MacLean is simply trying to get his old air marshal job back by proving he was wrongly fired for an act of whistleblowing. For the rest of us, however, this is about much more than where MacLean goes to work.
The Obama administration's attacks on whistleblowers are well documented. It has charged more of them -- seven -- under the Espionage Act than all past presidencies combined. In addition, it recently pressured State Department whistleblower Stephen Kim into a guilty plea (in return for a lighter sentence) by threatening him with the full force of that act. His case was even more controversial because the FBI named Fox News's James Rosen as a co-conspirator for receiving information from Kim as part of his job as a journalist. None of this is accidental, coincidental, or haphazard. It's a pattern. And it's meant to be. This is war.
MacLean's case is one more battle in that war. By taking the extraordinary step of going to the Supreme Court, the executive branch wants, by fiat, to be able to turn an unclassified but embarrassing disclosure today into a prohibited act tomorrow, and then use that to get rid of an employee. They are, in essence, putting whistleblowers in the untenable position of having to predict the future. The intent is clearly to silence them before they speak on the theory that the easiest leak to stop is the one that never happens. A frightened, cowed workforce is likely to be one result; another -- falling into the category of unintended consequences -- might be to force more potential whistleblowers to take the Manning/Snowden path.
The case against MacLean also represents an attempt to broaden executive power in another way. At the moment, only Congress can "prohibit actions under the law," something unique to it under the Constitution. In its case against MacLean, the Justice Department seeks to establish the right of the executive and its agencies to create their own pseudo-categories of classification that can be used to prohibit actions not otherwise prohibited by law. In other words, it wants to trump Congress. Regulation made by memo would then stand above the law in prosecuting -- or effectively persecuting -- whistleblowers. A person of conscience like MacLean could be run out of his job by a memo.
In seeking to claim more power over whistleblowers, the executive also seeks to overturn another principle of law that goes by the term ex post facto. Laws are implemented on a certain day and at a certain time. Long-held practice says that one cannot be punished later for an act that was legal when it happened. Indeed, ex post facto criminal laws are expressly forbidden by the Constitution. This prohibition was written in direct response to the injustices of British rule at a time when Parliamentary laws could indeed criminalize actions retrospectively. While some leeway exists today in the U.S. for ex post facto actions in civil cases and when it comes to sex crimes against children, the issue as it affects whistleblowers brushes heavily against the Constitution and, in a broader sense, against what is right and necessary in a democracy.
When a government is of, by, and for the people, when an educated citizenry (in Thomas Jefferson's words) is essential to a democracy, it is imperative that we all know what the government does in our name. How else can we determine how to vote, who to support, or what to oppose? Whistleblowers play a crucial role in this process. When the government willfully seeks to conceal its actions, someone is required to step up and act with courage and selflessness.
That our current government has been willing to fight for more than seven years -- maybe all the way to the Supreme Court -- to weaken legal whistleblowing protections tells a tale of our times. That it seeks to silence whistleblowers at a moment when their disclosures are just beginning to reveal the scope of our unconstitutional national security state is cause for great concern. That the government demands whistleblowers work within the system and then seeks to modify that same system to thwart them goes beyond hypocrisy.
This is the very definition of post-Constitutional America where legality and illegality blur -- and always in the government's favor; where the founding principles of our nation only apply when, as, and if the executive sees fit. The devil is indeed in the details.
Peter Van Buren blew the whistle on State Department waste and mismanagement in Iraq in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. His next book, Ghosts of Tom Joad: A Story of the #99Percent, will be available in April.
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Copyright 2014 Peter Van Buren
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