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Supreme Court Affirms Whistleblower Protections

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This morning, the Supreme Court released its opinion in Department of Homeland Security v. MacLean (Case No. 13-894). The facts of the case were quite simple: Robert J. MacLean was an air marshall with the TSA. In July 2003, the TSA briefed all federal air marshals—including MacLean—about a potential plot to hijack passenger flights. A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous and illegal. He therefore contacted a reporter and told him about the TSA’s decision to cancel the missions. After discovering that MacLean was the source of the disclosure, the TSA fired him for disclosing sensitive security information without authorization. MacLean argued that his disclosure was “whistleblowing activity” under a law that protects employees who disclose information revealing “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” That law’s protections, however, do not extend to disclosures that are “specifically prohibited by law.” The TSA felt that MacLean’s disclosures were “specifically prohibited” by by the TSA’s regulations on sensitive security information, and therefore not protected by the whistleblower law.

After a long series of legal battles and appeals, the case finally wound up at the U.S. Supreme Court. This morning, the Justices ruled that MacLean’s disclosures were protected, because the TSA’s regulations do not count as “law.” Remember – the only exception to the whistleblower protection is for disclosures “specifically prohibited by law” – not “specifically prohibited by regulations,” or “specifically prohibited by rules.” Since the TSA regulations are not “law,” MacLean’s disclosure to the press was protected, said the Court.This was a tricky case for the Justices – they had to balance individual rights, and the public’s “right to know” against issues of national security. In this case, they tipped the balance in favor of the whistleblower. What do you think? Did they get it right?

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