Legal Commentary

Our Embattled TSA Nominee

By Jonathan H. Adler

The attempted Christmas Day terrorist attack on a commercial airliner has brought attention to the Senate?s failure to confirm President  Obama?s nominee to head the Transportationa Security Administration, Erroll Southers. The Senate Homeland Security Committee approved his nomination in November, but he has yet to come to a vote, in part due to Republican Senator Jim DeMint?s hold on the nomination.  Sen. DeMint opposes Southers because he fears unionization of TSA personnel, but there may be a bigger issue with the Southers nomination.

As I noted back in November, Southers was censured by the FBI for asking law enforcement personnel to conduct a background check on his ex-wife?s boyfriend.  Now, the Washington Post reports, it appears he provided inaccurate testimony about the incident.

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.

This past week, Senate Majority Leader Harry Reid said he would seek to force a vote on the Southers nomination when the Senate comes back from the holiday recess.

Full post as published by The Volokh Conspiracy on January 01, 2010 (boomark / email).