By PETER EISLER
WASHINGTON — When federal air marshal Robert MacLean learned in 2003 that his bosses planned to cut marshal coverage on long-distance passenger flights in the midst of a terrorism alert, his decision to become a whistle-blower had plenty of consequences.
News of the plan spurred outrage on Capitol Hill. Investigations were launched. The cuts in marshal coverage were scrapped before they even took effect. And MacLean, who had given the news media an unclassified internal directive about the cuts, lost his job.
Now, members of Congress want to give federal whistle-blowers better safeguards against retaliation when they report waste, fraud and abuse. Bills in the House of Representatives and Senate would give whistle-blowers rights to jury trials on retaliation claims — something they don’t get now. It also would lift gag rules imposed by some national security agencies and strengthen rules against penalizing whistle-blowers who report wrongdoing to Congress.
MacLean, praised on Capitol Hill when he came forward, was fired three years later, after the Transportation Security Administration (TSA) decided that the unlabeled directive he leaked had been restricted from public release. He filed to be reinstated, arguing that he had acted in good faith and was shielded from retaliation by existing whistle-blower laws. Nearly four years later, his claim remains mired in a review process that is meant to resolve such cases.
Those reviews almost always end with the same result: The whistle-blowers lose.
“Even if they’re 100% right, they still kind of ruin themselves professionally,” says Sen. Chuck Grassley, R-Iowa. Because whistle-blowers are vital in exposing government misconduct, “there are a lot of whistle-blower protection laws out there,” he adds. “But the spirit of the law isn’t always carried out.”
Grassley and other supporters say the legislation to strengthen whistle-blower protections, backed by the White House, has a better chance to pass now than in previous years. And coupled with President Obama’s push to appoint officials in positions where they can speed action on retaliation complaints, whistle-blower advocates believe the government may be poised for a historic shift in the way it enables and protects whistle-blowers.
“We’ve gone from pitch black night to sunrise, (but) the sun hasn’t come up yet,” says Tom Devine, legal director at the Government Accountability Project (GAP), a 30-year-old whistle-blower advocacy group. “There’s got to be follow-through.”
A daunting process
There are choke points in the system for protecting whistle-blowers:
- The Office of Special Counsel, which investigates federal whistle-blower complaints, has had no leader since October 2008. That’s when then-special counsel Scott Bloch resigned amid an FBI investigation into whether he obstructed justice by illegally deleting computer files following complaints that he himself had retaliated against employees who disagreed with his policies. Obama made a campaign vow at the time to appoint a special counsel committed to whistle-blower rights, but he has yet to nominate a replacement.
- The Merit Systems Protection Board, a quasi-judicial agency that adjudicates whistle-blower complaints, uses appointed administrative law judges who often back the government. Since 2000, the board has ruled for whistle-blowers just three times in 56 cases decided on their merits, according to a GAP analysis. Obama appointed a new chairperson and vice chairperson with backgrounds as federal worker advocates, but Devine says, “It’s likely to take years for them to turn things around.”
- The Court of Appeals for the Federal Circuit, the only court empowered to hear appeals of whistle-blower cases decided by the merit board, has been criticized by Grassley and others in Congress for misinterpreting whistle-blower laws and setting precedent that is hostile to claimants. Since Congress last revised the Whistleblower Protection Act in 1994, the court has ruled for whistle-blowers in only three of 203 cases decided on their merits, GAP’s analysis found.
The pending legislation would reverse the effect of decisions by the Federal Circuit and the merit board that have “narrowed the protections of the Whistleblower Protection Act,” says Sen. Daniel Akaka, D-Hawaii, a lead sponsor of the Senate bill. Without “strong new protections,” fewer whistle-blowers will come forward, he says, and “we squander the opportunity to protect taxpayer dollars, public health and safety, civil liberties, national security, and other important interests.”
No easy solution
MacLean’s case typifies the challenges whistle-blowers face.
In 2003, as the Department of Homeland Security was alerting personnel to intelligence signaling an imminent terrorist suicide hijacking threat, the Federal Air Marshal Service informed employees that 60 days of air marshal coverage on long-distance flights requiring hotel stays would be suspended because of budget constraints. Thousands of air marshals got the news in a text message on their unsecured cellphones, though a password-protected, encrypted message system was available. The directive was not marked sensitive or classified.
MacLean protested to a supervisor and the DHS inspector general but got no action. He then gave the text message to the news media. The stories spurred bipartisan complaints in Congress about the cuts. The Air Marshal Service killed the directive, calling it a “mistake.”
Lawmakers demanded an investigation. Sen. Barbara Boxer, D-Calif., thanked MacLean and other air marshals “who came forward and told the truth.”
Nevertheless, he was fired in 2006 after the TSA ruled retroactively that the message MacLean leaked was restricted. Unable to get a job since, he has tried unsuccessfully to start his own business.
“I thought the (marshal service) had … lost all sense of protecting the public,” MacLean says of his disclosure. Current whistle-blower protection law “is essentially for reporting your boss for stealing from the honor fridge,” he says. “It really wasn’t intended to help if you blow the whistle on senior executives.”
The pending legislation would bolster whistle-blower protections dramatically, says Danielle Brian, head of the Project On Government Oversight, a non-partisan group that investigates government misconduct. Among other things, it promises more due-process rights for whistle-blowers who disclose unclassified national security information.
But it’s no cure-all.
Despite the legislation’s promise, Brian says, “it’s important not to create this fantasy that once we get good legislation, it won’t still be a miserable experience to be a whistle-blower. It’ll always be a miserable experience.”