Robert MacLean testifies at MSPB hearing

Robert MacLean is the former U.S. Air Marshal who blew the whistle on a Bush Administration budget plan to shut down the Air Marshal program — just as a terror alert went out. His public hearing before the Merit System Protection Board (MSPB) started November 5, 2009, and was open to the public. This historic national security whistleblower finally had his hearing where he could explain his case to a judge and the public.

Security Management magazine has just published its story on MacLean’s testimony. According to the story, MacLean testified that his disclosure of the Bush Administration’s budgetary decision to shut down the Air Marshal program actually protected national security by calling needed attention to the ill-fated plan.

In the photo, Stephen M. Kohn, Executive Director of the National Whistleblowers Center, talks with Robert MacLean last March In Washington, DC.

MacLean has waited over three years for this hearing. In June the MSPB issued a terrible ruling in MacLean v. Department of Homeland Security, and stripped him of his whistleblower protections. The decision shows the importance of getting Congress to pass the Whistleblower Protection Enhancement Act fast so our national heroes will have access to the most time-tested crucible of justice — the jury trial. Still, the MSPB must decide if MacLean’s professional and First Amendment activities caused his dismissal. MSPB can also consider if his punishment was too harsh. Below is a background memo prepared by Shanna Devine, Legislative Campaign Coordinator of the Government Accountability Project:

MacLean v. Department of Homeland Security Background

MacLean was a 10-year federal law enforcement officer, and U.S. Department of Homeland Security (DHS) Federal Air Marshal (FAM) with an unblemished record. In July 2003, he successfully blew the whistle on agency plans to secretly offset budget shortfalls by eliminating air marshals from long distance flights in the midst of a terrorism alert over suicide terrorist hijackings. After public congressional pressure, DHS’s plans were canceled. On April 11, 2006, the agency fired MacLean for using previously-undesignated Sensitive Security Information (SSI) in the 2003 disclosure. SSI is a blanket category for anything “detrimental to the security of aviation” – and can be applied to virtually anything. MacLean’s alleged misconduct was entirely “ex post facto”: the agency had not yet issued regulations prohibiting release of SSI when he made the disclosure. The facts of the case illustrate the stakes for the public if whistleblowers are silenced.

* In late July 2003, MacLean received a DHS intelligence warning of an imminent terrorist suicide hijacking threat. It was so severe that FAMs were mandated to attend unprecedented, one-on-one threat briefings in their field office regardless of their duty status. No successful attacks were carried out, but a subsequent DHS report confirmed the plans.

* In late July 2003, MacLean also learned that due to a budget shortfall (caused by suspect contract spending), 60 days of FAM coverage would be canceled from August 2 until the fiscal year ended on September 30, 2003 for the highest risk, long distance flights, because they required overnight accommodations. (His concerns later were confirmed by a March 31, 2004 GAO report.) He protested to a supervisor, and to three DHS Office of Inspector General field offices, all of whom declined to act and said he should drop the issue.

* MacLean then disclosed to a media representative the TSA text message canceling coverage. Other media quickly picked up the story, which spread and sparked outraged bipartisan congressional protests. Less than a day after the initial news story, the TSA canceled the plans to eliminate coverage, publicly explaining that its orders to FAMs had been “a mistake.”

* 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.

The MSPB Decision

For over three years MacLean has fought for a hearing. In June, the MSPB ruled he can have one, but without any help from the Whistleblower Protection Act. The ruling redefines WPA language giving employees public free speech rights to disclose information unless it is “specifically prohibited by law.” Since 1978, that has meant disclosures barred by legislative statute, because when it wrote the law Congress shrank initial restrictions from disclosures barred by “law, rule or regulation” to merely those specifically banned by “law.” Its legislative history also defined “law” to mean statute. In 30 years, the issue had appeared in one 1993 decision when the MSPB flatly rejected the authority of agency regulations to override Congress.

Merit Systems Protection Board Chairman Neil McPhie, a Bush holdover (soon to be replaced once Obama nominations are confirmed), rewrote the law, and in doing so granted agencies a blank check to cancel the WPA. In order to reach that result, the Board:

* Ignored the word “specifically” in “specifically prohibited by law,” passively killing a cornerstone of the statute and paving the way for blanket gag orders, such as SSI in this case.

* Based its entire argument on a Supreme Court definition of “law” from an entirely different context, applying the same definition for permitting government exercise of authority as for restraining citizen exercise of right. Other than the word “law,” there is no public policy common ground.

* Explained away inconsistent adjacent WPA language in which Congress separately shielded disclosures of “law, rule and regulation” as merely “redundant,” and should be extended to free speech restrictions in the same sentence limited to “law” without any mention of rules or regulations.

* Rejected uncontested legislative history language that defined “law” to mean “statutory law and court interpretation of those statutes [, and] … not … to agency rules and regulations.” The Board’s reasoning was that Congress only said it once.

The MacLean decision breaks new ground in MSPB hostility toward whistleblowers but it is not an aberration. Since 1978, in cases involving national policy significance, no whistleblower ever has prevailed against retaliation involving government misconduct or cover-ups. Since 1978, no employee has won a decision on the merits in the nation’s Washington DC region, where the most significant abuses of power occur. Indeed, the Whistleblower Protection Act of 1989 was passed because the MSPB only had ruled for whistleblowers four times during the 1980s. Since 2000, the corresponding record of employee victories is three. Chairman McPhie has ruled against whistleblowers in 44 out of 45 decisions on the merits since his 2003 arrival.

“There no longer is any credible debate that the MSPB is unfit as the sole opportunity for whistleblowers day in court,” stated Devine, who added, “Government managers oppose House-passed legislation that permits jury trials to enforce whistleblower rights.”

Devine added, “This outrageous decision should be a wake-up call for the Obama administration to appoint a new MSPB chair and Special Counsel to protect whistleblowers. It appears Chairman McPhie is seeking a legacy of killing the good government law he has already crippled. The President’s promise of transparency will be a magnet for cynicism until he appoints merit system leaders who believe in his policies.”

Adding absurdity to this specious decision, the MSPB initially tried but failed to keep its decision killing the anti-secrecy law a secret. It initially marked the whole ruling “Sensitive Security Information.” By mistake, however, the Board posted its ruling on the MSPB Web site anyway – the same SSI breach for which it approved MacLean’s termination when he blew the whistle on cancellation of Air Marshal coverage during a terrorist alert. Over the course of 48 hours, the document was moved to a password protected site, and then reappeared with the SSI markings removed. There has been no word of upcoming Board resignations or accountability actions over the “security” breach.

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