Can the TSA retroactively declare public information “secret”?

At the request of the government, the Supreme Court has agreed to review the decision of the Court of Appeals for the Federal Circuit in favor of Robert MacLean, a TSA “air marshal” who was fired for telling a journalist, members of Congress, and the DHS Office of the Inspector General about an unclassified text message that the TSA,  three years later, would designate as “Sensitive Security Information” (SSI).

Mr. MacLean challenged his firing as being in violation of the Whistleblower Protection Act, which prohibits retaliation against Federal government employees for certain types of disclosures of information.  But the law has an exception for disclosures “specifically prohibited by law.”

A 3-judge panel of the Court of Appeals found that the ex post facto administrative designation of the text message by the TSA as SSI did not make its disclosure “specifically prohibited by law.”  The Court of Appeals unanimously denied the government’s petition for rehearing en banc.  Now the Supreme Court has decided to hear the case, DHS v. MacLean, during its 2014-2015 term.

The issue presented to the Supreme Court is the meaning of the phrase, “specifically prohibited by law,” in the Whistleblower Protection Act.  But the case is also necessarily about the extent of the TSA’s authority to create “secrets” retroactively and by administrative fiat.

Federal laws and regulations shouldn’t be interpreted by the courts as though they were written in Orwell’s Newspeak.  Information known to the public is not “secret”. The TSA cannot make it “secret” by retroactive administrative action, and should not be allowed to punish those who talk about or disseminate it.

4 Responses to “Can the TSA retroactively declare public information “secret”?”

  1. Papers, Please! » Blog Archive » Sai v. TSA: A case study in TSA secrecy Says:

    [...] regulations.  That’s what happened in the case of TSA whistleblower Robert MacLean, to be heard this year by the U.S. Supreme Court, in which the TSA fired Mr. MacLean for having previously gone to the press and members of Congress [...]

  2. Papers, Please! » Blog Archive » Congress investigates TSA treatment of whistleblowers Says:

    [...] As we’ve previously reported, Mr. Maclean is the petitioner in a case to be argued this term before the US Supreme Court, DHS v. MacLean.  Mr. Maclean was fired for disclosing “secret” but unclassified “Sensitive Security Information” (SSI) that was only designated as SSI by the TSA three years after Mr. Maclean shared it with the DHS Office of the Inspector General,  members of Congress, and journalists. [...]

  3. Edward Hasbrouck Says:

    “Former air marshal’s whistle-blower case moves to high court” (by Dan Weikel, Los Angeles Times; includes links to both parties’ Supreme Court briefs on the merits):

  4. Papers, Please! » Blog Archive » Supreme Court upholds legal protection of TSA whistleblower Says:

    [...] 2, the Supreme Court has upheld the application of the Federal law protecting whistleblowers to a TSA employee who revealed information that the TSA later defined as “Sensitive Security Information” [...]

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