U.S. labels 2003 leaked memo 'sensitive'
By LARRY MARGASAK, Associated Press Writer Thu May 10, 2:34 PM ET
WASHINGTON - The Bush administration is belatedly accusing a fired air marshal of disseminating sensitive information, nearly four years after the officer leaked an embarrassing but routine memo on reducing hotel costs.
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The administration argues that ex-marshal Robert MacLean, 37, who is trying to win his job back, should have known the unlabeled memo he received on his unsecured cell phone was considered "sensitive security information."
MacLean, who admits he gave the memo to a reporter, counters there was no way to tell that air marshal officials would designate the cost-cutting plan years later as sensitive national security information. He was fired in April 2006.
Lawyers who handle national security cases said they could not recall an instance when the classification of "sensitive security information" was formally applied to a document made public years earlier.
If the retroactive designation is upheld, lawyers say, it would instill new fears in whistle-blowers who want to release important but unclassified information to the public.
The Transportation Security Administration's expert on sensitive materials, Andrew Colsky, who gave a deposition in MacLean's case, could not recall the "sensitive" designation applied retroactively to previously disclosed information.
MacLean is asking the 9th U.S. Circuit Court of Appeals, in California, to rule that leaking the memo was legal under protections granted whistle-blowers under federal law. After the appeals court rules, MacLean can resume his challenge to his firing before a federal personnel board.
The "sensitive security" classification applies to unclassified information of a sensitive nature, which could harm federal operations if publicly disseminated. It has existed for years, but has been used more frequently since the September 2001 attacks.
MacLean, who lives in Coto de Caza, Calif., acknowledges he gave a copy of the July 29, 2003, budget-cutting memo to a reporter. Once the memo became public, the air marshal program said it was a mistake and no flight assignments requiring overnight hotel stays were canceled.
"I felt the agency had gone out of control," MacLean said. "I felt the agency did not care about passenger security and safety. They only cared about numbers and the budget."
Spokesmen for the Justice Department and the Transportation Security Administration declined to comment.
However, in a legal brief filed weeks ago, the department contended the memo was classified properly because it met
TSA rules covering "sensitive security information" when it was issued.
Government lawyers cited TSA regulations that prohibit disclosure of "specific details of aviation security measures."
"A message stating that a particular category of air marshal missions in a specific part of the country would be canceled for a defined period fits precisely" in the category of sensitive information, the Justice Department wrote.
MacLean said the memo was not sent to marshals' secure personal digital devices. It had neither a security designation nor password protection.
MacLean said he leaked the document because the policy would have exposed the public to danger. Three days earlier, the marshals had received an e-mail describing new terrorist plots to seize planes and fly them into government, military or economic targets. That e-mail was labeled "sensitive security information," which is not to be disclosed publicly.
Some experts who are following the case questioned whether the "sensitive" label should ever have been applied to a proposal whose main purpose was economic: removing air marshals from assignments from July 29-Aug. 9, 2003, if the flights required overnight stays.
Victoria Toensing, who established the Justice Department's anti-terrorism unit during the Reagan administration, said the government should never have sent a message that it believed was sensitive without a security designation.
"That's an embarrassment," she said. "The stamp should be on it because it gives people notice not to release the information to the public.
"If it's not on there, I don't know why this case isn't over," she said. "The government ought to turn its attention to something else."
Mark Zaid, a lawyer who represents whistle-blowers in national security cases, said, "This case just reeks of rotten eggs. I would say this is just the perfect example of retaliation for exercising First Amendment rights."
http://news.yahoo.com/s/ap/20070510/ap_on_go_ot/security_leaks&printer=1;_ylt=AhI.2MiJ7wEa7D7UIn4V.id2wPIE
