Department Of Homeland Security v. MacLean
Interviewer(s): Anthony M. Kennedy, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Antonin Scalia, Sonia Sotomayor
Interviewee(s): Ian H. Gershengorn

John G. Roberts, Jr.: We'll hear argument first this morning in Case 13-894, the Department of Homeland Security v. Robert MacLean.

Mr. Gershengorn.

Ian H. Gershengorn: Mr. Chief Justice, and may it please the Court:

In Section 114(r), Congress directed TSA to promulgate regulations prohibiting disclosures that would be detrimental to the security of transportation.

The information covered in the TSA regulations ranges from a flight -- flight crew's plans for dealing with a hijacking attempt to vulnerabilities in airport security systems to the kind of de -- flight -- Federal air marshal deployment information at issue in this case.

Under the Federal Circuit's construction of the whistleblower statutes, any one of TSA's 60,000 employees may override TSA's expert judgment and publicly disclose sensitive security information in that employee's possession based on that employee's reasonable belief about what public safety requires.

Ruth Bader Ginsburg: At what point was -- was MacLean told that this qualified an -- as SSI?

Correct me if I'm wrong about this, but as I understood it, he was fired, and it wasn't until the case was before the MSPB that a determination was made that this information qualified as -- as what you call SSI.

Ian H. Gershengorn: Your Honor, I think that's not quite correct, and let me see if I can work it through.

The information -- the information about Federal air marshal deployment has been prohibited by regulation for more than a decade.

It was prohibited expressly prior to 9/11.

It was in regulations that were promulgated by TSA after 9/11.

Ruth Bader Ginsburg: But when was he first told?

Ian H. Gershengorn: He was told that air marshal deployment information was SSI in the training, and it's in the regs.

He argued before the administrative judge that he was unaware that this information was SSI, and the administrative judge rejected that contention.

That's at Petitioner's Appendix from 100a to 103a.

What the administrative judge found was his testimony that he did not know this was SSI was inconsistent, nuanced, and evasive, and the judge rejected that contention.

What happens in the TSA final order, which I know Your Honor is referring to, is that TSA creates a final order determining something is SSI precisely so that it can be appealed to the court of appeals under 49 U.S.C. 46110, which gives a person aggrieved by a -- a TSA order 60 days to appeal something to the court of appeals.

Mr. MacLean did so, and the -- the Ninth Circuit rejected his argument that this was retroactive classification of TS -- of SSI.

So I think as the case comes to this Court, there really is no dispute that he understood that this was SSI.

John G. Roberts, Jr.: But it -- it certainly is -- will, in many cases, be a close question.

I was very surprised to see in your reply brief the recognition that the employee can -- just to quote it --

"can tell the media that Federal air marshals will be absent from important flights, but declining to specify which flights. "

I think it would be very difficult to figure out what's SSI and what's not if -- given that kind of fine line.

Ian H. Gershengorn: So, Your Honor--

John G. Roberts, Jr.: And could he say, there will -- air marshals have been cut 50 percent from, you know, transcontinental flights?

Ian H. Gershengorn: --So, Your Honor, there may be close cases.

Again, the administrative judge heard this contention from Mr. MacLean and rejected it.

As the case--

John G. Roberts, Jr.: Heard what contention?

Ian H. Gershengorn: --That he did not know that this was SSI, that the Federal air marshal deployment--

John G. Roberts, Jr.: Okay.

Well, what about my question?

Could somebody say that the number of air marshals on transcontinental flights has been cut 50 percent?

Ian H. Gershengorn: --Your Honor, I think that -- that without specifying -- I don't know the answer to that.

I'm not someone at TSA who has classification--

John G. Roberts, Jr.: So how was Mr. MacLean supposed to know?

Ian H. Gershengorn: --Because Mr. MacLean -- Mr. MacLean is -- was trained to know, was trained in SSI, received training on that -- on that.

And as I say, Your Honor, there is no dispute that he did know that this was SSI.

Details of Federal air marshal deployment--

Sonia Sotomayor: I'm a little confused.

Like Justice Ginsburg, I thought from the briefing that that was done generally beforehand, that something would be distributed to people with a confidential notice on it so that people would be--

Ian H. Gershengorn: --That would be marked SSI.

Sonia Sotomayor: --that the -- that this was SSI.

But this particular information wasn't so designated before the release.

Ian H. Gershengorn: That's correct, Your Honor.

But the -- the -- there's no doubt the best practice is, is to mark information SSI.

But information is SSI--

Sonia Sotomayor: You want it before it's going out.

Ian H. Gershengorn: --Correct.

But SSI can -- information can be SSI, whether or not it is marked -- whether it -- or not it is marked that way.

And, again, the regulations are -- are clear on this, that details of Federal air marshal deployment are covered as SSI, and this issue was litigated before the administrative judge.

I think--

Anthony M. Kennedy: If there were no regulations, just the statutes on the books, at that point, are there any prohibitions on disclosure?

Or there can be no SSI without at least some regulation?

Ian H. Gershengorn: --That's correct, Your Honor.

But -- and so if I could turn to that, what the Federal Circuit held, the Federal Circuit held that the whistleblower protections extended to this information.

But properly read, 2302(b)(8)(A) squarely forecloses that result.

What that section does is exempt from whistleblower protection information that is specifically -- disclosure of which is specifically prohibited by law.

The Federal Circuit found no specific prohibition here, indeed, no law at all.

But under the SSI regime, disclosure was prohibited both by the statute that mandated nondisclosure regulations and by the nondisclosure regulations--

Antonin Scalia: No, it wasn't prohibited by the statute until there were regulations, right?

Ian H. Gershengorn: --That's correct, Your Honor.

But there were regulations--

Antonin Scalia: So it is prohibited by regulations.

Let's not play games.

Ian H. Gershengorn: --So, Your Honor, I don't -- I -- I think we would prevail even under that interpretation because it's prohibited by regulations that the statute mandated to be disclosed.

But I think under this Court's decisions in Robertson and in Sims, which addressed the question of specifically exempted from disclosure by statute, and this Court said that in Robertson, a regulation that gave to the administrator authority to -- to ex -- to dis -- exempt from disclosure after a public interest weighing, and in Sims where the Court had a statute that just gave to the CIA director an instruction to protect sources and methods, and the Court said in both cases that was specifically exempted by statute.

John G. Roberts, Jr.: Well, your reasoning is--

Ruth Bader Ginsburg: What--

John G. Roberts, Jr.: --would -- it apparently came as a surprise to the government lawyer in the court of appeals.

He said, I'll be as clear as I can.

Specifically prohibited by law here means statute.

Ian H. Gershengorn: So, Your Honor, I--

John G. Roberts, Jr.: Again, the MacLean is supposed to know something that the lawyer -- government lawyer and the court of appeals doesn't know.

Ian H. Gershengorn: --So, Your Honor, I think that that statement -- the lawyer did say that.

But the lawyer went on to explain that regulations promulgated pursuant to a statutory mandate would control, and that's what the Federal Circuit understood.

Ruth Bader Ginsburg: --But now you think -- you seem to be arguing that it's not simply mandated by statute.

You use the two FOIA examples that you gave was authorized or permitted.

So what is your position today?

Before the Federal Circuit, it seems to have been this is statute, not regulations.

Now it's some regulations, but we don't know whether regulations that are mandated or regulations that are merely authorized.

What is it?

Ian H. Gershengorn: So let me be as clear as I can.

We believe that it is specifically prohibited first by a statute, which was the argument that was made clearly below, and by -- and -- and in the briefs here and that this qualifies.

Second, we think that it is prohibited by regulations that are prohibited pursuant to a statutory mandate -- that promulgated pursuant to a statutory mandate.

And if I could point the Court's attention to page 15a.

Anthony M. Kennedy: Excuse me, I must have misunderstood.

I asked you whether or not the employee could be terminated if only the statute were on the books and no regulations yet, and I thought you said no.

Ian H. Gershengorn: Because there would be no SSI designated.

Anthony M. Kennedy: All right.

So--

Ian H. Gershengorn: But once there's -- sorry.

Anthony M. Kennedy: --So then -- so then the statute alone does not carry the day.

Ian H. Gershengorn: So, Your Honor, I don't think that's the way the Court looked at it in Robertson and the way the Court looked at it in Sims, because in both of those cases, there had been no determination not to disclose until the administrator made the determination, and yet the Court found that those were specifically -- that they were specifically -- nondisclosure was specifically authorized by statute.

If I could just finish the answer to Justice Ginsburg and to the Chief.

At -- to the Chief Justice.

At page 15a in the Petitioner's Appendix, what the court -- the Federal Circuit said was,

"Regulations promulgated pursuant to Congress's express instructions would qualify as specific legal prohibitions. "

Both arguments were--

John G. Roberts, Jr.: I'm sorry, what was that quoted from?

Ian H. Gershengorn: --That was from the Federal Circuit's decision at 15a.

It's at 15a attached to the -- to the petition.

So the Federal Circuit understood, just as -- as they said, that regulations promulgated pursuant to Congress's express instructions would qualify as specific legal prohibition.

Sonia Sotomayor: Counsel, would you qualify, assuming -- because Congress disagreed with Robertson and -- didn't it?

And it then amended FOIA.

Ian H. Gershengorn: Congress amended FOIA, yes, Your Honor.

Sonia Sotomayor: All right.

Assume that we read statute more or less the way that FOIA does--

Ian H. Gershengorn: Okay.

Sonia Sotomayor: --the amended FOIA.

Do you meet the amended FOIA criteria?

Ian H. Gershengorn: We do, Your Honor.

Sonia Sotomayor: All right.

And which prong of it and why?

Ian H. Gershengorn: We meet the -- first of all, I would just like to say that the Senate legislative history expressly considered this very question and said that if that -- that we -- I'm sorry.

Can I step back one second, Your Honor?

We don't think that you need to meet those amended -- so -- the -- the amended FOIA.

But taking that as a given, Your Honor, what the Senate report said was--

Sonia Sotomayor: It seems to be eminently reasonable despite Robertson.

Ian H. Gershengorn: --It seems -- Your Honor, once this Court--

Sonia Sotomayor: I mean, but that's basically what you're arguing, is that -- one of the two FOIA exceptions.

So tell me which one.

Ian H. Gershengorn: --So it's the FOIA exception, Your Honor, that -- that establishes particular criteria for withholding or refers to particular types of matters withheld.

And we think in the legislative history what the Senate report said was that the Sims statute, the Section 102(d)(3) of the National Security Act of 1947, would qualify and that's a statute that said,

"The director of CIA shall be responsible for protecting intelligence sources and methods from unauthorized disclosure. "

period.

That was all it said.

That's no different from our statute and we think that even if this -- we think--

Sonia Sotomayor: Yours is, I think, a little bit more specific than that.

Ian H. Gershengorn: --Then perhaps more specific.

So we think that -- that it follows a fortiori that if the Court relies on statute, that we meet that statute and, of course, that -- that makes perfect sense.

If the Chief Justice were--

Stephen G. Breyer: Well, my goodness.

I'm not sure.

I mean, when you have a CIA statute, they say you cannot disclose agents or sources and -- what does it say?

Sources?

Ian H. Gershengorn: --Your Honor, it says, “ The director of ”--

Stephen G. Breyer: Sources and methods, intelligence sources and methods.

And there's another one that refers to critical infrastructure information.

All right.

If I accept those as being sufficiently specific or having sufficient criteria, I look at yours.

And yours says,

"There shall be regulations prohibiting the disclosure of information obtained or developed in carrying out security. "

--and now here's the criterion --

"if the under secretary decides disclosing information would be detrimental to the security of transportation. "

Now, that it seems to me could include everything from a spark plug that is deficient in the airplane to a terrorist.

And -- and I don't -- I mean I don't know how I would judge that.

I mean, to the ear telling the CIA you can't disclose sources seems a lot narrower than telling the Department of Transportation or Homeland -- what is it, DOT -- that, everybody in charge of airplanes, you have a regulation, detrimental to the security of transportation.

I don't know.

How would you decide it?

I mean, it sounds to me that that's quite a lot broader and so much can be detrimental to the security of an airplane.

Ian H. Gershengorn: --So, Your Honor, a couple of points on that.

First of all, the -- the Court interpreted the statute in Robertson to be sufficiently specific.

And in Robertson, what the Court -- what the statute said was,

"An administrator shall order information withheld from public disclosure when, in the judgment of the administrator, the disclosure would adversely affect the interest of the person and is not required in the interest of the public. "

It's much less specific.

Stephen G. Breyer: Now, that's the one before.

Ian H. Gershengorn: But that's the one this Court found sufficient.

Stephen G. Breyer: That may be what this Court did.

But subsequent to that, Congress amended the Act, as was just pointed out, in a way that says you have to have specific criteria.

Ian H. Gershengorn: But if I may, Your Honor.

It amended FOIA, but strikingly, the Court -- the Congress did not amend and include that language when it passed the CSRA.

In fact, what Congress did--

Stephen G. Breyer: Okay.

I'll look at that.

I'm not -- I can deal with that on my own.

But I do have a question that only you can deal with.

And the question I have that only you can deal with is this.

I mean, obviously, it's a matter of concern that someone could go around and say there are no marshals on this airplane.

That is obviously a matter of concern.

So if in fact that was a real worry about blowing up airplanes for that reason, could the President then simply use the second prong and say an executive order will require that to be kept secret?

Ian H. Gershengorn: --Your Honor, the President could do that.

Stephen G. Breyer: All right.

Now, in doing that, in doing that, does it automatically fall into the 400,000 regulations that govern Defense Department security information, or could he say, for the purpose of this statute, what we're talking about now, I determine that it should be kept secret.

Therefore, there is no -- no prohibition against people communicating that information with Swedish people, British people, all kinds of airline officials, et cetera?

Now, you're saying yes, he could do that under this second prong, yes or no?

Ian H. Gershengorn: Yes, because there's an executive order--

Stephen G. Breyer: Yes.

Okay.

Fine.

If that -- if he can do that, then there is no worry.

Ian H. Gershengorn: --Your Honor--

Stephen G. Breyer: Because if this -- am I right, there is no worry?

Ian H. Gershengorn: --No, Your Honor.

Stephen G. Breyer: Because if, in fact, this is going to lead to blowing up airplanes, all he has to do is use that second prong.

Now, you say I'm not right.

Why not?

Ian H. Gershengorn: You're not right, Your Honor, because that is fundamentally inconsistent with the judgment that Congress made that the SSI system should coexist with the classified information and with executive orders.

What Your Honor is saying is that it doesn't matter that the SSI system that Congress set up doesn't -- wouldn't work and can't function because the President by executive order could fill in the gaps.

But what Congress--

Stephen G. Breyer: I'm not saying anything like that.

I am worried about a practical matter.

I am worried about the decision of the Court against you leading to somebody blowing up an airplane.

And I suddenly thought, as a practical matter, that is not a serious worry because the President can always use the second prong to keep people from disclosing the information that you don't want disclosed.

And so far, you've said I'm right and now you got into a legal argument.

I'm not talking about a legal argument.

Ian H. Gershengorn: --So, Your Honor, I think such a system could be devised, but I think it would be a very odd construction of the statutes the Court has before it to -- to say that we are going to undermine and eviscerate the SSI system that Congress by statute--

Stephen G. Breyer: No, no.

I am just worried -- look.

Let me ask my question.

And my question is: If for other reasons I decided you were wrong, would I still have to face the problem of airplanes being blown up?

I'm focusing on this because it's very important to me.

And you have answered that question, if for other reasons -- and you, of course, think you're right -- but if for other reasons I thought you were wrong, I wouldn't have to worry about that practical problem because there is prong two.

And it's important to me that you answer yes or no and I take your answer to be yes, you are right as a practical matter.

Ian H. Gershengorn: --I think it is possible that the President could entirely duplicate the SSI system that Congress set up to help to prevent that practical problem.

Samuel A. Alito, Jr.: To follow up on that, if the President proceeded along that path, what would be the consequences with respect to the people, the class of people who would be able to have access to this information?

Would this -- this would be classified information and then only people with certain security clearances would be -- no?

Ian H. Gershengorn: So the system could not work, Your Honor, if it was a classified information system.

Samuel A. Alito, Jr.: No.

I'm talking about Justice Breyer's alternative.

Ian H. Gershengorn: So Justice Breyer's system, the answer is we would be in uncharted territory.

I don't know as a fact that the President -- the President would have to essentially duplicate the SSI system.

And it's precisely because it doesn't work under the classified information system that already exists, because this is information that is very sensitive, yet has to be shared among people who are operating our -- our transit system, so that flight attendants need to know--

John G. Roberts, Jr.: Yes.

But what's so hard about duplicating the SSI system?

He signs an executive order saying duplicate the SSI system and right away the problem we have here of people like Mr. MacLean revealing information is not a problem anymore because it is then protected by executive order.

Ian H. Gershengorn: --So, Your Honor, I -- I just -- I -- I think that that would work, but I have to say I'm not sure of the ins and outs.

But I do think it's critical to say--

Antonin Scalia: It would have one good effect and that is, it would make sure 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 whistleblower, doesn't want any criticism of what it's doing, can pump out these regulations.

It would have that -- that salutary effect, wouldn't it?

Ian H. Gershengorn: --Your Honor, it might have that effect, but I think that that's the judgment that Congress made.

What Congress did was set up this SSI system, knowing that the President had authority under the executive order, knowing that the classified information system was set.

And what Congress -- and knowing, in fact, what these regulations said, the very regulations in -- in basically the same form that we have today.

When Congress created -- moved TSA into the -- into DHS as part of the Homeland Security Act, these regulations were already there and Congress had them before it.

And what Congress said was that SSI--

Elena Kagan: Mr. Gershengorn, if I could, before you get away from this, and I understand you have a statutory argument to make, but the way that the President would do this, if he wanted to do it, would be by a new executive order or, in fact, would this old Executive Order 13556, which deals with controlled unclassified information, is that what the President would use?

Ian H. Gershengorn: --Your Honor, I'm not sure of the ins and outs of what the President would have to do.

This is information that is shared outside of the government, which is what makes it a little tricky.

These are -- they are shared with -- with flight attendants.

They're shared with local--

Elena Kagan: Right.

But I thought that that class -- that class of information, controlled unclassified information, as opposed to classified information, could be shared outside the government and Executive Order 13556 deals with that and the President could simply make clear that that executive order applies to this kind of information.

Ian H. Gershengorn: --So, Your Honor, I just don't know the answer to that, whether that order would -- would satisfy.

My sense is that it would take a lot more than that to -- to duplicate the kinds of SSI system that has been in place for over a decade and a half and that Congress signed off on.

But it -- it -- and so the exact form of the executive order, it's not something that, quite frankly, I think we've contemplated here because there is this regime that Congress had set up.

John G. Roberts, Jr.: Well, about -- you talked about what Congress meant and set up.

But the conference report says the language does not refer to agency rules and regulations.

So, whatever staffers prepared that, and I'm not suggesting Congress did, but whatever staffers prepared that, again, MacLean had to know more than they did.

Ian H. Gershengorn: So, Your Honor, I don't think that's right.

And I think this is a situation -- I'm going to make the initial point and then step back if I could and make a series of points on this.

I think this is a situation in which the Court has -- would be right to view that legislative history with some skepticism and here's why.

What Congress had before it was a bill that said, but from the Senate side, that said “ prohibited by statute ”.

Had Congress passed that, we wouldn't be here making our regulatory argument.

What Congress adopted was a provision that says “ specifically prohibited by law ”, a phrase that--

Antonin Scalia: Yes.

But elsewhere in the same legislation, it refers to

"prohibited by law, rule or regulation. "

Ian H. Gershengorn: --It does.

Antonin Scalia: Here, it just said “ by law ”.

Elsewhere in the same statute it says,

"by law, rule, or regulation. "

What am -- what am I supposed to conclude from that?

Ian H. Gershengorn: So I think what you need to conclude from that, Your Honor, is that the term “ by law ” has to exclude at least some rules and regulations, and we think that it does.

It excludes those that are internal agency regulations and regulations relating to agency organization, practice or procedures.

Antonin Scalia: How do we know that?

Ian H. Gershengorn: Because that is the presumption that this Court set up in Chrysler.

What Chrysler did was interpret the phrase “ authorized by law ”, and what the Court said that “ authorized by law ” meant had a well-established meaning and that well-established meaning was that regulations that met the three-part test in Chrysler, that they were substantive regulations of a legislative type, that they were reasonably within the contemplation with Congress, and they were properly promulgated, were regulations that counted as by law.

The Court expressly distinguished internal agency interpretive rules and agency rules of organization, order, and practice and said those were different.

We think that is the distinction that is in the statute.

Antonin Scalia: If -- if that is true and if that is so obvious, Congress would not have -- have to have said

"by law, rule, or regulation. "

in the other provision.

It could just have said “ by law ” and what you said would automatically follow.

Ian H. Gershengorn: No, Your Honor.

The

"law, rule, or regulation. "

is the formulation that sweeps in agency internal rules and regulations and regulations promulgated pursuant to the housekeeping reg.

That is precisely the distinction that the Court drew in Chrysler and it is precisely the distinction that we draw in the statute.

When the statute says

"by law, rule, or regulation. "

it includes all lawfully promulgated regulations, including interpretive rules, including agency's rules of procedure and practice.

When the statute says “ by law ”, what the Court -- what is meant and what Chrysler said had a well-established meaning that -- that would require a clear showing to overcome is that it includes statutes and it includes regulations that meet the Chrysler three-part test.

So that is the precise distinction that this Court -- that this Court drew in Chrysler, and it is embodied in the statute.

To read it otherwise is to say that--

Elena Kagan: But the place -- Mr. Gershengorn, Chrysler was -- it just said “ law ”.

“ Law ” was not juxtaposed in the same sentence as another phrase that said “ law, rule and regulation ”.

So that would seem, that juxtaposition of the two very different terms, would seem to defeat the Chrysler presumption.

Ian H. Gershengorn: --So, Your Honor, the reason I don't think it does is because it is equally consistent with precisely the distinction that Chrysler drew between regulation -- rules, regulations with the force and effect of law on the one hand and internal rules and reg -- and rules of agency--

Antonin Scalia: Boy, that is subtle.

That is so subtle, that Congress is going to draw that distinction between substantive rules and procedural rules by saying “ law ” here and

"law, rule, or regulation. "

there.

You can spin out that argument, but the notion that this is what Congress had in mind when it enacted this thing or that any member of Congress had in mind when he voted for it, I -- I find that hard to believe.

Ian H. Gershengorn: --So, Your Honor, the reason why I don't think you should find that hard to believe is the following.

First of all, by going from “ by statute ” to “ by law ”, right, Congress went from a narrow -- a narrow structure that would have plainly foreclosed regs and instead moved to a much broader formulation that this Court had given meaning in Chrysler.

Second--

Ruth Bader Ginsburg: One -- there was one view that by going to “ law ” rather than “ statute ” what was meant was to include judicial decisions.

Ian H. Gershengorn: --Your Honor, it does say that in the -- in the legislative history, but that's precisely why I think this Court should view that with some skepticism.

It's hard to believe that the term “ by statute ” would not have included constructions of statutes that this Court made.

And so to justify the move from “ by statute ” to “ by law ” to say we sweep in the Court's interpretation of statutes, I think, is a little hard to swallow.

If I could reserve the balance of my time.

John G. Roberts, Jr.: Thank you, counsel.

Mr. Katyal.

Sonia Sotomayor: Mr. Katyal, if the statute read,

"Disclosure of information detrimental to transportation safety is prohibited and the TSA shall promulgate regulations to that effect. "

would that be pursuant to law under the statute?

Sonia Sotomayor: And That's what I want to know.

How specific does -- are we going to get to a point where Congress has to look at every category of information every agency deals with and make a law prohibiting the disclosure of that individually?

Sonia Sotomayor: Do you have any doubt that the -- that -- make the argument that the disclosure of this information didn't potentially harm transportation safety?

Antonin Scalia: And he was successful.

Antonin Scalia: They called off the cancellations.

Samuel A. Alito, Jr.: I'm sorry.

Go ahead.

Sonia Sotomayor: So are you saying that this statute is not specific enough for a FOIA request?

If someone under FOIA had come in and asked for this information, they could have gotten it?

Sonia Sotomayor: So you want us to de-couple FOIA from this.

It would be okay under FOIA for the agent to withhold this information?

Sonia Sotomayor: Because you think it's -- that you think it's -- that particular types of matter to be withheld.

You agree with the government that that includes this kind of material.

Stephen G. Breyer: No.

But the statute -- the statue other than the FOIA exemption 3 language doesn't talk about when a matter is kept secret by statute, as opposed to by regulation.

So given that it's all tied in together, it's very tempting to say, I'll tell you when it's a statute rather than a regulation.

And then you go and read the -- the exemption 3 and you say it's a statute when, 1, it leaves no discretion on the issue, or 2, it establishes particular criteria for withholding; or 3, it refers to particular types of matter.

So we look at the statute to see if it does that.

That's what I thought I was supposed to do, to decide whether it's the statute that's doing it or the regulation.

And the one that gives me the most trouble on those three is the last one, because it does seem to refer to a particular type of matter, though in very general terms.

But so what do you think of what I've just said?

Stephen G. Breyer: I see that.

You'd have to say critical infrastructure facilities are on one side of the line.

This is on the other.

Now, what about the analysis I just went through?

What do you think of that?

Is that the correct legal analysis, in your opinion?

Anthony M. Kennedy: But the gravamen of your position is that after Congress enacted these statutes, anything that came within the WPA definition could be disclosed until Congress passed another statute?

That's what you want us to hold?

Anthony M. Kennedy: Where could I look to find examples of where, before the regulation, there would be information pertaining to airline flights that could not be disclosed?

Anthony M. Kennedy: But that doesn't apply to this Respondent.

Anthony M. Kennedy: You're saying that this Respondent, until there was a second statute, was not prohibited from disclosing anything within the broad reach of the WPA of

"uncovered a violation of matters relating to specific danger to public health or safety. "

Anthony M. Kennedy: So Congress passed a statute saying: And we'll pass another statute sometime before this has any effect?

Samuel A. Alito, Jr.: Can I ask you about that?

You say in your brief Mr. MacLean contacted a reporter with a history of responsible reporting about TSA who maintains close connections with Congress.

Now, suppose that he instead contacted a reporter working for a foreign state-controlled news agency and the information was not quickly released to the public, so that the information was out there and could have been obtained, perhaps, by terrorists before Congress was aware of this and before the agency was aware of it and before it was able to take corrective action.

Would there be any reason why that would not fall under the statute, as you understand it?

Stephen G. Breyer: In your view you don't even need the President.

In your view, the President wouldn't get involved because you have to have a very specific statute.

That's your view.

Stephen G. Breyer: I know that.

I'm just saying but you don't even get into it because it was in a regulation and not in a statute.

And if it's not in a statute, then you don't even get into that.

Samuel A. Alito, Jr.: Well that may be.

But I doubt if Congress had thought about the situation that I posited, they would be content with the possibility of a disclosure that wasn't really a disclosure to the full public.

Antonin Scalia: I'm a little concerned about your acceptance of the hypothetical that the whistleblower doesn't blow the whistle to anybody except the Soviet Union.

Do you really think that that's what the statute means when it says to take or fail to take or threaten to take personnel action with respect to any employee because of any disclosure of information which the employee or applicant reasonably believes evidences a violation of law, rule or regulation, gross mis -- don't you think it's implicit in that he's disclosing it to somebody who could remedy the problem as opposed to an enemy?

Sonia Sotomayor: I'm troubled because the facts are very much in your favor here, because he disclosed it publicly, but under your scenario or under your position, if he published every day until the executive order came out the schedule of which flights air marshals will be on and he would come out and just say, I think we need more air marshals, that would be -- that would not be a violation.

They couldn't fire him for that.

John G. Roberts, Jr.: Which way does that cut?

It seems to me that cuts very much against you.

In other words, whistleblowers are blowing the whistle all the time without any justification.

That's I thought the government's point, that this requires, puts all the eggs in the basket of whatever the whistleblower happens to think is a good disclosure.

Stephen G. Breyer: Congress -- I mean, I know people don't want to bring this up.

But actually the staffs of congress do consider these problems.

They write them down.

They say what the answer is and the members are informed.

Now, in this particular case, if you happen to read the conference reports, you get the answer.

It says, what does it mean not specifically prohibited by law?

And then in both the House report and the Senate report, it tells you, go back to what we passed two years ago, namely, the FOIA exemption, and that's what it means.

And so that's why I got the thought that maybe that is what it means.

And once you have that thought, you then see the country isn't going to fall apart because they wrote in the presidential exemption as well.

So reading what the staffs actually wrote, perhaps I'm biased in that respect, believing that the members of Congress do think about these problems through staff, we have the answer to this case leaving only open whether it is specific enough or not, and you make an argument that it's too general.

Now, why shouldn't I follow that approach?

Stephen G. Breyer: There are three reports.

One is really for you, and that's the conference report.

The Senate report is somewhat against you because it picks up the FOIA -- or the FOIA exemption, and says that's what this means, even though you don't want to do that and--

Stephen G. Breyer: --I would read all of them, the House report, too.

Sonia Sotomayor: Excuse me.

Then you would say that under FOIA -- I mean, assuming I follow Justice Breyer's approach -- you would be leading to the conclusion that the government -- if a FOIA request is made, the government has to disclose it because it doesn't -- because it's not -- the -- the statute is not referring to a particular type of matter to be withheld.

It's not particular enough for you.

Sonia Sotomayor: Just answer my question.

You're saying the government couldn't withhold it under FOIA?

Samuel A. Alito, Jr.: Mr. Katyal, if you agree with the suggestion that this could be remedied by the President through an executive order, could I -- do you agree with that?

Samuel A. Alito, Jr.: Now, could I ask you how that would -- how that would work out?

Let's say -- let's just take this example.

Suppose the information in question concerns the -- the layout in a particular airport.

There's an area that -- that some employee of the TSA thinks is not secure.

So that's the information.

Then the information comes out that there's this problem with that particular airport and the -- the TSA employee thinks that it's not being remedied, so this person wants to disclose it.

Now, how would that -- this information has to be disclosed to a certain number of people associated with that airport in order for the problem to be remedied.

So how would that be dealt with in an executive order?

The President has to issue an executive order about that specific thing and say, this can be disclosed to security people at the airport, the local police, maintenance people who are going to fix that.

How would you deal -- how would that be dealt with?

Antonin Scalia: Mr. Katyal, are there criminal penalties for violation of -- of this statute?

Elena Kagan: Mr. Katyal, can we go back to your legal argument, and let me make sure I understand it.

You're saying don't use the revised exemption 3 standard.

114(r) is narrower than that; is that right?

Elena Kagan: So that all of our exemption 3 cases essentially become irrelevant; is that right?

Elena Kagan: But the -- and you're doing that based solely on the notwithstanding FOIA language; is that right?

Elena Kagan: I mean, it's very general language, that's absolutely true.

And if you were writing on a clean slate, you might say, gosh, that's very general language.

But -- but we're not writing on a clean slate, and all our exemption 3 cases seem to suggest that very general language can meet the bar.

And so I'm just looking at -- there's this case GTE Sylvania, which was a statute that prohibited disclosure, if disclosure was not fair in the circumstances and reasonably related to effectuating the purposes of the Consumer Product Safety Act.

And we said that was enough, which it's like you look at that and you say, why is it enough?

But that's what we said.

Anthony M. Kennedy: If -- if Congress wanted to reach your position and it had a choice of the words it would use in the second part of the statute, could it say “ statute ” instead of “ law ” and it would just come out the same way?

Anthony M. Kennedy: And -- and for purposes of this case and generally, there'd really be no difference?

Antonin Scalia: Oh, yeah, I'm sure that's what they all had in mind.

I had no doubt of that.

[Laughter]

Antonin Scalia: Does -- does Congress vote on the conference report?

Antonin Scalia: The whole -- the whole House?

Each separate House?

John G. Roberts, Jr.: Well, I'm a little -- maybe this doesn't make any sense, but you've been focusing on specifically as referring to the material that is covered.

Can't it also refer to the -- the prohibition, specifically prohibited?

In other words, it actually has to say, “ You cannot disclose this ”.

You think it's specifying what “ this ” is.

Couldn't it equally be well specifying how direct the ban must be, “ specifically prohibited ”?

Stephen G. Breyer: I think I'm talking about the report on the Whistleblower Act.

Stephen G. Breyer: And the report on the Whistleblower Act, which it came two years after FOIA, the Senate committee said,

"Those disclosures which are specifically exempted from disclosure by a statute which requires that matters be withheld from the public in such a manner as to leave no discretion on the issue or by a statute which establishes particular criteria for withholding or refers to particular types of matters to be withheld. "

That is word for word.

Antonin Scalia: Did the Senate vote on that, Mr. Katyal?

Did the Senate vote on the Senate committee report?

Antonin Scalia: And did the Senate committee vote on the Senate committee report?

Antonin Scalia: No, they don't.

Stephen G. Breyer: You might be right about that, but what's bothering me is the more general question of driving an interpretive wedge between the FOIA exemption and the Whistleblower Act.

I mean, that's going to get everybody good and mixed up, I think.

Stephen G. Breyer: Yeah, but which in your opinion is the wiser way to go about it?

I mean, assuming that this statute is not specific enough, which is the better way to go about it?

To say the Whistleblower Act is special or to say interpret them both alike?

Elena Kagan: But that suggests that we take, essentially, the same language and read it two different ways, just dependent on our sense of the purpose of the underlying statute.

Is that right?

Elena Kagan: But I'm just asking if we -- your decoupling argument is essentially based on the notion that these two statutes have very different purposes and, therefore, we can take those very different purposes and read the very, very similar language differently.

Antonin Scalia: I thought you were relying on text.

I thought you were relying on the difference between law and law, rule, or regulation.

Antonin Scalia: It's not just purpose.

Antonin Scalia: Thank you.

I was worried for a minute.

John G. Roberts, Jr.: Thank you, counsel.

Mr. Gershengorn you have 4 minutes left.

Ian H. Gershengorn: Thank you, Mr. Chief Justice.

I'd like to make two principal points.

First, the question here is whether -- the principal question I'd like the Court to decide is whether this disclosure was specifically prohibited by statute.

We believe it is, and I think it's very interesting today -- Justice Kagan, you pointed out that the precedent seems to require that.

Justice Breyer, you pointed out that the legislative history in the Senate report seems to require that result.

Justice Alito and Justice Kennedy, you pointed out that the practical effects of Respondent's position would seem to be grave.

Mr. Chief Justice, you pointed out and we completely agree that the term “ specific ” which is critical to their argument could just as easily, and we think properly, mean express, which is what it means here.

And Justice Scalia, you asked about criminal penalties, but the statute itself does not provide criminal penalties just as Mr. Katyal said, but it does provide civil penalties.

We think in that situation where you have the prior case law, the legislative history, the practical effects and the plain text that to say that a statute that mandates nondisclosure regulations does not specifically prohibit disclosure is just a very odd construction.

The principal practical arguments we've heard today are that we don't have to worry because Congress could have had an executive order to make it work.

We continue to think there is no dispute that the SSI system doesn't work under Mr. Katyal's construction.

The idea that what Congress expected was a duplicative executive order to mimic the SSI scheme seems very odd to us, and seems like a very odd way to construe congressional statutes.

There was a concern here that there's this fox guarding the hen house.

That may be a concern with the Whistleblower Protection Act, but it has no application here, where Congress itself mandated the nondisclosure regulations, and did so knowing precisely what those regulations were when it did so.

And finally, there's been some suggestion that the facts are in Mr. MacLean's favor here.

I would only say this.

What Mr. MacLean -- what a TSA employee has before them is not a full picture of the threats, is not a full picture of the resource constraints, is not a full picture of the other means that the agency is taking and is not possessed with the same experience that TSA has.

Antonin Scalia: Excuse me, I hate to interrupt you, but you worry me.

I assume that if we find for your friend on the other side, the SSI regulations are not null and void.

They would still apply to everybody except whistleblowers.

Isn't that right?

Ian H. Gershengorn: Yes.

Antonin Scalia: It would still be a violation for anybody to make those disclosures unless he's doing it in a whistleblower capacity.

Ian H. Gershengorn: It would be -- yes, Your Honor, but the standard in whistleblowing is do you reasonably believe that there is a specific and substantial danger to public safety?

That is a judgment made on the information known -- reasonably known to the employee and readily ascertainable.

It is not a judgment made with the full picture of the security consequences.

I suggest to the Court, as a step back, that the right way to think about this case is that in a situation where the statute mandates nondisclosure -- just as if the Chief Justice were to tell the marshal to bar me from the courtroom, that it would be perfectly reasonable to say that the Chief Justice had expressly prohibited, specifically prohibited, my presence in the courtroom, even if the marshal were the one standing at the door.

Ruth Bader Ginsburg: Do you know how come that is, Mr. Gershengorn?

Ian H. Gershengorn: Excuse me?

Ruth Bader Ginsburg: How common it is to have regulations specifically mandated as opposed to authorized or permitted.

Ian H. Gershengorn: Your Honor, we're not aware of very many statutes like the SSI statute, where Congress has expressly mandated regulations.

There are things like the 102(d)(3) of the National Security Act, which generally says to the CIA director, protect sources and methods, and statutes like that.

There are, of course, a wide range of nondisclosures, but we're focused principally on the nondisclosure provisions here.

We respectfully ask the Court to hold that this is specifically prohibited by law and in particular by the SSI statute.

Stephen G. Breyer: We would never bar you from the courtroom.

John G. Roberts, Jr.: He wasn't talking about you.

Thank you, counsel.

The case is submitted.