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Air Marshal's Whistleblower Case Weighed by Supreme Court

Nov 7, 2014

The Supreme Court is considering a fired air marshal’s whistleblower case, which contends that he was unlawfully terminated from his position at the Transportation Safety Administration. The New York Times reports that on Tuesday, it seemed that the majority of Supreme Court justices were on the air marshal’s side and believed he was protected by federal whistleblower laws.

The air marshal was secretly briefed on a terrorist threat affecting long-distance flights in 2003. Two days after being informed of the threat, the TSA sent him a text message saying that overnight assignments were being canceled to save on costs. He protested against this decision to his superiors, saying that it endangered the safety of the public. When they ignored him, he contacted a reporter for MSNBC. The resulting news covered prompted the agency to reverse its decision.

Later on, the air marshal was fired for disclosing sensitive information without permission. He argued against this under the Whistleblower Protection Act, which protects federal workers from retaliatory action is they reveal “a substantial and specific danger to public health or safety.” The exception to this is when an individual reveals information “specifically prohibited by law”. The justices are weighing whether the air marshal’s situation counts as an exception.

According to NYT, Ian H. Gershengorn, a deputy solicitor general, received harsh questions from most of the justices. Some questioned how transportation workers would be able to know what information is too sensitive 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.”

Gershengorn acknowledged that the president is allowed to keep information confidential no matter how the court ruled, which according to NYT, seemed to a significant moment of concession. Justice Stephen G. Breyer said this qualified a concern of his, stating, “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.”

Having the president make the ultimate decision would be the better approach, said Justice Antonin Scalia. “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.”

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