The Obama administration has just opened a new front in its ongoing
war on whistleblowers.
It’s taking its case against one man, former Transportation Security
Administration (TSA) Air Marshal Robert MacLean, all the way to the
Supreme Court. So hold on, because we’re going back down the rabbit hole
with the Most Transparent Administration ever.
Despite
all the talk by
Washington insiders about how whistleblowers like Edward Snowden should
work through the system rather than bring their concerns directly into
the public sphere, MacLean is living proof of the hell of trying to do
so. Through the Supreme Court, the Department of Justice (DOJ) wants to
use MacLean’s case to further limit what kinds of information can
qualify for statutory whistleblowing protections. If the DOJ gets its
way, only information that the government thinks is appropriate -- a
contradiction in terms when it comes to whistleblowing -- could be
revealed. Such a restriction would gut the legal protections of the
Whistleblower Protection Act and have a chilling effect on future acts
of conscience.
Having lost its case against MacLean in the lower courts, the DOJ is
seeking to
win in front of the Supreme Court. If heard by the Supremes -- and
there’s no guarantee of that -- this would represent that body’s first
federal whistleblower
case of the post-9/11 era. And if it were to rule for the government,
even more information about an out-of-control executive branch will
disappear under the dark umbrella of “national security.”
On the other hand, should the court rule against the government, or
simply turn down the case, whistleblowers like MacLean will secure a
little more protection than they’ve had so far in the Obama years.
Either way, an important message will be sent at a moment when
revelations of government wrongdoing have moved from the status of
obscure issue to front-page news.
The issues in the MacLean case -- who is entitled to whistleblower
protection, what use can be made of retroactive classification to hide
previously unclassified information, how many informal classification
categories the government can create bureaucratically, and what role the
Constitution and the Supreme Court have in all this -- are arcane and
complex. But stay with me. Understanding the depths to which the
government is willing to sink to punish one man who blew the whistle
tells us the world about Washington these days and, as they say, the
devil is in the details.
Robert MacLean, Whistleblower
MacLean’s case is simple -- and complicated.
Here’s the simple part: MacLean was an air marshal, flying armed
aboard American aircraft as the last defense against a terror attack. In
July 2003, all air marshals received a briefing about a possible
hijacking plot. Soon after, the TSA, which oversees the marshals, sent
an unencrypted, open-air text message to their cell phones cancelling
several months of missions for cost-cutting reasons. Fearing that such
cancellations in the midst of a hijacking alert might create a dangerous
situation for the flying public, MacLean worked his way through the
system. He first brought his concerns to his supervisor and then to the
Department of Homeland Security’s inspector general. Each responded
that nothing could be done.
After hitting a dead end, and hoping that public pressure might force
the TSA to change its policy, MacLean talked anonymously to a reporter
who broadcast a critical story. After 11 members of Congress pitched in,
the TSA reversed itself. A year later, MacLean appeared on TV in
disguise to criticize agency dress and boarding policies that he felt
made it easier for passengers to recognize marshals who work undercover.
(On your next flight keep an eye out for the young man in khakis with a
fanny pack and a large watch, often wearing a baseball cap and eyeing
boarders from a first class seat.) This time the TSA recognized
MacLean’s voice and discovered that he had also released the
unclassified 2003 text message. He was fired in April 2006.
When MacLean contested his dismissal through internal government channels, he discovered that, months
after
firing him, the TSA had retroactively classified the text message he
had leaked. Leaking classified documents is more than cause enough to
fire a federal worker, and that might have been the end of it. MacLean,
however, was no typical cubicle-dwelling federal employee. An Air Force
veteran, he asserted his status as a
protected whistleblower and has spent the last seven years marching through the system trying to get his job back.
How Everything in Government Became Classified
The text message MacLean leaked was retroactively classified as
“security sensitive information” (SSI), a designation that had been
around for years but whose usage the TSA only codified via
memo in November 2003. When it comes to made-up classifications, that agency’s set of them proved to be only one of
28 known versions that now exist within the government bureaucracy. In truth, no one is sure how many varieties of
pseudo-classifications even exist under those multiple policies, or how many documents they cover as there are no established
reporting requirements.
By law there are officially only three levels of governmental
classification: confidential, secret, and top secret. Other indicators,
such as
NOFORN and
ORCON,
seen for instance on some of the NSA documents Edward Snowden released,
are called “handling instructions,” although they, too, function as
unofficial categories of classification. Each of the three levels of
official classification has its own
formal definition
and criteria for use. It is theoretically possible to question the
level of classification of a document. However much they may be
ignored, there are standards for their
declassification
and various supervisors can also shift levels of classification as a
final report, memo, or briefing takes shape. The system is designed, at
least in theory and occasionally in practice, to have some modicum of
accountability and reviewability.
The government’s post-9/11 desire to classify more and more
information ran head on into the limits of classification as enacted by
Congress. The response by various agencies was to invent a proliferation
of designations like SSI that would sweep unclassified information
under the umbrella of classification and confer on ever more
unclassified information a (sort of) classified status. In the case of
the TSA, the agency even admits on its own website that a document with
an SSI stamp is
unclassified, but prohibits its disclosure anyway.
Imagine the equivalent at home: you arbitrarily establish a
classification called Spouse Sensitive Information that prohibits your
partner from seeing the family bank statements. And if all this is
starting to make no sense, then you can better understand the
topsy-turvy world Robert MacLean found himself in.
MacLean Wins a Battle in Court
In 2013, after a long series of civil service and legal wrangles, the
United States Court of Appeals for the Federal Circuit handed down a
decision
confirming the government’s right to retroactively classify
information. This may make some sense -- if you squint hard enough from a
Washington perspective. Imagine a piece of innocuous information
already released that later takes on national security significance. A
retroactive classification can’t get the toothpaste back in the tube,
but bureaucratically speaking it would at least prevent more toothpaste
from being squeezed out. The same ruling, of course, could also be
misused to ensnare someone like MacLean who shared unclassified
information.
The court also decided that, retrospective classification or not, MacLean was indeed entitled to protection under the
Whistleblower Protection Act of 1989. That act generally limits its protections to “
disclosures not specifically prohibited by law,”
typically held to mean unclassified material. This, the court insisted,
was the category MacLean fit into and so could not be fired. The court
avoided the question of whether or not someone could be fired for
disclosing retroactively classified information and focused on whether a
made-up category like SSI was “classified” at all.
The court affirmed that laws passed by Congress creating formal
classifications like "top secret" trump regulations made up by executive
branch bureaucrats. In other words, as the Constitution intended, the
legislative branch makes the laws and serves as a check and balance on
the executive branch. Congress says what is classified and that say-so
cannot be modified via an executive branch memo. One of MacLean’s
lawyers hailed
the court’s decision as restoring “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 whistleblower protection rights.”
The ruling made it clear that the TSA had fired MacLean in
retaliation for a legally protected act of whistleblowing. He should
have been offered his job back the next day.
Not a Happy Ending But a Sad New Beginning
No such luck. Instead, on January 27, 2014, the Department of Justice
petitioned
the Supreme Court to overturn the lower court’s decision. If it has its
way, the next time a troublesome whistleblower emerges, the executive
need only retroactively slap a non-reviewable pseudo-classification on
whatever information has been revealed and fire the employee. The
department is, then, asking the Supreme Court to grant the executive
branch the practical power to decide whether or not a whistleblower is
entitled to legal protection. The chilling effect is obvious.
In addition, the mere fact that the DOJ is seeking to bring the case
via a petition is significant. Such petitions, called writs of
certiorari, or certs, ask that the Supreme Court overturn a lower
court's decision. Through the cert process, the court sets its own
agenda. Some
10,000 certs
are submitted in a typical year. Most lack merit and are quickly set
aside without comment. Typically, fewer than 100 of those 10,000 are
chosen to move forward for a possibly precedent-setting decision.
However, only a tiny number of all the certs filed are initiated by the
government; on average, just
15 in a Supreme Court term.
It’s undoubtedly a measure of the importance the Obama administration
gives to preserving secrecy above all else that it has chosen to take
such an aggressive stance against MacLean -- especially given the
desperately low odds of success. It will be several months before we
know whether the court will hear the case.
This Is War
MacLean is simply trying to get his old air marshal job back by
proving he was wrongly fired for an act of whistleblowing. For the rest
of us, however, this is about much more than where MacLean goes to
work.
The Obama administration’s
attacks on whistleblowers are well documented. It has charged more of them --
seven -- under the
Espionage Act than all past presidencies combined. In addition, it recently pressured State Department whistleblower Stephen Kim into a
guilty plea
(in return for a lighter sentence) by threatening him with the full
force of that act. His case was even more controversial because the
FBI named
Fox News’s James Rosen as a co-conspirator for receiving information
from Kim as part of his job as a journalist. None of this is accidental,
coincidental, or haphazard. It’s a pattern. And it’s meant to be.
This is war.
MacLean’s case is one more battle in that war. By taking the
extraordinary step of going to the Supreme Court, the executive branch
wants, by fiat, to be able to turn an unclassified but embarrassing
disclosure today into a prohibited act tomorrow, and then use that to
get rid of an employee. They are, in essence, putting whistleblowers in
the untenable position of having to predict the future. The intent is
clearly to silence them before they speak on the theory that the easiest
leak to stop is the one that never happens. A frightened, cowed
workforce is likely to be one result; another -- falling into the
category of unintended consequences -- might be to force more potential
whistleblowers to take the Manning/Snowden path.
The case against MacLean also represents an attempt to broaden
executive power in another way. At the moment, only Congress can
“prohibit actions under the law,” something unique to it under the
Constitution. In its case against MacLean, the Justice Department seeks
to establish the right of the executive and its agencies to create their
own pseudo-categories of classification that can be used to prohibit
actions not otherwise prohibited by law. In other words, it wants to
trump Congress. Regulation made by memo would then stand above the law
in prosecuting -- or effectively persecuting -- whistleblowers. A person
of conscience like MacLean could be run out of his job by a memo.
In seeking to claim more power over whistleblowers, the executive
also seeks to overturn another principle of law that goes by the term
ex post facto.
Laws are implemented on a certain day and at a certain time. Long-held
practice says that one cannot be punished later for an act that was
legal when it happened. Indeed,
ex post facto criminal laws are expressly forbidden by the
Constitution.
This prohibition was written in direct response to the injustices of
British rule at a time when Parliamentary laws could indeed criminalize
actions retrospectively. While some leeway exists today in the U.S. for
ex post facto actions in
civil cases and when it comes to
sex crimes
against children, the issue as it affects whistleblowers brushes
heavily against the Constitution and, in a broader sense, against what
is right and necessary in a democracy.
When a government is of, by, and for the people, when an educated citizenry (in Thomas Jefferson’s
words)
is essential to a democracy, it is imperative that we all know what the
government does in our name. How else can we determine how to vote, who
to support, or what to oppose? Whistleblowers play a crucial role in
this process. When the government willfully seeks to conceal its
actions, someone is required to step up and act with courage and
selflessness.
That our current government has been willing to fight for more than
seven years -- maybe all the way to the Supreme Court -- to weaken legal
whistleblowing protections tells a tale of our times. That it seeks to
silence whistleblowers at a moment when their disclosures are just
beginning to reveal the scope of our
unconstitutional national security state
is cause for great concern. That the government demands whistleblowers
work within the system and then seeks to modify that same system to
thwart them goes beyond hypocrisy.
This is the very definition of post-Constitutional America where
legality and illegality blur -- and always in the government’s favor;
where the founding principles of our nation only apply when, as, and if
the executive sees fit. The devil is indeed in the details.
© 2014 TomDispatch.com
Peter Van Buren spent a year in Iraq as a State Department
Foreign Service Officer serving as Team Leader for two Provincial
Reconstruction Teams (PRTs). Now in Washington, he writes about Iraq and
the Middle East at his blog,
We Meant Well. His new book is
We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (The American Empire Project, Metropolitan Books).
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