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The rights of whistleblowers vs. the Federal Government

Written By | Jan 6, 2015

WASHINGTON, January 6, 2015 – The tendency of every institution is to protect its reputation, not confront problems.

When information about the danger cigarettes posed to health began to circulate, tobacco companies did everything possible to suppress the information.

The same is true for automobile manufacturers about defects in their cars, and for church groups about sexual improprieties on the part of their priests, ministers and rabbis.

Government acts in very much the same way.

We have managed to economize the truth Mark Twain wrote about.

Those presiding over such wrongdoing always believe that the truth can be suppressed. In the end, however, it usually appears on the front page of our newspapers and is repeated on our 24-hour cable news programs.

Often, these revelations come from courageous whistleblowers who risk their own futures for the public good and the truth.

Now before the Supreme Court is the case of a whistleblower who should have been thanked by the Transportation Security Agency (TSA) for preventing the agency from making a potentially disastrous mistake. Instead, it fired him.

Robert MacLean, an Air Marshal, protected the public by alerting it to a 2003 TSA decision to save money by canceling Air Marshal assignments on long-haul flights that would require hotel stays. He was fired for leaking information that he felt endangered the public and is seeking protection under a federal law protecting whistleblowers.MacLean contends that just after being briefed in 2003 about a potential terrorist attack, he received another TSA message:

Because of a budget shortfall, the agency was cutting back on the number of flights marshals could cover. McLean said he went to his boss, who told him to keep quiet, and then to the department’s inspector general.

Stymied at every turn, he leaked the information to a reporter for MSNBC. This caused a congressional uproar, and the Department of Homeland Security canceled the order within 24 hours, calling it “premature and a mistake.”

MacLean’s identity was not discovered until three years later, when he appeared in an “NBC Nightly News” segment about a different incident. His disguise on this broadcast “proved to be inadequate,” the government’s brief says, and the TSA fired him for disclosing what is known as “sensitive security information” (SSI). After several bouts of legal wrangling, the U.S. Court of Appeals for the Federal Circuit said MacLean was entitled to argue that he was protected by the federal Whistleblower Protection Act. His lawyer, Neal K. Katyal, says that, “People like Mr. MacLean promote the national security.”The Obama administration, perhaps the least transparent in memory, is eager to keep a tight lid on what the public can know about its machinations, as we have seen in its hesitancy to share information with the Congress about matters ranging from the politicization of the IRS to events in Benghazi.

The government’s attorney in this case, Deputy Solicitor General Ian Gershengorn, wants strict limits placed upon who is protected by the Whistleblower Protection Act, a position greeted with skepticism by many of the Supreme Court justices. The Whistleblower Protection Act shields employees who disclose information that they reasonably believe exposes a “substantial and specific danger to public health and safety.” But the leaks are protected only “if such disclosure is not specifically prohibited by law.”

The appeals court found that the Aviation and Transportation Security Act provided only general guidelines about disclosing information, not a specific prohibition. The TSA regulations prohibiting disclosure of SSI did not qualify, the appeals court ruled.

The tone of the questions and comments from the Supreme Court justices  indicate support for Mr. MacLean.  When Mr. Gershengorn, the government attorney, argued that MacLean’s disclosures were prohibited by law, then acknowledged that it was actually an agency rule, Justice Antonin Scalia interrupted, “So it is prohibited by regulations—let’s not play games.”

A short time later, Justice Sonia Sotomayer told MacLean’s lawyer, “The facts are very much in your favor.”

The stakes in this case are high.  “The survival” of the federal whistleblower protection law passed in 1978 is at stake, said Tom Devine, legal director for the nonprofit Government Accountability Project, which represents MacLean.

A former Border Patrol agent who became an Air Marshal after the Sept. 11, 2001 terrorist attacks, Maclean questioned the TSA order through proper channels. He got no satisfaction and only then released the information, leading the TSA to reverse its decision because of the resulting public uproar.

Joe Davidson, who writes the “Federal Diary” column for The Washington Post, argues that, “The TSA should have thanked MacLean for preventing the agency from making a potentially disastrous mistake.  Instead, it fired him in 2006 after discovering he was the whistleblower.” A bipartisan group of lawmakers have filed a brief supporting MacLean.  Among them is Sen. Charles E. Grassley (R-Iowa), co-author and an original co-sponsor of the whistleblower law. Interestingly, it was not until 2006 that the TSA declared the message revealed by Maclean in 2003 to be sensitive security information.An analysis of the case for the American Bar Association, by Richard H. Seamon of the University of Idaho College of Law, said a victory for MacLean would “protect employees even if their disclosure violates agency rules, as long as the disclosures don’t violate the specific terms of a statute…Even if MacLean wins, it will still take a brave employee to blow the whistle.”Recently, about 150 people gathered in Washington at a breakfast at which the Office of Special Counsel (OSC) named three Department of Veterans Affairs physicians “Public Servant of the Year.” Katherine Mitchell of Phoenix and Phyllis Hollenbeck and Charles Sherwood of Jackson, Miss. were honored at the ceremony.

If it was not for these and other whistleblowers, how long would it have taken for us to learn about the mistreatment of our veterans at VA hospitals?  For their efforts, of course, they were not complimented or hailed as heroes, but were threatened and retaliated against. The last thing those in charge wanted to hear was the truth.

“Keep on blowing those whistles,” said House Veterans’ Affairs Committee Chairman Jeff Miller (R-FL). His investigation into the VA featured employees describing how they had been punished by the VA for exposing the problems  before they found a receptive audience on Capitol Hill and with the OSC. In a system that worked in the public interest, conscientious employees should not feel they need the protection of a lawyer when making what amounts to constructive criticism.

Government conducted in secret is a threat to democracy. More and more, our government seems out of control.  We now know that the National Security Agency (NSA) has been conducting a dragnet surveillance program of unprecedented scope.  It has been collecting billions of electronic communications, including the contents of phone calls, cell phone location data, texts, e-mails, chats, and contact lists, from millions of people under no suspicion of any wrongdoing.  It has, in reality, been collecting metadata on virtually every American’s every phone call. When the head of the NSA was questioned about this program in Congress, he denied it was true. He lied under oath.

The courts, which had repeatedly authorized the NSA’s domestic phone metadata program while it was secret, changed their approach once it became public. A federal district court in Washington, D.C. declared that the program was likely unconstitutional. Professor David Cole notes that, “Of course, transparency has costs as well as benefits, and secrecy is sometimes necessary.

But secrecy has significant costs, too, not just to human rights, but to democracy itself. As U.S. Court of Appeals Judge Damon Keith warned in 2002 in a case involving secret immigration trials, ‘Democracy dies behind closed doors.’ We won’t have a chance to arrive at defensible policies on surveillance and targeted killing if the questions are not fully and fairly debated. When the balance between individual rights and security is struck in secret one-sided determination, as has been the case with drone killings and electronic surveillance, as well as the CIA’s enhanced interrogation program, it will inevitably be skewed.”

Professor Cole provides this assessment:  “Increasingly, our governments seem to be insisting that our lives be transparent to them, while their policies remain hidden from us.  For the sake of democracy itself, we must do all we can to resist that impulse.”

Liberals, who proclaim their support for individual rights, and conservatives, who express concern about the dangers of big and out-of-control government, should have no difficulty agreeing that protecting the rights of whistleblowers is essential. Hopefully, conservatives and liberals on the Supreme Court will come together to embrace the rights of whistleblowers, which are essential if we value truth. We are fortunate that so many brave men and women have been willing to risk their careers to make us aware of wrongdoing.

They, not those who seek to silence them, should be the ones to be protected.


Allan C. Brownfeld

Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.