Today, after an 8 1/2 year legal ordeal, federal air marshal whistleblower and GAP client Robert MacLean won a Supreme Court decision affirming that his disclosures were covered by the Whistleblower Protection Act (WPA). MacLean publicly warned in 2003 that the Department of Homeland Security (DHS) planned to pull federal air marshals, sworn to protect the public, from commercial aircrafts targeted for an ambitious overseas terrorist attack. The key legal issue was whether the law’s statutory free speech rights can be canceled by agency secrecy regulations.
GAP Legal Director Tom Devine, MacLean’s attorney since 2010, commented:
In the Supreme Court’s first case testing the Whistleblower Protection Act, freedom of speech won with an exclamation point. Federal air marshal whistleblower Robert MacLean’s 7-2 victory means that, after defending his rights for more than eight years, he will have a chance to achieve justice. The only issue left is whether MacLean was reasonable to believe that the government’s decision to remove air marshals from targeted flights endangered the public, since the Department of Homeland Security had planned to go AWOL in the face of a more ambitious rerun of 9/11. The ruling is a historic victory for the right of individuals to make a difference through freedom of speech.
MacLean also responded to the Court’s decision. He stated:
I’m extremely honored and grateful that the Court decided on this case. Many great people from non-government organizations, the U.S. Office of Special Counsel, Congress, and the courts came together to make this happen. I believe this ruling will give other federal employees more confidence in exposing wrongdoing without breaking the law. No matter what happens, it will always be difficult for a person to risk his career when speaking out.
In late July 2003, air marshal Robert MacLean received an unrestricted text message order. The Transportation Security Administration (TSA) was eliminating coverage of long-distance flights requiring overnight hotel stays. It was a stunning development, since all air marshals in the country had just completed emergency training to stop al Qaeda plans confirmed by U.S. and foreign intelligence for a more ambitious rerun of the 9/11 attack: this time long-distance flights to multiple U.S. cities and European capitals were targeted.
MacLean protested to his supervisor, and then an investigator within the DHS Office of Inspector General. Both agreed but said there was nothing he could do and should stay quiet. MacLean would not give up and he reached Congress through the media as a confidential source. Numerous senators immediately called press conferences to express outrage and threatened hearings about abandoning the public during an enemy attack. Within 24 hours, the agency reversed itself and reinstated protection, saying the order was a “mistake.” Air marshal coverage was restored, and the hijacking was prevented.
Three years later, the agency identified MacLean as the whistleblower, and fired him for endangering the nation by violating agency secrecy regulations, after it retroactively labeled the text message as “Sensitive Security Information” on grounds that its release was “detrimental to aviation security.” GAP represented MacLean first at the Merit Systems Protection Board, where he lost, and then the U.S. Court of Appeals for the Federal Circuit, where he prevailed unanimously twice. The court upheld the supremacy of statutory free speech rights over agency secrecy rules, and ruled even statutory bans on public disclosures must be specific so employees have clear notice. Undaunted, the Department of Justice continued its war on whistleblowers by appealing to the Supreme Court, which accepted the case.
The Hogan and Lovell law firm’s Neal Katyal and a team of highly-skilled lawyers joined with GAP in defending MacLean. Katyal was President Obama’s former acting Solicitor General. Before the current victory, he had argued 21 Supreme Court cases (16 at the Department of Justice) and won them all. MacLean also received impressive solidarity through friend-of-the-court briefs from Congress, the Office of Special Counsel, national security professionals, airline consumer groups, a federal union, and good government organizations. None were filed supporting the government.
Chief Justice John Roberts wrote the 7-2 majority opinion, which was based on two key issues to interpret the WPA’s relevant limits. 5 USC 2302(b)(8)(A) does not protect public disclosures that are “specifically prohibited by law.” The government argued that Department of Homeland Security (DHS) secrecy regulations qualified as prohibitions by “law” that override free speech rights passed by Congress.
The majority ruling unequivocally rejected that claim, which would have made agency compliance voluntary for statutory free speech rights: “[T]he question here is whether a disclosure specifically prohibited by regulation also is specifically prohibited by law under section 2302(b)(8)(A). The answer is no.” (emphasis in decision) The Court explained that Congress used the term “law, rule or regulation” nine times in section 2302 and only used the word “law” one time, indicating they did not mean the same thing. The Court emphasized that the contrasting language was even used in the same sentence that the government relied on when seeking to cancel MacLean’s rights.
The government also argued that these particular regulations should qualify as law, because Congress required DHS to issue appropriate secrecy rules. But the Court noted, “Outside of this case, however, the government was unable to find a single example of the word ‘law’ being used in this way. Not a single dictionary definition, not a single statute, not a single case.”
The Court agreed that the government’s translation would defeat the Whistleblower Protection Act’s purpose.
The government’s second major argument was that the Aviation Transportation Security Act (ATSA) itself was a specific statutory prohibition, because it ordered agency regulations to bar disclosures that the Transportation Security Administration chief believed would be “detrimental to the security of transportation.” The Court’s majority said the ATSA did not prohibit anything itself by ordering DHS to act. The impact is that Congress cannot relinquish its responsibility by delegating to agencies if it wants to cancel Whistleblower Protection Act free speech rights.
While agreeing that regulations cannot be statutory prohibitions, Justice Sonia Sotomayor joined by Justice Anthony Kennedy dissented on grounds that the ATSA is a statutory prohibition. Neither the majority nor the dissent commented on the basis of MacLean’s victories at the Federal Circuit Court of Appeals. Those rulings held that the phrase “detrimental to the security of transportation” is not sufficiently specific for clear notice to government employees whether they can blow the whistle publicly. As a result, the Federal Circuit’s ruling on that key issue remains the law of the land.
The survival of the Whistleblower Protection Act was at stake in this case. After today’s victory, freedom of speech is alive, well and stronger than ever.