This week, the Project On Government Oversight submitted an amicus brief to the Supreme Court supporting Robert MacLean. MacLean blew the whistle on a cost-cutting measure that would have removed air marshals from long-distance flights when the government was aware of a looming terrorist hijacking plot. This case raises a number of issues that are at the heart of POGO’s mission, including protecting whistleblowers and promoting an open government.
In 2003, MacLean received a text message announcing cuts to air-marshal coverage. The text wasn’t marked with warnings, restrictions, or any other indicators that are used when messages, briefings, or other information contain classified or “controlled unclassified information” (CUI) (then called “sensitive but unclassified” (SBU) information). Concerned that the Transportation Security Administration was pulling air marshals off high-risk flights at a time when there was a heightened intelligence warning of hijackings, MacLean reported those concerns to his superiors and the Inspector General. Only after being told that “nothing could be done” and to “just walk away,” MacLean decided act quickly to warn the public by contacting a reporter known to cover air transportation safety issues on Capitol Hill. His intent was to keep the flight cancelation plan from taking effect. His efforts paid off and after some media scrutiny and congressional inquiries, the government admitted that the plan to remove the air marshals was a “mistake.”
Three years later, in April 2006, the Transportation Security Administration fired MacLean for “Unauthorized Disclosure” of what they claimed to be Sensitive Security Information (SSI), a type of CUI/SBU—despite the fact that the text message was sent over an unsecured network to unsecured phones and not designated in any way as sensitive. The Office of SSI did not actually label the message as SSI until August 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.
The use of SBU/CUI markings doesn’t prevent the public release of government information. We argued that the Whistleblower Protection Act was never intended to ban from disclosure SBU/CUI information. In fact, the Act drew a bright line between information protected by law and other information only covered by agency rule or regulation. A critical component of this distinction has historically been to provide federal employees with clear notice related to which information is prohibited from public disclosure and which information can be disseminated. Without such certainty and notice, no system for protecting information can be functional, much less serve as a basis for an exemption by law from the protection afforded by the Whistleblower Protection Act. If the Court rules against MacLean, federal employees could be faced with the bizarre situation of being fired for releasing unmarked information at the same time an agency could be required by law to release that same information under the Freedom of Information Act.
Additionally, statutory and case law protects government officials who come forward, especially in cases when there is a substantial and specific danger to public health or safety. MacLean’s disclosure prevented the government from removing air marshals from high-risk flights during a time of heightened threat of terrorist attacks. He made a difference because he exposed an indefensible action by the Department of Homeland Security. The government should protect those in government who honor their duty to serve and warn the public.
Hogan Lovells and the Government Accountability Project filed MacLean’s brief. Additionally, amicus briefs were filed by Members of Congress; thirteen former U.S. government officials with diplomatic, military, intelligence, or information control duties; law enforcement associations along with Blacks in Government; two non-governmental groups in addition to POGO; American Federation of Government Employees; and private attorney David Nolan. Notably, the federal Office of Special Counsel also filed a Supreme Court amicus brief—the first time it has ever done so.
A special thank you to Doug Hartnett at Elitok & Hartnett at Law PLLC, who put in a lot of work in a very short time period to get POGO’s brief filed.