Fired TSA Air Marshal Had Constitutional Right to Blow Whistle on Security Concerns, POGO Tells Supreme Court

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October 2, 2014

The U.S. Air Marshal who blew the whistle on security cut-backs for high-risk long-distance flights in 2003 had the constitutional right to warn the public about the danger to their safety, the Project On Government Oversight (POGO) wrote in amicus brief submitted this week to the U.S. Supreme Court.

Robert MacLean, who lost his job because of his actions to draw attention to the situation, is scheduled to have his case heard before the Supreme Court on Nov. 4.

POGO, which has advocated on MacLean’s behalf before Congress and the administration, wrote that MacLean’s disclosure resulted in the government reversing its decision to remove air marshals from high-risk long-distance flights during a time of heightened threat of terrorist attacks. MacLean went to the media with his concerns only after his superiors and the Inspector General told him that “nothing could be done” and to “just walk away.”

“He made a difference because he exposed an indefensible action by the Department of Homeland Security,” said POGO General Counsel Scott Amey. “The government should protect those in government who honor their duty to serve and warn the public.”

At the crux of the case is the federal government’s decision to retroactively designate as non-public the text message that MacLean had received announcing the cut-backs to the air marshal program. The Transportation Security Administration fired MacLean in 2006 for “Unauthorized Disclosure” of what they claimed to be Sensitive Security Information (SSI)—despite the fact that the text message was sent over an unsecured network to unsecured phones and not marked in any way as sensitive. The Office of SSI did not actually label the message as “SSI” until Aug. 31, 2006, four months after MacLean was fired.

POGO’s amicus brief provided two main arguments for the Supreme Court’s consideration: 1) “controlled unclassified information” markings are not prohibited from disclosure under the Whistleblower Protection Act; and 2) government employees have a constitutional right to the freedom to warn when the employee reasonably believes there is a substantial and specific danger to public safety.

Follow the link to read POGO’s brief.

Follow the link to read POGO’s blog about the case.

Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.

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