By Charles S. Clark
March 28, 2012
One of the government’s longest-running whistleblower controversies recently took a new twist when three House Democrats successfully filed a friend of the court brief with the Federal Circuit Court of Appeals challenging the firing of an air marshal who in 2003 gave a television news reporter what his agency said was “sensitive security information.”
Robert MacLean was a civil aviation security specialist working for the Transportation Security Administration in 2003 when he was briefed about possible new terrorist threats from al Qaeda. Soon after, he and fellow air marshals were informed via unencrypted messages on their cellphones that their cross-country and international overnight missions on the at-risk flights were being canceled.
The message was not labeled sensitive, according to a summary of the case from the Merit Systems Protection Board, and the cancellation was blocked before taking effect.
After going to his supervisor and the Homeland Security Department inspector general’s office without results, MacLean approached an MSNBC reporter and expressed not-for-attribution alarm that air marshal coverage of U.S. flights was being reduced at a time of heightened threat. After a three-year probe of the anonymous leak, TSA fired him, and his cause was taken up by whistleblower organizations such as the Government Accountability Project and the Project on Government Oversight. MacLean’s earlier appeal was rejected in 2010 by an administrative judge, and again in July 2011 by MSPB.
This latest congressional intervention was undertaken Friday by Reps. Elijah Cummings, D-Md.; Carolyn Maloney, D-N.Y.; and Dennis Kucinich, D-Ohio; -- the first two rank high on the House Oversight and Government Reform Committee. That panel’s chairman, Rep. Darrell Issa, R-Calif., is the original sponsor of the pending 2011 Whistleblower Protection Enhancement Act (H.R.3289), a companion to which (S. 743) was introduced by Sen. Daniel Akaka, D-Hawaii. Both would expand whistleblower protections for disclosure of sensitive information and cover TSA workers.
The lawmakers cited freedom of speech for whistleblowers in asking the court “to restore a basic premise for merit systems principles and to restore the statutory infrastructure necessary” for the 1989 Whistleblower Protection Act. Only Congress or the president through executive order, the lawmakers wrote , “can restrict the public free speech rights of government employees to disclose information protected under the WPA, and Congress must act with specificity. “ The letter stated that agency rules cannot override the freedom of expression afforded under the whistleblower law. “This principle was a carefully considered, repeatedly reaffirmed cornerstone premise when whistleblower rights were created in the Civil Service Reform Act of 1978,” the lawmakers said.
Tom Devine, legal director for the Government Accountability Project, which filed MacLean’s appeal, told Government Executive his team went to court over “one of whistleblowers’ core principles, that statutory rights prevail over agency rules.”
During the first 30 years of statutory whistleblower rights, MacLean’s “termination would have been crudely illegal,” Devine wrote in a recent blog post. “Federal workers have the right to directly warn the public about government actions threatening public health and safety, unless the information is classified or its release specifically prohibited by congressional statute.” In MacLean’s case, he wrote, MSPB “erased that basic premise and now an agency can cancel WPA free speech rights by banning public disclosures about its own misconduct.”
Devine said the stakes in the case are “unsurpassed by any whistleblower dispute of recent years ¬¬-- not just for whistleblower decisions, but for public safety as well.”
Jon Adler, president of the Federal Law Enforcement Officers Association, which has been giving MacLean in-kind help with counsel and messaging on Capitol Hill, told Government Executive that MacLean “basically exposed the emperor, who became indignant and fired him. It’s disheartening because they did it because they were embarrassed,” Adler said. “TSA exuded the worst case of Animal Farm lawyering” -- a reference to the George Orwell dystopian novel -- in that “you can’t define sensitive security information after the fact just because you were inconvenienced by the disclosure.”
A DHS spokeswoman said TSA cannot comment on pending litigation.
Bill Spencer, clerk of MSPB, said it is the board’s policy not to comment on decisions under appeal. But in the board’s July 2011 decision backing the administrative judge’s ruling against MacLean, it argued MacLean “admittedly knew that he was not permitted to tell anyone about the [revised air marshal] scheduling, yet he did so anyway, and it could have created a significant security risk.” The judge determined the leak was intentional and said Maclean had been notified that the information should not be publically revealed, according to the decision. The decision cited MacLean’s sworn testimony that “he had no regrets and felt no remorse for going to the media.”
Devine argued the government has chosen efficiency over justice.
He accused MSPB of ignoring the Code of Ethics for Government Service, which requires workers to put loyalty to the highest moral principles above loyalty to persons, party or agency.
GAP has nearly 700 signatures on a petition urging members of Congress to back the bid to overturn the MacLean ruling. POGO launched a similar petition in January and has gathered more than 6,000 names.
After MSPB ruled last July, POGO analysts said the decision “should put to rest any doubts about whether MacLean is a whistleblower.” According to POGO, the board wrote that the TSA does not dispute that MacLean blew the whistle to the media, that his whistleblowing sparked outrage in Congress and that it stopped what the TSA intended to do, which MacLean believed would create a homeland security risk. POGO added the ruling “underscores just how weak and ineffectual current whistleblower protections are.”
MacLean gave an interview in October 2011 to Joan Brunwasser for OpEdNews.com., which was picked by a website MSPBWatch, in which he accused MSPB of ex post facto law for applying a 2009 ruling to his disclosure that took place in 2003. “The U.S. Special Counsel, Carolyn Lerner, protested the MSPB’s last decision against me, but was ignored,” he said. “Today I remain without my federal law enforcement career.”
He added he is conflicted about the Obama administration’s position with nonintelligence community whistleblowers. “His U.S. special counsel says I am a whistleblower, but his MSPB chairwoman and vice chairwoman say I am a reckless leaker,” MacLean said. “This doesn’t make sense to people outside the Beltway.”
A spokeswoman for the Office of Special Counsel said the office had not entered the case on behalf of a party but had only filed an amicus brief with MSPB on a on a narrow issue of what exceptions exist to the right of employees to blow the whistle.
Correction: The original version of this story mistakenly implied Robert MacLean was fired in 2003. He was fired three years later.
By Charles S. Clark
March 28, 2012