Supreme Court Will Hear TSA Whistleblower Case

The Supreme Court has accepted a case pitting the Department of Homeland Security against former air marshal Robert MacLean, setting up a debate over the imperatives of government secrecy and the public’s safety.

MacLean was fired from his job with the Transportation Security Administration after he alerted the media to changes in the agency’s procedures. MacLean says his revealing of the information is protected by the Whistleblower Protection Act; the federal agency disagrees, saying he broke its rules that govern secrets.

In 2003, MacLean “revealed to MSNBC reporters that the government planned to remove armed security officers from long-distance passenger flights to reduce hotel expenses,” The Los Angeles Times tells us, “despite reports that Al Qaeda was plotting to hijack more airliners to hit targets in the U.S. and Europe.”

He also appeared on NBC Nightly News (in a disguise) to say the agency’s dress-code requirements, which included wearing a tie, could make it easier for criminals to identify TSA air marshals. As the L.A. Times notes, the agency addressed those concerns after they were seized upon by Congress and the Government Accountability Office.

MacLean was fired in 2006; in the years since, lawyers for him and for Homeland Security have argued over whether the information he revealed (which he received via text message) was classified and whether his firing was an unlawful retaliation.

The U.S. Court of Appeals for the Federal Circuit ruled in MacLean’s favor last year, with Judge Evan Wallach writing that “MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public.”

Homeland Security says the court’s decision “is wrong, dangerous,
and warrants this Court’s immediate review,” in its appeal to the Supreme Court. If MacLean triumphs, he could be reinstated and be awarded back pay.

The court’s acceptance of the Homeland v. MacLean case was included in a batch of orders issued Monday.

The Supreme Court issued only one decision this morning: a 6-3 reversal of a Ninth Circuit ruling in the copyright fight between film company MGM and Paula Petrella, daughter of Raging Bull author Frank Petrella. The decision hinges on the idea of “laches,” which generally protects against lawsuits filed after a long period of time had elapsed.