National Aeronautics and Space Administration …

                    National Aeronautics and Space Administration
                    Office of Inspector General                        June 7, 2007




Joint Hearing Between the Senate Commerce
Committee's Subcommittee on Space,
Aeronautics, and Related Sciences and the
House Science and Technology Committee's
Subcommittee on Investigations and Oversight


Statement by:
Robert W. Cobb
Inspector General




                                                                    110th Congress
                                                                               June 7, 2007


                                      Statement of
                                    Robert W. Cobb
                                   Inspector General
                     National Aeronautics and Space Administration

                                        Before the

               Subcommittee on Space, Aeronautics, and Related Sciences
                 Committee on Commerce, Science and Transportation
                                    U.S. Senate

                                            and

                      Subcommittee on Investigations and Oversight
                         Committee on Science and Technology
                            U.S. House of Representatives


Chairmen, Members of the Subcommittees, my name is Robert W. Cobb. I am the
Inspector General at NASA, having been appointed to that position by President George
W. Bush on April 16, 2002, after confirmation by the United States Senate. Prior to that,
from January 2001, to April 2002, I was an Associate Counsel to the President, with
primary responsibility for handling ethics program matters for the White House and the
financial disclosure process for nominees to Executive Branch positions requiring Senate
confirmation. For nine years, from 1992 to 2001, I was a staff attorney at the Office of
Government Ethics, and, from 1986 to 1992, I was an attorney in private practice.

Today, for the first time, I am responding publicly to unjustified allegations against me.
Until now, I have deferred to the process of the Integrity Committee (IC) of the
President's Council on Integrity and Efficiency (PCIE); that process is now concluded.

The IC opened an administrative investigation of my activities as Inspector General in
December 2005, purportedly pursuant to its authority under Executive Order (EO) 12993,
and closed the investigation in April of 2007. The Inspector General of the Department
of Housing and Urban Development (HUD OIG) conducted the investigation at the
request of the IC. The results of the investigation reflect that I did not break any laws or
act illegally. [Exhibit A] The IC did not suggest that any matter covered in the wide-
ranging investigation was mishandled by the NASA OIG. But the conclusions the IC did
reach were as flawed as the investigation on which they were based, and are
demonstrably invalid. The IC acknowledged the weakness of its own conclusions by not
submitting any recommendation to the PCIE Chair, even though EO 12993 mandates
such a submission. I attach Exhibit B, an annotated version of the IC's January 22, 2007,
letter, detailing the IC's false and misleading recitation of facts and law and the broken



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and dysfunctional process pursuant to which the IC's conclusions were reached. My
concerns about the investigative process are catalogued in my correspondence with the
IC, with relevant correspondence being attached. [Exhibits C-R] For just one example,
while I was notified by the IC that the investigation concerned safety matters, to my
knowledge, none of the witnesses I identified at the outset of the investigation were
interviewed. [Exhibit D]

The Chair of the PCIE decided that the results of the investigation did not warrant a
referral to the White House for further action. Instead, the PCIE Chair forwarded the
report to Michael Griffin, the NASA Administrator, to consider "what actions, if any, you
propose to take." [Exhibit S] Upon review of the IC's report, the NASA Administrator
concluded that the Report of Investigation (ROI) "does not contain evidence of a lack of
integrity on the part of Mr. Cobb, nor is there support in the ROI for any actual conflict of
interest or actual lack of independence on his part." [Exhibit T] The NASA
Administrator has publicly stated that I did not abuse the power of my office, that there
has been no action on my part to compromise safety, and that my independence is not in
question.1 Nevertheless, Administrator Griffin committed to arranging for me, with the
concurrence of the PCIE Chair, management training and coaching to address
management concerns raised by the IC investigation. [Exhibit U] I have agreed to
receive the executive training and coaching, and I have already begun to implement these
measures.

In his review of the IC's report, Administrator Griffin observed:

           In the two years that I have [been NASA Administrator], I have seen a high
           quality work product from the OIG reflective of a staff and its leadership
           dedicated to carrying out the mission entrusted by law to the IG. IG Cobb is
           technically sound, highly conscientious, fully engaged in his work, and he brings
           rigorous analysis to the OIG work product. [Exhibit V]

That the PCIE Chair determined the matter did not warrant referral to the White House
and that NASA, in contemplating whether any action should be taken, would challenge
conclusions of the IC is not surprising because the IC's negative conclusions do not
withstand reasonable examination. This is fundamentally because the IC's criticisms are
not based on facts or law and are wrong. They are wrong as the result of an investigation
flawed in design and execution and without respect for even the most basic notions of
due process and fairness­or compliance with law and procedural requirements. [See
Exhibit B for detail]

Notwithstanding thousands of hours of investigation by the HUD OIG, including eleven
hours of my interview, neither the HUD OIG nor the IC could find a single instance
where some action or non-action on my part during the previous five years evidenced
lack of independence. Indeed, Alan Li, former Director Acquisition and Sourcing
Management at the Government Accountability Office (GAO), who was responsible for
handling NASA issues for GAO, stated before a group of Congressional staff I was
1
    Michael Griffin C-Span Newsmaker interview on April 8, 2007.


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briefing that I was the most independent IG he had ever seen. (Despite being advised of
this, the IC and the HUD OIG did not interview Mr. Li.) Failing to find actual lack of
independence, the IC asserts an appearance of lack of independence in specifically two
instances, one involving a proposed Crime Stoppers notice and the other relating to the
illegal copying of International Traffic in Arms Regulation (ITAR) designated materials,
which I will prove in this Statement (and Exhibit B in greater detail) are utterly devoid of
merit. In the Crime Stoppers matter, the IC gets the facts wrong, and any action other
than that I took would have been reprehensible. In the ITAR matter, there was no action
I should have taken that I did not, and the actions I am alleged to have failed to take were
not necessary, not required, and not the subject of any serious recommendation or
discussion. Yet the IC relies on this house of sand to conclude that I caused a perception
of lack independence.

 In connection with the Crime Stoppers notice, the IC first ignores the reality that by
virtue of NASA OIG senior management involvement, a serious mistake was averted.
One year after the Space Shuttle Columbia accident, members of the NASA OIG staff
had proposed that the OIG join the Texas Rangers in announcing that the public's help
was needed in connection with the alleged theft of a ring from the finger of a deceased
astronaut. After consultation with senior OIG staff, I directed that additional
investigation be conducted to determine whether a ring actually had been on the
astronaut's finger at the time of the tragedy. It became clear that there was no ring on the
finger of the astronaut, and, therefore, there was no credible evidence of a theft. Public
suggestion that persons involved in the recovery effort were involved in such a heinous
crime would have been most inappropriate. Again, to be clear, there was no ring on the
remains of the astronaut and, therefore, there could not have been a theft of a ring from
those remains.

In its review, the IC misleadingly omits any reference to the compelling photographic
evidence that belies any notion that issuing a Crime Stopper notice might be appropriate.
Compounding the unfairness of ignoring critical contrary evidence, the IC overreaches to
find an appearance issue where there was none by relying on nonsensical HUD OIG
reports of witness testimony. So, for example, the IC recounts in its January 22 letter
that:

       According to [redacted], IG Cobb said the whole NASA Columbia investigation
       was not going well, NASA wanted it finished, and for the outcome to reveal
       nothing that would make NASA look bad or shake the public's trust in NASA.

The relevant discussion from which this account derives took place in April 2004, eight
months after the NASA Columbia accident investigation had been concluded (in August
2003). The idea that I would say the investigation was not going well eight months after
it was finished is facially incredible. Yet the IC relies on this obviously mistaken
statement to reach its conclusion on appearance of lack of independence, notwithstanding
that the endorsement of the proposed Crime Stopper notice would have been a dereliction
of my duty.




                                             3
The IC recounts that:

       The Texas Ranger involved in the investigation informed [the] HUD OIG that he
       believed someone at NASA wanted the investigation shut down because if it got
       out that the ring was stolen, questions would be asked as to the conduct of the
       whole NASA investigation into the Columbia accident.

Reliance on this statement reflects the IC's stubborn persistence to make something out
of nothing. As there was no stolen ring, the premise for the belief stated is nonsense.
Moreover, the statement reflects an overall ignorance of the Columbia Accident
Investigation Board's report issued in August 2003, known for its thorough examination
of both the immediate and root causes of the Columbia accident. Inclusion of the
statement and presumptive ratification by the IC of its relevance to the analysis of an
"appearance" issue again reflects the IC's own total lack of understanding of relevant
facts. It also shows that the IC's determination in this matter is based more on whatever
anyone would say rather than whether there was any justification or credibility to his or
her statements. The IC's methodology for determining an "appearance" problem allows
it to make a negative finding when there are no facts to support it other than what some
person, not in a position to know, says.

The IC also recounts that:

       Another NASA employee . . . recalls IG Cobb saying, "Can you believe how
       embarrassing that would have looked for the agency [NASA] if that [Crime
       Stoppers report] went out?"

Obviously, there would have been embarrassment if the OIG were to endorse publication
of a false allegation that authorities participating in the recovery process robbed an
astronaut's remains of jewelry. This incident should have resulted in a finding that senior
staff properly avoided the loss of public confidence that would have resulted from issuing
a misguided and false public cry for help. Instead, the IC relies on this statement in
finding lack of independence. Again, there was no ring on the remains, and therefore no
theft. Interestingly, after the NASA OIG declined to participate in the Crime Stopper
report, the Texas Rangers, who had been investigating the matter for a year without the
help of the NASA OIG, apparently decided themselves not to issue the Crime Stopper
notice.

The IC's conclusion on the ITAR incident is similarly flawed. As a starting point, the
ITAR matter was one the IC had previously considered and, after seeking and obtaining
relevant information on the allegation, determined that "IG Cobb's response substantially
demonstrated that IG Cobb had not engaged in any wrongdoing . . . the IC will take no
further action concerning this matter and has placed this file in a closed status."
[Exhibit W] EO 12993 specifically precludes further review by the IC of a closed matter.

The IC got the ITAR complaint right the first time, but in reopening the matter, the IC
exhibits the same illogical approach and persistence in the face of the evidence that led to
its invalid Crime Stoppers conclusion.


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Again, the IC repeats allegations and treats them as true without any factual or legal
analysis. The IC states, for example, "[t]he theft of ITAR matter must be reported to the
Department of State." No legal support is cited for this statement and, in fact, I believe
that there is none. Once this initial legal pillar is taken away, the rest of the house of
cards falls away.

Moreover, as a factual matter, the theft of ITAR from the Marshall Space Flight Center
was indeed informally discussed with the Department of State very soon after the illegal
downloading of data occurred. The director of NASA's export control office informed
me that the Department of State told him when he notified it of the intrusion that it had
already seen the press report about the intrusion and that no voluntary disclosure of the
loss was required because NASA had not violated the ITAR. Department of State
reporting requirements relate to violations of ITAR and those regulations do not address
theft of ITAR information from a Government agency. For voluntary disclosure
provisions, see ITAR at 22 CFR 127.12.

Having overlooked the substantive rules that apply, the IC then goes on to ignore the vast
bulk of the factual evidence relevant to its conclusion. The IC states that witnesses
questioned my decision not to report the matter to the Department of State. However, all
of the contemporaneous documentation of the investigation and related matters
demonstrate that no recommendation to report was made. Documents in the investigative
file consider the question of whether there may be a reporting requirement, but then
reflect that if there is, NASA will take care of it. Regarding the Department of State,
NASA had already informed them of the illegal access to NASA's systems at Marshall,
even though no requirement to do so existed.

After the intrusion was identified in the press, as the index to the case file reflects, the
NASA OIG worked in concert, from the very beginning of the investigation, with the
Defense Criminal Investigative Service. Soon thereafter, the Federal Bureau of
Investigation and the National Infrastructure Protection Center (NIPC) were aware of the
matter. (Under Presidential Decision Directive 63, the NIPC was an interagency
operation located at the FBI. Created in 1998, the NIPC was the focal point for the
Government's efforts to warn of and respond to cyber attacks and served as the national
critical infrastructure threat assessment, warning, vulnerability, and law enforcement
investigation and response entity.) Appropriate international authorities were consulted.
The Department of Justice was involved. The ITAR investigation has been ongoing for
more than four years and has involved a substantial amount of NASA OIG resources.
The idea that the NASA OIG failed to report anything or mishandled the matter is simply
false, yet the IC restates unsupported allegations and accepts them prima facie in order to
substantiate its notion of "appearance" of lack of independence.

This investigation was not about finding the truth. The investigators contented
themselves with collecting isolated allegations from disgruntled persons who were
invited to offer personal opinions and speculate about irrelevant matters. No effort was
made to discover the truth of the underlying facts upon which these allegations were



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based­with the result that many of the allegations repeated in the IC letter are based on
false premises and should have been (as was in the ITAR case) dismissed long ago.

The failure of the IC to follow the EO and its procedures in this case inevitably led to an
investigation conducted without any applicable legal standards. Without specific
guidance from the IC, the investigators simply invited people to make complaints,
without regard to whether the complaints were a proper area of inquiry or had any basis
in fact. The result was that the vast bulk of the investigation is unusable for any proper
purpose, because it concerned matters outside the scope of the IC's jurisdiction and
involved matters that amounted to nothing more than idle gossip. In the end, because of
the IC's departure from established procedures, a great deal of time and money was
utterly wasted.

In stark contrast to the IC's investigation, which proceeded without any apparent concern
for due process, compliance with the controlling EO, and other legal requirements, I have
worked very hard to ensure that NASA OIG operations, audits and investigations have
been conducted in accordance with the Constitution and laws of the United States. For
this, I have occasionally met resistance from a few staff members and now have been
investigated for these same acts. In one instance, I asked a question about the validity­
the Constitutionality­of a search warrant and was told by a member of my staff that my
very asking the question amounted to an obstruction of justice, notwithstanding that
counsel to the IG also questioned whether the facts on which the warrant were based
constituted a crime. And it is interchanges in which I displayed passionate insistence on
compliance with the Constitution and laws of the United States, in the face of
unjustifiable recalcitrance on the part of a member of my staff, which was at the heart of
the IC conclusion that I created a hostile work environment as to one employee.
Somehow, by taking appropriate actions pursuant to the available facts and law, I
engaged in what amounts to the legal impossibility of interfering in investigations for
which I am by law and position accountable.

Just one example of my ensuring that our Office's operations are conducted in strict
conformity with the law occurred in March 2004. I was presented with a letter by my
staff to use new Patriot Act authority to engage in computer monitoring that required my
signature to proceed. After I inquired into the facts, I determined that the statute did not
authorize the OIG to monitor activity in the instance presented. I therefore refused to
sign the letter. No illegal monitoring occurred as a result. Contrast this with the March
2007 audit report by the Department of Justice IG concerning the FBI's issuance of
National Security Letters. That audit established that there was a systemic failure at the
FBI to provide adequate assurance that the Patriot Act requirements were being observed
in connection with the letters. Matters involving the use of investigative power require
management, oversight, and strict abidance with legal requirements, and they have at the
NASA OIG under my leadership.

The road to producing disciplined work at the high standard I demand has resulted in
some discord. Some employees have not appreciated having their work tested inside the
office to make sure it is founded in fact and law rather than personal opinion. Some have



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chafed at my direction that when we conduct investigations we have a clear
understanding of possible wrongdoing based on law and regulation rather than
supposition and personal notions of right and wrong. This imposition of rigor has
resulted in the NASA OIG getting the work right. The exhaustive investigation of the IC
notwithstanding, there has been no credible suggestion of any defect in OIG work
product. As a result of the NASA OIG work product, real attention is being paid at
NASA to perennial challenges in financial management, information technology security,
and in areas relating to critical mission execution. Our investigative work product in
administrative cases (where the benefit of an Assistant United States Attorney or other
prosecutor is absent) is taken seriously and acted upon by NASA management. In
contrast, when I began serving as the Inspector General at NASA, the Agency's record in
taking appropriate disciplinary actions based on IG investigations was inconsistent, at
best. As for audits, the Agency faced an inventory of approximately 400-500 outstanding
audit recommendations that the OIG had made but the Agency had not implemented. [see
Exhibit L, specifically attachment 2 to Exhibit a, of that Exhibit] While the OIG was
making recommendations, they were not being implemented, in contrast to what has
occurred during my tenure as IG.

In addition to the discomfort associated with the high standards for NASA OIG work that
some employees might have felt, there was resistance to changes I directed to address
what I perceived to be weaknesses in the organization and operations of the NASA OIG
at the beginning of my tenure. Some of the most important changes were unpopular, but
needed. While I have been subjected to criticisms relating to management, actually, the
management steps taken under my leadership have been necessary to execute the OIG
mission more effectively and efficiently. Attached as Exhibit X is a list of some of the
management initiatives that have been executed during my tenure as IG. These initiatives
have led to an organization that approaches issues systemically rather than ad hoc, with
mature quality control, accountability, and focus on the future as well as the present. The
management strategy has focused on ensuring that we have those matters that are most
significant to NASA well resourced and managed. Our investigation into improprieties
by the Boeing Corporation, which resulted in the recovery to NASA of over 100 million
dollars last summer, was an example of a matter that benefited from substantial OIG
management attention, including from myself. I believe the NASA OIG to be a much
stronger organization today than when I became the Inspector General.

One might ask why the IC would engage in the type of far-flung, undisciplined,
proceeding it has conducted. When investigations are not conducted with due process
and compliance with legal and procedural requirements, when false and misleading
information is leaked from the investigation to the press to try to create a negative
perception about a public servant's integrity, and when the results of the investigation are
characterized in a manner to support the objective of elected officials and those making
the complaints, an inference may be drawn that the investigation is not being conducted
with independence. Ironically, the IC investigation is exactly the type of gross misuse of
investigative power that I have taken careful steps to ensure does not occur at the NASA
OIG.




                                             7
Complainants and persons associated with the investigation have used the press to
impugn my reputation. Because I was not notified until April 26, 2007, that the IC
investigation was closed [Exhibit R], because the press is not the proper forum for
addressing ongoing investigative matters (and because releasing information about
investigations or complainants may be inappropriate), I have not publicly offered any
rebuttal to the allegations against me. So naturally, news reports have been inherently
one-sided. For example, the Washington Post, on February 3, 2006, in a front page story
reported a number of allegations about my purported failure to investigate a number of
safety issues. None of these allegations have been substantiated because no impropriety
occurred.2 The Post issued no follow up article to its front page story.

In November 2006, the Orlando Sentinel published information leaked from the
investigation. (To its credit, the Sentinel subsequently reported information from
NASA's former Administrator and General Counsel substantially debunking certain
aspects of the leaked information.) Defending oneself during the course of an
investigation invariably leads to the claim of interference with an investigation, and I
have avoided that by giving the investigation my full cooperation and by saying almost
nothing to the press. Now I am told by a lead Congressional investigator that the truth of
matters is irrelevant and only perception matters: a perception engineered by those with
agendas having nothing to do with truth. However, under the present circumstances and
my steadfast belief that investigations should be conducted fairly and legally, I am
compelled to state my views publicly in the hope that greater appreciation for the
principles of due process prevail among those who are charged with the responsibility to
carry out investigative activities.

Given the great lengths the HUD OIG went to try to establish a suggestion of wrongdoing
and the extent of the overreaching of the IC to find, if not wrongdoing, appearance of it,
and the absolute failure of both of them, in light of the truth, to show any wrongdoing or
even appearance of it, the IC letter, with all its foibles and falsities stands, in contrast to
its intent, as a complete and de facto exoneration of me and the NASA OIG.

At NASA, I have taken the responsibilities of office under the Inspector General Act
seriously and without compromise to root out and prevent fraud, waste and abuse and to
promote the economy and efficiency of the Agency. I have upheld my oath to support
and defend the Constitution of the United States. My staff and I have worked very hard
to gain respect by following the Constitution and laws of the United States, by ensuring
that our work is performed in a fair and balanced manner, by building expertise in the




2
  One of the matters, involving pilots at the Langley Research Center who claimed they had been retaliated
against for raising issues about safety matters, led to an earlier call for an investigation. [See Exhibit Y,
and my response at Exhibit Z] Two reviews of the matter, one conducted by a senior staff member at
NASA Headquarters and one conducted under the auspices of the Aerospace Safety Advisory Panel, a
statutory NASA advisory committee, agreed with the report of the NASA OIG.



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areas in which we conduct our work, by making sure the work is supported by law and
relevant facts, and by making sure that NASA OIG organization reflects the economy and
efficiency in operations that we demand of the Agency we oversee. As a result of this
dedicated effort, I proudly stand behind the work of the NASA OIG.




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