Justices back air marshal who blew whistle on cutbacks

WASHINGTON — A former air marshal who leaked information about agency cutbacks had a good day at the Supreme Court Tuesday, while the federal government he served had trouble convincing justices that he deserved to be fired.

The result could turn out to be a rare court victory for government whistle-blowers who expose potential dangers to health or safety, even if the disclosures violate agency rules.

Nearly all the justices appeared to agree that Robert MacLean was within his rights in 2003 when he leaked the fact that the Transportation Security Administration was taking air marshals off overnight flights. MacLean believed the action risked passengers' safety, and his leak to MSNBC prompted congressional criticism, leading the TSA to reverse itself.

When his identity was revealed three years later, MacLean was fired for disclosing "sensitive security information," which violated TSA rules. But the Whistle-Blower Protection Act only disallows disclosures "specifically prohibited by law" or by executive order classifying the information as secret.

Although MacLean could not convince his supervisors, a Department of Homeland Security inspector general or the Merit Systems Protection Board that he was right, a federal appeals court ultimately ruled that his disclosure didn't violate a federal law, only an agency regulation.

The government brought the case to the Supreme Court in hopes of winning a reversal, but it didn't fare very well during Tuesday's oral argument. Within seconds, deputy solicitor general Ian Gershengorn came under tough questioning from justices on both sides of the ideological spectrum.

Chief Justice John Roberts said MacLean could not be expected to know the information sent to him by text message was considered sensitive. Justice Antonin Scalia said the disclosure clearly was banned only by agency rules, not the Aviation and Transportation Security Act. Justice Stephen Breyer said that law was written so broadly that it prohibits disclosing information "detrimental to the security of transportation."

"That, it seems to me, could include everything from a spark plug that is deficient in the airplane to a terrorist," Breyer said.

Even if MacLean's disclosure could lead to "blowing up airplanes," he said, that could be avoided by the president issuing an executive order prohibiting the disclosure. Most justices appeared to agree presidential action would be better than letting government agencies block whistle-blowers through regulations.

By the time Neal Katyal, MacLean's lawyer, approached the podium, it appeared his case had been won. Katyal noted that the whistle-blower law was enacted to restrict government agencies, rather than empower them.

"He saved national security" by disclosing the agency cutbacks, Katyal argued.

"And he was successful," Scalia piped in. "They called off the cancellation."

"The facts," Justice Sonia Sotomayor concluded, "are very much in your favor here."