When the Transportation Safety Administration decided to cut back on air marshals for overnight flights one of those marshals leaked the information to MSNBC. Congress was furious when the news broke and the TSA promptly withdrew the cutbacks.
Former air marshal Robert MacLean was fired when the agency learned that he was the source of the leak. MacLean then appealed under the Whistleblower Protection Act, but was turned down because the act does not protect disclosures “specifically prohibited by law”. But the fact is that MacLean never broke the law, only TSA rules, and so he won in the lower court.
The Supreme Court agreed to the government’s petition seeking a reversal, but today at argument that seemed unlikely.
Several justices pointed out that the act refers only to laws, not agency regulations. “So it is prohibited by regulations, let’s not play games,” Justice Antonin Scalia told deputy solicitor general Ian Gershengorn.
The lawyer for the former air marshal, Neal Katyal, had an easier time. “The facts,” Justice Sonia Sotomayor told him, “are very much in your favor here.”
Edward Lane was fired from his job at an Alabama community college after testifying truthfully before a grand jury and at trial about corruption at the college. Lane sued saying he was let go in retaliation, but the lower courts, citing an earlier Supreme Court opinion, ruled against him. He was represented at the Court by lawyer Tejinder Singh, who I have to say was fun to draw.
On the other side of the argument were Alabama’s Attorney General, who’s drawing I never finished, and lawyer Mark Waggoner, who was at the lectern a bit longer.
You can read about it here.
Earlier, the Court heard arguments in a patent case, Nautilus v. Biosig Instruments. Biosig has a patent on a device used in exercise machines to measure heart rate. It’s basically a bar with incorporated electrodes that receive signals from contact with a person’s hands. Nautilus claims the patent is too vague, particularly in describing the placement of the electrodes.
Now comes Justice Breyer, “I’m a little confused here. Imagine there are two kinds of electrodes, a blue one and a green one, and you have a blue one and green one on left hand and a blue one and green one on right hand. . . you cannot let them touch . . . I got that. And suppose on your left hand you put the blue one here and the green one there. And in the right hand, you put the blue in here and the green in here. . . . Does it work or not?”
And so it goes for awhile until Justice Scalia interrupts, “Let the record show that [Justice Breyer] is holding his fingers in the air.”
Anyway, it’s all “insolubly ambiguous”.
To his defenders former CIA officer John Kiriakou is a whistleblower who revealed the use of torture on terror suspects, but the government says that when he leaked the identity of a covert agent he was motivated by ego and money, seeking to “raise his media profile”.
In a deal with prosecutors Espionage Act charges were dropped and Kiriakou became only the second person ever convicted under the Intelligence Identities Protection Act. Also part of the deal was a prison sentence of 30 months instead of the eight years he faced under sentencing guidelines.
Supporters who signed a letter to President Obama asking that the sentence be commuted include NSA whistleblower Thomas Drake and Government Accountability Project director Jesselyn Radack who were seated in the courtroom today.
WaPo story here.
Arguing that that a reporter’s direct testimony about his source, in this case former CIA agent Jeffrey Alexander Sterling who has been charged under the Espionage Act of sharing classified information with NYT reporter James Risen, is important in obtaining a conviction despite a strong circumstantial case, Assistant U.S. Attorney William Welch told the judge “I hate to use this example, but I think we all know the difference, given what happened in Florida three days ago.”
Seeking to quash the subpoena for Risen’s testimony, his lawyer, Joel Kurtzberg told Judge Brinkema, “A reporter should be a last resort, not a first resort.” “They have an interest in law enforcement,” he said. “We have an interest in freedom of the press and ensuring that information flows to reporters.”
The defendant in the case, Jeffrey Sterling, is seated second from left in the above drawing.
Politico’s Josh Gerstein has the story (from which I lifted the quotes-thanks Josh!) here.
NSA computer specialist Thomas Drake, shown above with his attorneys in court this morning, was facing felony charges under the Espionage Act for sharing information about the spy agency’s awarding of the billion dollar Trailblazer program to an outside contractor.
After Judge Richard Bennett ruled that some of the allegedly classified documents Drake is accused of taking home would have to be shown to the jury the government’s case crumbled, and Drake was allowed to plead guilty to a misdemeanor.
Baltimore Sun story here.