tv Federal Officials Testify on TSA Transparency CSPAN March 2, 2017 2:53pm-4:09pm EST
orchestras. i wish we could duplicate the dropped curtain in every area, ut it isn't that easy. i had one real and one fictitious. real one was emilia hart and the fictitious one was nancy drew. >> from the british house of ommons debate on plum's visit. >> day of inauguration, two million marched on the streets of america, 100,000 marched here in this county and it was an expression of fear and anxiety that we had someone in the house wielding this enormous power. the power was enormous. and unfortunately the intellectual capacity of the protozoan.ce
mr. chaffetz: committee on oversight and government reform will come to order. without objection the chair will declare a recess at any time. i appreciate you being here. the committee will explore the lack of transparency at the transportation security administration. we will hear testimony from the office of special counsel known as the o.s.c. and the department of homeland security's inspector general about problems they are having with the t.s.a. congress created the office of special counsel to investigate and prosecute violations of prohibited personnel practices especially with whistle blowing. the agencies are required to produce complete and unredacted documents to the office of special counsel. unfortunately, the t.s.a. is not fulfilling their legal obligation to produce documents frustrating the investigative efforts and i can tell you with a passion on both sides of this
aisle, it is not acceptable to withhold information. it is something we have both committed to on both sides of the aisle to help protect and ensure that whistleblowers are protected. you have a right in this government as a government employee to plow the bhiffle. but when the t.s.a. withholds documents and does not allow the o.s.c. to do its job, it is unseptemberable. there was testimony last may that the t.s.a. would base its response to whistleblower retaliation on o.s.c. findings. but now t.s.a. is withholding the documents that o.s.c. needs. on one hand i have you have the administrator saying we are going to base our conclusions on the findings of o.s.c. but the t.s.a. will not give the documents to o.s.c. don't want to hear how volume
nouse the documents are. if you go to the place and tell us about how many documents you turn over every time you do so, we will ask you what percentage of the documents did you actually turn over. t.s.a. is one of the agencies in most need of the o.s.c.'s work. since 2012, the o.s.c. received 243 cases from t.s.a. employees alleging retaliation for blowing the whistle. a lot happens. very few blow the whistle, but when they plow the whistle, to .ave 243 people say nd complaints from t.s.a. is a hostile work envirme. it has been a year on mismanagement at the agency.
it shouldn't happen. t.s.a. selectively withholds information by asserting a common law, attorney-client privilege. t.s.a.'s chief counsel, more than 15 years ago, could not identify the client holding the privilege. when pressed, she informed that they have no legal obligation to turn over documents to the o.s.c. her inability to arctic can you late who she represents represents a fundamental misunderstanding towards the o.s.c. function. the
quote. t was clearly public, consumer available you could get in the library. now, from everything we have seen, c.s.a. operations have improved over the last two years under most recent administrator vice admiral peter neffenger but the deputy's interview last week makes crystal clear that t.s.a. employees need the same protections as other federal employees so they can speak up about the security of the american people without being retaliated against and congress can consider these reforms. and let me say to the chairman, i thank you, again, and i thank all of our members for standing up for whistleblowers. ladies and gentlemen, if we don't stand up for whistleblowers, we don't need to be here. we need to go and get another job because as far as i'm concerned it will be legislative and congressional
malpractice not to do so. some of the best information that we have gotten from whistleblowers and we must do everything in our power at all times to protect them. on the other hand, for anyone who thinks congress received title 5 protection for employees at other federal agencies, t.s.a. is a case study demonstrating why this would be a terrible idea. and with that, mr. chairman, i yield back. i also notice that congressman sarbanes just came in and he's one of our newest members. thank you. mr. chaffetz: welcome. thank you. glad you're here. members are advised that we do anticipate votes on the floor. we're going to get -- hopefully get three all of the opening statement -- through all of the opening statements. our intention is to allow votes on the floor and we'll come back and finish up the hearing. we'll hold the record open for five legislative days for any members who would like to submit a written statement. but let's now recognize our
panel. 're pleased to welcome ms. gowdia, the administrator for the transportation security administration. and inspector john roth from department of homeland security. and the honorable carolyn lerner, special counsel for the office of special -- special ounsel for the office of the special counsel. you are to be sworn before you testify. so if you will please rise and raise your right hand. do you solemnly swear or affirm the testimony you are about to give will be the truth, the whole truth and nothing but the truth so help you god? please be seated and let the record reflect all the witnesses answered in the affirmative. we'd appreciate if you limit your oral testimony to five minutes. we'll give you a little bit of latitude but, of course, your entire written statement will be made part of the record.
we'll now recognize the acting administrator for five minutes. by the way, you have to straighten it up and get that microphone right up in there. it's a little bit uncomfortable but bring it up close. thank you. ms. gowdia: thank you for affording me the opportunity and privilege to speak to you today about information transparency at the transportation security administration. i am indeed fortunate to represent a tremendous work force that's responsible for executing a critical security mission, the transportation mission. vital to that success is how we share information with our many transportation security partners, the dynamic and complex environment in which we operate demands that t.s.a. and our partners share information in a timely and secure manner. to that end, we work closely across the spectrum of transportation modes to exchange information, solicit
feedback and develop policy and guidelines. indeed, our recent cooperative initiatives with industry stakeholders have yielded significant improvements to our security operations. for instance, we collaborated with airports and air carriers to address the passenger volume last spring and summer and in the process we established our airport operation center as a permanent and direct communication channel. leveraging the center, t.s.a. continues to hold daily calls with airlines and airports to track screening operations. we also communicate regularly with the traveling public to a variety of efforts, press releases and social media. t.s.a. cares and ask t.s.a. are two of our most popular models of passenger engagement. for but the transportation security system does not stop at our borders. it is undeniably global in our nature. that's why t.s.a. works alongside partners that plays
leading role in international organizations with a common vision for transportation security. across all our interactions, t.s.a. strives to be transparent and forth right. in point of fact, doing so seves our interest. as a free and frequent exchange of information to and from partners helps us make better informed decisions and builds lasting trust. however, we also must remain absolutely vigilant in safeguarding against the release of sensitive information which could cause harm if disclosed to our adversaries. we must balance the transparents flow of information with serious responsibility to prevent that information from falling into the wrong hands. for that reason we ensure that information requiring protection is properly marked, handled and distributed. sensitive security information, or s.s.i., is one category of protected information that is defined by statute. governing departmental and t.s.a. management directives mandate that such information
be released to the maximum extent possible without compromising transportation security. and because we count on our greatest resource, our people, to enforce these protections, we have updated s.s.i. training and made it an annual requirement for all t.s.a. employees and contractors. in addition, we have developed a comprehensive s.s.i. policies and procedures handbook as well as improved reference guides. keeping the spirit of transparency and public's access to appropriate information, t.s.a. establishes procedures for adjudicating challenges to is s.i. designations. taken together, these measures enhance the is s.i. program and contributes to the overall growth as a true learning organization. we must also continue to learn from each other. i encourage my t.s.a. colleagues to feel empowered in voicing their thoughts, suggestions and concerns that can lead to improvements in our workplace environment and how
we do business. that means creating and sustaining an organizational culture which values responsible challenges to conventional thinking and invites opportunities to get better. and those opportunities can come from a number of sources. be it an audit conducted by the inspector general or an employee calling attention to an agency and propriety. i want to take this opportunity to thank mr. roth and ms. lerner. with their help i do believe we will continue to improve. let me stress that no matter where the challenge comes from, t.s.a. has zero tolerance for prohibited personnel practices such as retaliation against whistleblowers. t.s.a.'s fortunate to have employees and stakeholders with a shared passion for mission success and integrity. we will continue to work hard to exceed their expectations. in conclusion, i would like to emphasize that each side of the coin, sharing information
transparently and protecting information when it is required is indispensible to our national security mission. i have every confidence that the proud men and women of t.s.a. today are more than up to both tasks. thank you. mr. chaffetz: thank you. appreciate that. before we recognize inspector general, members are advised we have a vote on the floor so i'm going to put us into recess and we will reconvene no sooner than 11:00 a.m. so you're free to go to the cafeteria. do whatever you want to do. if you would please be back here just before 11:00 and as soon as the votes are done on the floor we'll reconvene. he committee stands in recess.
mr. chaffetz: the committee on oversight and government reform will come to order. we were delayed more than a moment because of vote on the floor but i believe now we are going to hear testimony from inspector general roth. you are now recognized for five minutes. mr. roth: thank you, chairman chaffetz, ranking member cummings and members of the committee. thank you for letting me testify relating to t.s.a. the inspector oversight of t.s.a. fosters positive change and makes government better. our effectiveness of our oversight depends on our ability to make balanced reports that accurately
includes findings and recommendations to resolve. the inspector general act requires us we inform the d.h.s. secretary, congress and the public about any problems and deficiencies we identify through our work. public scrutiny in what we find is key to accomplishing our mission. we have found that t.s.a. has a history of taking an aggressive approach to restricting information from being made public, especially with respect to a category of information known as sensitive security information, commonly known by its acronym as s.s.i. this problem is well-documented. i first encountered the issue an 015 when t.s.a. was in audit report concerning the -- similar information had been previously published in two o.i.g. reports. i appealed the issue directly to the t.s.a. administrator but it was not resolved to my satisfaction. sure enough it was repeated in our latest report on t.s.a. i.t. systems that was published
in december of last year. in that report, t.s.a. again demanded redax of information that had previously been freely published without objection and which my i.t. security experts told me poses no threat to aviation security. and they made similar findings and i believe the problem is deeply rooted and systemic. for instance, as far back as 2005, g.a.o. issued a report finding that t.s.a. did not have adequate policies and procedures to determine what constitutes s.s.i. or who was authorized to make the designation. g.a.o. found that the t.s.a.'s lack of internal controls left t.s.a. unable to be ensured they were applying the designation properly. nearly 10 years later, this committee reached a similar conclusion in a bipartisan staff report it issued in 2014. two years after that in 2016, the chairman of the house committee on homeland security, subcommittee on transportation security objected to t.s.a.'s management and use of the
s.s.i. designation, noting that the improper invocation of s.s.i. and i quote, raised the spectrum we heard against and again about t.s.a. using the security classifications to avoid having public discussions about certain things that may be unpleasant for them to discuss in public, end quote. in addition to these inconsistent s.s.i. designations, we have encountered instances in which t.s.a. redacted information so widely known that redax bordered on absurd. for example, t.s.a. redacted, claiming s.s.i. a statement in one of our draft reports related to expedited screening process. here's the quote, passengers are not required to remove shoes, belts, laptops, liquids or jells, end quote. we showed t.s.a. that this information is on our their publicly available website and pretty much every traveler who goes through the precheck lane understands this to be the case and ultimately t.s.a. agreed that the information was not in
fact s.s.i. and should not had been redacted. while this was appropriately resolved, it takes time away from the audit process and causes unnecessary delay. likewise, we have other instances in which t.s.a. has attempted to restrict information we found on their own website. these examples highlight what i believe is incoherent and inconsistent nature of the program and raises serious concerns in my mind as to whether t.s.a. can be trusted to make reasonable, appropriate and consistent s.s.i. designations. under d.h.s. policy, any authorized holder of s.s.i. who believes a designation is improper may challenge the marking. unfortunately, as i discovered, this appeals process is structured to ratify t.s.a.'s s.s.i. designation and prevent the review of such designations by independent external entities. the appeals process is foreordaned and fails to properly balance threats against aviation security and is vulnerable to abuse. we are currently in the
fieldwork stage of a comprehensive review of t.s.a.'s management of the s.s.i. program and use of the s.s.i. designation. we expect to have a final report by july, 2017, and will provide a copy of this report prior to its publication to this committee. additionally, we will continue to review and publish public reports on t.s.a.'s programs and operations. to the extent we continue to observe the abuse of s.s.i. designation we will continue to highlight. mr. chairman, this concludes my testimony. i am happy to answer any questions you or any nebs of the committee may have. -- members of the committee may have. mr. chaffetz: we will now go to ms. lerner. ms. lerner: chairman chaffetz, ranking member cummings and members of the committee, thank you for the opportunity to testify today about the u.s. office of special counsel and our investigation of whistleblower retaliation at the t.s.a. tass. i appreciate the committee's commitment to oversight, including strengthening o.s.c.'s ability to have our
good government mission. i want to take this opportunity to thank this committee of passing h.r. 69. during the opening week of this congress. that legislation will help o.c.s. conduct our investigation at t.s.a. and other agencies. during our investigation, it is standard to interview witnesses. a full and complete investigation requires access to all relevant information. although agencies generally cooperate with o.s.c.'s requests, some do not. some withhold documents and other information by asserting common law privileges and in particular the attorney-client privilege. as the committee knows, the attorney-client privilege protects certain communications between a lawyer and client. the privilege allows a client to disclose confidential communications in order to promote frank and candid discussions. as someone who spent two
decades practicing law in the private sector, i understand the importance of the privilege and, of course, it helped me to represent my clients. in government, the privilege is certainly important in certain context, such as in litigation with third parties. having said that, there is simply no basis for federal agencies to assert the attorney-client privilege during an o.s.c. investigation. this is not litigation. this is an internal administrative investigation that o.s.c. is conducting for the government. indeed, no court has ever held that the attorney-client privilege can be used during an administrative investigation between two government agencies. this makes sense. we all work for the same government. congress and this committee in particular have made clear there is a strong public interest in exposing government wrongdoing and upholding merit principles. federal agencies may not use privileges to conceal evidence from the agency that congress
is charged with investigating them. unfortunately, the t.s.a. has been somewhat of an outin its aggressive use of attorney-client privilege in several cases. in 2012, congress extended whistleblower protections to t.s.a. employees through the whistleblower protection enhancement act. since then, o.s.c. has received more than 350 retaliation cases from the t.s.a. employees. two pairs of companion cases compares the challenges that o.s.c. faces in getting needed information from t.s.a. the complainants are t.s.a. officials who experienced involuntary geographically reassignment, a demotion and removal, all allegedly in retaliation for their protected whistleblower disclosures. in these cases, t.s.a. withheld information, asserting sclames of attorney-client bridge. o.s.c. has asked t.s.a. to withdraw the claims of prirching but both t.s.a. and d.h.s. rejected these requests.
there are several problems with t.s.a.'s assertion of privilege. first, shielding information from o.s.c. conflicts with the statutory mandate to investigate the legality of personnel practices. when t.s.a. doesn't disclose the reasons why they took an action against the whistleblower, we can't investigate whether it's retaliation. in addition, t.s.a. attorney-client privilege review causes significant delay in investigations. in these four cases, o.s.c. has spent months waiting for documents while t.s.a. was reviewing responses for privilege. o.s.c. is a tiny agency. we only have about 40 attorneys to investigate hundreds of retaliation cases. our lawyers are spending too much time negotiating for documents. time that could be much better spent investigating and these directly impacts complainants when they are facing relief, often when they are facing challenges at work.
despite the challenges, o.s.c. is committed to completing thorough investigations and row tecting t.s.a. employees. -- and protecting t.s.a. employees. thank you for the testimony today. we appreciate the committee's interests and look forward to answering your questions. mr. chaffetz: thank you. we now recognize the gentleman from alabama, mr. palmer, for five minutes. mr. palmer: thank you, mr. chairman. i believe we have a slide. ms. lerner, can you give us the examples of the redactions that your office has been presented with? ms. lerner: yes. mr. palmer: can you put the slide back up? ms. lerner: this is one of the attachments to our written submitted testimony. this is an example of the te ofocen pduiowee gein fm s. a is alroemecausehi dome wbeevwod g
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nn listeyoant maat y cno cng tt vtuof a pcef per ithaesyhainth lte. peleavtoe eoe ve flppciedpeleav toee spoednd ge u wd,s ngs i a t.a.has qst . mmgscayo aly tie? msgodie llor o tl5 su whoui ul keo deaka sdyo e att wldak l eriles ord tl5 tt r afte u eyanwh i ces tpay ineas,tce n rkn aty rt opocy i workierha tma o c aorou sff vtuofoly, erying th ty nt mrcummin: uesib t prti o whhdi, u y
en t.aefesoisos whitak aacont poib faoinstat whhehe wetiaon. y bie t t.as refusatorodehe inrmatioyone hde t en'sbity tcrten enroenn icemoys ar free to identify risks without fear of retribution? ms. lerner: sure, you need robust enforcement of the law. the law has no meaning unless it's enforced. it hinders our ability to make findings when we're not getting full information from the agency. mr. cummings: doctor, t.s.a. can have it one way or the other but not both have you asked the epartment of homeland security about this so-called attorney-client privilege and provide to the o.s.c. all the information it has requested?
ms. gowadia: yes, sir, we have discussed the mat we are general counsel. mr. cummings: what did you come up with? ms. gowadia: that it is to insert -- to assert attorney-client privilege in very, very small percentage. mr. cummings: when they asked you -- can o, did you tell us who you talked to. ms. gowadia: joseph mar m-a-h-r-p-hmbs. mr. cummings: he's the one he'd walk to -- talk to talk about withrolding -- withholding informing. ms. gowadia: yes, sir. mr. cummings: you've known for weeks that this was of deep
concern me and you came here, it seems like you were unprepared to answer the questions. help me with that. you knew we were going to be asking about this. hello. you know it's a bipartisan effort. and you know we don't want to be hindered with regard to information. i was just wondering why. ms. gowadia: perhaps i miscommunicated. i fully knew that this was your concern. just was not aware that ms. lerner's staff had had any concerns in being able to come to resolution in any particular case. mr. cummings: ok. you all need to talk, then. ms. lerner, y'all need to talk. we can pull mr. roth out, y'all can come together. come on now. we didn't have to bring you over here just so you can talk. you have telephones, email? ms. gowadia: we've already decided we're going to start that
mr. cummings: thank you. i yield back. >> i'm going to recognize myself then we'll go to mr. comber. let's talk about the relationship with the o.s.c. what do you believe is your legal obligation to provide documents to the o.s.c.? what is your legal obligation? ms. gowadia: we have a legal obligation to provide o.s.c. mr. chaffetz: i find that curious because who is francine kerner. ms. gowadia: she's chief counsel at t.s.a. mr. chaffetz: how long has she been in that role? ms. gowadia: i believe she's been there since the start of t.s.a. mr. chaffetz: so she was quote,s that quote, february 21, ok, of this year. here's what her quote was when she visited with us. t.s.a. has no legal obligation to turn over documents to o.s.c., end quote. how is it that she says there's no legal obligation and you give this committee a letter
yesterday that says, quote, t.s.a. recognizes its legal obligation to provide documents to the office of special counsel and does so regularly. end quote. how do you rectify that? ms. gowadia: sir, i was not in the meeting in which ms. kerner is allege to have had said that. it is my understanding that she was using that phrase in context with the attorney-client privilege. not in the generality. mr. chaffetz: no legal obligation you say there is a legal obligation. how would you describe your relationship with the o.s.c.? ms. gowadia: my personal relationship with the o.s.c. has just begun, and i can promise you that i will extend to ms. lerner an arm of partnership to make it sure -- so that if there are differences they can be resolve. mr. chaffetz: and how would you
describe the relationship between the t.s.a. and o.s.c.? ms. gowadia: my understanding is that they have a good relationship. they've never said they have any issue with o.s.c. mr. chaffetz: who is steve colon? ms. gowadia: i believe steve colon is presently acting in a different capacity but he was in the office of chief counsel. mr. chaffetz: he was assistant chief counsel under francine kerner. ms. gowadia: yes. mr. chaffetz: he was detailed to head the office of professional responsibility, correct? ms. gowadia: yes, sir. mr. chaffetz: let me put up an email he wrote. i'll read this to you. jeff if you could join us i'd appreciate it. i'm done being conciliatory with the o.s.c. they have been a nightmare to deal with. for the employment advice folks. f they want war, they got one.
unless the evidence stinks. you can go ahead and put that down. does that sound like a responsive t.s.a. to the o.s.c.? ms. gowadia: no, sir, it does not. mr. chaffetz: did you fire him? ms. gowadia: no, sir. mr. chaffetz: are you going to fire him? ms. gowadia: no, sir. mr. chaffetz: i would. i would fire that guy. until you clean house with the legal folks in your agency, you're going to have a lot of problems. that is not the kind of attitude, we're going to go to war with the o.s.c. you're familiar with the law work the code that comes out of the o.p.m. regulations, you can tell me it's all rosy but when your chief legal counsel who has been there since the inception says there's no legal obligation, she is not a fight -- she is not abide big the law. ms. gowadia: mr. chaffetz please let me leave you with no doubt to the matter that is unacceptable. mr. fe