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Boehlert and Hall: Congress Will Have Access to Privileged Columbia Investigation Testimony

Press Release From: House Committee on Science, Space, and Technology
Posted: Friday, June 13, 2003

Agreement Reached With Gehman Board

WASHINGTON, D.C. - Today, House Science Committee Chairman Sherwood Boehlert (R-NY) and Ranking Member Ralph Hall (D-TX) announced that they have reached an agreement with the Columbia Accident Investigation Board (CAIB) that will allow Congress access to approximately 200 confidential interviews conducted by the Board.  An identical agreement has been reached with Senate Commerce, Science and Transportation Committee Chairman John McCain (R-AZ) and Ranking Member Fritz Hollings (D-SC).

The agreement will allow the "...Chairman or Ranking Minority Member full access to all unredacted confidential witness statements.  The Committee Chairman or Ranking Minority Member may grant access to additional Members of the Committee.  Further, the Committee Chairman and Ranking Minority Member may each designate up to four Committee professional staff members, to include the majority and minority Committee staff directors, to have full and repeated access to this material." 

Attached are a .pdf copy of the letter from CAIB Chairman Admiral Gehman, which includes the agreement, and a copy of the response from Boehlert and Hall, which reiterates the agreement.


U.S. HOUSE OF REPRESENTATIVES
COMMITTEE ON SCIENCE
SUITE 2320 RAYBURN HOUSE OFFICE BUILDING
WASHINGTON, DC 20515-6301
(202)225-6371
TTY: (202) 226-4410
http://www.house.gov/science/welcome.htm

June 13,2003

Harold W. Gehman (USN, ret.)
Chainnan
Columbia Accident Investigation Board
2900 S. Quincy Street; Suite 800
Arlington, VA 22206

Dear Chairman Gehman:

Thank you for your letter addressing access to documents and witness statements that you obtained as part of your investigation. As you indicated in your letter, the Committee has legislative and oversight responsibilities regarding the operation of NASA and the loss of Space Shuttle Columbia. These responsibilities are rooted in the Constitutional grant of power to Congress, and were exercised seventeen years ago in our oversight of the Space Shuttle Challenger accident.

To facilitate the Columbia Accident Investigation Board's ("CAIB") investigation and ensure the confidentiality of this material, the Committee will honor your request to restrict access to unredacted witness statements that you obtained as part of your investigation to designated Committee Members and designated staffers. The Committee expects full and timely access to these materials. This one-time agreement does not limit the Committee's rights in any future disputes over access to information, nor does it limit the Committee's usual investigative prerogatives, including the right to subpoena witnesses, documents, or other material.

There should be no confusion over the Committee's right to all information in the CAIB's possession. Neither the history of military investigations, various Freedom of Information Act exemptions, nor case law holdings regarding civil privilege provide any grounds for denying Congress information it requests, since none of the aforementioned categories operate against the Congress. The only judicially recognized method to declare documents or testimony beyond the reach of Congress in a matter such as this is the successful assertion of Executive privilege, and case law on Executive privilege strongly suggests that the narrow grounds upon which that privilege may be asserted are absent in this matter.

Based on this understanding, the Committee agrees to honor the following confidentiality policy:

The entire Columbia Accident Investigation Board (CAIB) database files, with the exception of statements by witnesses to whom the CAIB has extended assurances of confidentiality and privilege, are available without restriction to all Committee Members and properly cleared staff of the House Committee on Science or its Members. At the written request of the Chairman or Ranking Minority Member of the House Committee on Science, the CAIB will provide the Chairman or Ranking Minority Member full access to all unredacted confidential witness statements. The Committee Chairman or Ranking Minority Member may grant access to additional Members of the Committee. Further, the Committee Chairman and Ranking Minority Member may each designate up to four Committee professional staff members, to include the majority and minority Committee staff directors, to have full and repeated access to this material. The CAIB agrees to deliver for review to the Chairman, Ranking Minority Member, or any designated Committee Member, upon their request, a printed copy of any confidential witness statement. Such copy will be hand carried to the Committee Member by a CAIB Board member or representative, who will remain with the document until the review is completed, and then return the document to the CAlB. All other printed copies of onfidential witness statements will remain at the CAIB facility. No recotdings of confidentiafwitness statements will be made. There will be no public release of any part of a confidential witness statement that would reveal the witness' identity. While reviewing the material, Committee Members and professional staff members may make hand-written notes without limitation, while acknowledging that such notes taken are not releasable to persons not authorized under this agreement. Review of documents at the CAIB facility will be in accordance with procedures established by the CAIB. This agreement neither constitutes a waiver of the inherent investigative or legislative prerogatives of the Committee or its Members, nor does it waive the Board's continuing obligation to protect its privileged witness statements from public release.

This letter serves as our requesto gain access to these materials. We look forward to working with you to develop the above-referenced logistical procedures.

Thank you for your help in this matter. We look forward to a continuation of the excellent cooperative relationship between the Board and the Committee.

Sincerely,

Sherwood Boehlert
Chairman

Ralph M. Hall
Ranking Democratic Member


CHAIRMAN
COLUMBIA ACCIDENT INVESTIGATION BOARD
2900 SOUTH QUINCY STREET, ARLINGTON, VA 22206
Ser CAIB/243

12 Jun 03

Dear Mr. Chairman and Ranking Member:

The Columbia Accident Investigation Board (CAIB) recognizes and fully appreciates the proper and important oversight role of your committee. To this end, we desire to fully cooperate with your committee and provide you with all relevant information and data gathered by our investigation. This includes access by your committee to privileged witness statements obtained by the CAIB.

As you are aware, long-standing NASA guidance and procedures provide for the granting of privileged status to the statements of all witnesses who provide critical facts and opinions on the mishap sequence and possible causes to our safety investigators. In order to elicit full, frank, and timely information from these witnesses, a promise is given to each that their voluntary, unsworn statements will be kept confidential and privileged and not released to the public. To honor this promise, their statements will not be included in the final CAIB Report. If any type of public release of these statements is made a chilling effect on future accident investigation witnesses will certainly occur. This would result in a loss of potentially critical information from key witnesses, leading to a significant deterioration of the viability of the overall mishap prevention program. The use of privileged witness statements has been a longstanding hallmark of the Department of Defense's safety mishap prevention program as well, and has been effectively used by the military services for many decades in their safety investigations. The federal courts, to include the U.S. Supreme Court, have recognized this unique investigative tool and have consistently declined to order release of any privileged safety information or data to the public, based primarily on the need of the Department of Defense to maintain our national security.

While NASA's mission and programs are not directly related to maintaining our nation's security, it is unquestioned that our space exploration programs and scientific studies in outer space involve significant national assets that must be protected at all costs. It is clear that our objectives are quite similar to those of the military services -obtaining full, frank, and timely information from witnesses to quickly assess the ongoing status and operability of our space assets and resources, and prevent future loss of life.

In order to balance your congressional oversight responsibilities with the need to continue to protect from public release the privileged witness statements, we offer the following agreement. The same agreement has been offered to the Senate Committee on Commerce, Science, and Technology.

The entire Columbia Accident Investigation Board (CAIB) database files, with the exception of statements by witnesses to whom the CAIB has extended assurances of confidentiality and privilege, are available without restriction to all Committee Members and properly cleared staff of the House Committee on Science or its Members. At the written request of the Chairman or Ranking minority Member of the House Committee on Science, the CAIB will provide the Chairman or Ranking minority Member full access to all unredacted confidential witness statements. The Committee Chairman or Ranking minority Member may grant access to additional Members of the Committee. Further, the Commi ttee Chairman and Ranking minority Member may each designate up to four Committee professional staff members, to include the majority and minority Committee staff directors, to have full and repeated access to this material. The CAIB agrees to deliver for review to the Chairman, Ranking minority Member, or any designated Committee Member, upon their request, a printed copy of any confidential witness statement. Such copy will be hand carried to the Committee Member by a CAIB Board member or representative, who will remain with the document until the review is completed, and then return the document to the CAIB. All other printed copies of confidential witness statements will remain at the CAIB facility. No recordings of confidential witness statements will be made. There will be no public release of any part of a confidential witness statement that would reveal the witness' identity. While reviewing the material, Committee Members and professional staff members may make hand-written notes without limitation, while acknowledging that such notes taken are not releasable to persons not authorized under this agreement. Review of documents at the CAIB facility will be in accordance with procedures established by the CAIB. This agreement neither constitutes a waiver of the inherent investigative or legislative prerogatives of the Committee or its Members, nor does it waive the Board's continuing obligation to protect its privileged witness statements from public release.

Sincerely,

Admiral, U.S. Navy (Retired)
Chairman
Columbia Accident Investigation Board
The Honorable Sherwood L. Boehlert
Chairman
The Honorable Ralph M. Hall
Ranking Minority Member
House Committee on Science
U.S. House of Representatives
Washington, D.C. 20515

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