Fired Air Marshal’s Whistleblower Case Weighed by Supreme Court

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On Tuesday, most of the Supreme Court justices appeared to agree with a fired air marshal who blew the whistle on the Transportation Security Administration, The New York Times reports. The Court is weighing whether or not he is protected by federal whistleblower laws.

The air marshal was secretly briefed about a terrorist threat affecting long-distance flights in 2003. He was contacted via text message by the TSA two days later stating that the assignments were canceled in order to save on costs. He complained about this action to his superiors, saying that it posed a threat to the public. When no action was taken, he contacted a reporter for MSNBC. The travel policy was reversed as a result of the news coverage.

When the air marshal was later identified, he was fired for revealing sensitive information without permission. He opposed his termination under the Whistleblower Protection Act, which protects federal workers from retaliatory action if they reveal “a substantial and specific danger to public health or safety.” Information that is “specifically prohibited by law” is an exception to this law, and justices are considering whether this exception includes a Department of Homeland Security regulation.

According to NYT, Ian H. Gershengorn, a deputy solicitor general, was aggressively questioned by most of the justices. Some wondered how transportation workers would be able to know what information is too classified to disclose. Chief Justice John G. Roberts Jr. pointed out that the government’s own brief stated that the air marshal was allowed to tell reporters “that federal air marshals will be absent from important flights” but also decline “to specify which flights.”

NYT reports that an important moment of concession apparently occured when Gershengorn admitted that the president is allowed to keep the information secret no matter the court’s decision. This helped lessen the concerns of Justice Stephen G. breyer, who said “I am worried about the decision of the court against you leading to somebody blowing up an airplane,” he said Mr. Gershengorn. “And I suddenly thought, as a practical matter, that is not a serious worry because the president can always use” his authority “to keep people from disclosing the information that you don’t want disclosed.”

Justice Antonin Scalia said the issue is best left up to the president. “It would make sure,” he stated, “that the matter is important enough to occupy the president’s attention and is not so insignificant that an agency that just doesn’t want any whistle-blower, doesn’t want any criticism of what it’s doing, can pump out these regulations.”