Homeland Insecurity: Why the Government Spent Seven Years and Untold Dollars to Silence One Man
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In 2011, five years after he had been fired as an air marshal, MacLean’s case finally reached the United States Court of Appeals for the Federal Circuit. Two full years after that, in April 2013, the court handed down a decision that may yet provide justice for Robert MacLean -- and for future whistleblowers. While awkwardly upholding previous decisions that the government can indeed retroactively classify information, even documents in categories like SSI that exist outside the government’s official framework for classification and secrecy, the court tackled a more basic question: Was Robert MacLean a whistleblower anyway, entitled to protection for his act of conscience?
Here lies the conflict at the heart of just about every whistleblower case -- between the public's right (and need) to know and the (at times legitimate) need for secrecy. The government typically argues that individuals should not be allowed to decide for themselves what remains secret and what doesn’t, or chaos would result. At the same time, in a post-9/11 world of increasing secrecy, the loss of the right to know, and the massive over-classification of documents, the “conflict” has become ever more one-sided. If everything can be considered a classified secret document too precious for Americans to know about, and nothing classified can be disclosed, then the summary effect is that nothing inside the government can ever be shown to the public.
The court found that while the Transportation Safety Administration could legally apply any classification it wanted to information any time it wanted, even retroactively, simply slapping on such a label did not necessarily prohibit disclosure. Absent an actual law in MacLean’s case mentioning SSI, a term created bureaucratically, not congressionally, there could be no Whistleblower Protection Act-excepting prohibition. In other words, MacLean could still be a whistleblower.
One of MacLean’s lawyers, Tom Devine, told me the decision “restored 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 WPA rights.”
"With this precedential decision," MacLean explained to me, "agencies can no longer cancel out Whistleblower Protection Act rights with their semi-secret markings like SSI, Law Enforcement Sensitive, etcetera."
In a concurring opinion, United States Court of Appeals for the Federal Circuit Judge Evan Wallach was even clearer: "Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public... I concur to emphasize that the facts alleged, if proven, allege conduct at the core of the Whistleblower Protection Act."
MacLean’s case now returns to the Merit Systems Protection Board. The board is a complex piece of bureaucracy inside the already complicated federal government personnel system. In simple terms, it is supposed to be a place to appeal personnel actions, such as alleged unfair hirings and firings. It thus serves as a kind of watchdog over the sprawling federal human resources empire. The Board now has the court-ordered specific charge to “determine whether Mr. MacLean’s disclosure qualifies for WPA protection.”
Note as well that this case could continue without end for years more, traveling on “appeal” back through the federal judicial bureaucracy and the courts. And remember that this, too, is an advantage to a government that wants ever less known about itself. If, as a federal employee, you are watching a case like MacLean’s (or Thomas Drake’s, or Franz Gayle’s, or Morris Davis's, or John Kiriakou’s, or even my own small version of this), then you can’t help noticing that the act of whistleblowing could leave you: a) out on your ear; b) prosecuted for a criminal act and/or c) with your life embroiled for years in the intricacies of your own never-ending case. None of this is exactly an encouragement to federal employees to blow that whistle.