The Obama administration filed a petition today for a writ of certiorari with the U.S. Supreme Court in the case of DHS v. Robert J. MacLean.The government is requesting review of a ruling last April by the U.S. Court of Appeals for the Federal Circuit that found MacLean’s disclosure was covered by the 1989 Whistleblower Protection Act (WPA).
MacLean was terminated by the Transportation Security Administration after he revealed government plans that would reduce air security at a time of heightened concern about Al Qaeda attacks.
As William Peacock, Esq., at FindLaw reports, the WPA limits whistleblower protections to disclosures “not specifically prohibited by law, and “the confidentiality provision used to fire MacLean was a regulation, not a law.”
However, the Aviation and Transportation Security Act (ATSA), the enabling statute that allows that regulation, prohibits disclosure of information “if the Secretary of Transportation decides disclosing the information would … be detrimental to transportation safety.”
That sounds like a law prohibiting disclosure. However, according to the Federal Circuit, it doesn’t do so with sufficient specificity to meet the WPA’s requirements (Peacock, FindLaw).
The government claims it has the right to exempt from whistleblower protections a vast swath of the federal workforce beyond the thousands already left unprotected because their positions require security clearances. In a June 2013 article, Peter Van Buren wrote:
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.
The government’s 222-page petition to the Supreme Court further pushes its argument that classifying information designated as Sensitive Security Information (SSI)–even retroactively, as in MacLean’s case–outweighs any other consideration, including protecting US citizens from harm resulting from government negligence or intentional wrongdoing. Absurdly, the government argues that letting the Federal Circuit’s decision stand “will deter federal officials in the future from attempting to discipline an employee who discloses SSI and appears to have a colorable Section 2302(B)(8)(a) defense.” In fact, government officials routinely retaliate against federal employees covered by the WPA when SSI is not involved, and there is no reason to believe that they will abandon that inglorious tradition.
Whistleblowers are routinely condemned, threatened and punished by their agencies for not protecting management from accountability for abuses. But, federal civil service employees, who take an oath to defend the U.S. Constitution, have a mandate to actively protect the public from wrongdoing, not to stand silently by.
Like the disinherited knight Sir Ivanhoe, who became Rebecca’s champion to protect her from an abuse of justice, whistleblowers champion the interests of Americans as a whole. But, many whistleblowers today fight without armor–legal armor–necessary to win the day, and many more will lose their armor if this administration gets its way. In the end, this is not just a whistleblower’s battle; it is his, and mine, and yours, and ours.
[Photo source: Robert MacLean]