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Supreme Court to review air marshal's secrecy case

| Monday, May 19, 2014, 8:18 p.m.

WASHINGTON — The Supreme Court said on Monday that it will decide the important question of when a federal employee may release to the public sensitive information from his agency that he feels endangers fellow citizens.

The court agreed to a request from the Obama administration that the justices review a lower court's decision that a federal air marshal may have been unfairly fired when going to the media about a security plan with which he disagreed.

Robert MacLean was an air marshal in 2003. Just after being briefed about a potential terrorist attack, MacLean said he received a message from the Transportation Security Administration: that because of a budget shortfall, the agency was cutting back on overnight trips for undercover air marshals.

MacLean said he went to his boss, who told him to keep quiet. Instead, he leaked the information to a reporter for MSNBC. That caused a congressional uproar, and the Department of Homeland Security canceled the order within 24 hours, calling it “premature and a mistake.”

The Court of Appeals for the Federal Circuit said MacLean was entitled to argue that he was protected by whistleblower laws when he was fired by the TSA in 2006.

The lower court ruling, U.S. Solicitor General Donald Verrilli told the court in a brief, “effectively permits individual federal employees to override the TSA's judgments about the dangers of public disclosure.”

MacLean's response was that he should not have been fired for actions that others found heroic and were not unlawful.

“Robert MacLean was a federal air marshal who spoke up about the consequences of a dangerous and possibly unlawful government decision,” wrote Washington lawyer and former Deputy Solicitor General Neal Katyal.

“Because he blew the whistle, the government changed policy and a potential tragedy was averted. But Mr. MacLean paid a hefty price.”

According to MacLean's brief, Sen. Barbara Boxer, D-Calif., thanked the anonymous tipster “who came forward and told the truth.”

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