If the ruling against fired federal air marshal Robert MacLean is allowed to stand, it will chill the conviction of would-be whistleblowers all across America — people of good conscience who’d be forced to weigh the need to keep their jobs against the duty to expose public waste, fraud, abuse, corruption, danger and general stupidity when they see it.
So says a friend-of-the court brief by a troika of Congressfolk on MacLean’s behalf, asking the U.S. Court of Appeals for the Federal Circuit to ditch decisions upholding MacLean’s dismissal — and denying him powerful whistleblower protection.
That troika is Elijah Cummings, Dennis Kucinich and Carolyn Maloney — not bad folks to have in your corner.
(And, O.K., we threw in that last bit about general stupidity, but some have argued that calling out general stupidity at the Transportation Security Administration was one of MacLean’s main offenses.)
HERO OR VILLAIN?
You may recall that O.C.’s MacLean was axed from his cop-in-the-sky job after letting the world know about an ill-conceived plan to remove federal air marshals from long-distance flights in 2003 — just days after a terrifying suicide hijacking alert. (This to save money on hotel bills.)
MacLean thought that was crazy. He protested up the food chain, to no avail, and finally showed a text message detailing the move to a reporter for MSNBC. Fallout was fast and furious: Lawmakers decried the idea as foolish; officials backtracked; and, ultimately, overnight missions continued, as per usual.
Nearly three years later – in April 2006 – that text message was retroactively declared “sensitive security information,” and MacLean was fired from his job for disclosing it to the public.
That text message, MacLean argued, wasn’t marked as sensitive information. It arrived on his mobile phone, not on his secure PDA.
The TSA maintains that MacLean knew, or should have known, that details involving air marshal missions are secret, and cannot be disclosed under any circumstances.
So far, the legal system has sided with the TSA, not MacLean. And that, the troika says, is wrong, wrong, wrong.
‘SERIOUS CHILLING EFFECT ON WOULD-BE WHISTLEBLOWERS’
“The MacLean decisions create yet another loophole that will further narrow the scope of (Civil Service Reform Act)-protected whistleblowing and deter would-be whistleblowers,” the brief says. ” The MacLean decision means that, in some cases, the disclosure is protected only if it is made to the agency’s Inspector General, to another employee designated by the heads of the agency to receive such disclosures, or to the Office of Special Counsel. In other cases, however, a disclosure to a different party, such as the media, would still be protected. The employee might not know which category applies – and therefore to whom a protected disclosure may be made – at the time the disclosure seems important to make. . . .
“As MacLean demonstrated, making the disclosure to some entities versus others can cany a greater risk that the disclosure may not be protected. Given the current state of the law, a federal employee who is contemplating blowing the whistle on a substantial threat to public safety needs to perform legal research or consult with an attorney to determine how to make a disclosure without losing the protection of the CSRA. But in enacting the CSRA’s whistleblower protection provision, Congress never intended to create obstacles for federal employees to surmount prior to blowing the whistle. Instead, Congress intended to provide robust protection to whistleblowers by seeking to avoid agencies using rules and regulations to impede the disclosure of government wrongdoing.”
The three try to make an important distinction: Federal employees are, indeed, barred from disclosing information that cannot, by law, be disclosed. But in this context, Congress already specified that a federal agency’s policy or regulation is not law, they argue; only acts of Congress, or executive orders of the president, enjoy that status.
To date, the legal system has erred by giving the TSA’s “details involving air marshal missions are secret, and cannot be disclosed under any circumstances” policy the weight of law. This error “leaves the door wide open for agencies to regulate around the whistleblower protections” built into that aforementioned, bona fide law, the Civil Service Reform Act (and the accompanying Whistleblower Protection Act).
“(W)histleblowers should not have to guess whether information that they reasonably believe evidences waste, fraud, abuse, illegalities or public dangers might be later designated as SSI (sensitive security information) and therefore should not be disclosed,” the brief says. “Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual’s employment…. the CSRA (Civil Service Reform Act) should not be interpreted in a way that would ‘have a serious “chilling effect” on would-be whistleblowers,’ this Court should reverse the Board’s MacLean decisions, which pose a substantial risk of chilling would-be whistleblowers.”
CONCLUSION
In addition to the troika, MacLean has allies in the Government Accountability Project (its legal director, Tom Devine, is serving as MacLean’s lawyer) and the Project On Government Oversight, which have begun citizen petitions on his behalf.
But why is the troika bothering?
Congressfolk Elijah Cummings, Dennis Kucinich and Carolyn Maloney were co-sponsors of H.R. 985, the Whistleblower Protection Enhancement Act of 2007, “which was designed to reverse those hostile interpretations and to restore statutory whistleblower rights to the level intended by previous Congresses that had enacted and repeatedly reaffirmed them.” That didn’t work out so well, and the bill was reintroduced as H.R. 1507, the Whistleblower Protection Enhancement Act of 2009. That didn’t work out so well, either, and in this Congress it is H.R. 3289.
The three “intend to continue their leadership on this issue in the current Congress,” the brief says. “It is unrealistic and unacceptable that Congress must keep updating its legislation and re-enacting rights, in order to offset the results of judicial and administrative decisions that conflict with what Congress intended to be unequivocal statutory language and objectives. Amici (the three congressfolk) seek to participate in this proceeding, to break this pattern.”
A federal agency’s rules and regulations cannot cancel, or otherwise, modify the right to public freedom of expression codified in the Whistleblower Protection Act, they say.
What do you think? We’ll keep you posted on what transpires.
(In the meantime, you might take the guy out of law enforcement, but you can’t take law enforcement out of the guy. See this news bit about how MacLean, now a roofing contractor, had his eye out for trouble in Nashville.)
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