US Supreme Court rules in favor of fired air marshal

22 Jan 2015 | Author: | No comments yet »

‘Freedom of speech won’: After losing for years, fired Ladera Ranch air marshal prevails in U.S. Supreme Court.

A U.S. WASHINGTON — The Supreme Court ruled on Wednesday in favor of a fired air marshal, saying he was covered by a federal law protecting whistle-blowers. Supreme Court decision defending a government whistleblower not only strikes a blow for free speech, it shows this court can line up in ways that confound conventional wisdom about its ideological divide. Supreme Court has ruled that a former air marshal who disclosed sensitive information to the news media did not violate the law and is entitled to whistleblower protection. Roberts Jr., writing for the majority in the 7-to-2 decision, said that the ruling might create security problems by entrusting the confidentiality of sensitive security information to “the idiosyncratic judgment” of each of the Transportation Security Administration’s employees, but that Congress could address the issue by amending the law.

Supreme Court on Wednesday when it affirmed that MacLean’s dismissal for disclosing “sensitive security information” was wrong, and that the Whistleblower Protection Act was designed to protect employees like him. “Freedom of speech won with an exclamation point,” said Tom Devine, legal director of the Government Accountability Project, in a prepared statement. “(A)fter defending his rights for more than eight years, he will have a chance to achieve justice…. The high court, in a 7-2 opinion by Chief Justice John Roberts , sided with air marshal Robert MacLean, who was fired for disclosing to an MSNBC reporter that the TSA had reduced protection on…flights despite a potential terrorist threat. Robert MacLean believed that a 2003 TSA plan to dramatically scale back the deployment of air marshals — even in the face of credible terror plots — due to fiscal concerns would post a serious security threat.

The ruling is a historic victory for the right of individuals to make a difference through freedom of speech.” In 2003, MacLean received an alarming emergency alert from the Department of Homeland Security, detailing a “specific and imminent terrorist threat focused on long-distance flights – a more ambitious, broader-scale version of the 9/11 plot,” court briefs say. At issue was a problem that has grown all the more weighty since the Sept. 11, 2001, terror attacks: How to protect national security interests without silencing individuals who expose government mistakes or misconduct?

Whistleblowers are protected by federal law that keeps the government from firing them for what they say, unless the disclosures are specifically prohibited by law. “… MacLean, received a secret briefing from the T.S.A. about a terrorist threat affecting long-distance flights involving weapons smuggled onto aircraft in cameras and children’s toys. Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks,” the decision said. Two days later, he received a text message from the security agency saying that it was canceling assignments that required an overnight stay in order to save money.

In an era of predictable 5-4 decisions on the court, it was refreshing to see such a diverse coalition of justices in this case, particularly in a large majority. Fallout was fast and furious: Lawmakers decried the idea as foolish, officials backtracked and overnight missions for air marshals continued as usual. All too often those who speak out in an effort to call attention to something they believe is wrong are unceremoniously crushed by government, to the detriment of the public interest. MacLean, who now builds and remodels homes in California, told Law Blog on Wednesday that his case could help future whistleblowers expose misdeeds. “I believe this ruling will give other federal employees more confidence in exposing wrongdoing without breaking the law,” he said by email. “No matter what happens, it will always be difficult for a person to risk his career and speak out.”

Or it could try anew to justify the firing in a federal administrative court, arguing that MacLean didn’t really believe that people were at risk when he made the disclosure. Several TSA administrators already have testified that they believed MacLean was sincere in his efforts to safeguard the public, even though they believed his disclosures were prohibited by agency regulations. He reasoned that the statute had used the word “law” in isolation in the relevant provision, while the rest of the statute often used the broader phrase “law, rule or regulation.” He also disagreed with the government’s contention that some regulations should nonetheless count as law because they were “promulgated pursuant to an express congressional directive.” “Outside of this case, however, the government was unable to find a single example of the word ‘law’ being used in that way,” the chief justice wrote. “Not a single dictionary definition, not a single statute, not a single case. The government’s interpretation happens to fit this case precisely, but it needs more than that to recommend it.” Justice Sonia Sotomayor, joined by Justice Anthony M. MacLean stressed that his disclosure was very different from disclosures roiling the intelligence community recently; the information MacLean shared was not classified.

You have to interpret that ‘prohibited by law’ language narrowly if you’re not going to gut the intentions of the Whistleblower Act.” The only issue remaining, attorney Devine said, is whether MacLean was reasonable to believe that the government’s decision to remove air marshals from targeted flights endangered the public.

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