Author Topic: Dept Of Justice Investigating SpaceX For Not Hiring Non-US Citizens  (Read 47850 times)

Offline Pueo

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Maybe someone who reads legalese can correct me, but by my reading of the ITAR definition, everyone who isn't both an "LPR" and a "protected person" is a "foreign person".

"ß 120.63 Foreign person.
Foreign person means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is not a protected individual as defined by 8 U.S.C. 1324b(a)(3). ..."

That seems to disprove the claim that non-LPR can work ITAR.
When reading legalese you need to realize that "and", "or", and "not" do not mean "and", "or", and "not" at least in that order.   Also De Morgans laws are mere suggestions and don't apply much of the time.  The precedence and order of evaluation of operators are not well defined so they make it up as they go along, often with different results for apparently identical phrasing.

In the above lawyers will almost certainly read "or" as "and".

The immediately preceding section, 120.62, uses an identical structure to form almost the exact same sentence:

"U.S. person means a person who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3)."

The "or" in 120.62 is definitely a logical "or", but I don't understand why the "or" here would mean "or", while in the very next section in an identical construct it would mean "and".

If you consider the "or" in 120.63 to be the "logical or" as it is in 120.62 you end up with an apparent paradox where asylees and refugees are simultaneously considered both "U.S. persons" and "foreign persons" under the law.  Unfortunately laws a drafted in the English language not a programming language, and "or" has a number of possible uses in English based on context.  To me the obvious reading is that the use of "or" in 120.63 should be considered that of the "logical and".  It may even be that SpaceX's counsel decided that this is by far most probable reading of the statute but the potential downside of it being found otherwise and facing ITAR violations was so much larger than any employment law penalties that they were better off applying the less permissive reading until they could rely on a court precedent, preferably one that didn't involve them.
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Offline Pueo

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Legalese aside, whatís the logic behind this law?

Does the process of granting asylum automatically clear a person of being a foreign spy? Seems an easy loophole to exploit for a determined and well resourced foreign adversary.
Asylees and refugees face far more vetting than any U.S. citizen would.  Furthermore, as the entire point of the refugee and asylum statuses is that they're fleeing persecution in their home country they have far less reason to transfer information back to their country of origin than an average greencard holder.  For a foreign adversary's intelligence service it's way, way easier to cultivate a relationship with an US citizen and offer them a lot of money than it would ever be to try to shepherd a sleeper agent with the requisite technical background* through the kafka-esque nightmare that is the U.S. immigration system for refugees and asylum seekers.

*because while it make sense to make even your baristas a U.S. person for the sake of ITAR compliance, a foreign adversary isn't actually collecting much useful technical information without someone who's actually hands on with the tech.
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Offline dondar

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As I am sure it was said already to SpaceX in 2021 they need to split SpaceX into security clearance (make it "everything") and the export free group and put information firewall in between. As far as current work force goes ~99% of them fit in the first group.


This lack of focus is f-ing everywhere.

ITAR circus is about security clearance "availability" and limitations of "sharing" info with other countries.

And then the next time some bureaucrat gets a wild hair and demands proof that the "uncleared" never had access to classified anything?? Putting the company i the position of guilty until proven innocent by way of proving a negative??
First thing first. US is not USSR. (less letters in the name make a big difference). What some bureaucrat thinks he can demands is irrelevant. What some federal judge can think is also not critical (See relevant Caltech case)

Boeing does it pretty good. Microsoft does it pretty good. The proper recipe is also very well known for centuries. (see bank business). "Firewalls" i,e. proper physical separation of relevant structures from the rest. There is no other proper process. (everything else ends as hard-disks in China or car trunks filled paper documentation in USSR).
ITAR recruitment  requirements is simplification/realization of two needs:
 1) general "vague" promise of US government not to disseminate double purpose rocket tech , 2)protection of critical knowledge from falling in the wrong hands/countries.

SpaceX needs to copy good bois. The perfect example was presented just few posts above. (see NASA listing posted by Robotbeat).
The most critical part is this one:
"Must be able to complete a U.S. government background investigation". Refugees in spite of what whatever federal judge can dream about most probably won't pass it.  Because beside other things it includes no travels in the "bad countries" and limited exposure to persuasion. (see families etc.). It is very different from identifying person identity and making sure he/she doesn't represent direct risk to the country.


SpaceX problem is also of course procedural one. I am sure many of readers of this forum had to deal with this or similar procedures and are aware about "wasted time" (in months) and money (see juridic costs) involved in the solving "paper work".

Offline dondar

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SpaceX employee #4 - Hans Koenigsmann - is a German citizen with a green card.
Permanent Residents (ie green card holders) are totally fine. Thatís not the question.
I  am pretty sure Koeningsmann had passed background clearance on his previous work. (it was much easier then....) Germany is no Russia. Basically everything depends on the level of cooperation of Law enforcement in the respective country and US. So you end with funny situation of much bigger chances for Bulgarian citizen than French. (not exaggeration).
Indeed SpaceX should wake up, don't hope that somebody will sort it for them, follow proper examples (see Cal-tech case) and move from there. National security requirements coincide with critical for them commercial secrecy needs.

Offline whitelancer64

Legalese aside, whatís the logic behind this law?

Does the process of granting asylum automatically clear a person of being a foreign spy? Seems an easy loophole to exploit for a determined and well resourced foreign adversary.
Asylees and refugees face far more vetting than any U.S. citizen would.  Furthermore, as the entire point of the refugee and asylum statuses is that they're fleeing persecution in their home country they have far less reason to transfer information back to their country of origin than an average greencard holder.  For a foreign adversary's intelligence service it's way, way easier to cultivate a relationship with an US citizen and offer them a lot of money than it would ever be to try to shepherd a sleeper agent with the requisite technical background* through the kafka-esque nightmare that is the U.S. immigration system for refugees and asylum seekers.

*because while it make sense to make even your baristas a U.S. person for the sake of ITAR compliance, a foreign adversary isn't actually collecting much useful technical information without someone who's actually hands on with the tech.

Then why not just give the refugees permanent residence? Why does the federal government insist on this idiocy?

After being admitted to the US, there is a one year waiting period before they can apply for permanent residency, during which DHS can reopen the case and attempt to terminate asylum / refugee status and seek their removal from the US.

This can happen if the nation they fled is no longer a danger to them, if they have committed a serious crime, if their claim of refugee or asylum status is fraudulent, if they have sought residence in another country, if they pose a security threat to the US, if there is an agreement to relocate them to another safe country, if they have voluntarily left the US, returned to their home country, or received nationality with another country.

The above cases are fairly rare, but there are instances of them happening.
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Offline Barley

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Then why not just give the refugees permanent residence? Why does the federal government insist on this idiocy?

Immigration, asylum, residency and non-discrimination are not intended for the same purposes as ITAR.  There is plenty of idiocy to go around, but it will only increase if you let the ITAR tail wag the immigration dog.

The vast majority of American citizens do not have security clearances, it's a pretty dystopian world where you have to have a security clearance to be a citizen.  Leaving aside that it should not be binary trusted/not trusted, as in "I'd trust him with my life, but I won't trust him with my wife."

Offline Starmang10

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the investigation is just uneccessary ngl
hi! I am a 13 year old neurodivergent individual, although I can understand most things adults can too. I  have been interested in space since I was 5. Although I still have a lot to learn, I try my hardest to understand others, although sometimes I might not, so please correct me if I do not listen to others. thanks!

Offline Robotbeat

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Then why not just give the refugees permanent residence? Why does the federal government insist on this idiocy?

Immigration, asylum, residency and non-discrimination are not intended for the same purposes as ITAR.  There is plenty of idiocy to go around, but it will only increase if you let the ITAR tail wag the immigration dog.

The vast majority of American citizens do not have security clearances, it's a pretty dystopian world where you have to have a security clearance to be a citizen.  Leaving aside that it should not be binary trusted/not trusted, as in "I'd trust him with my life, but I won't trust him with my wife."
I just donít see why we donít give asylees and refugees permanent residence. If they can be trusted with ITAR, they can be given permanent residence. It just lays bare the stupidity of the federal immigration system and the hoops it makes people jump through. It almost seems like the cruelty of the system is intentional.
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Offline Barley

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I just donít see why we donít give asylees and refugees permanent residence. If they can be trusted with ITAR, they can be given permanent residence. It just lays bare the stupidity of the federal immigration system and the hoops it makes people jump through. It almost seems like the cruelty of the system is intentional.
We do give many refugees permanent residence.  It takes a while.  Most refugees (like most citizens) are not trusted with ITAR.  An overwhelming majority have no desire to be cleared for ITAR and a good many cannot be cleared for ITAR.

There is probably no better way to inject more idiocy and intentional cruelty into the refugee system than redesigning it so only people who can be cleared for ITAR can be cleared for asylum.  If you want to clean up stupidity, clean it up; Don't expand it.

Online envy887

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I just donít see why we donít give asylees and refugees permanent residence. If they can be trusted with ITAR, they can be given permanent residence. It just lays bare the stupidity of the federal immigration system and the hoops it makes people jump through. It almost seems like the cruelty of the system is intentional.
We do give many refugees permanent residence.  It takes a while.  Most refugees (like most citizens) are not trusted with ITAR.  An overwhelming majority have no desire to be cleared for ITAR and a good many cannot be cleared for ITAR.

There is probably no better way to inject more idiocy and intentional cruelty into the refugee system than redesigning it so only people who can be cleared for ITAR can be cleared for asylum.  If you want to clean up stupidity, clean it up; Don't expand it.

Which refugees wouldn't be able to be "cleared for ITAR"? I thought the whole point of this suit was that ITAR treats all refugees as US persons.

Offline Barley

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I just donít see why we donít give asylees and refugees permanent residence. If they can be trusted with ITAR, they can be given permanent residence. It just lays bare the stupidity of the federal immigration system and the hoops it makes people jump through. It almost seems like the cruelty of the system is intentional.
We do give many refugees permanent residence.  It takes a while.  Most refugees (like most citizens) are not trusted with ITAR.  An overwhelming majority have no desire to be cleared for ITAR and a good many cannot be cleared for ITAR.

There is probably no better way to inject more idiocy and intentional cruelty into the refugee system than redesigning it so only people who can be cleared for ITAR can be cleared for asylum.  If you want to clean up stupidity, clean it up; Don't expand it.

Which refugees wouldn't be able to be "cleared for ITAR"? I thought the whole point of this suit was that ITAR treats all refugees as US persons.
Refugees who gamble, did drugs, have criminal records (possibly in countries where thought is a crime), sleep with people who are not their spouses in some notorious way.  Or can't prove they haven't done those things.  People whose past is not fully documented (because refugee) or have family or friends in countries where they could be considered hostages.  People who just want to be left alone and not mess with a national security bureaucracy more than they have to.

"US person" is a minimum for clearance, not the entire thing.  I don't want to invert that so that the only people who can get refugee status are people you are willing to trust with national security secrets.  There are people who deserve asylum who do not even want permanent residence. 

In particular you said "If they can be trusted with ITAR, they can be given permanent residence."  I don't object to that but it does not support your position.  You're basically inverting it "If they can be given permanent residence they can be trusted with ITAR" which leads to the logically equivalent but much darker "If they cannot be trusted with ITAR they cannot be given permanent residence."



Offline Robotbeat

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You seem to be mixing up requirements for export control with requirements for, like, classified security clearance. Not really the same thing.
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Offline DulcelabJenni

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How would SpaceX be able to vet the background of a non-citizen? Also, how can the government really vet a non-citizens background? I'm sure there is a long standing process for the government to do so but is it reasonable to expect SpaceX or any organization or company to do the governments work during the pre-hiring process? Let's just say SpaceX does and then there are issues with spying and/or illegal actions in the company, will SpaceX be liable or the government?

Offline darkenfast

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I'm sure the People's Republic of China is watching this case with interest. They probably already know who they'd like to see apply and what sort of leverage they can use involving relatives of those applicants.
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Offline DulcelabJenni

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So true. Also, SpaceX secrets. Insider info.

Offline mpusch

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I'd imagine this isn't apples to apples but still seems relevant given the current environment.

https://www.wgrz.com/article/money/business/moogs-facility-security-clearance-invalidated-over-new-ceos-lack-of-us-citizenship-business/71-0537309c-7b6f-4e97-916f-a826cf510694

Quote
EAST AURORA, N.Y. ó Moog Inc. (NYSE: MOG.A and MOG.B) was notified Friday by a federal agency that its facility security clearance had been invalidated because its new CEO, Pat Roche, is not a U.S. citizen.

Offline DulcelabJenni

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I'd imagine this isn't apples to apples but still seems relevant given the current environment.

https://www.wgrz.com/article/money/business/moogs-facility-security-clearance-invalidated-over-new-ceos-lack-of-us-citizenship-business/71-0537309c-7b6f-4e97-916f-a826cf510694

Quote
EAST AURORA, N.Y. ó Moog Inc. (NYSE: MOG.A and MOG.B) was notified Friday by a federal agency that its facility security clearance had been invalidated because its new CEO, Pat Roche, is not a U.S. citizen.

Hmmm, seems contradictory. Is SpaceX being targeted? Really, Is Elon? My gut leans in this direction. Just my opinion though and we all form them.  :)  I'm not anti-government regulation but less is sometimes more. Again, my humble opinion.

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« Last Edit: 09/11/2023 06:09 pm by Chris Bergin »
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