Supreme Court hears arguments in whistleblower case, DHS v Robert MacLean



Robert MacLean, 9/9/14 Congressional hearing.

The U.S. Supreme Court heard oral arguments yesterday in a whistleblower case, the Department of Homeland Security vs. Robert J. MacLean. The case has been watched nervously by whistleblower advocates who say a ruling in favor of the government would undermine the Whistleblower Protection Act (WPA). In the opinion of some, the justices appeared sympathetic to MacLean’s position and his efforts to prevent the public from an attack like that of September 11, 2001. Bloomberg BNS has posted a court transcript of the hearing online.

MacLean was an air marshal for the Transportation Security Agency (TSA) in 2003 when supervisors decided to withdraw air marshals from cross-country flights just as intelligence sources were reporting a new terrorist threat specifically targeting the flights. MacLean contacted TSA officials at higher levels and then an MSNBC reporter after the internal disclosures went nowhere. The resulting media coverage (which did not mention MacLean by name) resulted in the TSA announcing that air marshals would again be protecting long-distance flights. TSA later learned that MacLean was behind the disclosure and fired him for disclosing the plan, information the agency labeled “sensitive secure information” (SSI) after MacLean disclosed it.

The WPA’s protections against reprisal do not extend to disclosures of information “specifically prohibited by law,” and attorneys for the two sides have different opinions as to whether the agency’s own SSI regulations qualify as “law.” How the Court defines those three letters will likely have a major impact on government accountability.

Tuesday’s hearing drew attention from major publications and news syndicates, including the New York Times, the Los Angeles TimesUSA Today,TIME Magazine, Bloomberg BNA and Reuters.  Richard Wolf, of USA Today. reported that MacLean “had a good day” while the federal government “didn’t fare very well.”

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.  —USA Today

Adam Liptak (New York Times) wrote that “A majority of the justices seemed ready to side with” MacLean, and some seemed downright “hostile.”

Ian H. Gershengorn, a deputy solicitor general, received hostile questions from most of the justices. Justice Antonin Scalia, for instance, was unconvinced by Mr. Gershengorn’s attempt to argue that the word “law” in isolation encompassed some but not all regulations. “Boy, that is subtle,” Justice Scalia said. —New York Times

In contrast, Haley Edwards (TIME) concluded that, “Justices Antonin Scalia and Anthony Kennedy seemed less sympathetic to MacLean’s case” than the other justices.

MacLean’s attorney, Neal Katyal, built his argument on the assertion that this TSA rule, though promulgated correctly and at the direction of the U.S. Congress, should not qualify as a “law.” He cited both legislative history and reports from the House and Senate. Indeed, the conference committee report on the WPA does not pull any punches: “The reference to disclosures specifically prohibited by law is meant to refer to statutory law and court interpretations of those statutes,” it reads. “It does not refer to agency rules and regulations.”

While that particular language is pretty stark, several justices seemed unconvinced, noting that conference committee reports are often written by staff members and are not subject to legal scrutiny by members of Congress. “Are you really going to spin out that argument that that is what Congress intended, and what all the members of Congress meant, when they voted on it?” Scalia asked. “I find that hard to believe.” —TIME

Lawrence Hurley (Reuters) described another skeptical response from Scalia—this time to Gershengom’s claim that agency regulations can void whistleblower protections.

Justice Antonin Scalia expressed doubt that language in the whistleblower statute that limits protections when disclosures are “specifically prohibited by law” could be applied to regulations as the government argues.

“The notion that this is what Congress had in mind … I find that hard to believe,” Scalia told Justice Department lawyer Ian Gershengorn.

But justices still expressed concern about the government’s need to protect certain information so it does not get into the hands of militants who might want to target U.S. commercial flights. —Reuters

Gershengom sought to distinguish the SSI regulations from other regulations that agencies routinely issue.

Agency procedural rules and interpretive regulations don’t trigger the WPA exception, but substantive agency regulations mandated by Congress that satisfy a test set out in Chrysler Corp. v. Brown, 441 U.S. 281 (1979), are included in the “by law” formulation, Gershengorn said. —Bloomberg

During the discussion, Justice Stephen Breyer expressed concerns about whistleblower disclosures possibly tipping off terrorists.

“I am worried about a practical matter. I am worried about the decision of the [lower] court against you leading to somebody blowing up an airplane,” Justice Stephen Breyer told Gershengorn. —Reuters

But, that same outcome could result from agency error or neglect if whistleblowers are not protected when they seek timely intervention. MacLean’s actions “saved national security,” his attorney said, Tuesday.

“The facts are very much in your favor here,” said Justice Sonia Sotomayor.

Photo credit:  “Robert MacLean at September 9 Congressional hearing” by Linda Lewis.