WASHINGTON — The Supreme Court on Tuesday appeared inclined to rule in favor of a former federal air marshal who wants whistle-blower protection for leaking information about aviation security plans.
Several 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 against the cutbacks, acknowledging it was a mistake.
But MacLean was fired from the Transportation Security Administration three years later, once 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 whistle-blower 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 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.
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.