SCOTUS Takes Air Marshal Media Leak Case

Next fall the Supreme Court will consider whether the law permitted the Transportation Security Administration (TSA) to remove from duty a former federal air marshal who told MSNBC that TSA was stopping its protection of certain flights.

The case is DHS v. MacLean (since TSA is part of the Department of Homeland Security). Robert MacLean was an air marshal when he learned in 2003 that TSA would stop assigning air marshals on overnight flights from Las Vegas. He complained within DHS that he thought the change was unwise.

He tipped off MSNBC to generate a news story. It did, and members of Congress started speaking out. TSA consequently reversed course. DHS later learned MacLean was the leaker and removed him from the air marshal program for revealing confidential operational information, categorized as Sensitive Security Information (SSI).

MacLean argued that his removal violated civil-service protections for federal employees. The reviewing board ruled against him, finding that this information was a type for which “disclosure was specifically prohibited by law,” so no type of whistleblower protections applied.

The case finally went up on appeal, where in 2013 the U.S. Court of Appeals for the Federal Circuit held that the Whistleblower Protection Act’s provision about disclosures that are “specifically prohibited by law” was too general to be enforced in this fashion and sent the case back down for additional hearings. The court held that the way the statute was written, this disclosure would instead be protected if MacLean reasonably believed doing so presented “a substantial and specific danger to public health or safety.”

The Justice Department petitioned the Supreme Court for review, arguing the Federal Circuit’s standard would undermine the effectiveness of Congress’s system for designating important information as SSI. Arguments will likely be held at the end of this year, with a decision in early 2015.

Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.