The Obama Administration’s nominee to head the Transportation Security Administration, Erroll Southers, was censured by the FBI for asking law enforcement personnel to conduct a background check on his ex-wife’s boyfriend. The incident occurred some time ago (1988), and Southers has acknowledged his misconduct and claims he has not done anything similar since. According to the story linked above, however, a copy of the letter of censure has not been released by the FBI, nor has it been provided to the Senate committee considering Southers’ nomination. Given the nature of his alleged offense, and the sensitivity of the position , Southers should see to it that the committee has the full story, and an opportunity to review the letter of censure, before his nomination proceeds.
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ruuffles says:
Are you trying to be ironic?
In any event, it’s disappointing Obama couldn’t find a cleaner nominee, albeit a bipartisan one:
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November 11, 2009, 8:50 amWidmerpool says:
It’s the attitidue expressed in this post–we must know all the details of every slip-up, even one that happened over 20 years ago–that accounts for the poor and declining quality of candidates for government positions. Soon only Widmerpools will be governing over the lot of you. And don’t you worry, I’ve remembered every slight suffered–especially being hit in the face with a ripe banana at school. Just you wait!
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November 11, 2009, 8:55 amEconRob says:
Affirmative Action
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November 11, 2009, 8:59 amruuffles says:
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November 11, 2009, 9:00 amGlenn Bowen says:
Illegal use of a background check to stalk his ex-wife...
Next.
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November 11, 2009, 9:02 amTin Kicker says:
TSA = Terrorists Subjugating Americans
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November 11, 2009, 9:11 amScott from Fairfax says:
It is true what Widmerpool says. I personally am disgusted by the personal lambasting politicians receive every time one of them is caught by the media with his pants down. It is treated as such a spectacle but we all know few of us are able to meet ‘societal standards’. For this reason I think the best platform to start any campaign with would be, “I cheat, I lie, I steal and I occasionally try foreign substances, but I will promise to do the best I can for my constituents and will defend the constitution”.
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November 11, 2009, 9:27 amFloridan says:
Somewhat like Virginia Gov. McDonnell’s college thesis.
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November 11, 2009, 9:30 amwhats the prob? says:
He probably had reason for concern about the guy’s background based on the suspicious conversations he heard while listening to the warrantless wiretap on his ex-wife’s phone.
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November 11, 2009, 9:35 amChester White says:
He “looks like America.”
You are a racist.
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November 11, 2009, 9:37 amChrisIowa says:
Not much like. This was abuse of the powers of a public office. Which is similar to insider trading but not very similar to some guy writing something controversial.
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November 11, 2009, 9:42 amGreg says:
“It’s the attitidue expressed in this post–we must know all the details of every slip-up, even one that happened over 20 years ago–that accounts for the poor and declining quality of candidates for government positions.”
The problem is the number of government positions and the power that comes with those positions. If you are going to have thousands of government folks dictating rules and regulations for the rest of us pions to follow, then sorry, as a pion I don’t want some guy that has abused his power in the past to be in a position of power today. It’s that simple. I realize people screw up, unfortunately when these folks get power they don’t have the same that same level of sympathy for those that screw up as they were given by the pions in order to obtain the position they are in. Take away most of the power the yield and I could care less if Big Bird was in charge. If we’d get rid of the TSA we won’t have this problem of not finding quality candidates for non-essential government positions such as “head” of the TSA. Have you seen the TSA at work? Do you really think these folks pity your past mistakes when deciding whether or not to screen you out for an extra search or threaten you with their power when you don’t comply? So no, screw em, let em sweat a little if they want power over us little folk.
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November 11, 2009, 9:45 amCHRI$ DODD says:
What’s YOUR mortgage rate?
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November 11, 2009, 9:47 amWAITRESS SANDWICH says:
1988? Oh please stop...it was a long time ago.
I think it was around the same time that 2 Democrat Senators invented the “WAITRESS SANDWICH” in D.C.
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November 11, 2009, 9:53 amegd says:
I agree with this, in theory at least. The Senate, in order to perform it’s proper role in confirming candidates, should have all available information on the nominee including past misconduct.
However, I would submit that the “nomination process” has always been (and continues to be) kabuki theater. If this had been submitted with the original confirmation, it wouldn’t be an issue. But now it’s something that the opposition (currently Republicans, previously Democrats) can hold up and jump around waving as a “smoking gun”. Because maybe someone before the next election cycle the Republicans can make it a political issue.
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November 11, 2009, 9:56 amDG says:
This was 21 years ago. The guy screwed up — this was a personal issue and he involved the government. But there is another side to this — he asked a friend (who was a cop) to run a check on a guy who turned out to have an active warrant. I could do the same, and I’m a civilian. Perhaps he had some reasonable suspicion, perhaps he simply lost perspective — his child was also involved in the situation.
I think these sorts of foibles are much less important than his overall qualifications. Of those, I have no idea.
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November 11, 2009, 10:16 amdearieme says:
“caught by the media with his pants down”: I fail to see the analogy between abuse of office and philandering.
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November 11, 2009, 10:17 amTerrific « Internet Scofflaw says:
[...] (Via Volokh.) [...]
PatHMV says:
It’s reason to ask for a bit more about the situation, but I would almost guarantee you that anybody with a background in law enforcement has bent those rules at least once in the course of a long career. It’s against the rules, and it was appropriate for him to be censured, but unless it revealed a pattern of activity, I fail to see how it disqualifies the man for public office, even high office.
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November 11, 2009, 10:49 amPatHMV says:
Let me add that if you don’t like all the government intrusion in our lives (I certainly don’t), the best response is to fight against that intrusion directly, not by bringing up fairly minor misconduct from 20 years ago.
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November 11, 2009, 10:50 amEconRob says:
LOL I was just guessing. Too funny.
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November 11, 2009, 11:05 ambob says:
Could someone link to Mr. Alder’s posts from 2000–2008 in which he expressed concerns about the TSA?
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November 11, 2009, 11:34 amJerry Mimsy says:
Bob, if you spelled his name right, a simple Google search on Jonathan Adler TSA would find a couple right off.
Tsa blogging
TSA Tipped Off
Jonathan Adler Transportation Security:
I have determined that you pose a security threat
Jerry
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November 11, 2009, 11:48 amI Feel So Much Safer Already says:
[...] the gang at the Volkh Conspiracy; which shows us our national security was never in better hands. The Obama Administration’s [...]
Scott from Fairfax says:
Re: Dearieme
“caught by the media with his pants down”: I fail to see the analogy between abuse of office and philandering.
My original post assumed a new candidate who never before held public office. I agree with you, philandering and abuse of office have nothing to do with one another. Unfortunately, to some voters and the press it can be a death sentence for a candiacy, i.e.: Gary Hart and John Edwards to name just two.
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November 11, 2009, 11:56 amyankee says:
Abusing your powers to invade the privacy of private citizens is the bare minimum I expect from the head of the TSA.
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November 11, 2009, 12:12 pmpublic_defender says:
The information should be turned over, but unless there is more to the facts than what we know here, and unless we hear that this action was part of a larger pattern, it shouldn’t disqualify the guy. But again, it’s fair to ask for full disclosure of the incident, and background investigators should be checking or other related misconduct.
I would say the same thing for Gov. Jindal’s college “exorcism,” assuming Jindal admitted that it was a mistake (I haven’t followed that close enough to judge).
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November 11, 2009, 12:54 pmRowerinVA says:
Actually, if you nominated me, you’d find that I never illegally used federal law enforcement to target a romantic rival. But hey, we wouldn’t want to hold everyone to that high standard, would we?
C’mon. This wasn’t jaywalking or speeding. This wasn’t evening using illegal drugs as a kid. This was stalking, and serious misuse of police powers. I don’t know what’s more disturbing ... that he did it, or that you don’t think it’s serious.
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November 11, 2009, 1:35 pmFedya says:
Considering how many cookies Google uses, maybe not....
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November 11, 2009, 1:36 pmDavid Nieporent says:
I’m sorry, but why exactly would you say the same thing about an abuse of office and a religious ritual?
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November 11, 2009, 1:40 pmD Palmer says:
Yawn. This kind of stuff happens all the time. Fathers/mothers have cop friends check out their daughter’s boyfriend. Son’s have mom’s new BF checked out. Maybe this guy had an amicable relationship with the Ex and just wanted her to be safe. Did they have kids together? Maybe he was concerned for his kids.
Is there any evidence that this was a regular occurrence? I would want some sort of evidence of a pattern of behavior before I would need deep background on this specific incident.
He apparently acknowledges that it was a mistake. It happened 21 years ago, unless someone can locate subsequent or prior similar actions then just let it go.
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November 11, 2009, 1:42 pmShouldn’t A TSA Nominee Respect Privacy? | 73 Wire says:
[...] The Volokh Conspiracy The Obama Administration’s nominee to head the Transportation Security Administration, Erroll [...]
Guest12345 says:
And every single cop who actually does the check should be jailed. And forever barred from any kind of public sector job, including elected offices. We don’t provide powers and tools to law enforcement and investigative agencies so that some subset of the population can use then use those powers and tools to violate the rights of the rest of the population.
FYI. Lots of stuff happens all the time. And we rarely hear people suggest that because of that we should just ignore those events. Things like embezzlement. Contract fraud. Murder. etc. Personally, I prefer living in a society that attempts to maintain equality for all and an even enforcement of the law. Maybe you think differently.
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November 11, 2009, 2:05 pmPatHMV says:
Guest12345... You do realize that if we actually jailed people for every single infraction of the law, whatever the circumstances, we’d be living in a police state, don’t you?
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November 11, 2009, 2:21 pmBruce Hayden says:
The problem is that this is somewhat relevant to his job running TSA. Not all political foibles are equally relevant. The Sec. of the Treasury being a tax cheat is relevant, while the save tax evasion in, say, the Dept. of Interior would be far less relevant, since the IRS is under Treasury, and not Interior. This is one of those agencies where abuse of this sort of power is probably relevant. Much more so than, say, the Forest Service.
That said, I don’t expect this abuse, so long ago, to keep him from being confirmed. The Senate confirmed Geitner (tax evasion) and Holder (trading Presidential pardons for campaign contributions, etc.) to much higher posts with greater blemishes.
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November 11, 2009, 2:24 pmArthurKirkland says:
Because both points reflect poorly on judgment (as would rousting someone for personal reasons, or participating in a snake-handling revival meeting), although each could be overcome by other factors during a general assessment.
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November 11, 2009, 2:27 pmCardinals Nation says:
Tempest. Teapot.
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November 11, 2009, 2:28 pmPatHMV says:
Bruce, I agree about your general point, but I think there’s a huge difference between an infraction 2 decades ago when one was a routine, low-level employee at the beginning of a career, and something like Holder’s likely abuse of office as a pretty high-ranking Administration official. That’s very different even from Geitner’s tax issues. Unfortunately, politics is the primary determiner of how relevant such things are. If there’s enough people who want to block Southers, this issue would suffice, probably, even though it really shouldn’t, while because Holders was the AG (very high profile) pick for the new President, the Senate gave him a pass and failed to even bother to look very closely at his actions during the last Democratic Administration.
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November 11, 2009, 2:29 pmJames Fulford says:
Of course, it turns out that Southers was right about the boyfriend–the linked story says:
And the information contained in such databases isn’t secret–you can’t have a secret criminal record, or secret wants and warrants.
I’m more concerned, as usual, with the fact that it takes Google Image search to find out that the nominee is African-American. Is that supposed to be a secret?
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November 11, 2009, 2:37 pmNunzio says:
According to the story, the FBI will not comment on Southers alleged censure because of “privacy.”
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November 11, 2009, 2:45 pmNickM says:
So the fact that John Edwards orchestrated an elaborate cover-up, including paying off someone to falsely claim to be the father, as well as apparently misusing campaign funds to pay his mistress, has nothing to do with abuse of office?
Gary Hart didn’t misuse his office, but I don’t take umbrage at the voters punishing that sort of extreme stupidity.
Nick
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November 11, 2009, 3:22 pmFub says:
I think Guest12345’s point is not that we should jail every person who commits a crime, but every person who holds a government position and uses that position to commit a crime.
There is a huge difference between the two.
I don’t think that the latter would lead to a police state; in fact it would, if enforced, tend to prevent behaviors by government actors that lead to a police state.
If an ordinary citizen, not a government official, had done what Southers did, access a confidential government database for personal purposes (or any other non-government purpose) he would likely face jail time if caught. So why shouldn’t a government official face the same penalty?
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November 11, 2009, 3:33 pmPatHMV says:
Fub... show me a single case of an “ordinary citizen” going to jail just for accessing the NCIC, which is likely the database which was used here. Note just for accessing it. You can probably find some mob guys somewhere who were using it to help further other crimes, but here, the man only used it to discover what was, ultimately, a public record (the fact that he had an outstanding warrant). Indeed, although NCIC access is controlled by the FBI through the agreements which state and local police forces must sign to gain access to the system, and “law enforcement only” purposes are required in part due to restrictions set by state governments who make their data available to the FBI for the NCIC, the vast majority of the data in it stems ultimately from public records... records of arrests, warrants, convictions, etc. Access to the system is restricted mainly due to concerns about ease of access to arrest information, not because there’s anything inherently “private” about being arrested.
As to the more general point, my comment about a police state remains valid. If you impose draconian penalties (loss of job and jail time) to ALL infractions like this, then the reality is that you will catch fewer people doing wrong, because fewer people will be willing to “rat out” a coworker for breaking the rules. “Zero-tolerance” policies which impose harsh penalties for relatively minor infractions mean that you’ll periodically have a crack-down so upper management can show that they’re “doing something,” followed by extended periods where everybody continues business as usual. And the crack-downs inevitably are used to weed out folks who are not wanted for other reasons... they don’t play the right politics, kiss the right butts, etc.
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November 11, 2009, 4:00 pmPatHMV says:
Also, Fub, I don’t think you’re correct in your understanding of Guest12345’s comment. He seems to have compared this offense to embezzlement, contract fraud, murder, etc., and spoke of “even enforcement of the law.” While it was aimed in part at office holders (bar cops who violate this law from ever serving in public office again), I detected a fair amount of “treat all crimes seriously” sentiment. This is, of course, a not uncommon theme in libertarian thinking, that you should either vigorously enforce a law or repeal it.
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November 11, 2009, 4:04 pmSmitty says:
Actually getting censured by the pussies at the FBI gets street cred in my book, the FBI is a joke to everybody but Traficant.
As far as asking for a “background check” that could mean anything like a criminal record check or a verification of an existing person, fair game for a dude shacking up with your ex & son.
Lets stop pretending, our privacy laws are non-existant and are only used by the state to hide their criminal activities, not ours.
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November 11, 2009, 4:41 pmDaily scoreboard « Don Surber says:
[...] Volokh: “The Obama Administration’s nominee to head the Transportation Security Administration, Erroll [...]
Guest12345 says:
Please read my post again. You conflated three entirely different points.
1) That government employees have resources available to them for specific purposes and using those resources for other than those purposes should result in criminal prosecutions and long ranging penalties.
2) The silliness of saying “Yawn. This kind of stuff happens all the time.” as a justification of allowing bad behavior. Embezzlement and fraud happen all the time. Doesn’t mean they should be ignored. Murder was an absurdity included for those who, for whatever moral failing they suffer, don’t seem to care about white collar crimes.
3) The importance of the law applying to everyone without being moderated by position or status. Too often public sector employees get subjected to “progressive discipline”, while those who are not public sector employees get subjected to the criminal justice system for similar or, in some cases, near identical actions.
The suggestion of locking up everyone over every little thing, that’s just you reading into what I wrote. However if you’d like my to opinion a the idea you presented: I’ll take a police state where everyone is locked up irrespective of who they are, over the kind of state you get when there are excessive laws and selective prosecutions influenced by nepotism, political clout, or financial status. For example, on one hand there are people in jail for failing to pay their taxes. On the other hand we have Charlie Rangel and Tim Geithner. That’s flat wrong.
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November 11, 2009, 5:10 pmArthurKirkland says:
Unless one believes race should be mentioned in the lead of the release and the headline of each news report, what is the reason for concern?
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November 11, 2009, 5:18 pmFub says:
I understand the argument. It seems to be premised on the idea that the “broken windows” approach of cracking down on petty crime, so successful in NYC during Giuliani’s mayorship (and also in many other localities), could not possibly work when applied to criminals who are government actors.
I don’t understand why that should be so.
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November 11, 2009, 5:27 pmtraveler496 says:
TSA leadership involves — arguably, at its core, is — the constant striking of tough balances between encroachments on personal freedom on the one hand, and safety on the other.
Faced with a candidate who apparently screwed up notably in precisely this regard, the committee should of course learn the details and consider them wisely in the context of the overall nomination.
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November 11, 2009, 7:58 pmBC says:
Were you being ironical, there? It’s difficult to tell, anymore.
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November 11, 2009, 8:07 pmPatHMV says:
The broken windows theory is perfectly sound, but it doesn’t mandate draconian penalties for the minor offensives. It relies much more on the certainty of being caught and having SOME penalty attached to the infraction. For every Souther who gets busted, I assure you there are plenty of cops who don’t (the FBI actually tends to treat such things pretty tough; agents, unlike cops, are pretty careful not to “roll the gold” — flash their badge — to avoid speeding tickets, because they do face disciplinary action if busted doing so). If you want to propose increased formal censure, and greater penalties for subsequent infractions, by stepping up the monitoring process, I’m fine with that.
As for Souther himself, you know, a lot of people actually learn lessons from making a mistake, getting caught and being punished. Maybe that’s the case here, maybe not. Certainly it’s appropriate to ask him about it.
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November 11, 2009, 8:50 pmtraveler496 says:
BC,
Not ironic, just sloppy — strike “encroachments on” in my previous comment. Thanks.
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November 12, 2009, 1:01 amFub says:
If, as you say, “there are plenty of cops who don’t”, then it isn’t unreasonable to conclude that “formal censure” or other administrative actions aren’t very effective at present.
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November 12, 2009, 10:09 amMalvolio says:
This is wrongdoing? He thought somebody was a criminal, he checked, sure enough, he was right. It might have been a technical violation of the rules around NCIC, but if that’s the worst thing he’s ever done in his life, he shouldn’t be TSA head, he should be president, if not king.
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November 12, 2009, 10:34 amSteve says:
It happened 21 years ago. Who cares. If it was such a big deal at the time the FBI would have terminated him. So maybe it was not as bad as we are being lead to believe.
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November 12, 2009, 3:08 pmPatHMV says:
Fub, no, it’s an indication that nobody’s bothering to enforce the rules much at all against most cops. The penalty itself would be fine, if only it were imposed on a more consistent and regular basis. The solution to jay-walking is not to suddenly decree that jay-walking is punishable by 10 years in prison; it’s to increase the number of police officers who actually bother to issue a ticket for jay-walking (not to imply that jay-walking is a problem that needs to be dealt with, just using it as an example).
If you “make an example” out of one or two guys, by giving harsh penalties, and then go back to not paying any attention to the problem at all, then the misbehavior will continue, because the deterrent effect is much more in the getting caught at all, rather than in the potential penalty if one is unlucky (or impolitic) enough to be the one isolated individual singled out for special punishment.
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November 12, 2009, 3:24 pmToby says:
<sarcasm>
Far better to have laws that we can enforce only when someone who is icky needs to be slapped down.</sarcasm>
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November 12, 2009, 3:43 pmFub says:
Which is arguably the heart and soul of a police state: police can do whatever they please, whether lawful or not.
So, what is a workable means to discourage escalation and proliferation of the offense?
If, as some have asserted, there is no actual confidential information in the database, then why not make entirely anonymous public access available?
Why not drop the pretense that only police should have access to the information?
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November 12, 2009, 5:35 pmmarkm says:
Most or all of what is in the NCIC came from public records, scattered around thousands of courthouses and police stations. I can see only one good reason for keeping the it confidential — it’s a vast compendium of derogatory information, much of which is outdated, incomplete, or just plain wrong. Arrest warrants quite often remain in there a decade after the subject turned himself in and either got the case dismissed or pled and paid the fine. Arrests are never removed (AFAIK) when the subject is declared not guilty. Valid warrants, arrest, and conviction records often give too little information to uniquely identify the subject. It’s all public information, but there would be far too much misuse of questionable information if it was open to any dolt with an internet connection.
OTOH, law enforcement includes plenty of dolts with internet connections, too. Especially the ones that created the TSA’s watch list. (Or perhaps worse, the jokes I’ve sometimes heard from LEO’s about using the NCIC as a dating registry...)
Anyhow, checking up on who is living with your young kid is not stalking your ex-wife. Apparently, using the NCIC to do so was a violation of the rules, but it was a minor and quite understandable one.
Let’s not get buried in such minor things and forget what is important. Such as appointing a tax cheat to head the treasury, an ethically-challenged lawyer and political operative as Attorney General[1], or a self-declared communist as “jobs czar”.
[1] I know, I know, that describes virtually all the Attorneys General, at least since JFK appointed his brother to the job.
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November 12, 2009, 7:30 pmLibrary: A Round-up of Reading « Res Communis says:
[...] Shouldn’t A TSA Nominee Respect Privacy? – Volokh Conspiracy [...]
Bill Ryan’s Other Blog » Major TSA Security Breach says:
[...] But it’s not just incompetence, it’s the utter disregard for passengers and citizens (and the law for that matter). Remember folks, Airport Security was just too freaking important to be trusted to the [...]
Happeh says:
Because it does reveal a pattern of activity. All policemen abuse their powers for personal reasons.
I knew a guy who was behind a car going home. When the guy got to his house he discovered the guy he was behind was a policeman. The policeman had a bad day and wanted to fight with the guy.
The policemen made a call to check the guys car license while the policeman was off duty and for the personal reason of anger at the guy.
A guy went to an internet bulletin board frequented by policemen. The guy had a disagreement with the policemen. Some petty policemen was so upset by the internet conversation that he broke the law by abusing his police powers to find out for personal reasons about the man on the internet he was talking to.
Police abuse their powers as if abuse of power was one of their powers.
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December 29, 2009, 8:18 amThe Volokh Conspiracy » Blog Archive » Our Embattled TSA Nominee says:
[...] I noted back in November, Southers was censured by the FBI for asking law enforcement personnel to conduct a background [...]
Lawyer Mom says:
Whoa. Tell the story behind the “story.” The guy was officially reprimanded by the FBI yet he “forgot” the damning details until after the Senate Homeland Security committee voted to recommend his confirmation.
Accessing a confidential database for personal gain, downloading the information, and passing it on to a police department employee is fairly unforgettable. It’s Southers’s selective memory on a fairly egregious abuse of power that’s giving a lot of us pause. He either remembered the details or he truly forgot. Which is worse? Gee, I don’t know . . . Does it matter?
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January 4, 2010, 8:42 pmThe Volokh Conspiracy » Blog Archive » TSA Nominee Withdraws says:
[...] Southers has withdrawn his name from consideration. I assume the next nominee will not have violated the federal Privacy Act nor provide false testimony to the Senate Government Affairs Committee. I think Radley Balko [...]