U.S. Supreme Court justices seemed to side with a fired air marshal in an argument over whether he is covered by a federal law protecting whistleblowers.
In 2003, the air marshal received a secret briefing about a terrorist threat affecting long-distance flights. Two days later, he was notified that the Transportation Security Administration (TSA), to save money, was canceling assignments requiring an overnight stay. The marshal complained to his superiors, saying the move would imperil public safety, The New York Times reports. When the TSA failed to act, he contacted a reporter for MSNBC and the news coverage led the TSA to reverse the policy.When the air marshal was identified as the source of the report, he was fired for disclosing sensitive information without authorization. He challenged his dismissal under the Whistleblower Protection Act, which protects federal workers from retaliation if they disclose “a substantial and specific danger to public health or safety.” The law has an exception for disclosures “specifically prohibited by law.” The main question for the justices, the Times writes, is whether a Department of Homeland Security regulation was the sort of exception that Congress was referring to in the whistleblower law.
Some justices wondered how transportation workers could tell what information was too sensitive to be disclosed. Chief Justice John G. Roberts Jr. noted that the government’s own brief noted that the air marshal had been free to tell reporters “that federal air marshals will be absent from important flights” but also decline “to specify which flights.” Ian Gershengorn, a deputy solicitor general, acknowledged that the president could forbid the dissemination of sensitive information no matter how the court ruled, according to the Times.
A lawyer for the fired air marshal said his client was precisely the sort of worker the whistleblower law was meant to protect, the Times reports. The marshal had acted quickly and responsibly, to prevent something that “would have been detrimental to national security,” the attorney said.