Patterico's Pontifications

1/22/2015

Air Marshal Whistleblower Wins in Supreme Court

Filed under: General — Patterico @ 7:28 am



A friend of the blog, Robert MacLean — whistleblower, patriot, and former air marshal — has won his case in the Supreme Court.

For background, I’m going to do something unusual and reprint the entire contents of a previous post, because it’s relevant, and I said it then as well as I could say it today:

The New York Times recently reported:

A majority of the justices seemed ready to side with a fired air marshal on Tuesday in a Supreme Court argument over whether he was covered by a federal law protecting whistle-blowers.

In 2003, the air marshal, Robert J. MacLean, received a secret briefing about a terrorist threat affecting long-distance flights. Two days later, he was told by text message from the Transportation Security Administration that to save money, the agency was canceling assignments requiring an overnight stay.

He complained to his superiors, saying the move would imperil public safety. When they failed to act, he contacted a reporter for MSNBC. The resulting news coverage promptly led to a reversal of the travel policy.

When the government later identified Mr. MacLean as the source of the report, it fired him for disclosing sensitive information without authorization. Mr. MacLean challenged his dismissal under the Whistleblower Protection Act, which insulates federal workers from retaliation if they disclose “a substantial and specific danger to public health or safety.”

Mr. MacLean is a friend of the blog, and provided me exclusive insights seven years ago, in posts like this one and this one. For non-clickers, here is part of what Mr. MacLean told me in one of those old posts:

After 9/11, immediately putting thousands of air marshals on flights was the right decision. But now, the Transportation Security Administration’s (TSA) misuse of the air marshal program as a visual deterrent is one of the worst threats to aviation security right now.

With the current checkpoint bypass and pre-boarding policies that TSA and the airline companies insist on, an air marshal team is going to get ambushed and their weapons will be used to take another plane down. Air marshals right now are sitting ducks with the current strategy.

But then we got Barack Obama — and he has been great to whistleblowers. Hope and change. So we now have nothing to worry about, folks.

Nothing to worry about.

Good luck to Mr. MacLean. He and people like him represent what is best about this country: people willing to stand up for what’s right, in the face of powerful vested interests. I have nothing but respect for Mr. MacLean and people like him.

UPDATE: Mr. MacLean needs work. If any Patterico readers know of a position for an honest, upstanding guy, email me.

Mr. MacLean won yesterday, 7-2. Justices Sotomayor and Kennedy dissented. The opinion is here. Congratulations to Mr. MacLean.

The good guys win, for once.

15 Responses to “Air Marshal Whistleblower Wins in Supreme Court”

  1. So glad to get this good news. Congratulations Mr. MacLean!

    Georganne (e37667)

  2. From the dissent (last two sentences):

    But in the interim, at least, the Court has left important decisions regarding the disclosure of critical information completely to the whimsof individual employees.
    I respectfully dissent.

    Who knew that Mr. Maclean had acted on a “whim?” These two Justices would rather the whims to be acted upon were those of the “employers?”

    felipe (b5e0f4)

  3. The opinion is written by CJ Roberts and I think it says executive/agency regulations can’t limit whistleblower protections. Only laws passed by Congress can do that, so it strikes me as an important legal decision.

    DRJ (a83b8b)

  4. What’s interesting is that the Court points out Obama (or any President) could issue an executive order prohibiting the release of information in specific areas, thereby eliminating whistleblower protections in cases like this. Thus, if a President truly believes an employee’s “whim” will jeopardize national security, he can issue an order making it less likely an employee will speak out. But neither Bush nor Obama didthat, probably because it would be very unpopular.

    DRJ (a83b8b)

  5. The court quoted the law as saying an agency could not punish:

    “(A) any disclosure of information by an employee orapplicant which the employee or applicant reasonably believes evidences

    “(i) any violation of any law, rule, or regulation, or

    “(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

    “if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.”

    I think MacLean’s leak maybe didn’t reveal a danger to public to public health or safety, but it qualifies as revealing gross mismanagement, even more so.

    Sammy Finkelman (e806a6)

  6. You see:

    What the TSA did was only a danger to public health or safety if you both:

    1) Believed that the information in the briefing about hiajackers was reliable.

    AND

    2) That air marshals on a plane could prevent it.

    The idea that there was a real danger to public safety is problematical. It was only a danger according to the TSA’s own thinking.

    But of the idea that there was gross mismanagement at the TSA we can say there is no doubt.

    Federal law required the TSA to put an air marshal on every flight that “present[s] high security risks,” and now they said there wasn’t enough money in the budget.

    Somehow, when the news of this became public, the money was found.

    In a post dated June 8, 2007, you reveal further mismanagement – although perhaps
    MacLean’s recomendations were bad. Well, he shouldn’t be expected to solve everything
    himself. I think the key revelation is gross mismanagement, not danger.

    Sammy Finkelman (e806a6)

  7. As for the court case, it looks open and shut.

    Laws that prohibit disclosure of information are often very tightly written. Not everything that superiors don’t want to make public is aserious violation of law if made public.

    There were very specific conditions that had to be met in order not to have whistleblowing protection. And if any kind of regulation was enough to lose immunity, then why was the other condition added?

    The one that said that an Executive order requiring something to be kept secret in the interest of national defense or the conduct of foreign affairs had cover the information disclosed in order for the immunity to be lost.

    As it is, that’s probably too strong. I think that might tend to exclude any whistleblowing about Sept 11, 2012 in Benghazi.

    Sammy Finkelman (e806a6)

  8. DRJ @3 Actually it says regulations can limit it.

    But only one very specific kind of regulation: An executive order by the president requiring certain things to be kept secret in the interest of national defense or the conduct of foreign affairs, if it covers that particular bit of information disclosed.

    Sammy Finkelman (e806a6)

  9. Kennedy reveals himself to be the squish many assumed he was – his principles are suffering from Low-T.

    askeptic (efcf22)

  10. Sotomayor says that saying disclosure was not prohibited by law was sheer formalism, as the law required the prohibition of the disclosure of whatever information that the Under Secretary of Transportation decided would be detrimental to the security of transportation and seems to think there was real danger in MacLeans disclosure that air marshals were not flying.

    (The opinion of the court was that the FBI and some agencies were specifically exempted and the TSA could have been too)

    Sammy Finkelman (e806a6)

  11. I love that second d to last paragraph for the majority opinion:

    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.

    Shorter answer: We’re umpires, not players.

    John p. Squibob (4affc3)

  12. …and they have shown themselves to be blind enough to fill that role.

    askeptic (efcf22)

  13. DRJ,

    As I read the majority opinion regulations could prohibit such disclosure if Congress were to pass a different law saying that. But under the law Congress actually did pass regulations do not suffice.

    Soronel Haetir (208a1b)

  14. Who knew that Mr. Maclean had acted on a “whim?”

    I guess whistleblowers need careful vetting then.

    Sotomayor is what she is (a wise Latina bureaucrat on the court) but Kennedy used to believe in liberty and individual decisions.

    Kevin M (56aae1)

  15. So how is he a winner?

    Per mark Steyn, the process is the punishment. How much did this cost him? Is he broke? How much mental pain and stress did he endure? Will he be compensated for that?

    Fred Z (55a91c)


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