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Supreme Court To Hear Whistleblower Case On Disclosing National Security Dangers

Posted  May 22, 2014

By Jason Ensler

On Monday the Supreme Court granted a petition for certiorari to decide when a government whistleblower can go public with allegations of government wrongdoing.  At issue in the case, Department of Homeland Security v. MacLean, Case No. 13-894, is the disclosure to the press by former air marshal Robert MacLean that the Transportation Security Administration (“TSA”) had cancelled air marshal coverage during a particular sensitive time.  Specifically, it was when there was an internal government alert for a terrorist hijacking potentially even more catastrophic than that carried out on September 11.

According to Mr. MacLean’s counsel:

We later learned that this was because [the TSA] ran out of money after they’d blown their budget on some corrupt buddy system contracts, and they didn’t want to have to explain it to Congress and go back for a supplemental appropriation.  So they were just going to take a chance and cancel missions to save hotel bills and extra expenses.  It was playing a lot worse than Russian Roulette with the safety of the country.  This whistleblower, Robert MacLean, went to his boss, asked what was going on, and was told “it’s crazy, but it comes from headquarters so there’s nothing you can do. Just keep your mouth shut.”  So he went to the inspector general – and he got the same answer from the IG.  So he went to MSNBC and they put out a story on Sunday evening.  Monday morning, President Bush was hammered with questions he couldn’t answer.  Leaders in the House and the Senate held press conferences, and were going to hold hearings.  Within 24 hours Homeland Security announced it had all been a mistake and they never did plan to cancel the coverage.

Crisis averted.  But Mr. MacLean lost his job after making his disclosure for violating TSA regulations.  He took his case to court, ultimately prevailing when the Federal Circuit Court of Appeals found that Mr. MacLean’s conduct was protected by the Whistleblower Protection Act of 1989.  On Monday the Supreme Court agreed to hear the Justice Department’s appeal of that ruling.

For more background on the case, click here.