On The Front Lines
Rutherford Institute Asks Supreme Court to Protect Whistleblowers Acting in Interest of Public Safety, Challenges Government Efforts to Crack Down
WASHINGTON, D.C. — Challenging efforts by the Obama administration to target whistleblowers acting in the interest of public safety, The Rutherford Institute has asked the U.S. Supreme Court to reject the federal government’s attempts to eviscerate protections for employee speech under the Whistleblower Protection Act. The case involves a federal air marshal Robert J. MacLean who claims he was improperly fired by the Transportation Security Administration after he leaked to the media a plan by the TSA to remove air marshals from long distance flights as a cost-savings measure. MacLean’s disclosure came on the heels of a briefing by his supervisors about a potential terrorist attack. As a result of the ensuing public outcry, the Department of Homeland Security canceled the order to withdraw air marshals from long distance flights within 24 hours. MacLean was eventually fired for acting as a whistleblower.
In filing an amicus curiae brief in Department of Homeland Security v. MacLean, Rutherford Institute attorneys argue that government agencies should not have the power to unilaterally determine what kind of information federal employees are forbidden from disclosing, asserting that this would further tip the balance toward agencies, allowing them to exploit their rulemaking powers to target legitimate whistleblowers acting in the interest of public safety.
“Ironically, while the Department of Homeland Security continues to push its ‘See Something, Say Something’ campaign urging Americans to report suspicious behavior to the police, call it in to a government hotline, or report it using a convenient app on their smart phone, the government doesn’t take kindly to having its dirty deeds publicized and, God forbid, being made to account for them,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “Unfortunately, this is par for the course for the Obama administration, whose actions, ranging from its reliance on secret courts, secret laws and secret surveillance in order to sidestep the rule of law to its relentless pursuit of whistleblowers, fly in the face of its claims of transparency.”
Having formerly served in the U.S. Air Force and as a border patrol agent, Robert J. MacLean volunteered to serve as an air marshal in the wake of the September 11 attacks. Air marshals are federal law enforcement agents who travel undercover aboard commercial airliners. In July 2003, MacLean and other air marshals were briefed about a specific and imminent terrorist threat to long-distance flights. Despite the warning, less than three days later, MacLean and other air marshals received a text message from their superiors cancelling all overnight missions, thereby removing air marshals from long-distance flights. Believing the text message to be a mistake, MacLean contacted his superiors who confirmed the message and told MacLean this was being done to save money on overnight hotels, overtime and other travel allowances.
After failed attempts to raise his concerns with independent investigators, MacLean alerted an MSNBC reporter to the government’s plan to remove air marshals from many flights. The news report aired without identifying MacLean. The story produced outrage in Congress, and the DHS soon rescinded its order. MacLean’s role as a whistleblower was revealed three years later, at which time, the TSA fired him for disclosing “sensitive security information” (SSI). Although the text message removing air marshals from long distance flights was not classified as SSI when it was sent, the DHS issued an order classifying it as SSI retroactively. The U.S. Court of Appeals for the Federal Circuit sided with MacLean, ruling that was he entitled to argue that he was protected by whistleblower laws after he was fired by the TSA in 2006. However, lawyers for the Obama administration are disputing that ruling, claiming that it “effectively permits individual federal employees to override the TSA’s judgments about the dangers of public disclosure.”