Whistleblower Protection in the Supreme Court

By Nina Jones

       In recent years, the issue of whistleblower protection has been traversing realms of public discourse. With Bradley Manning nearing four years of incarceration, and Edward Snowden still on a temporary residency permit in Russia, the focus on their cases has died down a little bit.[1] However, on November 4, the Supreme Court will be hearing the case of Robert MacLean, an air marshal who was fired from his position in April 2006 for leaking sensitive information.

       In July 2003, MacLean and other air marshals took part in a mandatory training to prevent airline hijacking plots by al-Qaeda. Later, the TSA sent an unsecure, unclassified message to air marshals telling them that all long distance assignments that included an overnight stay were to be canceled. In response, MacLean complained to a supervisor and to the inspector general’s office at the Department of Homeland Security, and also leaked information to MSNBC. In 2005 MacLean was placed on administrative leave and in 2006, he was fired.[2]

        It was not until 2006 that the government labeled the information that MacLean had leaked as sensitive, so the question the court will be hearing is whether or not MacLean’s actions was “specifically prohibited by law.” According to DHS and the Justice Department, they were, but a bipartisan group of members of Congress say that his disclosure should have been protected by the Whistleblower Protection Act of 1989 (Pub. L. 101-12).[3]

      Members of Congress worry that a ruling against MacLean would result in more freedom for government agencies to decide which disclosures are protected. “If agencies could decide which disclosures receive whistleblower protections, they would inevitably abuse that power,” members of Congress said in a House Oversight and Government Reform Committee hearing in September 2014.[4]

     Unlike so many issues currently being presented before the Court, such autonomy for agencies in deciding what is and isn’t protected by the Whistleblower Protection Act has garnished a unanimous response from Republicans and Democrats alike who echo that these decisions could, and probably would, end in an abuse of power, the very result the Act was written specifically to prevent. The legal question of whether or not the TSA and the DHS can prosecute McLean over a disclosure of information that, at the time, was not secure is one that could determine how whistleblowers are treated in the future.

     So, on November 4, we will see where the Supreme Court stands on the issue and how we will proceed as a country on the issue of whistleblower protection.

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[1] “Edward Snowden Can Stay In Russia For Three Years, Lawyer Says.” NBC News. Accessed 27 October 2014. http://www.nbcnews.com/storyline/nsa-snooping/edward-snowden-can-stay-russia-three-years-lawyer-says-n174776.

[2] Davidson, Joe. “Supreme Court Whistleblower Case Has Broad Reach.” The Washington Post. Accessed 27 October 2014. http://www.washingtonpost.com/blogs/federal-eye/wp/2014/10/09/supreme-court-whistleblower-case-has-broad-reach/.

[3] “Whistleblower Protection Act of 1989” (PL 101-12, April 10, 1989). United States Government Printing Office (1989). Available from: Thomas (Library of Congress), http://www.gpo.gov/fdsys/pkg/STATUTE-103/pdf/STATUTE-103-Pg16.pdf; Accessed 27 October 2014.

[4] U.S. House of Representatives. Examining The Administration’s Treatment of Whistleblowers, Hearing, September 9, 2014 (Serial No. 113-139). Washington: 2014. Web. http://oversight.house.gov/wp-content/uploads/2014/10/9-9-14-TRANSCRIPT-Examining-the-Administrations-Treatment-of-Whistleblowers.pdf.