The Obama administration opened a new front in its ongoing war on whistleblowers. It’s taking its case against one man, former Transportation Security Administration (TSA) Air Marshal Robert MacLean, all the way to the Supreme Court. So hold on, because we’re going back down the rabbit hole with the Most Transparent Administration ever.
Despite all the talk by Washington insiders about how whistleblowers like Edward Snowden should work through the system rather than bring their concerns directly into the public sphere, MacLean is living proof of the hell of trying to do so. Through the Supreme Court, the Department of Justice (DOJ) wants to use MacLean’s case to further limit what kinds of information can qualify for statutory whistleblowing protections. If the DOJ gets its way, only information that the government thinks is appropriate — a contradiction in terms when it comes to whistleblowing — could be revealed. Such a restriction would gut the legal protections of the Whistleblower Protection Act and have a chilling effect on future acts of conscience.
Having lost its case against MacLean in the lower courts, the DOJ is seeking to win in front of the Supreme Court. If heard by the Supremes — and there’s no guarantee of that — this would represent that body’s first federal whistleblower case of the post-9/11 era. And if it were to rule for the government, even more information about an out-of-control executive branch will disappear under the dark umbrella of “national security.”
On the other hand, should the court rule against the government, or simply turn down the case, whistleblowers like MacLean will secure a little more protection than they’ve had so far in the Obama years. Either way, an important message will be sent at a moment when revelations of government wrongdoing have moved from the status of obscure issue to front-page news.
The issues in the MacLean case — who is entitled to whistleblower protection, what use can be made of retroactive classification to hide previously unclassified information, how many informal classification categories the government can create bureaucratically, and what role the Constitution and the Supreme Court have in all this — are arcane and complex. But stay with me. Understanding the depths to which the government is willing to sink to punish one man who blew the whistle tells us the world about Washington these days and, as they say, the devil is in the details.
Robert MacLean, Whistleblower
MacLean’s case is simple — and complicated.
Here’s the simple part: MacLean was an air marshal, flying armed aboard American aircraft as the last defense against a terror attack. In July 2003, all air marshals received a briefing about a possible hijacking plot. Soon after, the TSA, which oversees the marshals, sent an unencrypted, open-air text message to their cell phones cancelling several months of missions for cost-cutting reasons. Fearing that such cancellations in the midst of a hijacking alert might create a dangerous situation for the flying public, MacLean worked his way through the system. He first brought his concerns to his supervisor and then to the Department of Homeland Security’s inspector general. Each responded that nothing could be done.
After hitting a dead end, and hoping that public pressure might force the TSA to change its policy, MacLean talked anonymously to a reporter who broadcast a critical story. After 11 members of Congress pitched in, the TSA reversed itself. A year later, MacLean appeared on TV in disguise to criticize agency dress and boarding policies that he felt made it easier for passengers to recognize marshals who work undercover. (On your next flight keep an eye out for the young man in khakis with a fanny pack and a large watch, often wearing a baseball cap and eyeing boarders from a first class seat.) This time the TSA recognized MacLean’s voice and discovered that he had also released the unclassified 2003 text message. He was fired in April 2006.
When MacLean contested his dismissal through internal government channels, he discovered that, months after firing him, the TSA had retroactively classified the text message he had leaked. Leaking classified documents is more than cause enough to fire a federal worker, and that might have been the end of it. MacLean, however, was no typical cubicle-dwelling federal employee. An Air Force veteran, he asserted his status as a protected whistleblower and has spent the last seven years marching through the system trying to get his job back.
How Everything in Government Became Classified
The text message MacLean leaked was retroactively classified as “security sensitive information” (SSI), a designation that had been around for years but whose usage the TSA only codified via memo in November 2003. When it comes to made-up classifications, that agency’s set of them proved to be only one of 28 known versions that now exist within the government bureaucracy. In truth, no one is sure how many varieties of pseudo-classifications even exist under those multiple policies, or how many documents they cover as there are no established reporting requirements.
By law there are officially only three levels of governmental classification: confidential, secret, and top secret. Other indicators, such as NOFORN and ORCON, seen for instance on some of the NSA documents Edward Snowden released, are called “handling instructions,” although they, too, function as unofficial categories of classification. Each of the three levels of official classification has its own formal definition and criteria for use. It is theoretically possible to question the level of classification of a document. However much they may be ignored, there are standards for their declassification and various supervisors can also shift levels of classification as a final report, memo, or briefing takes shape. The system is designed, at least in theory and occasionally in practice, to have some modicum of accountability and reviewability.
The government’s post-9/11 desire to classify more and more information ran head on into the limits of classification as enacted by Congress. The response by various agencies was to invent a proliferation of designations like SSI that would sweep unclassified information under the umbrella of classification and confer on ever more unclassified information a (sort of) classified status. In the case of the TSA, the agency even admits on its own website that a document with an SSI stamp is unclassified, but prohibits its disclosure anyway.
Imagine the equivalent at home: you arbitrarily establish a classification called Spouse Sensitive Information that prohibits your partner from seeing the family bank statements. And if all this is starting to make no sense, then you can better understand the topsy-turvy world Robert MacLean found himself in.
MacLean Wins a Battle in Court
In 2013, after a long series of civil service and legal wrangles, the United States Court of Appeals for the Federal Circuit handed down a decision confirming the government’s right to retroactively classify information. This may make some sense — if you squint hard enough from a Washington perspective. Imagine a piece of innocuous information already released that later takes on national security significance. A retroactive classification can’t get the toothpaste back in the tube, but bureaucratically speaking it would at least prevent more toothpaste from being squeezed out. The same ruling, of course, could also be misused to ensnare someone like MacLean who shared unclassified information.
The court also decided that, retrospective classification or not, MacLean was indeed entitled to protection under the Whistleblower Protection Act of 1989. That act generally limits its protections to “disclosures not specifically prohibited by law,” typically held to mean unclassified material. This, the court insisted, was the category MacLean fit into and so could not be fired. The court avoided the question of whether or not someone could be fired for disclosing retroactively classified information and focused on whether a made-up category like SSI was “classified” at all.
The court affirmed that laws passed by Congress creating formal classifications like “top secret” trump regulations made up by executive branch bureaucrats. In other words, as the Constitution intended, the legislative branch makes the laws and serves as a check and balance on the executive branch. Congress says what is classified and that say-so cannot be modified via an executive branch memo. One of MacLean’s lawyers hailed the court’s decision as restoring “enforceability for the Whistleblower Protection Act’s public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for whistleblower protection rights.”
The ruling made it clear that the TSA had fired MacLean in retaliation for a legally protected act of whistleblowing. He should have been offered his job back the next day.
Not a Happy Ending But a Sad New Beginning
No such luck. Instead, on January 27, 2014, the Department of Justice petitioned the Supreme Court to overturn the lower court’s decision. If it has its way, the next time a troublesome whistleblower emerges, the executive need only retroactively slap a non-reviewable pseudo-classification on whatever information has been revealed and fire the employee. The department is, then, asking the Supreme Court to grant the executive branch the practical power to decide whether or not a whistleblower is entitled to legal protection. The chilling effect is obvious.
In addition, the mere fact that the DOJ is seeking to bring the case via a petition is significant. Such petitions, called writs of certiorari, or certs, ask that the Supreme Court overturn a lower court’s decision. Through the cert process, the court sets its own agenda. Some 10,000 certs are submitted in a typical year. Most lack merit and are quickly set aside without comment. Typically, fewer than 100 of those 10,000 are chosen to move forward for a possibly precedent-setting decision. However, only a tiny number of all the certs filed are initiated by the government; on average, just 15 in a Supreme Court term.
It’s undoubtedly a measure of the importance the Obama administration gives to preserving secrecy above all else that it has chosen to take such an aggressive stance against MacLean — especially given the desperately low odds of success. It will be several months before we know whether the court will hear the case.
This Is War
MacLean is simply trying to get his old air marshal job back by proving he was wrongly fired for an act of whistleblowing. For the rest of us, however, this is about much more than where MacLean goes to work.
The Obama administration’s attacks on whistleblowers are well documented. It has charged more of them — seven — under the Espionage Act than all past presidencies combined. In addition, it recently pressured State Department whistleblower Stephen Kim into a guilty plea (in return for a lighter sentence) by threatening him with the full force of that act. His case was even more controversial because the FBI named Fox News’s James Rosen as a co-conspirator for receiving information from Kim as part of his job as a journalist. None of this is accidental, coincidental, or haphazard. It’s a pattern. And it’s meant to be. This is war.
MacLean’s case is one more battle in that war. By taking the extraordinary step of going to the Supreme Court, the executive branch wants, by fiat, to be able to turn an unclassified but embarrassing disclosure today into a prohibited act tomorrow, and then use that to get rid of an employee. They are, in essence, putting whistleblowers in the untenable position of having to predict the future. The intent is clearly to silence them before they speak on the theory that the easiest leak to stop is the one that never happens. A frightened, cowed workforce is likely to be one result; another — falling into the category of unintended consequences — might be to force more potential whistleblowers to take the Manning/Snowden path.
The case against MacLean also represents an attempt to broaden executive power in another way. At the moment, only Congress can “prohibit actions under the law,” something unique to it under the Constitution. In its case against MacLean, the Justice Department seeks to establish the right of the executive and its agencies to create their own pseudo-categories of classification that can be used to prohibit actions not otherwise prohibited by law. In other words, it wants to trump Congress. Regulation made by memo would then stand above the law in prosecuting — or effectively persecuting — whistleblowers. A person of conscience like MacLean could be run out of his job by a memo.
In seeking to claim more power over whistleblowers, the executive also seeks to overturn another principle of law that goes by the term ex post facto. Laws are implemented on a certain day and at a certain time. Long-held practice says that one cannot be punished later for an act that was legal when it happened. Indeed, ex post facto criminal laws are expressly forbidden by the Constitution. This prohibition was written in direct response to the injustices of British rule at a time when Parliamentary laws could indeed criminalize actions retrospectively. While some leeway exists today in the U.S. for ex post facto actions in civil cases and when it comes to sex crimes against children, the issue as it affects whistleblowers brushes heavily against the Constitution and, in a broader sense, against what is right and necessary in a democracy.
When a government is of, by, and for the people, when an educated citizenry (in Thomas Jefferson’s words) is essential to a democracy, it is imperative that we all know what the government does in our name. How else can we determine how to vote, who to support, or what to oppose? Whistleblowers play a crucial role in this process. When the government willfully seeks to conceal its actions, someone is required to step up and act with courage and selflessness.
That our current government has been willing to fight for more than seven years — maybe all the way to the Supreme Court — to weaken legal whistleblowing protections tells a tale of our times. That it seeks to silence whistleblowers at a moment when their disclosures are just beginning to reveal the scope of our unconstitutional national security state is cause for great concern. That the government demands whistleblowers work within the system and then seeks to modify that same system to thwart them goes beyond hypocrisy.
This is the very definition of post-Constitutional America where legality and illegality blur — and always in the government’s favor; where the founding principles of our nation only apply when, as, and if the executive sees fit. The devil is indeed in the details.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Kyzl Orda said...
1Has the DoJ inadvertantly bolstered Mr McLean’s case through this retroactive classification?
If Mr McLean went to the lengths he did because it seemed a critical and sensitive situation, does retroactive classification in effect signal an agreement that the situation was indeed critical and sensitive, and thus undermine the the TSA’s rational for weakening or cancelling safety programs geared for the greater good of the public safety?
What effect can an event like the Malaysian airliner tragedy can impact this case? One of the key take away lessons to emerge is – not only do most countries NOT check Interpol’s database but also you can buy a passport and make it legitimate so whatever agent in any country who looks into a system will see — an official person.
The reality is it is an assumed identity.
This is a serious flaw in many bureaucracies, where going rates for official passports — not even a trafficked one — but an official, bona fide, validated passport from country X — can be bought for a price.
For countries that rely on databases, this is a black hole a few galaxies can fit through side-to-side. The need for human intelligence and programs that put trained agents on the spots are thus critical, given the shortcomings with databases.
03/21/14 2:20 PM | Comment Link
Kyzl Orda said...
2The TSA had alot of problems during the Bush-Cheney administration with trying to break the employees union as well but they had a pretty active union head there who actually did his job and got out there on behalf of members for meaningful issues, not bs like we had at State where our civil service union leadership was only concerned if sign in sheets were impacted.
Was Mr McLean a union member? It seems in some bureaucracies, working union members get the door faster, while the ones who sleep at their desks make for great management spies
03/21/14 2:27 PM | Comment Link
Rich Bauer said...
3“When the government willfully seeks to conceal its actions, someone is required to step up and act with courage and selflessness.”
He’s lucky the FBI didn’t shoot him…like the guy they questioned in Orlando and the wife who “attacked” the FBI agent in Virginia and let’s not forget Dirty Deedy.
03/21/14 5:13 PM | Comment Link
Joe Carson said...
4Hi Peter,
From your post:
“Here’s the simple part: MacLean was an air marshal, flying armed aboard American aircraft as the last defense against a terror attack. In July 2003, all air marshals received a briefing about a possible hijacking plot. Soon after, the TSA, which oversees the marshals, sent an unencrypted, open-air text message to their cell phones cancelling several months of missions for cost-cutting reasons. Fearing that such cancellations in the midst of a hijacking alert might create a dangerous situation for the flying public, MacLean worked his way through the system. He first brought his concerns to his supervisor and then to the Department of Homeland Security’s inspector general. Each responded that nothing could be done.
“After hitting a dead end, and hoping that public pressure might force the TSA to change its policy, MacLean talked anonymously to a reporter who broadcast a critical story.”
So, Peter, what’s wrong with this picture that Tom Devine, MacLean’s lawyer, someone who has been complicit with decades of compounded, civilization-threatening, law-breaking at Office of Special Counsel (OSC) and Merit Systems Protection Board (MSPB), has failed to address?
At least two things:
1) As the Court and DOJ have noted, OSC is the only legally authorized route that has a mandate to provide confidentiality for federal whistleblowers when they disclose classified information to it. MacLean was not trained about his statutory right to make classified disclosures to OSC, thanks largely to Tom Devine and GAP saying “pass” to OSC’s law-breaking for decades.
2) When MacLean made his protected disclosures to his supervisor and the agency IG, both told him “nothing could be done.” Their failure to respond to MacLean’s protected disclosure is whistleblower reprisal, in and of itself. Why? Because it created the personnel action of “any other significant change in ….working conditions” for MacLean. Why? Because the legal standard, by the most relevant Supreme Court precedent, for determining whether an agency action/inaction creates “any other significant change in….working conditions” is whether the agency actions/inactions would dissuade a reasonabel colleague of MacLean from making a similar protected disclosure.
Clearly, if a federal employees “blows the whistle” but his supervisor and agency IG respond as if “the whistle did not make sound,” it would tend to dissuade a reasonable colleague from “blowing the whistle.” So why is there not case law at MSPB that makes this clear? Blame Tom Devine/GAP more than anyone else, as he is complicit with a fraudulent OSC, because it creates victims as MacLean for him to exploit for public acclaim.
As another manifestation of OSC’s fraudulent nature, OSC refuses to bring forward any cases at MSPB to establish this Supreme Court precedent applies to federal whistleblower casessuch MSPB case law. It then uses the lack of MSPB precedent to dismiss complaints it receives that make this argument, just as Devine wants it to.
So I’ll submit an amicus curiae brief to Supreme Court making these points and “blowing whistles” about Devine’s/GAP’s exploitative ways. Stay tuned.
03/21/14 6:24 PM | Comment Link
Kyzl Orda said...
5Mr Carson, saw some links about Fukushima and the scary steps pursued here at home, weakening safety at our own nuclear plants, and thought about your case:
http://www.washingtonsblog.com/2014/03/u-s-nuclear-plants.html
http://www.nbcnews.com/id/43455859/ns/us_news-environment/#.UWQskldGQe0
03/21/14 10:41 PM | Comment Link
pitchfork said...
6quote:”As another manifestation of OSC’s fraudulent nature, OSC refuses to bring forward any cases at MSPB to establish this Supreme Court precedent applies to federal whistleblower casessuch MSPB case law.”unquote
Living proof the nature of working for a paycheck from the Empire, is in reality..a sublime fool.
03/22/14 1:33 AM | Comment Link
Rich Bauer said...
7Do not open link if you are prone to laughing your ass off:
http://www.business-standard.com/article/news-ani/nsa-deputy-director-says-snowden-doing-disservice-to-legitimate-whistleb
03/22/14 1:21 PM | Comment Link
Rich Bauer said...
8“NSA deputy director Ledgett said that Snowden had alternatives to leaking NSA secrets and fleeing the country and he could have run his concerns up the chain of command; to any of an array of attorneys general, or to Congressional committees. He further insisted that characterizing Snowden as a whistleblower hurt legitimate whistle-blowing.”
Nice to know.
03/22/14 1:23 PM | Comment Link
pitchfork said...
9I’ve got $20 that says Robert MacLean would spit in Ledgett’s face.
03/22/14 2:09 PM | Comment Link
Rich Bauer said...
10“Change will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.”
Change? That’s as likely as Obama winning the billion dollar pool –
http://original.antiwar.com/giraldi/2014/03/17/simple-stuff-about-ukraine/
03/23/14 3:30 PM | Comment Link