Former air marshal’s whistle-blower case moves to high court

A federal air marshal who was fired in 2006 after exposing government plans to withdraw security from airliners asserted in U.S. Supreme Court filings Monday that the way the Transportation Security Administration restricts the release of sensitive information is arbitrary and inconsistent.

Robert J. MacLean, 44, of south Orange County, lost his job for disclosing to the news media that air marshals were going to be removed from long distance commercial flights to save money. At the time, Islamic terrorists were threatening to target U.S. and European aircraft in a post-Sept. 11 plot.

Congressional reaction prompted the TSA to cancel the plan. But agency officials designated MacLean’s disclosure “sensitive security information” and terminated him.

After an eight-year legal battle to get his job back, MacLean now finds himself before the nation’s highest court in a case that might affect the Whistleblower Protection Act, which he is using to challenge his firing.

The 1989 law forbids retaliation against federal workers for exposing mismanagement, abuses of power, waste of government money and serious threats to public health or safety. There are exceptions, however, for specific disclosures prohibited by law or executive order.

Government attorneys went to the Supreme Court to challenge an appellate ruling in May 2013 that MacLean’s actions were not prohibited by law, that the whistle-blower act applied to him and that new hearings should be held to reconsider his firing.

At issue is whether the regulations of a federal agency, such as TSA’s rules restricting the release of information, are laws passed by Congress.

The TSA claims they are and that MacLean violated them. Its court filings state that MacLean knew about the agency’s policies related to sensitive security information and has acknowledged that a flight would be endangered if he told someone there was no protection on it.

Agency attorneys cite examples of security related legislation in which Congress empowered the TSA to develop regulations barring the release of information detrimental to transportation security, such as the deployment of air marshals.

The appellate decision, the government said in court papers, “imperils public safety by dramatically reducing the effectiveness of Congress’ scheme for keeping sensitive security information from falling into the wrong hands.”

MacLean’s attorneys argue that Congress has made clear that only a law enacted by Congress or an order signed by the president can deprive whistle-blowers of protection for certain disclosures.

Congress, they said, has recognized that if federal agencies had the power to declare information off-limits they could shut off all disclosures of wrongdoing that might be embarrassing.

MacLean’s court papers note that Congress once considered including regulations and rules as exceptions in the whistle-blower act, but finally opted only for disclosures prohibited by law or executive order.

To support their case, they point to the recent work of the House Committee on Oversight and Government Reform, which has been exploring the treatment of whistle-blowers. MacLean’s attorneys say the committee’s findings and witnesses illustrate why Congress excluded agency rules from the exceptions in the whistle-blower law.

“Their vague nature and flexible enforcement render them vulnerable to misuse,” MacLean’s court papers state.

In court documents, his attorneys drew on the statements of Andrew Colsky, a former TSA lawyer who determined that MacLean’s disclosure was security sensitive.

After learning the TSA had publicly disclosed air marshal deployments without vetting the information, Colsky stated in an internal memo that he was “very uncomfortable” about it because of his decision in MacLean’s case. “I don’t know what to honestly call sensitive security information anymore,” he wrote.

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