Meet the new boss
Obama administration asks US Supreme Court to lift injunction against JPL background checks
By Jake Armstrong 11/25/2009
Scientist Robert Nelson trains his eyes to the sky as an investigator for the JPL team monitoring images from the far reaches of the galaxy.
But President Barack Obama — much like his predecessor — wants to know what Nelson and many other low-security government contractors like him have been doing between the sheets and beyond.
The Obama administration is petitioning the US Supreme Court to review an October 2007 injunction that Nelson and 27 other JPL contract workers were granted to halt sweeping background checks ushered in under a directive from former President George W. Bush. That 2004 order, dubbed Homeland Security Presidential Directive 12, required all contractors who handle government equipment, including JPL scientists working for Caltech at the NASA laboratory, to go through a standard security screening process to receive new electronic access cards.
Specifically, contractors are required to answer personal questions and submit to a “voluntary” investigation — they risk their jobs if they don’t comply — into their past illegal drug use, criminal history, carnal knowledge and even homosexuality. They’re also required to provide personal and professional references to vouch for their suitability for government work.
But the JPL contractors call the checks an unwarranted fishing expedition into their private lives and say the administration’s request for the high court’s review is a disappointing surprise, especially after the 9th US Circuit Court of Appeals reaffirmed last June a panel’s decision to strike it down.
“We had hoped that, with the new administration, they would allow this matter to go to bed,” said Nelson, a 30-year JPL employee who worked on NASA’s Voyager mission and is currently co-investigator on the Cassini mission to photograph Saturn’s moons.
But Solicitor General Elena Kagan, the former Harvard Law School dean Obama tapped to speak for him before the nation’s highest court, said in a writ filed this month that the injunction throws a wrench in routine background checks for contract workers and casts a “constitutional cloud” on a process in use for more than 50 years.
In granting the injunction, Kagan wrote, the appeals court disregarded precedents the Supreme Court has set and broke with the pack of federal appeals courts that have upheld similar background checks. With the decision now binding in the circuit, other courts in the 9th Circuit’s jurisdiction (most Western states) must follow it, posing a significant threat to the government’s vetting process, she wrote.
But Nelson said it’s not the background checks he objects to — it’s that he’s being asked to consent to hand over sensitive personal information that appears to have little relevance to his job with no firm guarantee on how it will be used. “This is an unlimited, open-ended fishing expedition into the details of our personal lives,” he said.
The federal Office of Personnel Management each year sends nearly 1 million questionnaires to references provided by applicants, according to Kagan. Nelson is concerned he and other contractors will have no way to dispute the truth of any defamatory claims that references might make in their responses, which potentially could cost them their jobs.
Attorneys for the JPL employees have until early December to respond to the government’s request for review.
When NASA required workers at its facilities to comply with the directive in 2007, Nelson and other JPL staffer sought an injunction in federal district court in August that year. But district court judge Otis Wright II ruled the information they are required to reveal in the process was not “overly sensitive” and that equipment in use at JPL, such as satellite monitoring devices, warranted such stringent security measures. The judge denied an injunction because he doubted the checks violated their Fourth Amendment privacy rights.
But the contractors scored a quick legal victory on appeal when a three-judge panel of the 9th Circuit granted the injunction before the contractors were required to submit to the checks, ruling the contractors raised questions serious enough about privacy rights to warrant further review in court. The appeals court upheld the injunction in June and denied the government’s request for a hearing on it before the full court. The injunction remains in effect throughout the proceedings.
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