Robert MacLean didn’t realize that by attempting to protect America’s flying public, his employer, his government would treat him almost like a traitor.
Soon, the Supreme Court will have a chance to decide if MacLean, a former air marshal and whistleblower, was treated justly, or even legally. It is the first case the high court will hear directly concerning a federal employee whistleblower.
The implications of the case go well beyond MacLean. If he loses, expect fewer federal employees to disclose waste, fraud, abuse and dumb decisions.
Oral arguments are scheduled for Nov. 4. The Obama administration is appealing a lower court decision that MacLean’s disclosures were covered by the Whistleblower Protection Act. If the justices rule against him, federal agencies could have broad power to weaken that law by using the government’s power to make secret more information than Congress intended.
Here’s MacLean’s story:
In July 2003, air marshals, including MacLean, were summoned for mandatory training to prevent suicidal airline hijacking plots by al-Qaeda. Days later, the Transportation Security Administration (TSA) sent an unsecured, unclassified text message to air marshals informing them that all long distance assignments requiring an overnight stay would be canceled.
Knowing that could hamper efforts to thwart hijackers, MacLean said he complained about this shortsighted money-saving effort to an agency supervisor and to the Department of Homeland Security’s (DHS) inspector general’s office. MacLean also leaked information to MSNBC, which he admitted doing to officials during a leak investigation two years later. He was placed on administrative leave in September 2005 and fired in April 2006.
This is the incredible part — it wasn’t until August 2006 that the government labeled as sensitive the information MacLean was fired for leaking — three years after the text message was issued.
The question before the court — was MacLean’s disclosure “specifically prohibited by law” or not.
DHS and the Justice Department say it was.
But noteworthy to MacLean’s defense — a key bipartisan group of members of Congress say his disclosures are, or at least should have been, protected from agency reprisal by the law Congress passed.
They should know.
The administration argues that “by law” includes statutes and “substantive regulations that have the force and effect of law.”
The lower court’s decision “is wrong, dangerous, and warrants reversal,” say the government’s lawyers. The earlier ruling “imperils public safety,” they added, “by dramatically reducing the effectiveness of Congress’s scheme for keeping sensitive security information from falling into the wrong hands.”
But members of Congress who were instrumental in passing the legislation say that’s not so. In fact, “Congress deliberately crafted” legislation “to exclude agency rules and regulations,” says a brief filed by Sens. Charles Grassley (R-Iowa), Ron Wyden (D-Ore.), Reps. Darrell Issa (R-Calif.), Elijah Cummings (D-Md.), Blake Farenthold (R-Tex.) and Stephen Lynch (D-Mass).
“If agencies could decide which disclosures receive whistleblower protections, they would inevitably abuse that power,” the members of Congress said. “The result would be to deter whistleblowers and restrict the flow of information to Congress.”
“Time and time again,” the elected officials added, “agencies have found ways to suppress inconvenient information.”
An administration victory over MacLean, the Republicans and Democrats warned, “will deter untold numbers of whistleblowers.”
Read more in the Federal Diary online later today and in Friday’s print editions of The Washington Post.