The American public is in danger…and the Supreme Court will decide what to do about it in November. At issue is the first case regarding whistleblower protections under federal law to hit the highest court in the land, since enactment of those protections.
The case began its life in the lower courts after a complaint was filed by former United States Air Marshal, Robert MacLean.
In July of 2003, MacLean, along with other air marshals received a notice requiring him to attend a mandatory training centered around detecting and preventing suicidal airline hijacking plots by al-Qaeda operatives. Only days after the training the Transportation Security Administration sent out a text message which was both UNSECURED and UNCLASSIFIED. The text informed the air marshals that all assignments on flights which would require an overnight stay would be canceled in a cost saving measure.
MacLean, alarmed by the potential dangers of such a measure, complained about the unfortunate, short-sighted, money saving measure to his supervisor and to the Department of Homeland Security’s Inspector General’s Office. He indicated that canceling air marshals on hundreds of flights daily could impede efforts by marshals to thwart hijackers. He also leaked information about the new policy to MSNBC, which he later admitted in an investigation in 2005.
When TSA officials realized that MacLean had leaked the information they placed him on administrative leave. Then in 2006 they RETROACTIVELY announced that the text message and any information regarding the policy was SENSITIVE, after which they terminated MacLean. Going back and classifying the information as sensitive more than three years after it had been leaked and then firing him for leaking it, prompted MacLean to file his suit for whistleblower protections.
Being treated like a traitor for trying to protect the American public seems egregious, and the lower court agreed, disregarding the Obama Administration’s argument that the information, even though not classified at the time it was leaked, became retroactively sensitive, making it illegal for MacLean to leak.
The implications of the case go well beyond MacLean. If he loses, Uncle Sam will have greater power to bully whistleblowers. Fewer federal employees might be willing 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 Supreme Court Justices rule against MacLean, federal agencies could have broad power to weaken that law by using the government’s power to make secret more information than Congress intended.
The question before the court: Was MacLean’s disclosure “specifically prohibited by law?”
The Department of Homeland Security and the Justice Department say it was.
Coming down on MacLean’s side, however is a bi-partisan group of actual law makers and members of Congress who believe that his disclosures are (or should) afford him protection from retaliation by the agency under the whistleblower law.
Since they’re lawmakers, you’d think they would 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 E. Grassley (R-Iowa), Ron Wyden (D-Ore.), Reps. Darrell Issa (R-Calif.), Elijah E. Cummings (D-Md.), Blake Farenthold (R-Tex.) and Stephen F. Lynch (D-Mass).
“If agencies could decide which disclosures receive whistleblower protections, they would inevitably abuse that power,” the members said. “The result would be to deter whistleblowers and restrict the flow of information to Congress.”
As we’ve seen in the past, government agencies are particularly bad at protecting the rights of people who bring their wrongdoing to light. Take all of the recent VA whistleblower cases recently being reported on. It was common for Veteran’s Administration officials to reassign whistleblowers to basement offices, with no real work and no contact with other humans or even the light of day, or to demote them or even terminate their employment.
Sadly, the message here is that agency officials can’t always be trusted to do the right thing. When employees expose bad policies, too often the reaction of their bosses is to cover managerial behinds. Whistleblowers should be congratulated, praised for serving the public. Instead, many are harassed, punished and pushed from government service.
“After all,” said a brief filed by the U.S. Office of Special Counsel, “whistleblower protection laws exist because government officials do not always act in the nation’s best interests.”
Agencies can be creative in their reprisals, even belatedly declaring information sensitive, as TSA did, in order to better take revenge against whistleblowers.
“[I]n fear that such retroactive designations are possible, whistleblowers may refrain from alerting the public to dangers that could have been averted or mitigated,” said the brief by OSC, which works to protect whistleblowers. This is the first Supreme Court friend-of-the-court brief filed by OSC.
This wariness of the way agency managers treat whistleblowers is shared by the Republicans and Democrats who filed the congressional brief.
“Time and time again,” they said, “agencies have found ways to suppress inconvenient information.” An administration victory over MacLean, the elected officials warned, “will deter untold numbers of whistleblowers.”
Should the Supreme Court side with the Obama Administration it could spell disaster for federal whistleblowers and the safety of the American people.