Today an appeals court in California handed a bunch of NASA scientists a victory that is a victory for the civil liberties of all Federal employees and contractors. At stake was the privacy of all NASA scientists and contractors and potentially all Federal employees and contractors. It all stems from a reasonable attempt by Homeland Security to standardize the procedure for obtaining ID cards that allow access to Federal facilities (Homeland Security Presidential Directive #12). The method of implementation required even low-risk employees and contractors (including my wife, a grad student studying climate) to sign a blanket waiver giving the Federal government permission to investigate all aspects of a person's private life, including finiancial and medical records, or risk losing the right to enter their place of employment with the government.

One of the first places where this was aggressively implemented was NASA. Just as my wife, working in a NASA facility where no sensitive research is done, was informed she will have to sign away her rights to get an ID, NASA scientists at the Jet Propulsion Lab filed a lawsuit to block implementation of the directive. Today that lawsuit bore fruit. Please read on.

Some of you may have been following the long story of a threat to my wife's civil liberties thanks to Homeland Security. The original diaries (which got LOTS of attention, being picked up by the Huffington Post and boosting the morale of some NASA scientists involved) can be found here:
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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.
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Just yesterday I delivered the bad news that a judge (a Bush appointee) denied the request of NASA scientists for protection against invasion of their personal privacy by the Federal Government. I mentioned that the case was under appeal. Those who have been following this story will know that this case directly affects my wife, who will also be required to waive her rights if she wants to work at a NASA facility even though none of the work she does is sensitive.

Well, in this case, the courts moved fast. The appeal has been successful and the Ninth Circuit Court has issued an injunction against the oppressive implementation of Homeland Security Presidential Directive #12. I received this news mere minutes ago:

PRESS RELEASE
Date: October 5, 2007

Re:
Nelson, et. al. v. National
Aeronautical and Space Agency, et. al.

NINTH CIRCUIT ISSUES INJUNCTION AGAINST NASA AND JET PROPULSION LABORATORY’S UNCONSTITUTIONAL REQUIREMENT OF INVASIVE BACKGROUND INVESTIGATIONS

Today the Ninth Circuit Court of Appeals entered an emergency injunction against the National Aeronautics and Space Administration and the Jet Propulsion Laboratory. The Court ruled that NASA could not require Jet Propulsion Laboratory scientists and engineers holding non-sensitive positions to sign waivers of their privacy rights. If the Court had not issued this injunction, thousands of scientists would have had to choose between waiving their privacy rights and keeping their jobs. The plaintiffs filed suit in United States District Court for the Central District of California against NASA, the Department of Commerce and the California Institute of Technology (Caltech) on behalf of a class of JPL employees who are being required to waive their privacy rights and submit to an unconstitutional intrusive background investigation in order to retain their jobs with JPL. The plaintiffs include highly placed engineers and research scientists at JPL who have been involved in critical roles in NASA’s most successful recent programs, including leading engineers and scientists on the Mars Exploration Rovers program.
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In the ongoing case of my wife (and all other NASA employees and theoretically all Federal employees) vs. Homeland Security (see earlier entries for details: Part I (overview); Part II (the Suitability Matrix); Part III (the resignation letter)), the civil liberties of Federal employees just got dealt a setback. A judge just denied the case of 28 employees of NASA's Jet Propulsion Lab to get court protection from excessively intrusive personal background investigations:

Media Advisory

JPL Employees vs Caltech, NASA and Department of Commerce
Homeland Security Presidential Directive 12

For Immediate Release Oct 3, 2007

JPL Employees to Appeal Negative Ruling by Judge

Employees at Caltech's Jet Propulsion Laboratory will file an emergency motion on Thursday to appeal a federal district court's decision that denies them the court's protection from excessively intrusive personal background investigations ordered by NASA for all JPL employees.

During the hearing in his Los Angeles courtroom on Monday, Judge Otis Wright said he was inclined to issue a limited temporary injunction before October 5 in the case of the 28 JPL employees who filed suit against Caltech and NASA over the detailed personal investigations associated with issuing new identification badges for access to the JPL facility. None of the 28 employees do any classified work.
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Many of your followed my series on my wife's battle with the implementation of Homeland Security Presidential Directive #12 (Part I here).

Part of the story is a court case filed by employees at NASA's Jet Propulsion Lab to block parts of this implementation. Today there has been a media advisory in this case:

JPL Employees vs Caltech, NASA and Department of Commerce
Homeland Security Presidential Directive 12

For Immediate Release Oct 1, 2007

Federal Judge Indicates He May Issue Temporary Limited Injunction

Judge Otis Wright suggested he may issue some form of a limited temporary injunction in the next few days in the case of 28 employees of Caltech’s Jet Propulsion Laboratory who filed suit against Caltech and NASA for over-intrusive background checks that are being conducted in association with issuing new identification badges for access to JPL.

Judge Wright set a hearing on the question of a permanent injunction for October 19, at 3:30 PM in Courtroom 11 of the United States Courthouse in Los Angeles.

The judge said he had particular concerns about a question regarding drug use that employees had to answer on United States Office of Personnel Management Form
Sf85.

In addition to the 28 plaintiffs, hundreds of JPL employees have taken issue with the background checks. Caltech attorney Mark Holscher conceded in court that only 4100 of JPL’s 7500 employees and contractors have begun to fill out the forms.
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In Part I of this series, I described the way that government employees are being asked, in the name of Homeland Security Presidential Directive #12, to sign away their rights in order to keep their jobs (in essence). I should note that not all the blame for the problems are due to Homeland Security. Some are due to the way individual agencies are implementing the procedure. I should also note that the precise wording of the directive is not necessarily objectionable. Nevertheless, the requirement to sign a blanket waiver allowing an intrusive government investigation applies across the board and is the way in which the directive is being implemented.

In Part II I describe an aspect of the procedure by which government employees are investigated as part of the imlpementation of Homeland Security Presidential Directive #12. This part of the procedure is called the "Suitability Matrix" and is not in iteself a part of the directive. From what I could tell, it was an existing procedure, used to determine if someone should be debarred from government work, that has been appropraited by the US Office of Personnel Management in order to implement the directive. The Suitability Matrix is objectionable because a.) it does not give the procedure by which it is used, b.) it seems to require an intrusive investigation into an employees personal life way beyond anything Homeland Security Presidential Directive #12 requires, and c.) it includes as "offenses" things that could easily be misused, such as a reference to "sodomy" that, in context, sounds suspiciously like it could be used to debar gays from government work.
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