“If MacLean had lost, that would’ve opened up a tidal wave for every government agency that has the ability to enact a regulation to enact a regulation that prevents their employees from disclosing the internal deliberations or communications of the agency to outsiders, which would undercut the Whistleblower Protection Act,” – Mathew Tully
Beginning in July of 2003, the Transportation Security Authority intercepted information that was potentially harmful to the general public. They believed that another threat, tthe hijacking of planes, was imminent on American shores. Fearful of this, the TSA contacted the Federal Air Marshals to report their findings. What happened next is confusing and unsettling. After being in contact and discussing their concern and growing fear, the TSA then went on to cancel all missions on planes leaving Las Vegas.
Believing this would leave hundreds, if not thousands, of lives at risk, Federal Air Marshal Robert J. MacLean decided to do something about it. With his unit’s hands tied, there was no way for him to change the mind of the TSA through meetings and official protests. Feeling it was his last resort, MacLean contacted MSNBC with the news. Soon, there was an article published. The backlash was stupendous.
MacLean did not do this to garner fame or any other selfish reason. He felt it was his moral obligation to save lives that may otherwise would be put in danger. By contacting MSNBC, he hoped to spark enough controversy that would end with TSA retracting their thoughtless and somewhat immoral decree, and to successfully shine light on the fact that they so willingly and so effortlessly put lives at risk. At first, no one realized it had been MacLean who leaked the information. Then he appeared disguised on NBC Nightly News. While watching, some of his colleagues recognized his voice. After being unmasked, MacLean was quickly fired on the grounds that he had intentionally shared classified information to the public. His firing created a tidal storm of both opposition and agreement.
Many people across the country applauded MacLean and went as far as to label him a hero. They commended him because the information he shared was not just top secret, but something the American public needed to know. Not only should the people of the United States be informed, but those flying out of Las Vegas should have been aware that no Air Marshal would be on their flights. So many people had lost their lives two years earlier on 9/11, and at the time, there also had been information about a possible attack but nothing was done about it. In the wake of this tragedy, two years later, important information was still being withheld and nothing was being done about it. Knowing that the TSA had intentionally canceled the security on planes leaving Las Vegas when they were also aware of the high likelihood of another attack is scary. What MacLean did may be considered illegal but what of the TSA? Should they not be held to the same standards?
When we look at what the TSA and the Department of Homeland Security had done, it screams of negligence and overall recklessness. They gambled with human lives. And when MacLean protested his being charged with illegally disclosing secure information, the 9th Circuit Court found that under the Whistleblower Protection Act of 1989, he was not guilty.
In at 7 to 2 decision by the US Supreme Court, the finding of Air Marshal Robert J. MacLean as not guilty means a lot to our society. DHS v. MacLean was the first whistleblower case to stand before the Supreme Court and with it deciding in favor of MacLean, sets an entirely different standard and relationship between federal agencies, their employees and the public. It shows that federal agencies cannot hinder the right to free speech. It sets forth the idea that an agency cannot take legal action against a worker who they believed to have violated an agency’s regulation, when the case is held under the Whistleblower Act.
When arguing the case, the Department of Homeland Security opined that government agencies are an exception to the protections under the Whistleblower Act, but with the advent of SCOTUS’s decision in the MacLean case, government agencies do not get to beat to a drum that take away fundamental liberties. This decision could ultimately mean that more and more people within government could come forth with more information. If they know that through their rights of free speech and protection under the law, they can disclose pertinent information that they, and many others, believe to be infringing on our rights as American citizens.