United States Court of Appeals for the Federal Circuit

suggested that SSI information of generalized application should be available to
the public.” Id., at 11 Again, this issue was briefed and ignored by the Board.
The ATSA standard is not even sufficiently specific for constitutional
standards against vagueness and over breadth. Depending on the circumstances,
virtually anything could undermine aviation security. In that sense, it is remarkably
similar to an analogous concept, “classifiable,” which applied the same broad
principle to national security. In American Foreign Serv. Ass’n v. Garfinkel, 732
F. Supp. 13 (DDC 1990), the court rejected it on just such grounds. In particular,
the “classifiable” concept at the time did not require markings or provide prior
notice to an employee considering its release. That is why, as discussed earlier,
since fy 1988 Congress annually has passed the “anti-gag statute” every year as an
appropriations provision, prohibiting liability for disclosure of classified
information unless it is specifically designated. 14 Despite statutory boundaries
intended to be stricter than constitutional standards, the Board has created career-
ending liability for disclosures of unmarked, unclassified information under any
14 As discussed earlier, through referencing the Intelligence Identities Protection
Act of 1982 (50 U.S.C. §421 et seq.), the anti-gag statute prohibits elimination of
WPA rights for making classified disclosures, unless it is specifically marked to
provide whistleblowers prior notice. The definitions in §423 of the Intelligence
Identities Protection Act require that information must be specifically designated
as such to be properly classified. Congress reasoned that it would be unfair to strip
whistleblowers of their rights unless they have prior notice.
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