NASA contractors dispute statements about access

How close a contractor's ID can get its holder to a space shuttle came up in a Supreme Court case.
How close a contractor's ID can get its holder to a space shuttle came up in a Supreme Court case. (Associated Press)
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By Ed O'Keefe
Wednesday, October 13, 2010

Contractors working for NASA are calling on Acting Solicitor General Neal 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 members 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 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 that 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," Tracy Schmaler, a Justice Department spokeswoman, 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 guests 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 workforce 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.

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