In whistleblower case, Supreme Court seems sympathetic to former air marshal
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Version 0 of 1. The Supreme Court seemed inclined Tuesday to find that an air marshal fired for leaking information about plans that he felt endangered the public could seek protection under a federal law protecting whistleblowers. Still, the justices appeared most interested in making sure the executive branch had ways to protect sensitive information in the event they ruled in favor of Robert J. MacLean, who was fired after the Transportation Security Administration (TSA) discovered that he had revealed the agency’s plans to cut back on overnight trips for undercover marshals. “The facts are very much in your favor here,” Justice Sonia Sotomayor told MacLean’s lawyer Neal K. Katyal, though she added that she worried about how much leeway federal employees would have to reveal other information. Justice Stephen G. Breyer had similar concerns. “If for other reasons I decided you were wrong,” Breyer said to the government’s lawyer, Deputy Solicitor General Ian H. Gershengorn, “would I still have to face the problem of airplanes being blown up?” Breyer seemed to conclude that he wouldn’t have to worry about that, because the president has other ways to make sure information is not disclosed. MacLean offered a tough set of facts for the government. He contends that just after being briefed in 2003 about a potential terrorist attack, he received another TSA message: Because of a budget shortfall, the agency was cutting back on the number of flights marshals could cover. MacLean said he went to his boss, who told him to keep quiet, and to the department’s inspector general. Stymied, he leaked the information to a reporter for MSNBC. This caused a congressional uproar, and the Department of Homeland Security canceled the order within 24 hours, calling it “premature and a mistake.” MacLean’s identity was not discovered until three years later, when he appeared in an “NBC Nightly News” segment about a different incident. His disguise on that broadcast “proved to be inadequate,” the government’s brief says, and the TSA fired him for disclosing what is known as “sensitive security information” (SSI). After several bouts of legal wrangling, the U.S. Court of Appeals for the Federal Circuit said MacLean was entitled to argue that he was protected by the federal Whistleblower Protection Act. “People like Mr. MacLean promote the national security,” Katyal said. “They don’t harm it.” But Gershengorn said the TSA must have a way to control the release of information. Under the appeals court’s ruling, he said, “any one of TSA’s 60,000 employees may override TSA’s expert judgment and publicly disclose sensitive security information . . . based on that employee’s reasonable belief about what public safety requires.” The case turned on a rather technical point in the law. The Whistleblower Protection Act shields employees who disclose information that they reasonably believe exposes a “substantial and specific danger to public health or safety.” But the leaks are protected only “if such disclosure is not specifically prohibited by law.” The appeals court found that the Aviation and Transportation Security Act provided only general guidance about disclosing information, not a specific prohibition. The TSA regulations prohibiting disclosure of SSI did not qualify, the appeals court ruled. Gershengorn argued that was a distinction without much difference: The law required the TSA to come up with the regulations. Several justices disagreed but said there is another exception in the whistleblower law: The president can forbid the disclosure of certain information through executive order. Gershengorn agreed but said that would be needless duplication of what Congress set up with the SSI law. But Justice Antonin Scalia said such a policy might have merit. “It would make sure that the matter is important enough to occupy the president’s attention,” rather than leaving it up to “any agency that just doesn’t want any whistleblower, doesn’t want any criticism.” One of the few notes of caution came from Justice Samuel A. Alito Jr. He worried about an employee disclosing information to a “foreign state-controlled news agency” and the information being “obtained, perhaps, by terrorists before Congress was aware of this.” But Scalia said it seemed clear that whistleblower laws protect only disclosure “to somebody who could remedy the problem, as opposed to an enemy.” The case is Department of Homeland Security v. MacLean. |