January 22, 2015

Redemption For Air Marshal Whistleblower Robert Maclean

By Gordon Schnell

In a much anticipated decision, the Supreme Court yesterday ruled former federal air marshal Robert J. MacLean did not violate the law when he publicly exposed the Transportation Security Administration’s (TSA) plan to skimp on air marshal coverage. The decision was a narrow one and openly invited Congress or the President to take action if they see fit to prevent future TSA whistleblowers from following MacLean’s example. Nevertheless, it is clear vindication for MacLean who spent much of the last decade defending what he believed was the TSA’s reckless disregard for airline passenger safety.

MacLean began his duties with the TSA in 2001 where as an air marshal he was assigned to protect passenger flights from potential hijackings. In July 2003, the Department of Homeland Security issued a confidential advisory about a potential hijacking plot on which the TSA briefed all its air marshals. But only a few days after the briefing, the TSA for budgetary reasons cancelled all overnight missions from Las Vegas where MacLean was stationed. Given the impending terrorist threat, MacLean complained up the TSA chain of command about the risk of the cancellation. He was told nothing could be done. So he took matters into his own hands and went to the press. After a story on the matter was published, several members of Congress criticized the cancellation and within 24 hours, the TSA reversed its decision and put air marshals back on the flights.

Eventually, the TSA found out MacLean was the source of the story and in April 2006 the TSA fired him for disclosing sensitive security information without authorization. MacLean challenged his firing before the Merit Systems Protection Board under the Whistleblower Protection Act, the key statute designed to protect government whistleblowers. The Board rejected MacLean’s challenge, finding he did not qualify for whistleblower protection under the statute because his disclosure was “specifically prohibited by law.” The Court of Appeals for the Federal Circuit disagreed and vacated the Board’s decision. In reviewing that decision, the principal question before the Supreme Court was whether there exists a specific statute which bars MacLean’s disclosure. In a 7 to 2 decision written by Chief Justice Roberts, the Court found there was no such statutory bar.

At its core, the Supreme Court’s decision was an extremely narrow one, looking principally to the language of the Whistleblower Protection Act which protects against whistleblower retaliation for disclosures “not specifically prohibited by law.” It was not disputed that MacLean’s disclosure on the cancelled TSA coverage was prohibited by TSA regulations against revealing “specific details of aviation security measures.” What was disputed, however, was whether this violation of the TSA regulation also amounted to a violation of law. The Supreme Court held it did not because the statutory language was clear in its distinction between a law and a regulation and in excluding from whistleblower protection only those disclosures that violated the former.
Aside from this fairly straightforward exercise in statutory construction, there were two notable and somewhat competing side-points to the decision. First, the Court recognized the important purpose of the whistleblower statute in protecting whistleblowers and the need to keep government agencies in check in upholding this purpose:

[A] broad interpretation of the word “law” could defeat the purpose of the whistleblower statute. If “law” included agency rules and regulations, then an agency could insulate itself from the scope of [the statue] merely by promulgating a regulation that “specifically prohibited” whistleblowing. But Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks.

At the same time, however, the Court also recognized the “legitimate” concern that providing whistleblower protection to individuals like MacLean would “would gravely endanger public safety” by making “the confidentiality of sensitive security information depend on the idiosyncratic judgment of each of the TSA’s 60,000 employees.” This was a concern which seemed to particularly trouble Justice Sotomayor in her dissenting opinion (joined by Justice Kennedy). The majority was not swayed by this worry, finding it exclusively within the ambit of Congress or the President to address just as they have done with a wide swath of intelligence whistleblowers (from the FBI, CIA, NSA and other intelligence agencies).

It remains to be seen whether Congress or the President will act on the Court’s invitation to add the TSA to its list of intelligence whistleblowers who have been carved out of the protections afforded other government workers. Whatever happens, at least for MacLean, he has found redemption in his long and arduous whistleblower journey to do what he believed was in the best interest of air travel safety. For more on MacLean and his quest, see our two-part interview of him here and here.

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