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 divideSouthers'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. privacyCivil 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.
White House defends its TSA nominee
By PHILIP ELLIOTT
Erroll Southers, a former FBI agent whose nomination has been delayed by Republicans for unrelated concerns, sent a letter to senators in November to correct what he called a distortion of his record. As Democrats push for his speedy confirmation, the chairman of the Senate Homeland Security Committee said he maintained faith in the nominee.
"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," he wrote in a letter to Sens. Joe Lieberman, I-Conn., and Susan Collins, R-Maine.
"This incident was over 20 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."
In an October affidavit for the Senate committee, he initially said he asked a San Diego police employee to run a background check on his then-estranged wife's boyfriend and was censured by his FBI superiors 20 years ago for what he said was an isolated instance.
But a day after the committee approved his nomination and sent it to the full Senate, he wrote to the senators and told them that he was incorrect, that he twice ran background checks himself.
In the letter correcting the record, Southers also said he downloaded law enforcement records and shared them. He said he forgot the incident in 1987 or 1988.
The letter was first reported by The Washington Post's Web site on Thursday. The letter, which was distributed to all members of the Homeland Security Committee and whose contents were verified to The Associated Press by a Democratic source, was dated Nov. 20.
Lieberman aide Leslie Phillips said the senator continues to support Southers.
"Twenty years ago, Mr. Southers committed a serious error in judgment," Phillips said. "He admitted that error and was disciplined for it. He went on to develop broad knowledge and build an excellent reputation in the areas of security and law enforcement. Mr. Southers was forthcoming about his past censure during his nomination process and about errors he made in recalling the details."
White House officials lined up behind Southers' nomination to head a Transportation Department agency that lacked a confirmed chief when a suspected terrorist failed to destroy a Detroit-bound airliner on Christmas Day.
"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," said Nick Shapiro, a White House spokesman traveling with Obama on vacation in Hawaii.
"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 Sen. (Jim) DeMint over a political issue."
Southers' nomination has been delayed by DeMint, a South Carolina Republican, who said he feared TSA employees would join unions with Southers' support. Majority Leader Harry Reid, D-Nev., said he would force a vote on Southers by the full Senate in the new year, his spokesman said.
Southers' nomination secured the backing from former colleagues, including the Republican governor of California who nominated him as his No. 2 homeland security adviser and has known Southers for 30 years, back to his days as a Santa Monica police officer.
"Erroll brings vast homeland security experience at the federal, state and local levels, along with hands on airport security expertise," Gov. Arnold Schwarzenegger said in a statement. "California is safer and better prepared because of his hard work and dedication. Erroll is a committed public servant and highly qualified for the role."
His former boss also praised Southers' character.
"He is a man of unquestioned integrity who, for the past 30 years, has dedicated his life to public service," wrote Ronald Iden, now chief security officer for the Walt Disney Co., who brought Southers on as his deputy at the California homeland security office in 2004. His was among the letters sent to the Senate in support of Southers' nomination.
Southers is the assistant chief of the Los Angeles World Airports Police Department. He previously taught at the University of Southern California, was a security consultant and a police officer.
