Close enough.

Court Wrangles With Edward Snowden's Shadow

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Edward Snowden may never appear before a U.S. court, much less the Supreme Court -- but that doesn't mean his whistle-blowing is far from the justices' minds. What they think about it will be very much in evidence as the court hears oral arguments today in Department of Homeland Security v. MacLean, a case concerning an air marshal who was fired for disclosing "sensitive security information" to the media. The justices will have to decide whether the federal law that protects whistle-blowers extends to those who break an agency's regulations but not a law passed by Congress. This will matter for individual whistle-blowers in the future as well as for the overall environment in which prosecutions of government employees continue to be brought.

The case arose when Robert MacLean, a DHS employee based in the Las Vegas office, learned in 2003 of the department's plans to stop sending air marshals on flights requiring overnight stays. MacLean raised concerns about cutting back on air marshal protection after being briefed on potential al-Qaeda threats. A supervisor told MacLean that the decision was made for cost-cutting reasons. Outraged, MacLean secretly went to the news media and leaked the plan. Predictably, congressmen criticized the proposed change, and the plan was scrapped.

Three years later, MacLean, who had acquired a taste for whistle-blowing, appeared in disguise on "NBC Nightly News" to discuss another DHS-related matter. Apparently the disguise wasn't very good, because DHS figured out who he was and ascertained that he had been the source of the previous leak. DHS then fired MacLean for releasing "sensitive security information."

The federal Whistleblower Protection Act doesn't cover anyone who makes a disclosure that is "specifically prohibited by law" or specifically required to be kept secret by executive order. DHS said that this exception applies to MacLean: Department regulations state that DHS employees such as MacLean are prohibited from disclosing sensitive security information. That regulation, the government argues, has the force of law -- and so it was perfectly lawful, not to mention completely reasonable, to fire MacLean.

MacLean, for his part, argues that the words "specifically prohibited by law" mean prohibited by a law passed by Congress, not a regulation issued by DHS pursuant to congressional authority. He points out that the same federal statute protects whistle-blowers who have disclosed government violation of "any law, rule, or regulation." The mention of rules and regulations in this separate but related context, he says, shows that the statute distinguishes laws from regulations.

Last year, the U.S. Court of Appeals for the Federal Circuit, which heard the MacLean case because he was a government employee challenging his dismissal, bought his argument. The government then sought the Supreme Court's review. In its telling, the Federal Circuit's opinion opens the door for DHS employees to reveal all sorts of sensitive security information about the scope, operation and focus of DHS programs without fear of retaliation so long as they reasonably disagree with the agency about priorities. In the case of a necessarily secretive agency such as DHS, the government says, such a result is obviously absurd.

Who's right? It's difficult to imagine that Congress would have wanted to protect whistle-blowers who violate agency regulations connected to sensitive security matters. True, Congress also probably would not have wanted agencies to enact regulations simply prohibiting whistle-blowing, as that would have the effect of vitiating whistle-blower protection in the first place. But the regulations in question were not adopted to block whistle-blowing in particular. They were intended to keep security-related matters within the agency.

As a matter of text, however, the statute clearly uses the words "prohibited by law" -- not by regulation. For those who care about reading legal texts carefully, this fact is salient. It matters even more when the same statute distinguishes between laws and regulations.

The case, therefore, poses an intriguing, not to say ironic, conflict between Justice Antonin Scalia's preference for literal, "textualist" statutory interpretation and conservative distrust of whistle-blowers. The conservative justices would probably like to send a message that security is important and whistle-blowing will not be tolerated. Yet textual reading of the statute cuts in favor of MacLean.

On the other side of the partisan fence, the internal conflict is just as stark. Justice Stephen Breyer generally favors purpose-driven statutory interpretation -- but he can also be expected to be more sympathetic to whistle-blowers. To reach a pro-whistle-blower conclusion, he would have to argue that the statute's purpose was to protect even regulation-breaking government employees. To make matters tougher still, Breyer, one of the greatest regulatory lawyers of his generation, would have to admit that regulations having the force of law are not themselves laws.

It should be interesting to see how this conflict bears itself out. Rest assured that the specter of Edward Snowden will be in the chamber.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Brooke Sample at bsample1@bloomberg.net