Whistleblower’s catch-22

What do words mean in a post-9/11 world? Apart from the now clichéd Orwellian twists that turn brutal torture into mere enhanced interrogation, the devil is in the details. Robert MacLean is a former air marshal fired for an act of whistleblowing. He has continued to fight over seven long years for what once would have passed as simple justice: getting his job back. His is an all-too-twenty-first-century story of the extraordinary lengths to which the U.S. government is willing to go to thwart whistleblowers.

First, the government retroactively classified a previously unclassified text message to justify firing MacLean. Then it invoked arcane civil service procedures, including an “interlocutory appeal” to thwart him and, in the process, enjoyed the approval of various courts and bureaucratic boards apparently willing to stamp as “legal” anything the government could make up in its own interest.
And yet here’s the miracle at the heart of this tale: MacLean refused to quit, when ordinary mortals would have thrown in the towel. Now, with a recent semi-victory, he may not only have given himself a shot at getting his old job back, but also create a precedent for future federal whistleblowers. In the post-9/11 world, people like Robert MacLean show us how deep the Washington rabbit hole really goes.

MacLean joined the Federal Air Marshal Service (FAMS) in 2001 after stints with the Air Force and the Border Patrol. In July 2003, all marshals received a briefing about a possible hijacking plot. Soon after, the Transportation Safety Administration (TSA), which oversees FAMS, sent an unencrypted, open-air text message to the cell phones of the marshals cancelling several months of missions for cost-cutting reasons. MacLean became concerned that cancelling missions during a hijacking alert might create a dangerous situation for the flying public. He complained to his supervisor and to the Department of Homeland Security’s inspector general, but each responded that nothing could be done.

It was then that he decided to blow the whistle, hoping that public pressure might force the TSA to reinstate the marshals’ flights. So MacLean talked to a reporter, who broadcast a story criticizing the TSA’s decision and, after 11 members of Congress joined in the criticism, it reversed itself. At this point, MacLean had not been identified as the source of the leak and so carried on with his job.

A year later, he appeared on TV in disguise, criticizing the TSA dress code and its special boarding policies, which he believed allowed marshals to be easily identified by other passengers. This time, the TSA recognized his voice and began an investigation that revealed he had also released the 2003 text message. He was fired in April 2006. Although the agency had not labeled that message as “sensitive security information” (SSI) when it was sent in 2003, in August 2006, months after MacLean’s firing, it issued a retroactive order stating that the text’s content was indeed SSI.

That disclosing the contents of an unclassified message could get someone fired for disclosing classified information is the sort of topsy-turvy situation which could only exist in the post-9/11 world of the American national security state.

Under the 1989 Whistleblower Protection Act (WPA), a disclosure prohibited by law negates whistleblower protections. That, of course, makes it in the government’s interest to define disclosure as broadly as possible and to classify as much of its internal communications for as long as it possibly can. No wonder that in recent years the classification of government documents has soared, reaching a record total of 92,064,862 in 2011.

Officially, the U.S. government recognizes only three basic levels of classification: confidential, secret, and top secret. Since 9/11, however, various government agencies have created multiple freestyle categories of secrecy like “SSI,” “Law Enforcement Sensitive,” “Sensitive But Unclassified,” and the more colorful “Eyes Only.” All of these are outside the normal codification system; all are hybrids that casually seek to incorporate the full weight of the formal law. There are currently 107 designations just for “sensitive” information. In addition to those labels, there exist more than 130 sets of extra “handling requirements” that only deepen the world of government secrecy.

At issue for MacLean was not only the retroactive classification of a text message already in the public domain, but what classified could possibly mean in an era when everything related to the national security state was slipping into the shadows. Such questions are hardly semantic or academic. MacLean’s case hinges on how they are answered.

The case against Army Private Bradley Manning and WikiLeaks is, for example, intimately tied up in them. The military hides behind classification to block access to Manning’s “public” trial. With WikiLeaks, despite more than 100,000 U.S. State Department diplomatic cables being available to anyone anywhere on the web, the government continues to insist that they remain “classified” and cannot even be rereleased in response to requests. Potential federal employees were warned to stay away from the cables online, and the State Department even blocked TomDispatch from its staff to shield them from alleged WikiLeaks content (some of which was linked to and discussed, but none of which was actually posted at the site).

With author Tony Shaffer, the government retroactively classified its own account of why he was given the Bronze Star and his standard deployment orders to Afghanistan after he published an uncomplimentary book about American actions there. The messy case of alleged “hacktivist” Barrett Brown includes prosecution for “disclosing” classified material simply by linking to it at places where it had already been posted online; and, while still at the State Department, I was once accused of the same thing by the government.

In MacLean’s case, over a period of seven years, the legality of the TSA firing him for using an only-later-classified text was upheld. Legal actions included hearings before administrative judges, the Merit Systems Protections Board twice, that interlocutory appeal, and the U.S. Court of Appeals for the Ninth Circuit. The sum of these decisions amid a labyrinth of judicial bureaucracies demands the use of the term Kafkaesque. MacLean, so the general judgment went, should have known that the text message he planned to leak was a classified document, even when it wasn’t (yet). As a result, he should also have understood that his act would not be that of a whistleblower alerting the public to possible danger, but of a criminal risking public safety by exposing government secrets. If that isn’t the definition of a whistleblower’s catch-22, what is?