Of all the wreckage the Bush-Cheney administration left behind, nothing is more toxic than its wanton exploitation of popular anxiety after 9/11 to undermine basic civil liberties, and particularly the right to privacy.
These days, the whole country seems to be awash in second thoughts about everything from torture to warrantless eavesdropping. But back then, only a handful of stubbornly courageous people stood up when it was most perilous to resist and opposed the government's fear-greased slide toward authoritarianism. Among the most unlikely and the most significant were the scientists at La Canada Flintridge's Jet Propulsion Laboratory, who sued the government to block its attempt to coerce them into agreeing to unconscionable intrusions into their private lives as the price of keeping their jobs.
That institution, by the way, is one of this open society's altruistic glories. The laboratory, operated on behalf of the government by Caltech, is the epicenter of man's exploration of space. This is where Neil Armstrong's and Buzz Aldrin's famous promise is renewed week in and week out: "We came in peace for all mankind."
Or at least we did until a little more than a year ago, when the security obsessed Bush-Cheney administration demanded that the laboratory's scientists and staff consent to a draconian inquisition into the most intimate details of their personal lives if they wanted to keep their jobs. Absent such agreement, the scientists and support staff would be denied the identification badges required to continue their work.
As The Times noted in January of last year, the government demanded that the scientists fill out questionnaires on their personal lives and waive the privacy of their financial, medical and psychiatric records. The government also wanted permission to gather information about them by interviewing third parties. At one point, JPL's internal website posted an "issue characterization chart" -- since taken down -- that indicated the snoops would be looking for a "pattern of irresponsibility as reflected in credit history ... sodomy ... incest ... abusive language ... unlawful assembly." It also said homosexuality could be a security issue under some circumstances.
Twenty-eight JPL scientists -- led by Robert M. Nelson, who is heading the exploration of Titan for the Cassini Saturn orbiter project, and including Scott Maxwell, who drives Mars rovers -- sued to block the new security inquiries. An additional 300 scientists and staff members signed a petition saying they'd agreed to the questionnaire and waivers only because they'd been coerced with the threat of losing their jobs. The government's demand, they argued, violated their right to hold personal information private and constituted an unreasonable search under the 14th Amendment.
That contention was initially rejected by a federal judge, but a three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that the suit had merit and ordered the government not to begin the background checks. The Bush-Cheney administration's Department of Justice appealed and demanded another hearing by a larger panel of judges. Thursday, the court rejected the government's appeal. Writing for the majority, Judge Kim McLane Wardlaw noted that the JPL campus is a traditionally open facility that yearly welcomes thousands of visitors and foreign scientists to view the work being done there. "The success of their scientific mission, which has been operating since 1958 without background checks, is renowned," Wardlaw wrote in rebuffing the Justice Department's claim.
Three of the court's conservative justices dissented, inviting review of the majority's decision by the U.S. Supreme Court. Chief Judge Alex Kozinski argued that the high court ought to decide more definitely whether there is "a constitutional right to informational privacy."
Atty. Gen. Eric H. Holder Jr. now has 60 days to decide whether to appeal the 9th Circuit's ruling to the Supreme Court. As Dan Stormer, one of the lawyers representing the JPL scientists, put it: "This really is a gut check for the Obama administration on privacy issues. No other administration ever has gone as far in invading the privacy of U.S. citizens, and it would be shocking if Holder proceeds with this."
Holder already has shown a willingness to disengage from the Bush-Cheney regime's reckless overreaching, as in the case of the trumped-up espionage prosecution of two former employees of the American Israel Public Affairs Committee.
The attorney general needs to do the right thing again and let the men and women of JPL get back to the serious business of exploring the universe.