The case involves Robert J. MacLean, a former TSA air marshal who served fourteen years in government, spoke out about how the Department of Homeland Security (DHS) was risking the safety of air marshals.
In July 2003, according to the brief filed by MacLean, “DHS issued an emergency, non-public notice of a specific and imminent terrorist threat focused on long-distance flights—a more ambitious, broader-scale version of the 9/11 plot.” All air marshals were given secret briefings on the threat, and then forty-eight hours, much to MacLean’s surprise he received an unencrypted text message on his unsecure phone that indicated “all overnight missions” were canceled for several days.
MacLean went to his supervisor, who informed him this was a result of budget shortfalls and there was nothing that could be done. He decided to take his complaint to the Office of the Inspector General. But “his call was transferred from one OIG field office to another” until he was “ultimately advised to think about the ‘years left in [his] career’ and simply ‘walk away.’”
Going through proper channels had not worked. He knew a reporter with MSNBC who had a “history of responsible reporting on TSA and connections with Congress.” He wanted to “get Congress’s attention.” He informed the reporter about the text message and the reporter promised to contact Congress members and publish a story.
Later, he “appeared anonymously on a television news broadcast,” which “prompted a congressional committee report and an investigation by the Office of Special Counsel.”
DHS was able to recognize his voice and launched an internal investigation. He was forthright with DHS investigators and told them he made the disclosure, believing he had done nothing wrong. By September 2005, DHS moved to remove him from his job because his news appearance had not been authorized, “other media communications” were not authorized and DHS claimed the text message contained sensitive security information. (Essentially, DHS retroactively classified the message so the agency could get rid of him.)
The Federal Circuit Court of Appeals on April 26, 2013, vacated a prior ruling by the Merit Systems Protection Board, which hears cases involving government employees who allege retaliation for making whistleblower claims. While the court agreed with the MSPB that it was within DHS’ authority to fire MacLean, the court found he was covered under the Whistleblower Protection Act when he made his public disclosures.
The Justice Department believes if the court’s ruling is allowed to stand it will invite “individual federal employees to make disclosures that will threaten public safety.” And that it “effectively permits individual federal employees to override the TSA’s judgments about the dangers of public disclosure.”
The government is terribly concerned that MacLean’s victory in the courts (so far) affirms that a path exists for employees to “go public with an internal disagreement about how best to allocate finite security resources.”
Government attorneys believe that debating this issue of “finite security resources” in public puts lives in danger—the government’s fallback whenever they want to justify excessive secrecy—and that they should be able to terminate employees who speak out, even if they are silenced by management within an agency and their subsequent whistleblower claims do not involve classified information.
More significantly, the text message was not SSI until an order was issued by TSA “three years after the text message was sent.”
What this is about for the Obama administration is being able to control government employees and ensure they do not have discretion to share details with the public when proper channels that are supposed to work for whistleblowers completely break down. The government wants all discretion and authority to be in the hands of power and not personnel.
As such, this is a very important case because the Supreme Court has an opportunity to decide whether the Whistleblower Protection Act permits government employees to make whistleblower disclosures to the press in order to ignite investigations by Congress. It also will determine whether the government can get away with abusing its authority to retroactively classify information in order to silence whistleblowers.
Creative Commons-Licensed Photo by Christopher Chan