The Obama administration, in its war on whistleblowers, just lost a major battle. Major in its venue—the Supreme Court—and major in its implications for future whistleblower cases. The court’s decision in Department of Homeland Security v Robert MacLean curtails the government’s manipulation of pseudo-classified information to punish whistleblowers and strengthens the Whistleblower Protection Act (WPA).
In July 2003, TSA alerted all marshals of a possible hijacking plot. Soon after, TSA sent an unclassified, open-air text message to marshals’ cell phones canceling several months of missions to save on hotel costs. Fearing such cancellations in the midst of a hijacking alert created a danger to the flying public, veteran Air Marshal Robert MacLean tried to get TSA to change its decision.
After hitting a dead end, MacLean spoke anonymously to MSNBC, which published a critical story. Only 24 hours later, and after 11 members of Congress voiced concern, TSA reversed itself, putting marshals back on the flights. A year later, MacLean appeared on TV in disguise to criticize agency policies he felt made it easier for passengers to recognize undercover marshals. The TSA recognized MacLean’s voice and discovered he had also released the unclassified 2003 text message. He was fired in April 2006.
MacLean discovered that months after firing him, TSA had retroactively classified as “security sensitive information” (SSI) the unclassified text message he had leaked. SSI is a designation created by TSA via administrative memo and had no basis in law. TSA decided nonetheless that leaking a retroactively SSI-classified document was cause enough to fire a federal worker. MacLean fought back.
In 2013, after a long series of legal wrangles, a United States Court of Appeals decided that MacLean was entitled to his old marshal job back under the Whistleblower Protection Act of 1989. The act generally limits its protections to “disclosures not specifically prohibited by law.” The court said SSI information was not really “classified” at all, and thus MacLean’s disclosure was not a violation of law.
The Department of Justice challenged the decision in front of the Supreme Court. The Supremes agreed on January 21 with the lower court’s decision, ruling in favor of MacLean and against the government.
Significance of the Decision
The Court made clear TSA’s self-created classification, SSI, did not have the power of law. MacLean’s disclosure of SSI material thus did not violate any actual laws making disclosure of properly classified material a crime. There were no grounds to have fired him.
While by law the U.S. government recognizes only three basic levels of classification (confidential, secret, top secret), since 9/11 government agencies on their own have created pseudo categories of secrecy like SSI, hybrids that casually seek to incorporate the full weight of formal law. There are currently 107 designations just for “sensitive” information alone, none of which receive any review outside of the agency that created them. Allowing any part of the government to declare this or that classified under their own rules means everything can be classified, and every statement by every official potentially actionable, with no external oversight or redress possible.
The court also shot down government claims that a law allowing TSA to “prescribe regulations” means the agency can otherwise control disclosures with the force of law. The statute, the court said, “does not [itself] prohibit anything; instead, it authorizes” the TSA to make choices. No one prohibited MacLean from disclosing an at-the-time unclassified text, nor would it be reasonable to assume something unclassified couldn’t be disclosed.
The Court did agree with TSA that actions such as MacLean’s can have legitimate national security repercussions. Dealing with that issue “must be addressed by Congress or the President, rather than by this Court,” and, by extension, not by TSA acting on its own.
TSA Abused SSI Beyond MacLean
Unrelated to MacLean’s case per se, TSA also misused the SSI category to block its own inspector general from making public information that might have embarrassed the agency. “The agency wrongly insisted that lapses involving access to sensitive equipment be kept hidden from the public,” said Department of Homeland Security Inspector General John Roth. “Such lapses were marked by the TSA with a special security designation known as ‘SSI,’ requiring that they be redacted from a draft audit.”
“TSA’s decision to misapply the ‘sensitive security information’ designation subverted his ability to do his job,” Roth insisted.
Regulation is Not Law
And as if the point was not clear enough, the Supreme Court stated “interpreting the word ‘law’ to include rules and regulations could defeat the purpose of the whistleblower statute. That interpretation would allow an agency to insulate itself… simply by promulgating a regulation that ‘specifically prohibited’ all whistleblowing.”
The Supreme Court’s decision answers a key question regarding the scope of exemptions to federal whistleblower protection law. In a blow to the self-proclaimed “most transparent administration ever,” the court ruled against the use of pseudo-classification as a tool to hide from the public embarrassing or even criminal information. Had the court held otherwise, no act of whistleblowing could be considered protected. All the government would have had to do to stop an act by a conscientious employee would be to retroactively slap a self-made category of secrecy on whatever was disclosed, and wash its hands of the miscreant.
Attorney Tom Devine, of the Government Accountability Project, was part of the team that represented MacLean. “This victory,” Devine said, “means that the cornerstone of whistleblower rights has survived—the supremacy of statutory rights passed by Congress over agency secrecy rules. If Mr. MacLean had lost, agencies could cancel those rights through internal regulations, and the Whistleblower Protection Act would have been an unenforceable honor system. In the aftermath, the WPA is alive, well and stronger than ever.”
What About that Retroactive Classification?
Also a part of MacLean’s firing from TSA was the issue of the agency retroactively marking the information he was punished for leaking as SSI, some time after it was sent out to all air marshals in an unclassified open text. The court let stand this government power to retroactively classify information.
According to MacLean attorney Tom Devine, retroactively pseudo-classifying information as SSI was not an issue in MacLean’s appeal, and should not inhibit all whistleblowing. Following MacLean’s firing, Executive Order 13556 in 2010 made clear categories such as SSI do not alone affect disclosure laws such as the Whistleblower Protection Act. In addition, the “anti-gag” provision of the later Whistleblower Protection Enhancement Act already outlawed liability for disclosures involving “unmarked but classified” information. That law’s definitions require information to be specifically designated as classified, not just to deserve secret status.
That’s the bigger picture. On a more personal level, what’s next for MacLean?
“I’m a sheepdog, I fight until I’m unconscious or dead,” said MacLean. “The public paid me considerably more than most federal employees. I had the power to arrest people. I was extensively trained and gave an oath that I would risk my life engaging in firefights inside crowded missiles.”
“I want to resume serving in law enforcement,” said MacLean. “If my country wants me back serving as an air marshal, I will serve to the best of my ability and with honor.”
Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book,We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. His latest book is Ghosts of Tom Joad: A Story of the #99Percent.