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Lying to Win at the Supreme Court: Obama Administration Continues to Pursue More Secrecy and Less Privacy
27 October 2010 By Dave Lindorff
The crazed obsession with secrecy, security, and
ever-increasing intrusiveness by government policing
and intelligence authorities into the lives of
ordinary Americans has continued apace under the Obama
administration. This madness can be illustrated by a
case currently before the US Supreme Court involving
the scientists who work at NASA's Jet Propulsion
Laboratory in Pasadena, California.
The case began back in the Bush/Cheney years when
scientists at JPL objected vigorously to a new order
that they all submit to deep background checks in
order to receive new identity cards that would allow
them to go to work. They were warned, when they
complained about a security check that would involve
looking back all the way to their college days, into
not just arrest records, but student drug use, sexual
histories, political activities, etc., based upon
wide-ranging interviews with past employers,
acquaintances, friends, family, etc., that failure to
agree to the investigations would mean they could no
longer come to work.
What made the whole thing ridiculous from the outset
is that NASA is by law a civilian agency. It does not
engage in national security activities. The scientists
at JPL run the deep space probes like Viking, Cassini
and the other planetary exploration programs, as well
as other civilian satellite projects. Yet they were
being told that even people who had worked at JPL and
NASA for decades, back to the days of the Apollo
Program, would be fired if they refused to submit to
the new security checks.
Robert Nelson, JPL scientist and lead plaintiff
against government-imposed security checks
The JPL scientists rallied against the plan and filed
suit, winning at the district and appellate court
levels, and many assumed that with the arrival of the
Obama administration, the whole idea would be dropped.
No such luck.
The Obama administration and the Attorney General's
Office filed an appeal to the US Supreme Court, where
arguments were heard last week, with the New York
Times reporting that the government's attorneys
appeared to be getting a sympathetic ear from the High
Court's right-wing majority.
The Obama administration ways JPL scientists must
agree to intensive security probes to keep their jobs
Now it turns out that in its monomaniacal desire to
further intrude into citizens' private lives in the
name of anti-terror security, the Obama Justice
Department has even misrepresented its case to the
eight Justices on the Supreme Court. (New court member
Justice Elena Kagan recused herself from hearing this
case because she helped develop the government's
position as Solicitor General herself.)
In a letter to Attorney General Eric Holder, Lead
Plaintiff Robert Nelson, writing on behalf of the
class of JPL scientists fighting the new security
vetting procedure, is demanding that Holder send a
letter to the Justices retracting the testimony of
Acting Solicitor General Neal Katyal. The 30-year JPL
veteran and former head of the American Astronomical
Society says Katyal incorrectly invoked the potential
risk of terrorist actions by the scientists against
the Space Shuttle should the security checks and badge
requirement not be implemented. As Katyal told the
High Court in his argument, "And the even more
important point about this is the badge that the
Plaintiffs are seeking access to...doesn't just give
them access to JPL. It will also give them other
access to all other NASA facilities. And it's such an
important credential that it would allow them to get
within, for example, 6 to 10 feet of the space shuttle
as it is being repaired and readied for launch. So
this is a credential not just for JPL and getting onto
JPL, but other places as well."
Nonsense, Nelson writes in his letter to Holder. He
says that the badges already used by the JPL
scientists, which are accepted at most NASA
facilities, do not allow the JPL scientists into
sensitive locations, including the vicinity of the
Shuttles. Sensitive locations, he writes, require
specific authorization. Furthermore, he says,
"Extensive care is taken at JPL and other NASA
facilities to safeguard ‘flight hardware' (i.e.,
anything that goes into space), and the space shuttle
is certainly no exception. No one without the right
training and authorizations can get close to the space
shuttle, no matter what kind of credential he or she
carries."
Speaking at the annual meeting of the division of
planetary sciences of the American Astronomical
Society today in Pasadena, an angry Nelson said,
""Katyal's remarks reflect the Justice Department's
astounding ignorance of basic NASA rules and
procedures. This ignorance has been demonstrated by
the DOJ throughout the case. It is regrettable that
the Supreme Court will decide an important case like
this one with false information in hand."
But it's not just a matter of ignorance. NASA
executives, including NASA Administrator Charles
Bolden and his staff, allowed Solicitor Katyal to make
his misleading comment to the justices about an
alleged risk to the security of the Shuttles, without
correcting him.
Other JPL scientists are also outraged at the sworn
misrepresentation presented as argument by the
government to the High Court in this case. Said Larry,
D'Addario, a JPL principal Engineer working on
electronics for space communication, "Perhaps Mr.
Katyal's misstatement about the space shuttle arose
because he was given false information by someone. But
he intentionally tried to mislead the court about the
nature of the work at JPL when he described Appeals
Court Judge Wardlaw as 'underestimating how important
security is there,' and also when he said, 'The
information at JPL is sensitive, quite sensitive,
both, you know, in terms of scientifically and with
respect to our nation's secrets.'"
D'Addario responds, "In reality, the vast majority of
the work at JPL is in support of science that benefits
all mankind. Indeed, such science can only succeed and
be credible in an atmosphere of openness. The idea
that it might be declared 'sensitive' and subject to
suppression is one of our fears, and that fear is
echoed in the amicus curiae briefs filed by scientific
societies in support of us."
When Barack Obama was running for president, he
criticized the Bush/Cheney administration for its
obsession with secrecy, and for its history of running
roughshod over Constitutional protections of privacy,
and First Amendment freedoms. But in this case, and
many others, and in the actions of its intelligence
and law-enforcement operations like the FBI, NSA and
other agencies, his administration has not just
continued most of the practices adopted by his
predecessor; he has actually been expanding upon them.
Where there were cases still being pursued in court
left over from the Bush administration, such as one
seeking information about the customer records that
the telephone companies had provided to the FBI, or
this current one seeking to require civilian
scientists at JPL to submit to pointlessly invasive
security checks, instead of withdrawing the cases,
this administration has continued to pursue them
aggressively.
The Supreme Court is expected to rule on the JPL
scientists' case in the next few months. If the
conservative majority rules in the government's favor,
NASA may find that some senior scientists who have
been with the space program for decades may decide to
quit the program rather than submit to the indignity
of the security checks.
That would be America's, and science's loss.
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