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

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