[Note: This article was co-written with my wife who helped both with the research and the writing]

In Part One of my Homeland Security Presidential Directive #12 coverage I discussed the implementation of this Bush decree, how intrusive it is, and how refusal to give the government a blanket waiver to investigate your life could prevent you from receiving an ID card that will allow you to get into your place of work. In it I introduced the two possible forms that a person would have to fill out to get their ID: Form 85 (intrusive) and Form 85p (even more intrusive). In Part One I focused on statements made by Professor Robert Nelson, Senior Scientist at NASA’s Jet Propulsion Lab (JPL). But I also pointed out that this is not academic. It affects my wife.

I have discussed this more with my wife to get her personal view. At first I was a little relieved: she would probably only have to fill out Form 85. That still means she has to sign a blanket waiver that would allow the government to investigate her if they want for whatever reason, but at least it isn’t Form 85p which requires even more waivers of one’s rights.

But my wife then drew my particular attention to one aspect of the implementation of Homeland Security Presidential Directive #12. It is something called the Suitability Matrix, which all NASA employees (and probably all government employees) from janitor to student to professor have to undergo. In Part One, all discussion of Homeland Security Presidential Directive #12 involved a “voluntary” signing away of one’s rights in order to get an ID card. But the Suitability Matrix goes much, much further. And it is already in place.

According to NASA Security officials and to the guide (PDF) given by the US Office of Personnel Management (OPM) to agencies requesting investigations, once my wife has submitted Form 85, OPM will begin investigating her. In order to do this, OPM investigators must complete the “SuitabilityMatrix” (who THINKS of these names??), which will determine whether additional releases, for credit information or medical records, are necessary. OPM then turns the case over to NASA Security, which decides whether to allow my wife access to the building where she works. So, according to OPM documentation and NASA Security, the Suitability Matrix would be part of the process to determine what personal information they would require her to reveal in order to get her ID card.

Right? Well, when we look at the Suitability Matrix (PDF), we find something else. What it looks like is a list of offenses, categorized under type of offense (Honesty, Financial Responsibility, Immoral Conduct, Drug Use, Intoxicants, Firearms, Violent Behavior, etc.) and severity (from A to D). This categorization is used to determine a person’s suitability to work for the government and actually determines if someone should be debarred from government employment. There is no mention of Homeland Security Presidential Directive #12, and there is actually no mention of what the PROCESS is to determine someone’s suitability. All I find is a list of offenses. What do they do with this list? And how does it relate to Homeland Security Presidential Directive #12? And from what I can tell this process is already used for all government employees and now (since Homeland Security Presidential Directive #12) all government contractors. For the record, I have no idea if all those government mercenaries...I mean contractors in Iraq go through the same process.

My wife spent a long time looking at the Suitability Matrix and grew increasingly concerned for two reasons. One is what it means if they use this matrix routinely, and one is the nature of some of the “offenses,” which really should not be considered “offenses.”

First let’s look at what it means for my wife’s privacy if they DO use the Suitability Matrix as part of how they determine how intrusive to be in her life if she wants her ID to get into work. What it means is that they are ALREADY making a determination beyond what Homeland Security Presidential Directive #12 demands. The Suitability Matrix already is looking at debarment from employment, not just a more uniform ID system. So, this already is worrisome. All those assurances that Homeland Security Presidential Directive #12 is ONLY about ID cards, not employment per se, go out the window. Part of the whole process is a Suitability Matrix that is designed to debar people from government employment. This contradicts many of the assurances that people have been given that Homeland Security Presidential Directive #12 is not meant to make employment decisions. But there is more.

The Suitability Matrix is far more intrusive than EITHER form 85 OR form 85p. So even if my wife is only required to fill out form 85, she will STILL need to agree to further intrusion in order to be deemed worthy of receiving her ID to get into her place of work.

My wife has these specific concerns about the Suitability Matrix: 1. Some of the offenses are pretty minor by almost any definition, and 2. there is no indication of the process by which they would determine these offenses. It does not say conviction for an offense in some cases (and some are not even illegal). It merely lists “offenses”, some of which are not even legal issues as far as I can tell.

Now some of the offenses really are offenses, like actual criminal behavior, and are perfectly reasonable to include. But some of the offenses seem completely unreasonable. Particularly in the severity A category (the least severe). But let’s look at some of these not so offensive offenses:

Severity A:

Infrequent use or possession of marijuana. Abusive language (Hey…we live in NYC here!). Unlawful assembly (which some protests we have participated in might qualify as!). Attitude (in an employment context). Personality conflict in an employment context. Loitering. Traffic violation.

I suspect we all would have several severity A “offenses.” And looking at the form I don’t know how many severity A offenses it takes to be debarred. And how would they know if you used abusive language or had a bad attitude at work? Exactly what kind of "personality conflict" are they talking about? Again, note that some of this does not seem to have a legal offense associated with it. What law is there against having a bad attitude at work?

Severity B:

Insubordination or attendance problem at work. (I will point out that almost any family with small children where both parents work will have attendance problems for both parents.) False statement. (There is no context given for this…it is in the “honesty” category. So any false statement can be held against you? Does this make me look fat?). Eviction. (So if a landlord evicts you, it can be held against you. I know people who are being evicted using eminent domain so a rich developer can put up a sports arena. Would this be held against them for government employment?)

Severity C:

Carnal knowledge. (Yes…carnal knowledge. To most of us this is simply an archaic term for sex. So having sex is a severity C offense? And how do they determine if you have carnal knowledge?) Sodomy. (Remember that in some states anal sex of any sort as well as homosexuality of any sort is legally defined as sodomy...and the US military still enforces a sodomy law as anti-homosexual...more on that in a moment).

All kidding aside, let’s look at “Carnal Knowledge” and “Sodomy” legally. Those who find sex disturbing may want to skip this section.

Carnal Knowledge is, in common usage, nothing more than a euphemism for doing the dirty deed, hiding the sausage, sexual intercourse, or, as the Japanese would say, “having morning coffee.” According to a study done by the Research Division of the Guttmacher Institute in New York, more than 90% of Americans have premarital sex. Does this “carnal knowledge” mean that 90% of Americans would have a Severity C offense and hence may be debarred from government work? And, in case you didn’t realize this, ALL of our parents have had carnal knowledge as common usage defines it. That’s how conception occurs. And how do they determine if we have "carnal knowledge?"

In legal terms, there are many meanings for “Carnal Knowledge.” In some states, the term means "seduction", which is technically illegal in some states. Some states limit the definition of “Carnal Knowledge” to the specific act of sex with someone under 16 with consent. This may be the context in Federal usage, though with some confusion associated with it. Some states use it to mean oral or anal sex…other states specifically exclude such acts. There is no point in the “Suitability Matrix” that defines what is meant by this extremely vague legal term. However, perhaps we should assume they are simply using the Federal law meaning, in which case it means sex with a willing minor. But I will note that if we assume this, their inclusion of sodomy becomes a concern.

The meaning of "Sodomy" has generally been left up to the states rather than Federal law, though the US military have ruled "all acts of sodomy" illegal. In general, laws do not enumerate what sodomy really means, though traditionally it means any sexual act that cannot lead to procreation. Hmmm... We all know that many states have defined homosexuality as sodomy and have outlawed it. Truth is, although some states still have specifically anti-homosexual sodomy laws on the books, they have been invalidated by the 2003 U.S. Supreme Court decision Lawrence v. Texas. However, this court case does not necessarily invalidate anti-sodomy laws that are not specifically anti-homosexual (this question seems unresolved). The following states with sodomy laws that remain on the books (as of 2006?):

Alabama, Florida, Idaho, Kansas (same sex-only, therefore covered by Lawrence v. Texas), Louisiana, Michigan (laws struck down but under appeal), Mississippi, North Carolina, Oklahoma (same sex-only, therefore covered by Lawrence v. Texas), South Carolina, Texas (same sex-only, therefore covered by Lawrence v. Texas), Utah, Virginia.

Even where these laws only apply to homosexual acts, and thus should be invalidated by the Supreme Court, the state keeps them on the books. The US military continues to enforce sodomy laws regardless of Lawrence v. Texas, and so it could be considered that it in this context (Federal enforcement of sodomy laws regardless of its invalidation on a state level) that the Suitability Matrix includes “sodomy.” After all, that was the most logical reasoning when we looked at their inclusion of "carnal knowledge." If Federal agencies are not covered by Lawrence v. Texas, (as the US military assumes) then sodomy remains, in the context of government employment with NASA, BLM, etc. a way in which homosexuals can be debarred from employment. So...why is this even ON the Sustainability Matrix as an offense? Are they debarring homosexuals? Are they debarring people who engage in anal or oral sex? And how do they propose to find out if you have engaged in such acts?

Severity D: (mostly PERFECTLY reasonable, but…)

Pattern of unemployability (I think most homeless people would be debarred from government work based on this...yeah, let's keep the homeless from ever finding work). Pattern of dishonesty as reflected in disregard for the truth. (Ummm…isn’t this redundant? Doesn’t it just mean lying a lot?) Addiction. (Yes…any addict can be debarred. Whether or not they use? Does my coffee habit count? Does a cigarette habit count? Would Rush Limbaugh be debarred?)

Now go back over that list and think about just how they would determine if you lied, had carnal knowledge, committed sodomy according to the US military's definition, are an addict or had an attitude problem at work. What process do they use to make these determinations? Sure, checking criminal records would cover some, and that is fine. But what about the rest? What level of intrusion into your personal life would they have to do to find out this information? That is my wife’s concern. Does the Suitability Matrix ALREADY constitute such a violation of our personal privacy that the rest of Homeland Security Presidential Directive #12, as discussed in Part 1 of this series, is moot?

Those I have talked to at NASA, my wife included, consider this “Suitability Matrix” to be the most bizarre aspect of the whole Homeland Security issue. To me, though, it sounds like it is something that is already applied to government employees and its application in the case of Homeland Security Presidential Directive #12 is merely how we are noticing it.

Next: Part Three: The Resignation Letter.