Govt Petitions Supreme Court on Background Investigations

11.09.09 | 2 min read | Text by Steven Aftergood

Last year, scientists at NASA’s Jet Propulsion Laboratory thought they had successfully rebuffed a controversial government attempt to impose new background investigations on JPL employees under NASA’s interpretation of President Bush’s Homeland Security Presidential Directive 12.  A federal appeals court concurred (pdf) with the scientists that the new investigations into employee personal histories were intrusive, “open ended,” and not “narrowly tailored” to meet legitimate government interests.  The court granted a preliminary injunction exempting the scientists from the investigations into their personal backgrounds.

But last week, Obama Administration Solicitor General Elena Kagan petitioned (pdf) the U.S. Supreme Court to overturn the appeals court ruling in favor of the scientists.  That ruling, she argued, was legally in error and “casts a constitutional cloud on the background-check process.”

Each side has warned of ominous consequences if its position is not upheld.

“These investigations have a very negative impact on our ability to recruit the very best scientific and engineering talent to address our nation’s complex technical needs,” several of the JPL scientists wrote in a 2007 letter to Congress (pdf).  “Many highly talented individuals, like much of the populace, attach great value to their personal liberties.  We are Americans, after all.”

But by finding the new background investigations improper, Solicitor General Kagan contended, the appeals court’s ruling “calls into question even the most basic inquiries… that public employers undertake for prospective employees [and] appears to render suspect the most commonplace reference checks conducted by employers.”

“We are, of course, quite disappointed,” said Robert M. Nelson, a JPL scientist and lead plaintiff in the case.  “The Solicitor General has opened a Pandora’s Box, permitting the Supreme Court to possibly erase all protections that citizens might have against government snooping into the most intimate details of their private lives,” he said last week.

The JPL scientists are contractors, not NASA employees, who work on unclassified projects.  Government contractors who are similarly situated at other agencies (including DoE and NSF) are not required by those agencies to undergo comparable background investigations under HSPD-12.  The current dispute has no bearing on the use of background investigations in the clearance process for access to classified information.

Additional information and the latest case files can be found on the plaintiffs’ website.

See all publications
Nuclear Weapons
New Voices on Nuclear Weapons Fellowship: Creative Perspectives on Rethinking Nuclear Deterrence 

To empower new voices to start their career in nuclear weapons studies, the Federation of American Scientists launched the New Voices on Nuclear Weapons Fellowship. Here’s what our inaugural cohort accomplished.

11.28.23 | 3 min read
read more
Science Policy
Expected Utility Forecasting for Science Funding

Common frameworks for evaluating proposals leave this utility function implicit, often evaluating aspects of risk, uncertainty, and potential value independently and qualitatively.

11.20.23 | 11 min read
read more
Nuclear Weapons
Nuclear Notebook: Nuclear Weapons Sharing, 2023

The FAS Nuclear Notebook is one of the most widely sourced reference materials worldwide for reliable information about the status of nuclear weapons and has been published in the Bulletin of the Atomic Scientists since 1987. The Nuclear Notebook is researched and written by the staff of the Federation of American Scientists’ Nuclear Information Project: Director Hans […]

11.17.23 | 1 min read
read more
Social Innovation
Community School Approach Reaches High of 60%, Reports Latest Pulse Panel

According to the National Center for Education Statistics’ August 2023 pulse panel, 60% of public schools were utilizing a “community school” or “wraparound services model” at the start of this school year—up from 45% last year.

11.17.23 | 4 min read
read more