Judge rejects request to halt NASA background checks

In a surprise ruling, a federal district court judge in California decided late Wednesday that a section of a NASA background check asking contract employees about past drug use did not violate the Fourth Amendment. The judge had said on Monday that he was likely to issue a preliminary injunction against the questionnaire.

"The questionnaire itself is relatively nonintrusive," wrote Judge Otis Wright. "And there are adequate safeguards in place when dealing with sensitive questions. . . . The government has shown that it has an interest in 'enhancing security' at federal facilities. The court concludes that this is a legitimate governmental interest."

Twenty-eight scientists at NASA's Jet Propulsion Laboratory sued the agency, the California Institute of Technology (which houses the lab), and the Commerce Department in August to stop the background checks, saying they are redundant, overly broad and discourage the atmosphere of openness that has made the lab successful. The government's lawyers countered that post-9/11 security concerns make more extensive background investigations necessary.

"Everyone who works at JPL carries a photo identification badge," said Robert Nelson, the lead plaintiff in the case, "and is subject to a national agency check of outstanding arrest warrants, past arrests . . . . If you have any of those problems that you can't resolve, you don't get to be an employee."

He said it is the "idea of a background check with inquiries conducted by people unknown to us, with skills unknown to us, and with a suitability matrix that is an anathema to us" that the plaintiffs find objectionable.

The government's filings in the case suggested a basic disagreement with the plaintiffs over the need for more stringent security measures.

"Under plaintiffs' stunted view of security," the briefing stated, "the government is allowed only to take cursory steps to verify that contract employee John Smith is really John Smith and must then issue him a government identity card, ignoring whether basic facts about John Smith's background may indicate a potential risk in according him access to government facilities and information."

The lawsuit stems from a 2004 homeland security presidential directive requiring federal employees and contractors to obtain security badges to gain access to federal facilities and computers. To receive a badge, NASA employees and contractors must fill out a questionnaire that asks whether they have "used, possessed, supplied or manufactured illegal drugs" in the preceding year.

They are also required to sign a statement agreeing to broad background investigations.

"I authorize any investigator, special agent, or other duly accredited representative of the authorized federal agency conducting my background investigation, to obtain any information relating to my activities from schools, residential management agents, employers, criminal justice agencies, retail business establishments or other sources of information," the statement reads. "This information may include, but is not limited to, my academic, residential, achievement, performance, attendance, disciplinary, employment history and criminal history record information."

The deadline to fill out the form is Friday. Dan Stormer, an attorney for the plaintiffs, told the Associated Press that he planned to appeal immediately to the 9th U.S. Circuit Court of Appeals.

The scientists and their lawyers asked the government to clarify what kind of information that might be discovered in such an investigation would disqualify a person from government service.

"We pressed them for a suitability matrix, and they looked around in their files, and said here's one," said Robert Nelson, the lead plaintiff in the case. "It's from the 1950s, and it's the kind of thing used to root out Reds under beds."

Stormer said in an interview before the ruling on Wednesday that he thought the wide-ranging background checks were unnecessary.

"It's nuts, it's mean and it's crazy," he said. "You're going to ask the neighbor about somebody's conflict with them, and that's going to make a determination that 40 years of perfect employment doesn't already tell you?"

"Regardless of what the legal outcome is, there will be a small number of people who won't be here anymore for reasons not having to do with their scientific or technical talent," but who would rather quit than sign the background check waivers, Nelson said.

Knowing that their pasts can be investigated "breeds in people the tendency to conform," he continued. "One reason we think that JPL has been so successful is that we've been so tolerant of people with a wide range of personal idiosyncrasies."

Regardless of how offensive employees find the background checks, the government maintains that they are necessary, and NASA is best equipped to determine its own security needs.

"There are multiple statutory and executive sources of authority which commit to the agencies' discretion how to implement a background investigation program; and the way in which the agencies have done so should be accorded great deference," the defendants' opposition brief stated. "These authorities are intended to enhance security, not afford substantive rights to contract employees."

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