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NASA contractors want retraction from Justice Dept.

By Ed O'Keefe

Updated 1:28 p.m. ET
Contractors working for NASA are calling on Acting Solicitor General Neal K. Katyal to retract statements made last week to the Supreme Court regarding which agency facilities the contractors can access with their identification badges.

Issuing a retraction of statements made to the high court is rare, according to legal experts.

The group of scientists, engineers and administrative staff employed by the California Institute of Technology and under contract with NASA's Jet Propulsion Laboratory were the focus of a Supreme Court case heard last week on the government's background checks of contractors.

Questions on the background checks, including queries about drug use and counseling, were overly intrusive, the contractors said. But Katyal argued that privacy rights should not bar the government from asking questions that private employers also might ask.

During his oral arguments, Katyal told justices that the questions are justified on national security grounds because ID badges worn by contractors give them access to JPL and all other NASA facilities.

"It's such an important credential that it would allow them to get within, for example, six to 10 feet of the space shuttle as it's being repaired and readied for launch," Katyal said.

In a letter sent late last week to Attorney General Eric H. Holder Jr. and NASA Administrator Charles F. Bolden Jr, Robert M. Nelson, the lead plaintiff in the case, demanded a retraction of Katyal's statement, calling it "an insult to all of our co-workers at Kennedy Space Center who labor continuously to protect the safety of all NASA launch vehicles."

"Their position is just plain false," Nelson said in an interview. "You cannot walk up to the space shuttle with the badge I have from JPL." Visits to the Kennedy Space Center for the launch of JPL missions required obtaining a separate badge to enter a viewing area, he said.

But the Justice Department said Monday it has no plans to correct the record.

"The solicitor general's office worked closely with NASA officials in preparing for this case, including the use of the space shuttle example in the argument, and in no way misled the court," Justice Department spokeswoman Tracy Schmaler said.

Michael Braukus, a NASA spokesman, said contractors could get within six to 10 feet of space shuttles during special "inside facility tours" at the Kennedy Space Center.

Contractors are offered the special tours as a guest of the NASA administrator, through an employees honor awards program or during agency tours for employees and contractors after a shuttle launch, Braukus said.

"We treat our contractor work force as members of the NASA family," Braukus said. "We assume that the contractor employees participating in these tours are not plotting to damage a space shuttle."

To correct or retract his statement, Katyal would have to send written notice to the justices through the Supreme Court clerk's office, said Dennis Hutchinson, a professor at the University of Chicago Law School.

"The oral argument is part of the 'record' upon which consideration and decision of the case depends," Hutchinson said in an e-mail. "This is rare, to be sure."

Lawyers who have argued before the court issue written clarifications to the nine justices at least a few times each year, a Supreme Court spokeswoman said. Those messages then become part of a case's public docket.

Leave your thoughts in the comments section below

By Ed O'Keefe  | October 12, 2010; 11:00 AM ET
Categories:  Administration, Contracting, Supreme Court  
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...gee, I don't know. Are government contractors "potential terrorists" or members of the DHS/DOD community?

I mean, how can they be cleared for "secret" but not for "really, really really secret" access? Are we to assume that the lower clearance means that they are only loyal to a point? And who makes this decision: the same person decides what is classified as what?

Interesting. What if *that* person is really a potential terrorist? Besides why can't any one of them "go rogue", as it were. What's really to stop that from happening at the highest levels of the chain of command.

...I would guess the same things that would stop someone at the very lowest levels. You know, "duty, honor, love of country". Is there anything that inspires patriotism more than that?

The first cut is the deepest. If you're going to fail, fail in a big way.

Posted by: chucklebuck | October 12, 2010 3:49 PM | Report abuse

I'm just saying that it doesn't make sense to treat your staff as if they are trustworthy and loyal 95% of the time on 95% of the property, and then to treat them as if they are a security threat and potential terrorists the other 5% of the time on the other 5% of the property. That sort of hypocrisy is the source of so much trouble in this country.

Posted by: chucklebuck | October 12, 2010 3:55 PM | Report abuse

the other problem is that we have probably 2 million people in this country who have secret clearances, another 1M who have top-secret or higher. Those numbers entirely defeat the purpose of security classifications.

Posted by: chucklebuck | October 12, 2010 3:59 PM | Report abuse

I am one of the Caltech employees described in the story.

The employees involved in this case have no security clearances at all. Our jobs do not involve national security, and we have no access to anything secret. We have worked at JPL a long time, so we are not job applicants nor are we applying for any new privileges. We already have an ID credential that gives us access to most of JPL (except for a few areas, such as where spacecraft are being assembled) as well as to non-sensitive areas at other NASA centers. If the background investigations are allowed to proceed, NASA will give each of us a new and fancier badge, but it will grant us no wider access than we already have, contrary to General Katyal's statement. It will certainly not let us get close to the space shuttle.

Posted by: larry9850 | October 13, 2010 12:24 AM | Report abuse

I have been one of those employees honored with a tour of the Kennedy Space Center and a chance to see a launch. They wouldn't let us within a mile of the space shuttle.

Posted by: kevinwparker | October 14, 2010 11:31 AM | Report abuse

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