Thursday, October 7, 2010

The Attorney General Gets it Wrong in JPL Employees vs. NASA, Department of Commerce, and Caltech; Homeland Security Presidential Directive 12

This issue is a left over from the Bush Administration. George Bush issued a presidential directive called Homeland Security Presidential Directive #12 (HSPD12) whose stated intent was to create a more uniform ID system to allow Federal employees to access Federal facilities. Note, and this is critical and often ignored, the employees in question are NOT engaged in ANY secret or sensitive work nor have access to places within Federal facilities where such work occurs. These are just average employees, students, academics and contractors engaged in NON-secret, NON-sensitive work. There is nothing wrong with Bush's original directive. Where it all went wrong is how the Bush Administration chose to implement it. This was at the peak of the Republican culture of fear and surveillance, so Bush's crew decided to implement the process in the most intrusive way possible. My wife and her fellow NASA scientists and various NASA facilities, including JPL, were presented with a form that in effect asked them to sign away their right to privacy, giving the government permission to investigate ANYTHING and EVERYTHING about them including their medical history and personal life. I would assume people on the left and right would agree that this is an excessively intrusive, not to mention costly, way to treat employees who have no contact with sensitive or secret matters. The implementation led to objections, and in some cases lawsuits, within places like the Department of Education, Bureau of Land Management, and NASA. The lawsuit with perhaps the most widespread impact is JPL Employees vs. NASA, Department of Commerce, and Caltech. This case pits some of America's top scientists and engineers against the US government bureaucracy in defense of the basic right to privacy in America.

I have covered this case almost from the beginning, since my wife brought it to my attention with a stack of printed out emails from NASA scientists discussing this. You can read the details in the following articles:

My Wife Faces Homeland Security Part I: Homeland Security Presidential Directive #12

My Wife Faces Homeland Security Part II: The Suitability Matrix

My Wife Faces Homeland Security Part III: The Resignation Letter

And the most recent info on the case, where it headed for the Supreme Court, can be found here.

And it is in the Supreme Court that the US Attorney General's office gets it wrong, essentially making a major error in how facilities like JPL function. This comes from the JPL scientists who are fighting the case:

NASA Scientists Demand Retraction from Attorney General

A group of scientists, engineers, and administrative personnel at NASA’s Jet Propulsion Laboratory have demanded that the United States Attorney General’s office issue an immediate retraction of remarks made before the United States Supreme Court on Tuesday by acting Solicitor General Neal Katyal in the case of Nelson et al. vs NASA et al. The case involves NASA’s effort to force JPL employees, who do no classified work and who are not civil servants, to undergo unconstrained background investigations into the most intimate details of their personal lives.

One item of discussion before the court was the ease with which its employees can access JPL’s environment. At the conclusion of his opening statement, Katyal said, “And the even more important point about this is the badge that the Plaintiffs are seeking access to don’t – doesn’t just give them access to JPL. It will also give them other access to all other NASA facilities. And it’s such an important credential that it would allow them to get within, for example, 6 to 10 feet of the space shuttle as it is being repaired and readied for launch. So this is a credential not just for JPL and getting onto JPL, but other places as well.”

In fact, the new credential would do no such thing. The badge now in use at JPL is already accepted for access to other NASA facilities, but only to non-sensitive areas there. Even within JPL—which is mostly an open, campus-like environment—there are a few sensitive areas where neither the existing nor the new badge allows access unless its owner is specifically authorized to be there. In addition, extensive care is taken at JPL and other NASA facilities to safeguard “flight hardware” (i.e., anything that goes into space), and the space shuttle is certainly no exception. No one without the right training and authorizations can get close to the space shuttle, no matter what kind of credential he or she carries.

On behalf of the plaintiffs, Nelson wrote letters today to Attorney General Eric Holder and NASA Administrator Charles Bolden requesting that Holder order a retraction of these remarks and issue a public correction.

In remarks prepared for delivery at the annual meeting of the Division for Planetary Sciences of the American Astronomical Society in Pasadena on Thursday Nelson said, “Katyal’s remarks reflect the Justice Department’s astounding ignorance of basic NASA rules and procedures. This ignorance has been demonstrated by the DOJ throughout the case. It is regrettable that the Supreme Court will decide an important case like this one with false information in hand.”

Other plaintiffs in the case were similarly outraged.

Larry, D’Addario, a JPL principal Engineer working on electronics for space communication, said "Perhaps Mr. Katyal's misstatement about the space shuttle arose because he was given false information by someone. But he intentionally tried to mislead the court about the nature of the work at JPL when he described Appeals Court Judge Wardlaw as 'underestimat[ing] how important security is there' and when he said, 'The information at the debate at JPL is sensitive, quite sensitive, both, you know, in terms of scientifically and with respect to our nation's secrets.' In reality, the vast majority of the work at JPL is in support of science that benefits all mankind. Indeed, such science can only succeed and be credible in an atmosphere of openness. The idea that it might be declared 'sensitive' and subject to suppression is one of our fears, and that fear is echoed in the amicus curiae briefs filed by scientific societies in support of us."

Susan Foster, a technical writer and 40-year veteran of JPL said “Acting Solicitor General Katyal impugns NASA’s reputation by his claim that NASA’s security practices are so casual that I, a low-risk employee, can get within 6 feet of the shuttle. NASA takes its responsibilities for protecting the space shuttle very seriously and follows rigorous security practices to protect this critical national asset. Without additional authorization and an escort by a public trust employee, I would be lucky to get within 6 miles of the space shuttle, just like any other member of the public. Acting Solicitor General Katyal would be wise to discuss NASA security practices with Administrator Bolden before making such deplorable claims.”

Konstantin Penanen, a JPL research scientist, said, “NASA's own regulations require enhanced scrutiny for those few occupying positions of public trust, where a negligent error or deliberate malice could harm a national asset such as the Space Shuttle. It is puzzling how General Katyal could be so misinformed.”

Dennis V. Byrnes, Chief Engineer for flight mechanics at JPL, said, “It is sad how throughout this case the Department of Justice has not taken the slightest effort to understand the relationship between NASA and JPL and how important the issues in this case are. The lack of understanding of the differences between civil servants and contractors is inexcusable.”

Other issues raised by the case include the threat to intellectual freedom inherent in excessive background investigations, the unfettered nature of the investigations, and the requirement to waive privacy rights as a condition of employment. The Supreme Court will make its ruling within a few months.

The plaintiffs have received broad support for their legal actions, including amicus curiae briefs filed by the American Astronomical Society, the American Civil Liberties Union, The California Employment Lawyers Association, the Drug Policy Alliance, the Electronic Privacy Information Center, the Electronic Frontier Foundation and the Union of Concerned Scientists.

Further information and all court documents are at the website

It somewhat disturbs me that I know more about how JPL functions than the Attorney General for the US when he is arguing a case about JPL.

My wife, as my early articles detail, was initially affected by this directive and had been asked to submit to the most intrusive form of implementation similar to what was implemented at JPL which led to the court case. As the court case was decided in favor of the JPL employees (leading to the appeal by the US government before the Supreme Court), my wife's department at NASA, GISS, decided to implement the process by a less intrusive means, so my wife agreed. This means that a directive meant to make the process more uniform has already broken down as some agencies implement a needlessly intrusive and costly procedure that requires, in essence, an employee to give the government permission to investigate ANYTHING and EVERYTHING about them, including their personal life, while other agencies implement a less intrusive, more reasonable method of issuing the new IDs. This means, thanks to the desire of the US government to increase its surveillance of even employees engaged in non-sensitive work, the original intention of the directive has been abandoned.

I would hope that the Obama administration would take a more mature, less paranoid and intrusive approach to the issue, but so far Obama's Justice Department has continued the Bush era paranoia approach and sought to maintain the directive at its most intrusive and costly. Hopefully the Supreme court will agree with the scientists and not the bureaucrats. It is about time America stop expanding the power of government to intrude into our private live. Bush and the Republicans went way too far in violating our privacy and creating a surveillance society in America that rivals that in China or Russia. My hope is that Obama and the Democrats will restore some of the basic freedom Bush took away.

No comments: