Court rejects Obama administration secrecy plea

Introduction

Federal air marshal Robert MacLean was at his Las Vegas home in July 2003 when he received an alarming text message from the Transportation Security Administration, advising all air marshals to cancel hotel reservations booked in conjunction with their upcoming flights.

MacLean soon confirmed that, for the remainder of that fiscal year, TSA planned to remove air marshals from flights requiring an overnight hotel stay. The cost-cutting measure occurred just days after agency-wide briefings on a potential new terrorist hijacking plot.

After failing to get what he considered a satisfactory explanation from his bosses, MacLean leaked the text message to an MSNBC reporter. His disclosure forced TSA to rescind the order amid Congressional outrage. But his bosses eventually learned of his involvement and fired him in 2006 for leaking “sensitive security information” — even though TSA didn’t officially give the text that label until three years after MacLean’s disclosure.

MacLean, a married father of three, has been in a legal battle with the government ever since, and now faces bankruptcy. The Merit Systems Protection Board, which is supposed to shield whistleblowers on the federal payroll, twice rejected his request for reinstatement. But in April a three-judge panel of the U.S. Court of Appeals for the Federal Circuit finally decided MacLean is eligible for protections and ordered the merit board to review his case again.

The Obama administration, which has publicly argued for enhanced whistleblower protections, this time came down on the side of the TSA. It appealed the court’s decision favoring MacLean, arguing in a July petition that the case deserved a rehearing because individuals such as MacLean who leak “sensitive” information do not qualify for protections.

But on Aug. 30, the full membership of the court declined to hear the government’s appeal, a decision that brought MacLean, 43, one step closer to reinstatement at his job and an award of back pay with interest.

The legal debate turned on differing interpretations of the Whistleblower Protection Act, instituted in 1989 and amended in 2012, which allows federal employees to expose wrongdoing without retaliation, unless the information is considered classified or is specifically restricted by Congress.

Unlike the documents disclosed by former National Security Agency contractor Edward Snowden, the text message MacLean leaked was not classified. Instead, the TSA labeled it as “sensitive security information,” one of many categories for unclassified information. However, the text message was not marked as “sensitive” at the time TSA sent it to MacLean’s unrestricted cell phone.

As the Center for Public Integrity previously reported, the Merit Systems Protection Board ruled against MacLean in 2009, stating that TSA regulations define what is considered sensitive, and MacLean should have known the text message fit that description. It also ruled against his claim in 2011.

George Randy Taylor, head of the Federal Law Enforcement Officers Association’s air marshal unit and a former whistleblower himself, said MacLean had experienced legal harassment for “raising the B.S. flag on mismanagement,” inhibiting other whistleblowing about government wrongdoing. The Federal Law Enforcement Officers Association and the Government Accountability Project, a nonprofit advocacy group in Washington, have represented MacLean in this case.

Friday’s decision maintains the appeals panel’s verdict that Congress did not specifically ban whistleblowers from leaking “sensitive” information. The Obama administration had argued to the contrary that government employees and contractors who reveal unclassified but “sensitive” information should be exempt from whistleblower protections. It stated that otherwise the government would be less able to restrict unclassified information that could create a “public safety risk.”

“Individual employees who have access to (Sensitive Security Information) may not understand why it’s sensitive, how it implicates other information to which they do not have access, or how it exposes certain vulnerabilities,” the Justice Department’s petition stated. MacLean’s lawyers responded that the argument, “fails to consider the possibility of government misconduct or mistake.”

MacLean, who now lives in Ladera Ranch, California and works as a storm restoration contractor, called the court’s August decision a victory for federal employees and contractors who want to reveal unclassified information of interest to the public. However, he expects the legal dispute to continue.

The Merit Systems Protection Board must still decide if MacLean believed the information he leaked helped expose dangers to public safety. Only with the board’s approval can MacLean return to work for the government.

Government attorneys could also appeal the legal ruling to the Supreme Court. Justice Department spokesperson Linda Mansour declined to comment on the case or whether attorneys plan to take it to the nation’s highest court. TSA spokesperson Ross Feinstein said the agency plans to review the legal decision, but declined further comment.

MacLean said that even if he is reinstated, the government may not renew his security clearance because of the financial problems he’s faced since his termination. If he prevails, he said he hopes that “everyone who makes an unclassified disclosure won’t have to worry about what happened to me.”