to name another federal official directly involved in the attorney-client dodge left committee members upset and incredulous.
“Unfortunately, the TSA is not fulfilling their legal obligation to produce documents, frustrating OSC’s investigative efforts,” Chaffetz said. “And I can tell you with a passion on both sides of this aisle, it is not acceptable to withhold information.”
Gowadia was in a tough spot. Essentially, her defense was that the bosses made her do it. When Chaffetz demanded she explain the attorney-client-privilege defense, she blamed the bureaucracy: “I have to say we follow departmental guidance. … My hands are tied by departmental policy.”
Chaffetz said he wanted to see this guidance. Gowadia’s answer surprised him.
Gowadia: “Sir, to … best of my knowledge, the guidance is not in writing …”
Chaffetz: “So wait a second. You don’t have — you just made this up? It’s not in writing?”
When he insisted on getting the name of the official preventing her from providing OSC all of the information it needs, she demurred as if that, too, were secret.
Chaffetz: “Give me some names. I want to know who to call up here.”
Gowadia: “The Office of General Counsel.”
Chaffetz: “No, no.”
Gowadia: “The general counsel to the secretary.”
Chaffetz: “Give me a specific name. That’s a big office, there’s lots of attorneys, tell me the attorneys that are telling you not to provide this information to Congress, and tell me the names of the attorneys that are telling you not to provide this to the OSC. I want names.”
Gowadia: “Sir, sir … I will follow up with your — with you and your staff right after this.”
Chaffetz then had the TSA staffers attending the hearing — agency heads always come with a crew — raise their hands. He counted seven.
“One of these seven people has got to get on the phone, get your butt up out of this committee and go get that information before this hearing’s done,” he demanded. “I want to have names.”
Later in the hearing, Gowadia said she had received permission to reveal the name of Joseph Maher, the acting general counsel.
After much of the testimony, Chaffetz concluded that TSA whistleblowers “know the deck is stacked against them.”
Congress likes whistleblowers. And it doesn’t like it when they are victims of official reprisal, which happens much more than taxpayers realize.
“Ladies and gentlemen, if we don’t stand up for whistleblowers, we don’t need to be here,” Cummings told his colleagues. “We must do everything in our power, at all times, to protect them.”