WASHINGTON — The Supreme Court on Tuesday seemed inclined to rule in favor of a former federal air marshal who wants whistleblower protection for leaking information about aviation security plans.
Several of the justices indicated during oral argument that Robert MacLean did not violate the law when he revealed to a reporter government plans to cut back on overnight trips for undercover air marshals despite a potential terror threat.
MacLean said he leaked the information to an MSNBC reporter after supervisors ignored his safety concerns. His revelations in 2003 triggered outrage in Congress and the Department of Homeland Security quickly decided not to make the cutbacks, acknowledging it was a mistake.
But MacLean was fired from the Transportation Security Administration three years later, after the government discovered he was the leaker.
A federal appeals court ruled last year that MacLean should be allowed to present a defense under federal whistleblower laws. The Obama administration argues that whistleblower laws contain a major exception — they do not protect employees who reveal information “prohibited by law.”
Deputy Solicitor General Ian Gershengorn told the justices that TSA regulations specifically prohibit disclosure of “sensitive security information,” including any information relating to air marshal deployments.
But several of the justices pointed out that the Whistleblower Protection Act refers only to other laws, not agency regulations.
“So it is prohibited by regulations, let’s not play games,” Justice Antonin Scalia told Gershengorn.
Justice Stephen Breyer suggested that since no law seemed to ban the kind of information MacLean leaked, the president could simply issue an executive order to keep TSA workers from disclosing that kind of information.
“If in fact that was a real worry about blowing up airplanes, for that reason, could the president then simply … say an executive order will require that to be kept secret?” Breyer asked.
Gershengorn agreed the president could do so, but he said that would duplicate and possibly undermine what Congress considers to be “sensitive security information.”
Chief Justice John Roberts didn’t seem to think that would be a problem.
“He signs an executive order saying duplicate the SSI system and right away the problem we have here of people like Mr. MacLean revealing information is not a problem anymore,” Roberts said.
Scalia said fixing the problem with an executive order “would make sure that the matter is important enough to occupy the president’s attention and is not so insignificant that an agency that just doesn’t want any whistleblower, doesn’t want any criticism of what it’s doing, can pump out these regulations.”
Justice Sonia Sotomayor asked MacLean’s lawyer, Neal Katyal, if there was any argument the leak harmed transportation safety.
“That’s Mr. MacLean’s whole position, which is that he saved national security,” Katyal said.
But Gershengorn raised the specter of 60,000 TSA employees overriding the agency’s judgment.
“What a TSA employee has before them is not a full picture of the threats,” Gershengorn said.
If MacLean wins at the Supreme Court, he must go back before a government board to show that he reasonably believed the information he leaked posed a threat to public safety or health.
The case is Department of Homeland Security v. MacLean, 13-894.