Robert MacLean

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On August 25, 2011, the United States Office of Special Counsel ( OSC ) filed a motion declaring former TSA Federal Air Marshal Robert MacLean a whistleblower.[1]

U.S. Office of Special Counsel intervenes in support of Robert MacLean

In her August 25, 2011 motion, U.S. Special Counsel Carolyn Lerner of the United States Office of Special Counsel (MSPB) filed an amicus curiae with the United States Merit Systems Protection Board in support of Robert MacLean. It requested that the MSPB reverse its June 22, 2009[2] and July 25, 2011[3] decisions.

U.S. Special Counsel Lerner wrote:


“
Whistleblowers should not have to guess whether information that they reasonably believe evidences waste, fraud, abuse, illegalities or public dangers might be later designated as SSI [unclassified sensitive security information] and therefore should not be disclosed. Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual's employment.

. . .

No specific statute exists that would allow the TSA to negate [Civil Service Reform Act of 1978 (CSRA)] whistleblower protections. The statute that the TSA relied upon to retroactively designate MacLean's protected disclosure as SSl does not establish particular criteria for withholding and does not refer to particular types of matters to be withheld

. . .

The Board’s expansion of the exception to CSRA protected whistleblowing is contrary to the plain meaning and intent of the statute and significantly expands what Congress intended to be a very narrow exception to CSRA protected whistleblowing, thereby chilling would-be whistleblowers.[4]
 ”

Aviation Security Whistleblower

On August 25, 2011, the United States Office of Special Counsel ( OSC ) declared former Transportation Security Administration (TSA) Federal Air Marshal Robert MacLean a whistleblower.[5]

Two days after the Department of Homeland Security issued a July 26, 2003 al-Qaeda suicidal hijacking warning[6] for cross-Atlantic U.S. flights, MacLean made a disclosure exposing the TSA's cost-cutting plan that would have specifically violated federal law 49 USC § 44917(b). Eleven members of the 108th United States Congress publicly supported MacLean's actions that led to the TSA canceling its plans. Over three years after the fact, the TSA backdated MacLean's 2003 whistleblower disclosure with a TSA-regulated unclassified information marking. The TSA applied its marking and then charged MacLean for violating it after investigating him for appearing in a 2004 September 11, 2001 attacks anniversary national television news special regarding the TSA's failure to protect the identities of Federal Air Marshals. A year before MacLean's July 2003 disclosure, the TSA implemented dress code, airport security checkpoint bypass, and pre-boarding policies which routinely exposed Federal Air Marshal identities.[7]

On July 25, 2011, the United States Merit Systems Protection Board (MSPB) ― an Executive (government) branch panel currently made up of one George W. Bush and two Barack Obama appointees limited to a 5 or 7-year term ― defended the TSA's actions of backdating MacLean's 2003 disclosure with its unclassified marking regulations. This board ruled that a 1979 Supreme Court of the United States decision, Chrysler Corp. v. Brown,[8] cancels out MacLean's Whistleblower Protection Act of 1989 defenses. MacLean has filed a Petition For Review of this executive branch decision to the United States Court of Appeals for the Federal Circuit.

Robert MacLean was a U.S. Transportation Security Administration Federal Air Marshal Service air marshal.[9] He was fired on April 11, 2006 for making a disclosure that protected aviation and national security.[10]

After a year went by that the U.S. Transportation Security Administration's (TSA) dress code[11] and boarding procedures[12] were routinely exposing the identities of U.S. Federal Air Marshals, and two days after a terrorist suicide hijacking plot was discovered by U.S. and foreign intelligence agencies in the summer of 2003, the TSA formulated an operational plan to remove air marshals from nonstop, long distance flights—the type of flight used for the September 11 attacks in 2001. TSA formulated the plan after facing a budget shortfall; the purpose was to cut the costs due to air marshals having to lodge overnight at hotels after a full duty day of long distance missions traveling away from their duty stations. Air marshals would have been absent from nonstop long-distance flights for the two months until the new federal Fiscal Year 2004. Immediately after congressional outrage the day after MacLean's disclosure, the plan was rescinded: air marshal coverage of long haul flights was not changed.

In July 2003, U.S. Federal Air Marshal (FAM) Robert MacLean tried to blow the whistle within the TSA on a plan to reduce air marshal coverage of nonstop, long distance flights amidst heightened warnings [13] based on a July 26, 2006 Department of Homeland Security (DHS) Advisory describing intelligence of an al-Qaeda suicide hijack plan.[14] The plan would exploit a U.S. immigration loophole enabling a terrorist, without a U.S. visa, to take a flight from a country with less-stringent security to a U.S. airport and roam that U.S. airport during a layover before taking a second connecting flight to the destination country. Once inside a U.S. airport, terrorists would smuggle weapons onto aircraft by hiding weapons inside camera equipment and children's toys. During flight, the terrorists with the smuggled weapons would overpower the crew, take control, and fly the hijacked aircraft into U.S. east coast targets.[15] The plan was in direct violation of the Aviation & Transportation Security Act (Public Law 107–71), Title 49 of the United States Code Section 44917: “Deployment of Federal Air Marshals... [on] nonstop, long distance flights, such as those targeted on September 11, 2001, should be a priority.”[16]

MacLean was rebuffed by his FAMS managers and the Department of Homeland Security Office of Inspector General (DHS/OIG), so he warned the public by going to the press.[17] The message he disclosed was not labeled as UNclassified "Sensitive Security Information" (SSI), the often abused information control label within DHS' Transportation Security Administration (TSA) used to protect information—unaware of any obligation to protect the information. For employees dealing with traditional classified information, which is typically much more sensitive that SSI, they must be made aware of its status so as to protect it accordingly.

MacLean's disclosure helped to draw public scrutiny and congressional outrage to TSA's ill-conceived plan which rapidly led to them reversing their plan.[18] TSA first denied that air marshals would have been shifted, but the morning after MacLean's disclosure, Senators Hillary Clinton, Barbara Boxer, and Charles Schumer held press conferences condemning the plan forcing the TSA to backpedal.[19] Later that day the TSA acknowledged that schedules had been changed and their spokesman, Robert Johnson, stated in a press conference, "Those actions were premature and a mistake by the people who were involved."[20]

Senator Hillary Rodham Clinton and ten other members of Congress supported MacLean's actions

U.S. Senator Hillary Rodham Clinton from New York, now Secretary of State, wrote a letter to DHS Secretary Tom Ridge about MacLean's disclosure:


“
I also want to reiterate my extreme concern with the Transportation Security Administration (TSA) proposal, in the face of these serious threats, to cut the number of air marshals by canceling critical flight missions because those missions would have required air marshals to spend the night at a hotel.[21]
 ”

Congressman Hal Rogers (Republican) of Kentucky told Fox News:


“
The Federal Air Marshal program is absolutely critical to fighting terrorism and keeping the flying public safe. Given new warnings from DHS about possible hijacking attempts, it is foolish to even consider cutting back the number of air marshals on commercial flights.[22]
 ”

U.S. Senator Barbara Boxer from California wrote this provision into ATSA.[23][24][25] Senator Boxer also called for better protection of the identities of Federal Air Marshals and greater oversight of the Federal Air Marshal Service.[26]

FAM Robert MacLean was rebuffed by his TSA managers and a Department of Homeland Security Office of Inspector General (DHS/OIG) field agent, so he warned the public by going to NBC News. MacLean was quoted, anonymously, along with other unnamed sources, in a story written by Brock N. Meeks, Chief Washington correspondent for MSNBC.com.[27] That article broke the story and set off a chain reaction among national media outlets resulting in dozens of articles and televised broadcasts.[28] The message MacLean disclosed was not marked as Sensitive Security Information (SSI), the often abused UNclassified information control mark used to protect information within the DHS's Transportation Security Administration (TSA).[29] Given that text message was sent nationally to all FAMS employees' unencrypted and password-protected cellular phones and did not contain SSI marking, MacLean was unaware of any obligation to protect the information. For employees dealing with traditional CLASSIFIED Information, which is typically much more sensitive that SSI, they must be made aware of its status so as to protect it accordingly.

FAM Robert MacLean's disclosure helped draw public scrutiny and bipartisan congressional outrage[30] to TSA's plan which rapidly led to its reversal.[31] TSA first denied that air marshals would have been shifted, but the morning after MacLean's disclosure, U.S. Senators Hillary Rodham Clinton (New York), Barbara Boxer (California), and Charles Schumer (New York)[32] held video press conferences condemning the plan forcing the TSA to reverse its plan before going into effect.[33]

U.S. Senator Frank Lautenberg of New Jersey was "furious" and issued this July 30, 2003 press release:


“
You have to ask yourself: What are they thinking? First, the Administration issues an alarming statement that puts fear into the public, then they want to scale back security on airplanes. Does the left arm know what the right arm is doing over at the Department of Homeland Security?[34]
 ”

U.S. Senator Charles Schumer of New York stated the following:


“
Given the potential fallout of another attack that intelligence reports suggest is on the way, it is incredible that the TSA would consider reducing the air marshal presence on these flights simply to save the cost of an overnight hotel room[35]
 ”

U.S. Senator Charles Schumer of New York also called on DHS Secretary Ridge to:


“
immediately reverse reported plans to cut air marshal service on coast-to-cost and international flights … in light of intelligence indicating that al-Qaida and other terrorist groups may have stepped up plans[36]
 ”

Fearful that fewer air marshals might travel on cross-country flights into San Francisco, Senator Boxer told reporter Edward Epstein of the San Francisco Chronicle that she had offered to send the TSA a list of hotels near San Francisco International Airport where air marshals could book rooms for well under $100 a night. In a discussion with Senator Schumer, DHS Assistant Secretary of Border & Transportation Asa Hutchinson also admitted the plan to remove air marshals from nonstop, long distance flights was an error:


“
'[DHS Assistant Secretary Hutchinson] said it was a mistake,' said Schumer.[37]
 ”

U.S. Senator John Kerry of Massachusetts told the Wall Street Journal that President Bush's tax cuts for the wealthy caused the TSA to consider implementing the plan:


“
President George W. Bush should exercise some leadership by realizing that tax cuts for the wealthy take money away from the protection of the American people[38]
 ”

Congresswoman Carolyn B. Maloney of New York issued a press release on her official congressional website:


“
One day its taking air marshals off the flights to avoid hotel costs at Motel 6, the next its holding back on training for them to do their jobs, all in the name of cost-cutting. I don't know what to expect next - they'll probably make air marshals fly stand-by. It's clear that they are playing a shell game with homeland security programs. It is essential that they tell us which programs are next to be cut. We shouldn't have to wake up one day to find out that airliners, ports, cargo or any other targets are unguarded because they have decided to cut the programs.[39]
 ”

Congressmen Bill Pascrell, Jim Turner, and James Langevin together issued press releases about their letter to DHS Secretary Tom Ridge:

Congressman Bill Pascrell:


“
The sheer idiocy of this determination is mind blowing. Only four days ago the TSA issued an urgent memo to all U.S. airlines and airport security managers detailing very specific intelligence related to hijacking and suicide missions by terrorists this summer. So now is a good time to pull air marshals from cross-country flights. The four planes hijacked on September 11th were all scheduled cross-country flights. Couple this knowledge with the new intelligence warnings-the most specific to date-about current hijacking plots, and there is absolutely no excuse for the TSA to scale back security.[40]
 ”

Congressman James Langevin:


“
"As reports of potential terrorist attacks on commercial airliners surface, homeland security officials should be strengthening the air marshal program, not weakening it. We cannot afford to cut corners when it comes to protecting the safety of Americans. At a time of heightened alert, the thought of curbing the air marshal program to save costs on overnight hotel stays is absurd. Your statement today that 'every air marshal is being deployed' does not answer the question of whether air marshals are being removed from flights that would result in overnight hotel stays. We note that such flights would typically be cross-country routes, like those hijacked on September 11.[41]
 ”

U.S. Senator Ernest Hollings of South Carolina:


“
The word came categorically down from the White House they've got a scheme and a plan on course, 'Let's cut the taxes, cut the taxes, cut the taxes,' and then to sort of make it look legitimate, cut all spending.[42]
 ”

Favorable news article into the Congressional Record

From the House floor, U.S. Congressmen Ken Calvert introduced a favorable news article into the Congressional Record:

“
Friday, July 10, 2009
Did fired OC Air Marshal endanger flying public or protect it?
Hon. Ken Calvert of California in the House of Representatives
Friday, July 10, 2009
Mr. Calvert:
"Madam Speaker, I rise today to discuss the [Orange County Register] article titled 'Did Fired OC Air Marshal Endanger Flying Public, or Protect It?'"[43] The article was posted online on May 8, 2009 and I believe my colleagues in Congress will benefit from the article and the topic of whistleblower protection.[44]
 ”


White House Reaction

During a July 30, 2003 White House press conference, President George W. Bush was prompted for his reaction to the July 26, 2003 DHS Advisory concerning the al-Qaeda threat of suicide hijacks during the summer of 2003. President Bush stated, "The threat is a real threat...we obviously don't have specific data...al-Qaeda tends to use the methodologies that worked in the past...we're focusing on the airline industry right now and we've got reason to do so." [45]

Termination for Disclosure

On August 31, 2006, a year after proposing to terminate MacLean, the TSA retroactively labeled the July 2003 information he disclosed as SSI.[46] TSA labeled MacLean's disclosure as SSI over three years after it was made public.[47] The Government Accountability Office (GAO) has criticized the DHS for failing to have clear policies and oversight of its SSI designations, and using vague standards for its use.[48] If DHS and the Department of Justice (DOJ) succeed with their removal of MacLean, these pseudo-classification markings will be abused to retroactively mark information as "sensitive" to then retaliate against whistleblowers, possibly decreasing the flow of critical information to the public.[49]

Transportation Security Administration and Department of Justice's Arguments

TSA and DOJ make four general arguments:

  1. That Robert MacLean was trained in the safeguarding of SSI and that the information he disclosed did not require any markings despite Code of Federal Regulations (CFRs) that mandate the contrary.
  2. He caused the TSA to disrupt their operations in order to cancel their plan to remove FAMs from nonstop, long distance flights.
  3. Had TSA decided to continue with their plan despite public and congressional outrage, MacLean's disclosure would have alerted all terrorists that nonstop, long distance flight would not be staffed with FAMs.
  4. Finally, the government argues that front-line law enforcement field officers do not have the authority, education or experience to determine if policies endanger public safety and national security - that such determinations can only be made by the agency's senior executives.

References

  1. ↑ Decision to fire air marshal risks silencing whistle-blowers, OSC says. Federal Times (2011-08-26). Retrieved on 2011-08-27.
  2. ↑ June 22, 2009 U.S. Merit Systems Protection Board decision MacLean v. DHS. Official website of the U.S. Merit Systems Protection Board (2009-06-22). Retrieved on 2011-08-27.
  3. ↑ July 25, 2011 U.S. Merit Systems Protection Board decision MacLean v. DHS. Official website of the U.S. Merit Systems Protection Board (2011-07-25). Retrieved on 2011-08-27.
  4. ↑ August 25, 2011 U.S. Office of Special Counsel MSPB amicus curiae in support of Robert MacLean. Clean Up America (2011-08-25). Retrieved on 2011-08-27.
  5. ↑ Decision to fire air marshal risks silencing whistleblowers, OSC says. Federal Times (2011-08-26). Retrieved on 2011-08-27.
  6. ↑ July 26, 2003 Department of Homeland Security al-Qaeda suicidal hijacking warning (PDF). Project On Government Oversight (July 26, 2006). Retrieved on 2011-12-19.
  7. ↑ "Air marshal program in disarray, insiders say", USA Today, 2002-08-16. Retrieved on 2009-05-30. 
  8. ↑ Chrysler Corp. v. Brown, 1979, U.S. Supreme Court. Cornell Law School (1979-04-18). Retrieved on 2012-01-02.
  9. ↑ "Whistleblowers May Have a Friend in the Oval Office", The Washington Post, 2008-12-11. Retrieved on 2008-12-28. 
  10. ↑ Robert MacLean: Homeland Security Whistleblower. Project On Government Oversight (2011-08-10). Retrieved on 2011-09-04.
  11. ↑ Gaouette, Nicole. "Natty air marshals discover it's hard to stay undercover / In the casual skies, crew cuts and ties stand out", Los Angeles Times, 2006-06-01. Retrieved on 2011-09-05. 
  12. ↑ "Air marshal program in disarray, insiders say", USA Today, 2002-08-16. Retrieved on 2009-05-30. 
  13. ↑ Federal Air Marshal Fired for Exposing Dangerous Policy, CNN Lou Dobbs, November 20, 2006
  14. ↑ U.S. warns of 9/11-style plane attacks, Mimi Hall and Kevin Johnson, USA Today, August 1, 2003
  15. ↑ Memo Warns Of New Plots To Hijack Jets, Sara Kehaulani Goo and Susan Schmidt, The Washington Post, July 30, 2003
  16. ↑ 2001 Aviation & Transportation Security Act (Public Law 107–71), Title 49 of the United States Code § 44917 "Deployment of Federal Air Marshals", November 19, 2001
  17. ↑ Air Marshals Pulled from 'Key Flights', Brock Meeks, NBC News (MSNBC), August 29, 2003
  18. ↑ Ex-air marshal to sue over 'SSI' label, Audrey Hudson, The Washington Times, October 30, 2006
  19. ↑ Senator Clinton Reiterates Call on TSA to Justify Security Cuts at Nation’s Airports, Senator Hillary Clinton, Official Site of the U.S. Senate, July 30, 2003
  20. ↑ Air marshals back to long flights, Mimi Hall and Fred Bayles, USA Today, August 1, 2003
  21. ↑ Senator Clinton Reiterates Call on TSA to Justify Security Cuts at Nation’s Airports. Official Site of the U.S. Senate (2003-07-30). Retrieved on 2007-06-03.
  22. ↑ "DHS: No Plan to Cut Number of Air Marshals", Fox News, 2003-07-30. Retrieved on 2011-09-04. 
  23. ↑ Boxer Calls Administration's Plan To Reduce Air Marshals 'Unacceptable,' Calls On Ridge To Fully Fund Homeland Security Needs. Website of the U.S. Senate (2004-03-09). Retrieved on 2008-11-15.
  24. ↑ Senator Barbara Boxer's official senatorial biography. Website of the U.S. Senate (2008-11-16). Archived from the original on 2008-07-31. Retrieved on 2008-11-15.
  25. ↑ Senator Barbara Boxer's official campaign biography. Official Campaign Website for Barbara Boxer (2008-11-16). Retrieved on 2008-11-16.
  26. ↑ Boxer Amendments to Strengthen Homeland Security Included in Department of Homeland Security Appropriations Bill. Website of the U.S. Senate (2004-09-14). Archived from the original on 2008-07-31. Retrieved on 2008-11-15.
  27. ↑ Whistleblowers hit turbulence; TSA ex-employees say they've been blackballed for revealing problems. New Jersey Star Ledger (2007-10-14). Retrieved on 2007-12-08.
  28. ↑ Air Marshals Pulled from 'Key Flights'. NBC News (2003-07-30). Retrieved on 2006-10-30.
  29. ↑ Gaouette, Nicole. "Ex-air marshal fired over leak sues TSA", Los Angeles Times, 2006-10-31. Retrieved on 2009-06-18. 
  30. ↑ "Uproar Over Air Marshal Cuts", CBS News, 2003-07-31. Retrieved on 2008-08-01. 
  31. ↑ Ex-air marshal to sue over 'SSI' label. The Washington Times (2006-10-30). Retrieved on 2011-06-26.
  32. ↑ "Team Bush Scrubs Plan to Cut Air Marshal Force", New York Daily News, 2003-07-31. Retrieved on 2007-07-11. 
  33. ↑ "July 30, 2003 CNN Television Transcripts", CNN, 2003-07-30. Retrieved on 2008-11-24. 
  34. ↑ Lautenberg Furious Over Initial Plan by Bush to Slash Federal Air Marshals, Shocked That Budget Cuts to Homeland Security Occurring as New Al Qaeda Threats Emerge. Official Site of the U.S. Senate (2003-07-30). Retrieved on 2009-08-25.
  35. ↑ "Officials deny cuts to air marshal program", USA Today, 2003-07-30. Retrieved on 2007-06-03. 
  36. ↑ Flip-flop on air marshal schedules. MSNBC (2003-07-31). Retrieved on 2009-02-25.
  37. ↑ Epstein, Edward. "Air marshal cutbacks denied", San Francisco Chronicle, 2003-07-31. Retrieved on 2009-01-10. 
  38. ↑ Agency Overseeing Air Marshals Asks to Divert Program's Funds. The Wall Street Journal (2003-07-31). Retrieved on 2009-08-09.
  39. ↑ FIRST, AIR MARSHALS WERE TO BE REMOVED, NOW, TRAINING TO BE CUT: TASK FORCE CHAIR ASK WHAT CUTS ARE NEXT?. U.S. House of Representatives Official Website (2003-08-11). Retrieved on 2011-09-04.
  40. ↑ "PASCRELL: AIR MARSHAL DECISION AN ABOMINATION", Official Congressional website of Honorable Bill Pascrell, 2003-07-31. Retrieved on 2011-09-06. 
  41. ↑ "Langevin to Ridge: Removing Federal Air Marshals at a Time of Heightened Threat Defies Reason", Official Congressional website of Honorable Jim Langevin, 2003-07-31. Retrieved on 2011-09-06. 
  42. ↑ "Uproar Over Air Marshal Cuts", CBS News, 2003-07-31. Retrieved on 2008-08-01. 
  43. ↑ Did O.C. air marshal endanger public, or protect it?. Orange County Register (2009-05-15). Retrieved on 2009-05-30.
  44. ↑ Congressional Record: "Did Fired OC Air Marshal Endanger Flying Public, or Protect It?". U.S. House of Representatives Congressional Record (2009-07-10). Retrieved on 2010-09-25.
  45. ↑ President Bush Discusses Top Priorities for the U.S. (Minute 10:53 of video), President George W. Bush, White House Official Website, July 30, 2003
  46. ↑ U.S. Labels 2003 Leaked Memo 'Sensitive', Larry Margasak, Associated Press, May 10, 2007
  47. ↑ TSA's August 31, 2006 Final Order on Sensitive Security Information, Andrew Colsky, Transportation Security Administration, August 31, 2006
  48. ↑ Clear Policies and Oversight Needed for Designation of Sensitive Security Information, Steven J. Pecinovsky, Government Accountability Office, June 1, 2005
  49. ↑ Retroactive Labeling in Robert MacLean v. Department of Homeland Security, Nick Schwellenbach, Project On Government Oversight, May 5, 2007
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