Fired air marshal Robert MacLean believes the law protects whistleblowers like himself from retaliation, benefiting the public by exposing problems in government agencies. His fate is in the hands of the Supreme Court. PAUL RODRIGUEZ, STAFF PHOTOGRAPHER
On Tuesday, fired federal air marshal Robert MacLean’s long and tortured saga will lead him up the marble steps of America’s highest “temple of justice” – the U.S. Supreme Court building in Washington, D.C.
He will pass between imposing Neoclassical columns, beneath the words “Equal Justice Under Law,” and into the chamber where nine black-robed justices will debate his fate.
Once and for all: Is MacLean a hero or a villain? Did he endanger the flying public, or protect it?
The Department of Homeland Security is expected to argue that MacLean is a villain, and a win for him would embolden federal employees to disclose sensitive security information willy-nilly and endanger public safety.
“Congress could not have intended the confidentiality of sensitive security information to depend so precariously on the idiosyncratic individual judgment of each of the TSA’s more than 60,000 employees,” it said in its brief to the Supremes.
MacLean’s lawyers, and a pile of friend-of-the-court briefs in his favor, argue just the opposite.
“The law protects whistleblowers like MacLean from ... retaliation so that Congress, and ultimately the public, can benefit from their willingness to bring to light serious problems that government agencies would prefer not to talk about,” says MacLean’s brief to the Supremes.
Might MacLean, of Ladera Ranch, prevail in this David v. Goliath battle?
It may all turn on three little words – “prohibited by law” – and at least one expert has gazed into his legal crystal ball and foresees a victory for MacLean.
FATEFUL DECISIONS
MacLean was a nuclear weapons maintenance technician for the Air Force from 1988 to 1992. He joined the U.S. Border Patrol and worked for almost six years, until 9/11 happened; then he joined the swiftly expanding ranks of air marshals swept into service to make the skies safer. His was the first air marshal class to graduate after the 9/11 attacks, trained in investigative techniques, criminal terrorist behavior recognition, firearms proficiency, aircraft-specific tactics and close quarters self-defense measures.
All went smoothly until 2003, when MacLean received an alarming emergency alert from the Department of Homeland Security, detailing a “specific and imminent terrorist threat focused on long-distance flights – a more ambitious, broader-scale version of the 9/11 plot,” court briefs say. “Every air marshal, including MacLean, was given an unprecedented face-to-face briefing about the threat. MacLean and the other marshals were informed about special measures being implemented to thwart the attack and were told to be especially on their guard.”
So imagine MacLean’s alarm when, within 48 hours of the secret briefing, he got an unencrypted text message from the Transportation Security Administration scrapping all overnight missions and instructing air marshals to cancel hotel reservations immediately so the government could save money. The text message was not marked as sensitive information; it was not encrypted; and it was sent to MacLean’s unsecured cellphone, not to the secure personal digital assistant that the TSA had provided for transmission of “sensitive security information,” or “SSI” in bureaucracy-speak.
This, thought MacLean, was crazy. The 9/11 hijackers targeted long-distance flights because they could do the most damage. Pulling air marshals from such flights, precisely when there was warning of a possible attack, was gross mismanagement – and a “specific threat to public safety that could lead to catastrophic loss of life,” he’d later argue in court.
MacLean protested to his bosses, then to the Office of the Inspector General. “(H)e was ultimately advised to think about the ‘years left in [his] career’ and ‘just walk away,’” MacLean’s brief says. Finally, he sought out a journalist “with a history of responsible reporting” from MSNBC, and the story went national.
Fallout was fast and furious. Lawmakers – including Hillary Rodham Clinton and John Kerry – decried the idea as foolish. Officials backtracked, overnight missions continued as per usual, and Sen. Barbara Boxer specifically thanked the anonymous air marshals who came forward and told the truth.
TELLING THE TRUTH
No one knew that MacLean was a source for that story for years. He continued working with an unblemished record. It wasn’t until 2006, when MacLean became vice president of the air marshals association and appeared, anonymously and in deep shadow, on a TV news program (the air marshals were tussling with the TSA over a 1960s-era dress code that screamed, “Federal air marshal! Aim here!”), that someone from TSA management recognized his voice.
MacLean was called in and asked about the TV appearance. He confirmed that it was, indeed, him. Then he was asked about any other contacts he might have had with the media. He volunteered that he had been in touch with that MSNBC reporter several years before.
Soon, the 2003 text about canceling overnight missions was retroactively labeled “sensitive security information.” And nearly three years after the MSNBC report, MacLean was fired for disclosing it to the media.
He fought, but judges ruled against him again and again. He was not protected by whistleblower laws, they said, because the information he disclosed was, by law, a secret.
His case became a darling of whistleblower-protection types. Friend-of-the-court briefs were filed on MacLean’s behalf, arguing that if the ruling against him was allowed to stand, it would chill the conviction of would-be whistleblowers across America.
Still, MacLean met defeat after defeat. Work was hard to come by. His finances went down the drain. Until April 2013.
In a stunning vindication, the U.S. Court of Appeals concluded that MacLean’s disclosure did not violate the law, and that he might indeed be entitled to whistleblower protections. Lower authorities were wrong when ruling that MacLean’s disclosure was “specifically prohibited by law”; in fact, there was no specific law prohibiting that sort of disclosure. It was simply TSA policy – an agency regulation – and bureaucratic policies and regulations do not hold the force of law.
Congress writes laws, the appeals court said. Agencies do not. And Congress did that on purpose, so that agencies could not issue sweeping “gag orders” to silence employees. Congress or the president must specify which secrets are protected by the force of law, not the agencies themselves.
“Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public,” wrote Federal Circuit Judge Evan J. Wallach.
His former bosses at the Department of Homeland Security disagreed so strongly they asked the U.S. Supreme Court to immediately intervene.
The high court gets about 10,000 such requests a year. It agrees to take on about 80. This is one of them.
THREE LITTLE WORDS
Thomas Campbell, dean of Chapman University’s Fowler School of Law School, has read through more than 100 pages of arguments made by both sides in this case. It will hang on “statutory interpretation, not heavy policy,” Campbell told us – and those three little words, “prohibited by law.”
“Normally, the word ‘law’ is taken to include federal statutes, federal agency regulations, and Executive Orders,” Campbell told us by email. “For instance, one can go to jail for willfully violating Internal Revenue Code regulations about what one owes in taxes.
“The Federal Circuit, however, held that ‘prohibited by law’ in this instance meant prohibited by statute. MacLean argues the Federal Circuit was right, because otherwise an agency could protect whatever it wanted from whistleblowers just by passing its own regulation.
“MacLean’s argument that the Department of Homeland Security’s view would gut the whistleblower statute’s purpose is not persuasive; to protect an item from disclosure, the federal agency would have to pass a specific regulation dealing with that item. That action would subject the federal agency to scrutiny in Congress and in the press.
“The Federal Circuit decided the case correctly. I suspect the Supreme Court will affirm this reading, though there might be as many as 4 votes the other way, since the Supreme Court did not have to take the case, they could have let the Federal Circuit opinion stand.”
As it takes only four justices to agree to review a case, Campbell suspects there may be four votes to reverse, but not necessarily four votes to reverse. Sometimes justices take a case to lend even stronger authority to the lower court’s decision, Campbell said.
The U.S. Supreme Court will rule before the end of this term in June.
- Source: http://www.ocregister.com
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