The independent board investigating the shuttle Columbia accident has no right to shield from Congress information it has gathered during its five-month probe, according to an analysis by the Congressional Research Service.
The analysis, requested by U.S. Sen. Bill Nelson, said that Congress has the right to demand access to transcripts of the more than 200 people interviewed by the board with the promise of confidentiality. The board's chairman, retired Adm. Harold Gehman, has said that confidentiality is "essential" to encourage candid testimony and that the transcripts "will never see the light of day."
The two congressional committees that oversee the National Aeronautics and Space Administration reached a deal with theColumbia Accident Investigation Boardlast week that restricts access to the testimony to a handful of members and professional staffers and agrees not to make public information that identifies the people interviewed.
But the CRS, a nonpartisan agency that does research and analysis for Congress, said the deal does not preclude the House Science and Senate Commerce committees from seeking broader access to the testimony -- or the witnesses -- through a subpoena.
"NASA has no authority to enter into agreements that would shield information it develops (or that is developed by subordinate entities such as the CAIB) from jurisdictional congressional committees," the analysis says.
In addition, the analysis states that a witness who tried to fight a congressional subpoena probably would not succeed, given the broad latitude the courts have granted Congress in its oversight role.
Nelson, D-Fla., said Friday that the opinion bolsters his belief that Congress should demand that the board make all its information public. Nelson, a member of the Commerce Committee, opposes the agreement limiting access.
"I've told the committee that I don't agree with their course of action, and now it appears that CRS is backing me up," he said.
During negotiations with Gehman and the board, lawmakers did assert their right to the information. In a letter sent earlier this week to Gehman, Sen. John McCain, chairman of the Commerce Committee, explicitly noted that the arrangement does not prevent Congress from using its subpoena power to seek broader access down the road.
"There should be no confusion over the committee's right to all information in the CAIB's possession," the letter said.
David Goldston, majority staff director for the House Science Committee, said Friday that the agreement allows both sides to head off a lengthy and potentially ugly legal fight and gives the committees what they need to examine both the board's report to NASA and the agency's subsequent reaction to its recommendations.
"The subpoena power is not used lightly and usually indicates that there is some reason for one of the parties to resist," he said. "On the other hand, we wanted to make clear that we were in no way giving up that power."
Laura Brown, a spokeswoman for the investigation board, said the board was operating under several court decisions that support privileged testimony, especially in military safety investigations.
"We have an agreement with the committees, and we're satisfied with those agreements," Brown said.
Gwyneth K. Shaw can be reached at firstname.lastname@example.org or 202-824-8229.