The Transportation Safety Administration (TSA) plays a crucial role in our national safety infrastructure. Yet the agency has been subjected to significant criticism — and even been the butt of jokes — for the last several years. In 2003, Air Marshal Robert MacLean went to the media to expose what he felt was a risky and unwise decision by TSA to stop posting air marshals on certain overnight flights, despite a current and credible hijacking threat. For his actions he was fired from his position after more than 12 years of federal service. The United States Supreme Court is now poised to determine whether TSA’s actions were within the strictures of the law.
On May 19, 2014, the Court granted certiorari to the case Department of Homeland Security v. MacLean to decide whether his firing violated the federal Whistleblower Protection Act. The case is not as straightforward as it may seem and contains several competing arguments:
MacLean contends that TSA’s actions posed “a substantial and specific danger to public health and safety” and that his conduct was therefore protected under the Whistleblower Protection Act.
The Department of Homeland Security (DHS) contends that the material MacLean disclosed to the media was “sensitive security information” and prohibited from disclosure under the Aviation and Transportation Security Act. Therefore, MacLean would fall under an exception to the Whistleblower Protection Act that removes protection when the whistleblower’s disclosure was “specifically prohibited by law.”
The United States Court of Appeals for the Federal Circuit, the court that most recently heard the case, sided with MacLean, finding that MacLean’s disclosure was not “specifically prohibited by law” because the information involved was only designated as sensitive by DHS and was not specifically defined as sensitive in any statute.
This case illustrates a difficult situation where both disclosure and nondisclosure can put the public at risk. Because the moral and legal imperative of whistleblowing is not always black and white, anyone contemplating whistleblowing should consult with an experienced attorney.