A group of scientists has demanded that the U.S. Attorney General's office immediately retract remarks made by a government attorney during arguments before the Supreme Court over privacy concerns with NASA background checks.

The scientists said they want the attorney general to retract a statement made by acting Solicitor General Neal Katyal during his opening statement, which at one point addressed how easily employees at NASA's Jet Propulsion Laboratory in Pasadena, Calif., could access sensitive areas and facilities using a new security badge.

The case, Nelson et al. v. NASA et al., concerns whether the space agency can conduct intensive employee background checks without violating constitutional privacy rights. Scientists working as government contractors at JPL filed the lawsuit in 2007.

Lead plaintiff and JPL scientist Robert Nelson wrote letters to Attorney General Eric Holder and NASA Administrator Charles Bolden on Oct. 7 requesting that Holder order a retraction of the remarks and issue a public correction, according to a statement released by Nelson. 

According to the scientists, Katyal said: "And the even more important point about this is the badge that the plaintiffs are seeking access to don't – doesn't just give them access to JPL. It will also give them other access to all other NASA facilities. And it's such an important credential that it would allow them to get within, for example, 6 to 10 feet of the space shuttle as it is being repaired and readied for launch. So this is a credential not just for JPL and getting onto JPL, but other places as well."

But JPL badges do not provide such broad access, the scientists responded. NASA's Jet Propulsion Laboratory is managed for the space agency by the California Institute of Technology in Pasadena.

The security credential in use at JPL allows entry to other NASA facilities, but only to nonsensitive areas, they said. JPL employees could not access the space shuttle or any other "flight hardware" without the proper training and authorization no matter what badge they carried, they added.

"Katyal's remarks reflect the Justice Department's astounding ignorance of basic NASA rules and procedures," Nelson said in remarks he was to deliver at the 42nd meeting of the Division for Planetary Sciences of the American Astronomical Society in Pasadena yesterday (Oct. 7). "This ignorance has been demonstrated by the DOJ throughout the case. It is regrettable that the Supreme Court will decide an important case like this one with false information in hand."

The JPL scientists sued NASA in 2007, challenging the agency's background checks as illegal and unjustified violations of their privacy. On Oct. 3, 2007, the federal District Court in Los Angeles dismissed the suit.

Two days later, the U.S. 9th Circuit Court of Appeals agreed with the scientists and issued an emergency injunction that stopped the checks.

The federal government appealed, and the Supreme Court agreed to hear the case. A decision is expected early next year.

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