The Blog

My Wife Faces Homeland Security Part I

You can voluntarily give up your civil liberties or voluntarily choose to lose your job. Those are your "choices." Is this is what they mean when they say "get government off our backs?"
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"Yeah, that's it. Just relax.
Have another drink, few more pretzels, little more MSG.
Turn on those Dallas Cowboys on your TV.
Lock your doors. Close your mind.
It's time for the two-minute warning.

Welcome to 1984
Are you ready for the third world war?!?
You too will meet the secret police
They'll draft you and they'll jail your niece"

--Dead Kennedys, "We've Got a Bigger Problem Now"

Have you been PERSONALLY affected by the Bush Administration's erosion of our Constitutional Rights? Well, now my family is coming face to face with a direct assault on the Bill of Rights, an assault on my wife's rights. This assault comes directly from Bush with no input from Congress whatsoever.

This Presidential Directive is all about choice, or so they say. One of those twisted, Orwellian "choices" that isn't a choice. My wife's choice is she can either sign over to the Federal Government the right to investigate every aspect of her life (including fingerprinting, credit check, medical records, character references, etc.) or she can "voluntarily" choose to not be allowed entry into the building wherein she works. The choice is hers. The rights that are being lost are those of every single American citizen.

My wife is a graduate student at a joint program between NASA and Columbia University called the Goddard Institute for Space Studies (GISS). Her department uses satellite data and computer modeling to study the atmosphere, climate and climate change. NASA, of course, has many top secret projects, projects which require high security. No one questions the need for high security and detailed background checks for specific, highly sensitive projects. This is perfectly reasonable.

But the Federal Government under Bush is now insisting that ALL employees, contractors, students, etc. associated with NASA agree to allow an investigation into their lives should the Federal Government deem it necessary for any reason. In short, Homeland Security is demanding that all NASA employees, contractors, etc. right down to students like my wife, agree to undergo the same kind of scrutiny as if they ALL worked in a top secret program. They are treating ALL of NASA as if it was one big secret program. This strikes me as insanely inefficient in addition to highly intrusive.

If you don't agree to voluntarily submit to this, you do not get issued an ID badge that will allow you into the building where you work. The ID card system is contracted out to a British defense contractor called Ultra Electronics Card Systems, a branch of Ultra Electronics Holdings plc. I guess we can consider ourselves lucky that the contract didn't go to Halliburton or to a Dubai company.

This is Bush America. You can voluntarily give up your civil liberties or voluntarily choose to lose your job. Those are your "choices." Is this is what they mean when they say "get government off our backs?"

Keep in mind that Homeland Security Presidential Directive Number 12 is NOT A LAW. Congress and the Supreme Court have had no say in it or in its implementation (covered under FIPS 201 (PDF)). It is a declaration made by Bush, not a law legislated by Congress.

Let me ask you this: When the President of a nation can make a unilateral declaration that invalidates laws passed by Congress (e.g. the Privacy Act of 1974), laws passed by the States, and the Constitution itself, what do you have: a.) a democracy, b.) a republic, c.) a dictatorship. The answer is "c." When laws and the Constitution are subservient to the directives of a single individual, it is a dictatorship. I am sorry. But I cannot interpret this in any other way. Call it a nascent dictatorship if you prefer. But we now have a system where a directive by a single individual takes precedence over law (Federal and State) and Constitution. THAT is about as un-American as you can get.

The basic idea of the declaration is not bad. The idea is to create a more consistent ID system across government agencies. It applies to contractors the same basic standards that government employees have to go through to get ID badges. So far so good. The implementation, however, amounts to an abandonment of your Constitutional rights and agreeing to a potentially intrusive investigation process that is similar to that carried out for full security clearances. Nothing in the declaration itself requires the level of intrusiveness and trampling on rights that the implementation is insisting on. And yet the implementation goes on, separating government employees from their rights.

NASA scientists are pissed. From the Jet Propulsion Lab (JPL) in Pasadena, CA, to the Goddard Space Flight Center (GSFC) in Maryland, to GISS in Manhattan, NASA scientists are checking their Bill of Rights and calling foul on Homeland Security. NASA scientists are insisting that they be treated like American citizens, not like potential terrorists. Yes, my wife is being treated not like an American citizen, not like a scientist, not like a trusted member of society. She is being treated like a potential terrorist.

Well, this isn't the first time my wife has been viewed as a potential terrorist. After all, the mayor of NYC, Michael Bloomberg, called all of us New Yorkers who protested the 2004 Republican Convention as being the equivalent of al-Qaeda. My wife, while 8 months pregnant, was one of those protesters who Michael Bloomberg accused of being like al-Qaeda. So Bloomberg and Bush both don't trust my wife. But in this case, it isn't anything personal. All NASA scientists are being treated as if they cannot be trusted.

I have been talking with my wife and with Dr. Robert Nelson, Senior Scientist at JPL, about this issue and have permission to quote some of the dialogue that has been going back and forth around NASA. Much of what follows is quoted from emails between NASA labs as NASA employees try to come to grips with what this all means to them as individuals and as American citizens.

So, let's get down to some real details. Please bear with me as some of it is technical. But I want those with real technical and legal experience to get the details. Dr. Robert Nelson of JPL began his questioning of the new Homeland Security procedure by asking a simple question of NASA security for clarification:

"What is the basis in law of the fingerprinting requirement?"

The response he received from is the following: (emphasis mine)

Executive Order 10450 requires National Agency Checks with Written Inquiries (NACI) for all Federal employees. Recognizing that a large portion of the Federal workforce consists of contract his capacity as the Chief Executive Officer for the United States Government...George W. Bush signed Homeland Security Presidential Directive 12 (HSPD-12) which extends this requirement to employees of contractors working on Federal contracts. Further, through the implementing document FIPS-201, all individuals accessing Federal facilities or Federal Information Technology (save public facing web sites) are required to undergo the NACI background investigation (at a minimum). Part of the NACI investigation is the collection of fingerprints which must be submitted to the [FBI] for inclusion in the FBI fingerprint database...

Providing this information to the government is voluntary; however, it may affect NASA's decision to grant access to NASA facilities or Information Technology resources.

So, ANYONE who "accesses Federal facilities" is REQUIRED to undergo the VOLUNTARY background investigation, including fingerprinting. And, by the way, where in the Constitution does it say that the President of the United States is the Chief Executive Officer for the United States Government?

But fingerprinting is just the beginning. According to Dr. Nelson:

A review of the material that we are required to supply to [the] FBI via...NASA indicates that there are concerns in addition to fingerprinting regarding personal privacy associated with HSPD#12. We are being asked to sign blanket waivers that permit investigators to intrude into our personal financial and medical records. The information that we are being asked to supply is very similar to the information requested for a full security clearance.

Let's look a little closer. This is from the instructions to the form most NASA employees at the Jet Propulsion Lab in Pasadena are likely to use (Form 85p):

1. All persons will be required to sign the General Release, which includes a statement that a credit release and/or medical history release may be required at a later date; and the Certification of Correctness.

2. Persons refusing to sign the General Release and the Certification of Correctness shall not be processed and shall be referred back to their program manager for any discussion and repercussions.

3. Security shall request that persons sign the Credit History and Medical Release Forms to expedite the process and shall advise them that Security/OPM will only access the information if it is needed.

There are four things, as I understand it, that need signing: A General Release (this is the most blanket release), the Certification of Correctness (sounds bad, but it really is a minor thing where you just sign to say your aren't lying), a Credit History Check, and a Medical Release Form. The instructions REQUIRE the signing of the first two, otherwise security cannot process your paperwork and hence cannot issue a new ID badge usable by the British Defense Contractor's security system. The second two do not need to be signed, but it will "expedite the process" and the information thus made accessible will only be accessed "if it is needed." The General Release Form itself also contains disturbingly intrusive items. And often those in charge of informing people about the security process are not being straightforward about these disturbing items. In fact, Michael Braukus, a NASA spokesperson, was quoted by a Pasadena paper that:

We are not asking for financial or personal data. That's just been some miscommunication; that's what we need to correct.

And yet even a superficial perusal of the documents (as I outline both above and below) indicates that this is PRECISELY what they are doing: asking for financial and personal data. They even ask for character references and can interview your neighbors about you. The forms CLEARLY demand both financial and personal data. Therefore it is hard to say that the NASA spokesperson is properly portraying the situation to the mainstream media.

Dr. Nelson has analyzed the actual forms and the accompanying instructions in great detail. This is what he finds...and he seems to be a better analyst than those who wrote the instructions to the forms:

There are two different types of questionnaires, one for Non-sensitive positions, the other for Public Trust positions. The relevant questionnaires are called sf85 and sf85p. In addition, we have been supplied with a document that purports to provide guidance regarding which questionnaire applies to any particular type of work. It appears that most scientists and engineers at JPL would be required to respond to questions for the Public Trust...(sf85p) due to...access to spacecraft operations and spacecraft data...

We have also been provided with a document that purports to compare the requirements of the Non-sensitive [sf85], Public Trust [sf85p], and Security Clearance [sf86] classifications...The comparison document:

1. Falsely claims that the sf85p form is distinguished from a sf86 [full Security Clearance form] in that the sf85p...does not request the identification of family members and their citizenship. The form sf85p clearly demands this information in item #15.

2. It furthermore falsely claims that the sf85p form does not require information about the applicant's military record. The sf85p form demands for this information immediately following question #16b.

3. It further falsely claims that the sf85p form does not request information about financial delinquencies. This information is specifically demanded in question #22a,b on form sf85p.

This gives you both an idea of how intrusive the questions are, as well as how inaccurate the information being provided about the process can be. But the intrusiveness gets worse. Back to Dr. Nelson's analysis: (emphasis mine)

The final two pages of the sf85p form deserve special attention. These are general release form and the medical release form. These documents require us to permit the investigators to intrude into our personal information including our financial records, and our character references. In addition, these forms contain language that permits the investigators to pass our personal information on to private parties in the form of contractors who they might hire to support their investigations. These waivers permit these investigators to access our medical records including our mental health records. They also contain clauses that permit them to require us to sign an additional waiver downstream should anyone they interview decline to provide the investigators with information in the hope of protecting our privacy. In the event that we refuse to sign such waivers the questionnaire clearly states on the front that they may elect not to process our application, thus depriving the applicant of an identification badge. Page one of the form states:

Giving us the information we ask for is voluntary, However, we may not be able to complete your investigation, or complete it in a timely manner, if you don't give us each item of information we request. This may affect your placement or employment prospects.

Okay. Those of you who took the time to read that, let it sink in. My wife, who is a pretty level-headed person, considers it pretty damned scary. And so do I. And so do many NASA scientists. Three NASA institutions are expressing concern in email exchanges and publicly. The ripples of protest are spreading from JPL in Pasadena, to GSFC in Maryland, to GISS in NYC. JPL has taken the lead mainly because they figured out what was up first. But NASA employees are exploring legal actions, resigning, protesting, writing Congress, everything they can to fight the intrusion into their life. Many don't have much time to make a choice. Once you get the email demanding compliance, you have 10 days to comply or you forfeit your right to enter the building where you work. Doesn't mean you will be immediately barred, but you forfeit your right, so that at any time you may find a new security system that keeps you out. Some emails have already gone out. So far my wife hasn't received hers. And she is not sure what she will do when she does. But JPL employees have until Sept. 28th to comply with Homeland Security Presidential Directive #12. And some have initiated a lawsuit in U.S. District Court in Los Angeles:

The lawsuit says NASA is violating the Constitution by calling on employees --everyone from janitors to visiting professors _ to permit investigators to delve into medical, financial and past employment records, and to question friends and acquaintances about everything from their finances to sex lives. Those who refuse could lose their jobs, the suit says.

I think it is worth reiterating the scariest part of this. And, again, I am indebted to Dr. Nelson's articulate analysis: (emphasis, and sarcasm, Dr. Nelson's this time)

Apparently the forms we are being required to fill out ( sf85 and sf 85p are voluntary. We are being asked to voluntarily waive our constitutional rights. We are not being required to do it. HOWEVER IF WE DECLINE TO PROVIDE THIS INFORMATION WE WILL NOT BE FIRED. BUT WE WILL NOT BE GIVEN A BADGE. Hence we will not have access to our offices or our computers...Thus we will be derelict in our duties. For further information of this novel management approach please see (Kafka, Franz, The Trial, ISBN 0805209999...)

Well, you might say, NASA is a special case, right? But Homeland Security is initiating this same process not just throughout all of NASA, but the same thing is happening at the Bureau of Land Management (BLM) and the Department of Education (DoEd) and quite probably elsewhere (a friend told me he heard about another department facing this...but I haven't been able to confirm that). In fact, a woman at the BLM refused to sign these intrusive, un-American waivers, and was dismissed for her refusal. Her actions we interpreted as "quitting" and hence she was denied unemployment benefits. She sued successfully and received unemployment benefits. Of course this lawsuit, though critical, did not address the fundamental civil rights issues of the case.

What gives the Federal government the right to demand this information of you? Even simple fingerprinting is not automatic, let alone medical records, the immigration status of your spouse, etc. All of this is supposed to be private and only under special circumstances (e.g. a Top Secret project or with due process of the law) can the government obtain these. The Constitution guarantees this and it is reinforced by privacy laws (such as the Privacy Act of 1974). Yet Homeland Security claims that HSPD-12 trumps the law and trumps the Constitution. This is just plain unacceptable. No single individual in America is supposed to be able to make a declaration and thereby trump law and Constitution. ANYONE who tells you otherwise is un-American and should be confronted with their un-American beliefs.

And what about efficiency and National Security? How much money and time will be wasted on this? The paperwork, the new security systems (the money going to a British company), the time and money spent investigating all BLM, DoEd and NASA employees... oh but we don't have the money to screen cargo coming into our ports for radioactive material. This is a wild misuse of Federal funds as well as being an abuse of Federal power. Inspect cargo coming into port, not our shoes as we walk into an airport or NASA employees who are working on basic research with no security issues at stake. The Federal Government under Bush is not only excessively intrusive, but also inefficient and ineffective in dealing with terrorism. And, let's not discount the potentially negative impact this could have on the morale of people working for the Federal government, since this whole procedure assumes that the employee cannot be trusted and must first be investigated.

A declaration by one man superceding law and Constitution, insulting the integrity and intruding on the privacy of thousands of government employees, costing millions of dollars...and for what. Dr. Nelson puts it precisely:

On 9/12, Osama bin Laden, son of one of Saudi Arabia's most wealthy families, became a fugitive...The ensuing war on terror has cost 3500 US lives and the lives of orders of magnitude more Iraqi civilians. Despite this, bin Laden remains on the loose. There remains a question of relevance, "How do personal background intrusions and fingerprinting of 5000 JPL colleagues help apprehend bin Laden?"

How indeed...

So that is what my wife is facing...a choice that isn't a real choice. Sign away her rights or risk her job. And I don't know what her decision will be. I can't advise her.

I just want to end with a reminder of the vision our Founding Fathers had regarding freedom and security in America:

"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."
--often attributed to Benjamin Franklin, possibly really Richard Jackson

"Sell not virtue to purchase wealth, nor Liberty to purchase power."
--definitely Benjamin Frankin

This piece was originally posted here.