Supreme Court Rules in Favor of Federal Air Marshal Whistleblower & Upholds Whistleblower Law

A federal air marshal whistleblower won an important Supreme Court victory on January 21 when justices voted 7-2 that his disclosures were covered by the Whistleblower Protection Act (WPA) and had not been “specifically prohibited by the law,” as the government claimed.

Robert J. MacLean, a former Transportation Security Agency (TSA) air marshal, became a federal air marshal in 2001. His assignment was to prevent “potential hijackings” of passenger flights.

Homeland Security issued an emergency but non-public notice of a specific imminent terrorist threat to long distance flights in July 2003. Two days after, air marshals were informed that federal air marshals were being pulled from some of the flights due to budget shortfalls.

MacLean went through proper channels and expressed concerns. When that failed, he chose to go to the press and blow the whistle on this decision. Homeland Security fired him, claiming his disclosure was not covered by the WPA.

Tom Devine, the legal director for the Government Accountability Project and MacLean’s attorney, declared, “In the Supreme Court’s first case testing the Whistleblower Protection Act, freedom of speech won with an exclamation point.” It was a “historic victory for the right of individuals to make a difference through freedom of speech.”

“Federal air marshal whistleblower Robert MacLean’s 7-2 victory means that, after defending his rights for more than eight years, he will have a chance to achieve justice. The only issue left is whether MacLean was reasonable to believe that the government’s decision to remove air marshals from targeted flights endangered the public, since the Department of Homeland Security had planned to go AWOL in the face of a more ambitious rerun of 9/11.”

Maclean shared that he was “honored and grateful” that the Court heard and decided on his case. He added, “I believe this ruling will give other federal employees more confidence in exposing wrongdoing without breaking the law.”

“No matter what happens, it will always be difficult for a person to risk his career when speaking out.”

Chief Justice John Roberts described in the ruling how the government had sought to redefine the meaning of words in order to argue MacLean was not covered by the WPA.

Under the Homeland Security Act, the TSA has the discretion to prohibit certain disclosures of information. The government argued MacLean’s disclosure was “sensitive security information” and even had it retroactively classified to help them advance their argument.

But Roberts maintained that regulations do not qualify as “laws.” “Interpreting the word ‘law’ to include rules and regulations could defeat the purpose of the whistleblower statute.”

The government drew a weak analogy, suggesting, like the Freedom of Information Act, which exempts agencies from disclosing certain types of information, TSA regulations prohibit certain disclosures. The majority did not see any similarity.

According to the government, this decision in favor of MacLean meant “the confidentiality of sensitive security information” now depended on the “idiosyncratic judgment of each of the TSA’s 60,000 employees. And those employees will ‘most likely lack access to all of the information that led the TSA to make particular security decisions.'”

To this argument that granting MacLean whistleblower protection would “gravely endanger public safety,” the majority found some merit but ultimately decided it was an issue for Congress and the President to deal with, not the Supreme Court.

Unfortunately for future whistleblowers, like MacLean, the majority proposed some policy prescriptions for restricting whistleblower protection. Congress could amend the law so TSA’s prohibition on disclosures overrode whistleblower protections just as they currently override FOIA.

Congress could exempt the TSA from the WPA, as the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office are currently.

President Barack Obama could issue an executive order that created an “exception” to whistleblower protection.

“Although Congress and the President each has the power to address the government’s concerns, neither has done so. It is not our role to do so for them,” Roberts concluded.

Justice Sonia Sotomayor, often regarded as the most prominent member of the Court’s liberal wing, authored the dissenting opinion against MacLean.

Sotomayor was not convinced that the Homeland Security Act did not prohibit the release of information about the “absence of federal air marshals on overnight flights.”

“There is little dispute that the disclosure of air marshals’ locations is potentially dangerous and was proscribed by the relevant implementing regulation,” Sotomayor wrote.

She approved of the narrowness of the majority’s ruling but insisted that “important decisions regarding the disclosure of critical information” were now left “completely to the whims of individual employees.”

But, at issue here are Homeland Security personnel, people committed to defending the “homeland.”

These are men and women, who believe their presence is necessary in order to fully wage the “War on Terrorism.” Each subscribes to the idea that secrecy can be a powerful weapon against anyone who might dare to attack airplanes or airports. There is no logical reason to fear that this Supreme Court ruling will open up the floodgates as employees adopt a devil-may-care attitude and post any secrets they may have at their fingertips.

What it may do is inspire other TSA and Homeland Security employees to go to the press if they have evidence of real and imminent security risks, which are not being properly addressed. Maybe it will even push certain employees to reveal deeper corruption within the institution, which the inspector general and leaders of the agency have fought to keep concealed.

Those sort of disclosures may endanger the careers of Homeland Security employees, but they will not “gravely endanger public safety,” as the government wildly claims.

Creative Commons Licensed Photo by John Marino

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