Calls for Government to End Seven-Year Vendetta; Reinstate Federal Air Marshal Robert MacLean

(Washington, DC) – Late last week, former Federal Air Marshal (FAM) Robert MacLean successfully thwarted an April Department of Justice (DOJ) legal challenge to his Whistleblower Protection Act (WPA) victory by a unanimous three-judge panel.

In 2003, MacLean successfully warned the media, the public and congressional officials of Transportation Security Administration (TSA) plans to cancel FAM coverage amid confirmed warnings of an imminent al Qaeda hijacking plot. In 2006, when it learned that MacLean was the anonymous whistleblower, the TSA fired him for disclosing “Sensitive Security Information” (SSI), a pseudo-secrecy category issued at congressional direction. Through administrative appeals at the U.S. Merit Systems Protection Board (MSPB), however, MacLean lost his contention that the WPA trumps agency gag rules for free speech rights ­– the law’s basic principle for over 30 years.

In April, the U.S. Court of Appeals for the Federal Circuit restored the strength of the WPA by unanimously overturning the Board. In last week’s ruling, it rejected a government motion for the full court to review the ruling.

MacLean commented:

The court finally put a stop to agencies creating brand new and unreviewable secrecy categories in order to scare away employees wishing to expose unclassified wrongdoing. I am forever grateful to all of the good-government organizations that championed my case, and the almost two-dozen bipartisan Members of Congress who publicly supported my actions. If the government is ready to finally end delaying my reinstatement, then I’m ready to begin serving and protecting the public again. If not, I look forward to fighting another seven years or more at the Merit Systems Protection Board or the Supreme Court.

Government Accountability Project (GAP) Legal Director Tom Devine, who represents MacLean with Federal Law Enforcement Officers Association (FLEOA) General Counsel Larry Berger, explained the ruling’s significance:

The full Federal Circuit has reinforced April’s victory for whistleblowers: Agency secrecy rules cannot cancel Whistleblower Protection Act free speech rights. Only Congress can restrict their scope, and it must act with specificity. This ruling restored the law’s cornerstone. Hopefully the Justice Department will not ask the Supreme Court for a landmark secrecy ruling that broadly drafted gag orders can cancel the Whistleblower Protection Act.

MacLean’s Case – Background

In July 2003, U.S. and foreign intelligence and counterterrorism units confirmed imminent al Qaeda plans for an ambitious rerun of 9/11. Long-distance flights were to be hijacked for multiple targets, including cities in Europe and America’s West Coast. All FAMs were called in for emergency training. Inexplicably, two days after receiving the training, all FAMs received a text message to cancel all long distance missions – the same flights targeted for hijacking. There was no explanation beyond making sure to cancel hotel reservations.

MacLean unsuccessfully sought an explanation from Federal Air Marshal Service management and the Department of Homeland Security (DHS) Office of Inspector General (OIG). He then anonymously disclosed the orders to MSNBC, which promised to alert Congress. After the release of the MSNBC story, President George W. Bush could not explain the cancelation at a press conference, and there were numerous congressional expressions of outrage, including Senators Barbara Boxer (D-CA) and Charles Schumer (D-NY), and former Senators John Kerry (D-MA) and Hillary Clinton (D-NY). Within 24 hours, DHS said the orders were “a mistake” and restored coverage, preventing the hijacking. When the TSA learned that the anonymous source was MacLean, the agency retroactively marked the previously-unrestricted text message as non-public Sensitive Security Information (SSI) under agency regulations. One year later, the TSA fired MacLean for threatening national security by publicly releasing the text message.

Ultimately, a July 2011 MSPB decision framed the issues. Since passage of the Civil Service Reform Act of 1978 and in the WPA, whistleblowers have had the right under the free speech provision in both laws, 5 USC 2302(b)(8), to publicly disclose misconduct unless it is classified (not an issue here), or its release is “specifically prohibited by law.” In all legislative history, Congress has made clear that by “law” it meant “statute,” and legally distinguished “law” from “rules and regulations.” The MSPB’s ruling, however, said that MacLean’s warning was barred by “law,” because in the Aviation Transportation Security Act (ATSA), Congress ordered DHS to issue SSI secrecy regulations “if the Secretary decides disclosing the information would … be detrimental to public safety.” In lay terms, the MSPB explained that by ordering the Secretary to issue regulations, Congress had delegated its authority, which would make regulations equivalent to statutes passed by Congress. As a result, the MSPB concluded that MacLean’s public disclosure violated “law,” and he was not entitled to WPA rights. Were the decision to stand, the MSPB would have created an “agency veto” loophole whenever Congress orders agency regulations to control the release of information.

The Federal Circuit’s April decision reversing the Board was based on the WPA’s requirement for specificity. The ATSA instruction gives the Secretary a blank check to ban release of any information he subjectively believes could harm public safety. The court said under that circumstance, the public gag came from the Secretary’s SSI regulation, not a “law” passed by Congress.

The court did not rule out the possibility that employees can lose whistleblower rights when Congress orders agencies to issue secrecy rules. But it emphasized another core principle of the free speech provision: even statutory restraints must “specifically prohibit” public release. It traced the original 1978 legislative history to explain that Congress can delegate secrecy authority if it imposes specific criteria for exercising that discretion. The court pointed to the Trade Secrets Act and Internal Revenue Code as models where Congress established particular criteria for secrecy and privacy restraints on public disclosure, qualifying associated agency rules as “law” that restricts whistleblower rights.

The August 30 Ruling

Last Friday the court rejected, without comment, a government petition for the original three-judge panel to change its mind, or for all the judges to reconsider the April ruling. The court chose not to comment on a series of government arguments rebutted by MacLean:

The Justice Department had argued that agencies have discretion to protect national security through secrecy rules protecting classified information. But that exception comes from a separate section of the law, and is limited to Executive Order 13526 protecting classified data. MacLean’s unclassified disclosure could only be restricted by a specific congressional ban.
DOJ further argued that SSI is a specific congressional ban, because DHS can deny it under the Freedom of Information Act (FOIA). But Congress specifically approved the FOIA exception, and chose not to do so for Whistleblower Protection Act disclosures.
Most audacious, the Justice Department had insisted that protecting disclosures like MacLean’s should not be permitted again, because they “eviscerate the Executive’s ability to carry out [its airlines security] mandate and create a public safety risk.” DOJ reasoned since release of SSI violates agency secrecy regulations, “when[ever] whistleblowers reveal SSI, their disclosures have a negative impact upon the nation’s security.” MacLean directly challenged that as a false premise:

If the government says release of information would harm national security, then it would. That assumption fails to consider the possibility of government misconduct or mistake. Congress unanimously has passed Whistleblower Protection Act rights four times based on a principle approved by this court, but not recognized within DHS’s analysis: the government makes mistakes, and whistleblowers can be indispensable to correct them. That is precisely what happened in 2003 with TSA. It is undisputed that the government made a mistake that could have resulted in abandonment of air marshal protection during a far more severe Al Qaeda attack than 9/11. It is undisputed that my disclosure led to correction of the mistake.

What’s Next?

Having found MacLean’s disclosure eligible for WPA coverage, in April the court had sent the case back to the MSPB to decide if it was worthy – whether MacLean reasonably believed he was disclosing evidence of government illegality, abuse of authority, gross mismanagement, gross waste or a substantial and specific danger to public health or safety ­– when he exposed cancelation of Air Marshal protection during the attack, an order that DHS retracted as a “mistake” within 24 hours of MacLean’s disclosure.

The next step will be the government’s decision on how to proceed. It can either appeal the legal ruling to the Supreme Court, accept the Federal Circuit interpretation and at renewed MSPB hearings contest whether MacLean had a reasonable belief that the public was endangered, or it can accept him back in the FAM Service. A decade after MacLean’s whistleblowing disclosure may have prevented our country’s worst homeland security breakdown and disaster, Devine urged an end to the seven-year marathon legal struggle:

If the administration wants to credibly contend that its attacks on national security whistleblowers are about making the country safer, it will end this seven-year legal battle with Robert MacLean – a whistleblower who did that with an exclamation point. Through the freedom to warn Congress through the media, he may have prevented a worse disaster than 9/11 when the government planned to abandon Air Marshal coverage of planes targeted for a multi-country strike. The Department of Homeland Security said it was a mistake, but the mistake wouldn’t have been corrected if MacLean hadn’t warned Congress through the media. His internal protests had been ignored. MacLean is an American hero, but the bureaucracy purged him from government service. He illustrates why America is safer when whistleblowers remain on the job.

After suffering bankruptcy and nearly losing his home, MacLean now works as a storm restoration contractor.

Contact: Tom Devine, Legal Director
Phone: 202.457.0034, ext. 124
Email: [email protected]

Contact: Sarah Damian, New Media Associate
Phone: 202.457.0034, ext. 130
Email: [email protected]

Government Accountability Project
The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization based in Washington, D.C.

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