Whistleblower Administrative Court Accidentally Posts Decision with SSI Marking

Former Federal Air Marshal Robert MacLean's ongoing struggle to appeal his termination from the Transportation Security Administration (TSA) took a bizarre turn on Monday evening when the administrative court reviewing his case inadvertently posted its decision online with every page marked "Sensitive Security Information" (SSI), along with threatening disclaimers on the bottom of each page declaring "WARNING: [] Unauthorized release may result in civil penalty or other action." This is a particularly embarrassing moment for the Merit Systems Protection Board (MSPB) since the TSA retroactively applied the very same SSI label to information disclosed by MacLean in order to justify his termination.

Although the MSPB has now re-posted the decision without the SSI label, its original release of information marked SSI raises significant questions about MacLean's termination, and highlights the government's haphazard approach toward handling sensitive but unclassified materials.

In 2003, MacLean tried to blow the whistle within the Department of Homeland Security (DHS) on an operational plan by TSA to cut costs by reducing air marshal protection on nonstop, long distance flights during a suicide hijacking alert. After being rebuffed by his supervisors and the DHS Inspector General, MacLean alerted the press of TSA's dangerous plan. In April 2006, TSA fired MacLean--a ten-year law enforcement veteran with an unblemished record--for a single charge of "Unauthorized Disclosure of Sensitive Security Information," even though the message he disclosed was not marked with any such label. Four months later, TSA retroactively applied the SSI label to his disclosure.

Ever since his termination, MacLean has been forced to navigate through the labyrinthine administrative court system to try to get his job back. His case exemplifies the ordeal faced by many other federal whistleblowers: since 2000, the MSPB has found only one case of illegal retaliation in over 50 decisions on the merits.

The MSPB's latest goof also underscores the inconsistency of the government's handling of information considered sensitive but unclassified. TSA said MacLean was supposed to know that his original disclosure was SSI, but apparently the MSPB itself is confused about when and how to apply the label. In general, POGO is concerned that pseudo-classification labels like SSI have been abused to cover up embarrassing information and to retaliate against MacLean and other national security whistleblowers.

In testimony before Congress earlier this month, POGO's Danielle Brian pointed out that by making amends for the disgraceful treatment of MacLean, the government could send a strong message that whistleblower retaliation will not be tolerated. POGO is also hopeful that the administration's pending review of procedures for handling Controlled Unclassified Information (CUI), in addition to legislation introduced last week by Sen. Jay Rockefeller (D-WV), will limit future abuses of the SSI label.

-- Michael Smallberg