The Olympics

Are Not Over for a

Federal Air Marshal Whistleblower

By Ingrid Drake

September 18, 2008

Former federal air marshal Robert MacLean has had to jump over a lot of hurdles to contest his 2006 termination for disclosing the Transportation Security Administration’s (TSA) Federal Air Marshals Service’s (FAMS) July 2003 plan to eliminate air marshal missions on nonstop, long distance flights for two months.  FAMS’s plan to cancel these missions was an attempt to save money on costs associated with air marshals having to sleep in hotel rooms after a long distance mission.

MacLean’s termination was sustained by a single charge: that his disclosure was Sensitive Security Information (SSI), an unclassified marking widely used by the TSA after the 9/11 attacks.

MacLean maintains that FAMS had originally sent out its plan in a text message to all nationwide air marshals’ non-secure mobile phones, instead of their encrypted PDAs, without SSI markings.  Soon thereafter, DHS issued a terrorist advisory about a possible hijacking.  Concerned about the security implications of FAMS’s plan to cut back on air marshal assignments for nonstop, long distance flights, MacLean went to his supervisors and the DHS Inspector General office.  But after his warnings fell on deaf ears, MacLean, who had 14 years of unblemished military and civilian federal service experience, made a disclosure to the media about FAMS’s plan.  TSA later designated the information MacLean disclosed as SSI.  (During this time, both the Congressional Research Service (CRS) and the Government Accountability Office (GAO) raised numerous inconsistencies and weaknesses with how TSA applied SSI).

MacLean immediately appealed his removal before the Merit Systems Protection Board (MSPB).  He argued that his 2003 disclosure was protected under the Whistleblower Protection Act (WPA), and that his disclosure could not be retroactively marked as Sensitive Security Information (SSI) over three years later.  But the government argued that the MSPB did not have the jurisdiction to rule if MacLean’s disclosure was SSI or not.

MacLean filed an appeal in the U.S. Court of Appeals for the 9th Circuit and waited over two years for its ruling.  This week, the 9th Circuit denied MacLean’s petition, in which he had argued that TSA’s SSI order violated: (1) the TSA’s own regulations, (2) the Whistleblower Protection Act, (3) the Anti-Gag statute, (4) due process, and (5) the rule against retroactive administrative adjudication.  This was no big surprise, as MacLean and his attorneys knew that the “evidentiary standard” was extremely high for TSA’s retroactive SSI order to be rescinded.

“This is not over,” writes MacLean in an email to POGO.  MacLean will have to refile in the MSPB before October 15, 2008, and argue that disclosure of unclassified information labeling is protected under the Whistleblower Protection Act (WPA), as opposed to classified information labeled Top Secret, Secret, or Confidential.  It is important to note that the government cannot retroactively label classified information.

While the MSPB has an unbelievably awful record of ruling against whistleblowers, MacLean points out that his case may be different, given the sympathetic language in the 9th Circuit’s ruling:

MacLean may still contest his termination before the MSPB, where he may raise the Whistleblower Protection Act and contend that the lack of clarity of the TSA’s 2003 ‘sensitive security information” regulations is evidence MacLean disseminated the text message under a good faith belief the information did not qualify as “sensitive security information.

While Congress has taken some steps to limit the misuse of unclassified information markings such as SSI, POGO and other groups would like to see legislation that prohibits executive agencies like TSA from retroactively marking/labeling information with unclassified information designations such as SSI, Law Enforcement Sensitive (LES), or For Official Use Only (FOUO).

Having worked with MacLean for years, POGO understands what a loss it is for the public to have him no longer serve as a federal air marshal.  We would hate to see another loss at the MSPB for federal employees who speak out when they see fraud, waste, abuse, and negligence in the agencies funded to serve us.

See related articles:

The Las Vegas Sun

The San Francisco Chronicle