FRIDAY, OCTOBER10,2014 EZ M2 Econom &Business Al7

Federal whistleblowers have a lot at stake infirst Supreme Court case directly affecting them
JOE
DAVIDSON
Federal
Diary
Robert MacLean
didn't realize that
by trying to
protect America's
flying public, his
employer.,.... his
government -
would treat him
almost like a
traitor.
Soon, the
Supreme Court
will have a chance to decide if
MacLean, a whistleblower and
former air marshal, was treated
justly, or at least legally. It is the
first case the high court will hear
directly concerning a federal
whistleblower.
The implications ofthe case
go well beyondMacLean. Ifhe
loses, Uncle Samwill have
greater power to bully
whistleblowers. Fewer federal
employees might be willing to
disclose waste, fraud, abuse and
dumb decisions.
Oral arguments are scheduled
for Nov. 4. The Obama
administration is appealing a
lower court's decision that
MacLean's disclosures were
covered by the Whistleblower
Protection Act. If the justices
rule against MacLean, federal
agencies could have broad power
to weaken that lawbyusing the
government's power to make
secret more information than
Congress intended.
Here is MacLean's story:
InJuly 2003, air marshals,
including MacLean, were
summoned for mandatory
training to prevent suicidal
hijackingplots by al-Qaeda. Days
later, the Transportation Security
Administration sent an
unsecured, unclassified text
message to air marshals
informingthemthat all long-
distance assignments requiring
overnight stays would be
canceled.
Knowing that could hamper
efforts to thwart hijackers,
MacLean said he complained
about this shortsighted, money-
saving plan,to an agency
supervisor and to the
Department of Homeland
Security's inspector general's
office. MacLean also leaked
information to MSNBC, which he
admitted to during a leak
. investigation two years later. He
was placed on administrative
leave in September 2005 and
fired in April 2006.
This is the incredible part: It
wasn't until August 2006 that
the government retroactively
labeled as sensitive the
information MacLean was fired
for leaking - three years after
the text message was sent.
. The question before the ~ u r t
Was MacLean's disclosure
"specifically prohibited by law?"
DHS and the Justice
Department say it was.
But noteworthy to MacLean's
defense is that a key bipartisan
group of members of Congress
say his disclosures are, or at least
should have been, protected
from agency reprisal bythe
whistleblower law.
They should know.
The administration argues
that "by law" includes statutes
and "substantive regulations that
have the force and effect oflaw:'
The lower court's decision "is
wrong, dangerous, and warrants
reversal;' say the government's
lawyers. The earlier ruling
"imperils public safety;' they
added, "by dramatically reducing
the effectiveness of Congress's
scheme for keeping sensitive
security information from falling
into the wrong hands:'
But members of Congress who
were instrumental in passing the
legislation say that's not so. In
fact, "Congress deliberately
crafted" legislation "to exclude
agency rules and regulations;'
says a brief filed by Sens. Charles
E. Grassley (R-Iowa) and Ron
Wyden (D-Ore.) and Reps.
Darrell Issa (R-Calif.), Elijah E.
Cummings (D-Md.), Blake
Farenthold (R-Tex.) and Stephen
F. Lynch (D-Mass.).
"If agencies could decide
which disclosures receive
whistleblower protections, they
would inevitably abuse that
power;' they said. "The result
would be to deter whistleblowers
and restrict the flowof
information to Congress:'
Sadly, the message here is that
agency officials can't always be
trusted to do the right thing.
"After all;' said a brief filed by
the U.S. Office of Special
Counsel, "whistleblower
protection laws exist because
government officials do not
always act in the nation's best
interests:'
Agencies can be creative in
their reprisals, even belatedly
declaring information sensitive,
as the TSAdid, in order to better
take revenge against
whistleblowers.
"In fear that such retroactive
designations are possible,
whistleblowers may refrain fi-c&1
alerting the public to dangers
that could have been averted or
mitigated;' said the briefbytht"
OSC, which works to protect - ,
whistleblowers. This is the first
Supreme Court friend-of-the-
court brief filed bythe OSC. '
"Time and time again;' those
who filed the congressionallMef
said, "agencies have found w:lJ.Ys
to suppress inconvenient
information." An administration
victory over MacLean, the
elected officials warned, "will
deter untold numbers of
whistleblowers:' ,i'
Ifthat happens, it's not only..
MacLean who will lose. The " .
American people will, too.
federaldiary@washpost.eom
Twitter: @JoeDavldsonWP
Previous columns by Joe Davidson'
are available at wapo.sV
JoeDavidson.