This week the U.S. Supreme Court will not only make history by hearing the first case involving a federal whistleblower; its ultimate judgment will without doubt be closely followed by Vladimir Putin’s Kremlin, its prized asylum-seeker—National Security Agency leaker Edward Snowden— and camp followers such as Glenn Greenwald and Laura Poitras.
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.”
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