Whistleblower Protections Denied Fired Air Marshal

By Matthew Harwood

The decision on Tuesday by the U.S. Merit Systems Protection Board (MSPB) to deny whistleblower protections to a former federal air marshal is the final blow against such protections, argues a whistleblower defense organization.

In a press release, the Government Accountability  Project (GAP) alleges that MSPB's decision this week killed the Whistleblower Protect Act (WPA), which protects government employees from retaliation if they speak up against government corruption or negligence.

The decision dealt with the case of Robert MacLean, who was fired from the Federal Air Marshal Service in 2006 after going to the media in 2003 with text-message evidence that the service had cut air marshals from long-distance flights during an elevated threat of suicidal terrorism because of budgetary constraints. The bipartisan outrage provoked by MacLean's leak led the service to cancel their initial plan. MacLean said he went public only after going to a superior and three field offices of the Department of Homeland Security's Office of the Inspector General.

The stated reason for MacLean's termination was that he had disclosed Sensitive Security Information (SSI), sensitive information relating to transportation safety and security, even though MacLean was terminated before that information was classified as SSI.

According to GAP, who filed an amicus curiae brief on behalf of MacLean:

Almost three years later, in April 2006, the TSA fired MacLean, specifically because his disclosure was SSI. The TSA justified its position through an ad hoc order issued on August 31, 2006 (three years after his disclosure – four months after his termination), that the text message was SSI. When he disclosed the message, there had been no markings indicating that the information was classified, SSI, or in any way restricted. It was not sent by secure means.

Nevertheless, according to the MSPB ruling, MacLean's disclosure of SSI denies him any right to whistleblower protections. The MSPB wrote:

Sensitive Security Information is defined in the regulations as, among other things, “[s]pecific details of aviation security measures that are applied directly by the TSA and which includes, but is not limited to, information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.” 49 C.F.R. § 1520.7(j) (2003). Information of this kind, as well as records containing such information, constitutes SSI unless the Under Secretary provides in writing to the contrary. 49 C.F.R. § 1520.7. Based upon the foregoing, we find that Congress provided TSA with the responsibility of defining, regulating, and protecting SSI under 49 U.S.C. § 114(s).

GAP, on the otherhand, argues that under the WPA the only time government employees do not have the right to publicly release information is when Congress explicilty says so, regardless of agency regulations.

“Until Congress acts, the Whistleblower Protection Act is dead," said GAP Legal Director Tom Devine . "The MacLean decision means government agencies can fire employees for any disclosure otherwise protected by the WPA. The decision reduces the WPA to a voluntary guideline that agencies can cancel at will by issuing blanket gag regulations.”

For more on MacLean's firing, watch this clip from CNN's Lou Dobbs Tonight.

♦ Photo by castle79/Flickr


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