Awhile back I wrote a three part series on an attack on civil liberties that has started with NASA (including my wife), the Bureau of Land Management and the Department of Education, but in theory affects all Federal employees and all contractors with access to Federal facilities. (Part III with links to parts I and II can be found here). I should note that this series was one of our most read series of articles ever, even getting the attention of mainstream media and raising the morale of the NASA employees involved.

The gist of the attack on Civil Liberties is something called Homeland Security Presidential Directive #12. In itself it is reasonable, merely mandating a more uniform way of issuing ID badges to people with access to Federal facilities. But the method of implementation in essence treats ALL Federal employees as people working on projects of a sensitive nature for Homeland Security. The process of issuing ID badges requires ALL Federal employees (though the implementation has been spotty so far) to sign a waiver allowing the Federal government to investigate ANY aspect of their life if they deem necessary with no due process (outlined in Part I and III of my series), and has aspects that in theory bars all gays from Federal employment, something that is a part of the process but has not been applied against gays to date as far as I know (this is covered in Part II of my series). For more details, please read my earlier series.

The whole process has been fraught with misleading statements, confusion and what could be viewed as outright lies by the Federal government and some of those whose job it is to implement the directive in certain agencies. The employees of NASA's Jet Propulsion Lab in Pasadena have filed a lawsuit to block implementation of the directive on Civil Rights grounds. The first judge to hear the case (a Bush appointee) denied the case. However, an appeals court has issued an emergency injunction to block the implementation of this process at JPL until a full appeal can be heard.

Well, the appeals case will be heard December 5th, a case that could affect all Federal employees and contractors. Here is the Press Release from a JPL senior scientist:

PL Employees vs. NASA, Department of Commerce, and Caltech; Homeland Security Presidential Directive 12...

Appeals Court Hearing on Injunction Restricting Background Investigations of JPL Employees

When: Wednesday, Dec 5, 2007 9:30 AM.
Where: Courtroom #1 United States Court of Appeals Building,
125 S Grand Ave
Pasadena, CA 91105

Attorneys and Plaintiffs will be available for media interviews following the hearing

A three-judge panel of the Ninth Circuit Court of Appeals will hear arguments Dec. 5, 2007, on an injunction pending appeal in the case of 28 Caltech employees at NASA’s Jet Propulsion Laboratory who filed suit to prevent unreasonable personal background checks. The JPL employees -- all of whom work on non-classified space exploration projects -- sued NASA, the Department of Commerce, and their employer, Caltech, to prevent intrusive, open-ended background investigations imposed by NASA Administrator Michael Griffin in support of Homeland Security Presidential Directive 12. The background investigations were associated with issuing new identification cards to employees in order for them to access the JPL facility. HSPD12 mandates new identification documents but does not mention background investigations. None of the plaintiffs have security clearances.

On October 5 the appeals court issued an emergency temporary injunction preventing Caltech from further implementation of the HSPD12 process at JPL. The injunction was extended on October 11, in a ruling where the court recognized the right to informational privacy and found “…serious privacy concerns…” in this matter. The court said, ”Moreover, the need for the information to be collected is questionable in general, given the absence of any apparent relationship between its collection and the production of reliable identification cards for these employees.”

In papers filed with the court for argument on December 5, attorneys for the 28 employees described the investigation procedures of Caltech and NASA as being “…overly broad, dangerously vague, and ill-designed.” The plaintiff’s attorneys argued furthermore that the process, “…violated the Fourth Amendment and the constitutional right to privacy as well as raising serious First and Fifth Amendment concerns.”

One issue raised in the case is the ability of federal facilities to recruit top-level scientists and engineers in the harsh investigatory climate of HSPD12. The plaintiffs argue, “…NASA will be deprived of the talents of other scientists and engineers who will be deterred from applying to work at JPL because of the newly-required background investigation and waiver of privacy rights, both of which are antithetical to the type of autonomy and academic freedom needed to maintain JPL's status as the preeminent research institution for space exploration.” They continued, ”JPL is currently experiencing a shortage of experience in Mars science and has faced difficulties recruiting senior talented scientists in this area, a problem which will be compounded by any change which deters new hires.”

In opposition to this argument, JPL’s Human Resources Director, Cozette Hart, told the court on October 1 that JPL has 5000 applicants each year that she considered to be minimally qualified to fill vacancies in the staff. She added, “Caltech is capable of finding suitable replacements for employees that leave JPL.” However, the lead plaintiff in the case, Robert M. Nelson, notes that a few weeks later Hart contradicted her earlier assertion in an interview with the JPL in-house newspaper. “(W)e are in a talent war,” Hart said. “We are going to have increased difficulty in finding and retaining talent to replace our older workers as they retire.”

Nelson, a Senior Research Scientist with 28 years of service at JPL, noted that
Hart’s remarks are indicative of a Caltech management that is willing to “…change its story to suit whatever circumstance is most convenient.” He added, “NASA has had a long-standing reputation of stating the truth even in the few instances when the truth is not complimentary to NASA.” He added, “Hart’s contradictory remarks are an affront to every employee who works at JPL. Her comments are a harbinger of the mediocrity that HSPD#12 threatens to bring to American science and engineering.”

Other issues raised by the lawsuit 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 plaintiffs have received broad support for their legal actions, including amicus curiae briefs filed by the Electronic Frontier Foundation and the Union of Concerned Scientists.

I should note that there are very strange attempted at my wife's branch of NASA, the Goddard Institute of Space Studies (GISS). I have no documentation of this, but those whose job it is to implement HSPD #12, ignoring the emergency injunction, it seems, have some very odd schemes to implement it. One scheme includes bussing some 25 GISS employees (out of hundreds) down to a Goddard facility in Maryland to issue their badges. Problem is that GISS is in NYC. One senior scientist commented that this, in essence, busses people from NYC to Maryland for a five minute process. Perhaps an exaggeration, since NOTHING in the Federal bureaucracy only takes 5 minutes, but the point is valid. Another scheme requires all foreigners, no matter who they are, where they are from or what their job is, to have ID cards with special identification marks to show they are foreigners. One GISS employee was quoted as saying "I will wear my yellow star with pride." Although I don't necessarily think it is invalid to have a different process or badge for non-citizens, there really is something very un-American and sinister about having a special marking for foreigners.

I should note that my wife has not yet been asked to comply with HSPD #12. So she doesn't yet get a free, superfluous ride down to Maryland. But we are very, very interested in the results of the Dec. 5th hearing. My wife is seriously considering refusing to sign the waiver that gives the government permission to investigate every aspect of her life right down to sex life.