In hearing oral arguments involving Robert MacLean’s disclosure of post-9/11 cracks in U.S. air passenger security, the high court is to consider what was already seemingly decided by a unanimous federal appeals court ruling in favor of the former air marshal, who was retaliated against by nervous bosses who accused him of making a disclosure “specifically prohibited by law.”

(A ruling in the case Department of Homeland Security v. MacLean [13-894] is due by the spring of 2015.)


The Department of Justice maintains that MacLean’s 2003 unclassified leaks to the media about illegal action at the Transportation Security Administration (TSA) were themselves prohibited—due to imagined catastrophic consequences. Putin, Snowden and others whose actions continue to threaten U.S. national security are likely rubbing their hands in delight, given the possibilities left wide open by the government's position.

As the cases of Ukraine, Chechnya and Georgia show, former KGB officer Putin is a master at deception and propaganda; witness his very public embrace of Snowden, who stole classified documents far in excess of those he supposedly took to make his argument against NSA, and then fled U.S. legal reach. Even a fierce critic of U.S. foreign policy like Sean Penn found himself obliged to note that Snowden was not “legitimate,” his acts “based on the narcissism of the so-called ‘whistleblower’.”

Unlike Snowden, who leaked massive amounts of national security information, then fled to Russia—a police state where, the State Department reports, real whistleblowers and investigative journalists alike are under continuous threat—MacLean stayed here and, despite an arduous legal process that left him nearly broke, went on to win in a court of law.

Those who know the former armed plain-clothes TSA officer who guarded commercial airplanes argue persuasively that MacLean’s efforts were meant to help prevent terrorist attacks. What MacLean did caused the TSA to rollback a planned cut, for budget reasons, in overnight missions—a cutback due to occur in the wake of air marshals having been just briefed on a “potential plot” to hijack U.S. planes.

MacLean’s disclosures were factual and they shed light on a TSA action that itself was arguably a violation of federal law—it is supposed to give protective priority to "nonstop, long-distance flights" which are high security risks. That his disclosures "evidenced a substantial and specific danger to public health or safety" there can be no doubt.

In a strictly forthright world, one might think that Putin, Snowden and their crypto-insurgent fellow travelers in the press would be hoping that MacLean would win his case in the highest court of the land. Snowden has wrapped himself in a “freedom of expression” banner, and nothing in his case against the NSA has motivated greater, if factually flatulent, public debate than that. As the world continues to speculate on the extent of the intelligence bonanza enjoyed by the former KGB maven, what is clear has been Putin’s savvy use of the Snowden affaire to ridicule the United States.

Only the willingly blind can see this as anything other than criminal theft, not civil disobedience. Even Fareed Zakaria, a self-declared sympathizer of Snowden’s, admitted in a Washington Post column that none, repeat none, of the leaker’s “substantive revelations” resulted in uncovering anything done by the NSA that was “morally scandalous.”

And, as far as the rule of law is concerned, you don’t end cannibalism by eating alleged cannibals.

In contrast, MacLean’s service as a real whistleblower placed himself and his family at substantial risk as he stayed here and fought to have his rights recognized in a court of law.

Hence, the rub.

Prominent Snowden fans embrace—some as if on cue—the much-different MacLean and his cause while the Supreme Court begins to meditate its final resolution. Their solidarity, however, should be suspect.

The raison d'etre for being a whistleblower—telling truth to power in the public interest—already ratified by a federal appeals court in the case of MacLean, obviously was not there in what Snowden did, despite the vociferous arguments of the anti-U.S. crowd. Wonton lawlessness on behalf of one’s political ideas, or “world view,” does not ethical dissent make.

A high court decision that permanently martyrs a real whistleblower like MacLean offers Putin and Co. the kind of propaganda ammo they most desire but could not buy—the ability to point to a documented case of official illegality without the possibility of legal recourse in the world’s oldest democracy.

This as Putin, Snowden and others seek to press their case for their own morally scandalous behavior.

________________________________________

Footnote: Those who know the inner workings of the Supreme Court say that Justices Roberts and Thomas are particularly attuned to misrepresentations of fact. In that regard, on the case being made by the Solicitor General against the TSA whistleblower, see page 10, footnote 4, and page 11, footnote 5, of MacLean’s final brief filed before the court on September 22.

________________________________________

Martin Edwin Andersen, a former assistant professor for national security affairs at the National Defense University, is the first national security whistleblower to have received the U.S. Office of Special Counsel’s “Public Servant Award.”