What TSA Whistleblower Robert MacLean Tells Us About Post-9/11 Security

If the government does it, is it legal?

| Thu May. 9, 2013 11:12 AM PDT

This story first appeared on the TomDispatch website.

What do words mean in a post-9/11 world? Apart from the now clichéd Orwellian twists that turn brutal torture into mere enhanced interrogation, the devil is in the details. Robert MacLean is a former air marshal fired for an act of whistleblowing. He has continued to fight over seven long years for what once would have passed as simple justice: getting his job back. His is an all-too-twenty-first-century story of the extraordinary lengths to which the US government is willing to go to thwart whistleblowers.

First, the government retroactively classified a previously unclassified text message to justify firing MacLean. Then it invoked arcane civil service procedures, including an "interlocutory appeal" to thwart him and, in the process, enjoyed the approval of various courts and bureaucratic boards apparently willing to stamp as "legal" anything the government could make up in its own interest.

And yet here's the miracle at the heart of this tale: MacLean refused to quit, when ordinary mortals would have thrown in the towel. Now, with a recent semi-victory, he may not only have given himself a shot at getting his old job back, but also create a precedent for future federal whistleblowers. In the post-9/11 world, people like Robert MacLean show us how deep the Washington rabbit hole really goes.

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The Whistle Is Blown

MacLean joined the Federal Air Marshal Service (FAMS) in 2001 after stints with the Air Force and the Border Patrol. In July 2003, all marshals received a briefing about a possible hijacking plot. Soon after, the Transportation Safety Administration (TSA), which oversees FAMS, sent an unencrypted, open-air text message to the cell phones of the marshals cancelling several months of missions for cost-cutting reasons. MacLean became concerned that cancelling missions during a hijacking alert might create a dangerous situation for the flying public. He complained to his supervisor and to the Department of Homeland Security's inspector general, but each responded that nothing could be done.

It was then that he decided to blow the whistle, hoping that public pressure might force the TSA to reinstate the marshals' flights. So MacLean talked to a reporter, who broadcast a story criticizing the TSA's decision and, after 11 members of Congress joined in the criticism, it reversed itself. At this point, MacLean had not been identified as the source of the leak and so carried on with his job.

A year later, he appeared on TV in disguise, criticizing the TSA dress code and its special boarding policies, which he believed allowed marshals to be easily identified by other passengers. This time, the TSA recognized his voice and began an investigation that revealed he had also released the 2003 text message. He was fired in April 2006. Although the agency had not labeled that message as "sensitive security information" (SSI) when it was sent in 2003, in August 2006, months after MacLean's firing, it issued a retroactive order stating that the text's content was indeed SSI.

A Whistleblower's Catch-22

That disclosing the contents of an unclassified message could get someone fired for disclosing classified information is the sort of topsy-turvy situation which could only exist in the post-9/11 world of the American national security state.

Under the 1989 Whistleblower Protection Act (WPA), a disclosure prohibited by law negates whistleblower protections. That, of course, makes it in the government's interest to define disclosure as broadly as possible and to classify as much of its internal communications for as long as it possibly can. No wonder that in recent years the classification of government documents has soared, reaching a record total of 92,064,862 in 2011.

Officially, the US government recognizes only three basic levels of classification: confidential, secret, and top secret. Since 9/11, however, various government agencies have created multiple freestyle categories of secrecy like "SSI," "Law Enforcement Sensitive," "Sensitive But Unclassified," and the more colorful "Eyes Only." All of these are outside the normal codification system; all are hybrids that casually seek to incorporate the full weight of the formal law. There are currently 107 designations just for "sensitive" information. In addition to those labels, there exist more than 130 sets of extra "handling requirements" that only deepen the world of government secrecy.

At issue for MacLean was not only the retroactive classification of a text message already in the public domain, but what classified could possibly mean in an era when everything related to the national security state was slipping into the shadows. Such questions are hardly semantic or academic. MacLean's case hinges on how they are answered.

The case against Army Private Bradley Manning and WikiLeaks is, for example, intimately tied up in them. The military hides behind classification to block access to Manning's "public" trial. With WikiLeaks, despite more than 100,000 US State Department diplomatic cables being available to anyone anywhere on the web, the government continues to insist that they remain "classified" and cannot even be rereleased in response to requests. Potential federal employees were warned to stay away from the cables online, and the State Department even blocked TomDispatch from its staff to shield them from alleged WikiLeaks content (some of which was linked to and discussed, but none of which was actually posted at the site).

With author Tony Shaffer, the government retroactively classified its own account of why he was given the Bronze Star and his standard deployment orders to Afghanistan after he published an uncomplimentary book about American actions there. The messy case of alleged "hacktivist" Barrett Brown includes prosecution for "disclosing" classified material simply by linking to it at places where it had already been posted online; and, while still at the State Department, I was once accused of the same thing by the government.

In MacLean's case, over a period of seven years, the legality of the TSA firing him for using an only-later-classified text was upheld. Legal actions included hearings before administrative judges, the Merit Systems Protections Board twice, that interlocutory appeal, and the US Court of Appeals for the Ninth Circuit. The sum of these decisions amid a labyrinth of judicial bureaucracies demands the use of the term Kafkaesque. MacLean, so the general judgment went, should have known that the text message he planned to leak was a classified document, even when it wasn't (yet). As a result, he should also have understood that his act would not be that of a whistleblower alerting the public to possible danger, but of a criminal risking public safety by exposing government secrets. If that isn't the definition of a whistleblower's catch-22, what is?

What such a twisted interpretation by the various courts, boards, and bodies meant was chillingly laid out in an amicus brief on behalf of MacLean filed by the United States Office of Special Counsel (a small, lonely US government entity charged with protecting whistleblowers):

"Whistleblowers 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 [unclassified sensitive security information] and therefore should not be disclosed. Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual's employment."

Seven Years Later…

In 2011, five years after he had been fired as an air marshal, MacLean's case finally reached the United States Court of Appeals for the Federal Circuit. Two full years after that, in April 2013, the court handed down a decision that may yet provide justice for Robert MacLean—and for future whistleblowers. While awkwardly upholding previous decisions that the government can indeed retroactively classify information, even documents in categories like SSI that exist outside the government's official framework for classification and secrecy, the court tackled a more basic question: Was Robert MacLean a whistleblower anyway, entitled to protection for his act of conscience?

Here lies the conflict at the heart of just about every whistleblower case—between the public's right (and need) to know and the (at times legitimate) need for secrecy. The government typically argues that individuals should not be allowed to decide for themselves what remains secret and what doesn't, or chaos would result. At the same time, in a post-9/11 world of increasing secrecy, the loss of the right to know, and the massive over-classification of documents, the "conflict" has become ever more one-sided. If everything can be considered a classified secret document too precious for Americans to know about, and nothing classified can be disclosed, then the summary effect is that nothing inside the government can ever be shown to the public.

The court found that while the Transportation Safety Administration could legally apply any classification it wanted to information any time it wanted, even retroactively, simply slapping on such a label did not necessarily prohibit disclosure. Absent an actual law in MacLean's case mentioning SSI, a term created bureaucratically, not congressionally, there could be no Whistleblower Protection Act-excepting prohibition. In other words, MacLean could still be a whistleblower.

One of MacLean's lawyers, Tom Devine, told me the decision "restored enforceability for the Whistleblower Protection Act's public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for WPA rights."

"With this precedential decision," MacLean explained to me, "agencies can no longer cancel out Whistleblower Protection Act rights with their semi-secret markings like SSI, Law Enforcement Sensitive, etcetera."

In a concurring opinion, United States Court of Appeals for the Federal Circuit Judge Evan Wallach was even clearer: "Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public... I concur to emphasize that the facts alleged, if proven, allege conduct at the core of the Whistleblower Protection Act."

MacLean's case now returns to the Merit Systems Protection Board. The board is a complex piece of bureaucracy inside the already complicated federal government personnel system. In simple terms, it is supposed to be a place to appeal personnel actions, such as alleged unfair hirings and firings. It thus serves as a kind of watchdog over the sprawling federal human resources empire. The Board now has the court-ordered specific charge to "determine whether Mr. MacLean's disclosure qualifies for WPA protection."

Note as well that this case could continue without end for years more, traveling on "appeal" back through the federal judicial bureaucracy and the courts. And remember that this, too, is an advantage to a government that wants ever less known about itself. If, as a federal employee, you are watching a case like MacLean's (or Thomas Drake's, or Franz Gayle's, or Morris Davis's, or John Kiriakou's, or even my own small version of this), then you can't help noticing that the act of whistleblowing could leave you: a) out on your ear; b) prosecuted for a criminal act and/or c) with your life embroiled for years in the intricacies of your own never-ending case. None of this is exactly an encouragement to federal employees to blow that whistle.

Whistleblowers and Secrecy

Threats to whistleblowers abound, so any positive step, however minimalist or reversible, is important. Entering the White House pledging to head the most transparent administration in history, Barack Obama has, in fact, gone after more national security whistleblowers, often using the draconian Espionage Act, than all previous administrations combined.

His Justice Department has repeatedly tried to prosecute whistleblowers, crudely lumping them in with actual spies and claiming they endanger Americans (and sometimes "the troops") by their actions. In addition, through the ongoing case of Berry v. Conyers, Obama has sought to expand the definition of "national security worker" to potentially include thousands of additional federal employees. Many employees who occupy truly sensitive jobs in the intelligence community (for example, real-world spies at the CIA) are exempt from being granted whistleblower status. They also cannot appeal to the Merit Systems Protection Board if fired. By seeking to expand that exemption to a significantly larger group of people who may work at some federal agency, but in non-sensitive positions, Obama is also functionally moving to shrink the pool of potential whistleblowers. In Berry v. Conyers, for example, the persons Obama seeks to exempt as occupying sensitive jobs are merely an accounting technician and a commissary worker at an Air Force base. Neither of them even hold security clearances.

What happens with MacLean's case potentially affects every future whistleblower. If the mere presence of a pseudo-classification on an item, even applied retroactively, negates whistleblower protections, it means dark days ahead for the right of the citizenry to know what the government is doing (or how it's misbehaving) in its name. If so, no act of whistleblowing could be considered protected, since all the government would have to do to unprotect it is classify whatever was disclosed retroactively and wash its hands of the miscreant. Federal employees, not a risk-taking bunch to begin with, will react accordingly.

This is what gives MacLean's case special meaning. While the initial decision on his fate will occur in the bowels of the somewhat obscure Merit Systems Protections Board, it will set a precedent that will surely find its way into higher courts on more significant cases. Amid a lot of technical legal issues, it all boils down to something very simple: Should whistleblower protections favor the conscience of a concerned federal employee willing to risk his job and the freedom to inform the public, or should they dissolve in the face of an unseen bureaucrat's (retroactive) pseudo-classification decision?

Procedurally, there are many options ahead for MacLean's case, and the government will undoubtedly contest each tiny step. Whatever happens will happen slowly. This is exactly how the government has continually done its dirty work post-9/11, throwing monkey wrenches in the gears of the legal system, twisting words, and manipulating organizations designed to deliver justice in order to deny it.

MacLean smiles at this. "I did seven years so far. I can do seven more if they want. There's too much at stake to just give up."

Peter Van Buren is a retired 24-year veteran of the State Department. A TomDispatch regular, he writes about Iraq, the Middle East, and US diplomacy at his blog, We Meant Well. The author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, he is currently working on a new book, The People on the Bus: A Story of the #99Percent.

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