Changes

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.<ref>{{cite web | title= Decision to fire air marshal risks silencing whistle-blowers, OSC says | url=http://www.federaltimes.com/article/20110826/DEPARTMENTS03/108260301/ | date=2011-08-26 | work=[http://www.federaltimes.com Federal Times ] | accessdate=2011-08-27}}</ref>

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.<ref>{{cite web | title= Decision to fire air marshal risks silencing whistle-blowers, OSC says | url=http://www.federaltimes.com/article/20110826/DEPARTMENTS03/108260301/ | date=2011-08-26 | work=[http://www.federaltimes.com Federal Times ] | accessdate=2011-08-27}}</ref>

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

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

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.<ref>{{cite web | title= Decision to fire air marshal risks silencing whistleblowers, OSC says | url=http://www.federaltimes.com/article/20110826/DEPARTMENTS03/108260301/ | date=2011-08-26 | work=[http://www.federaltimes.com Federal Times ] | accessdate=2011-08-27}}</ref>

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.<ref>{{cite web | title= Decision to fire air marshal risks silencing whistleblowers, OSC says | url=http://www.federaltimes.com/article/20110826/DEPARTMENTS03/108260301/ | date=2011-08-26 | work=[http://www.federaltimes.com Federal Times ] | accessdate=2011-08-27}}</ref>

Two days after the [[Department of Homeland Security]] issued a July 26, 2003 [[al-Qaeda]] suicidal hijacking warning<ref>{{cite web | title= July 26, 2003 Department of Homeland Security al-Qaeda suicidal hijacking warning | url=http://pogoarchives.org/m/hsp/dhs-advisory-20030726.pdf | date=July 26, 2006 | work=[http://www.pogo.org/ Project On Government Oversight] | accessdate=2011-12-19|format=PDF}}</ref> 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. <ref>{{cite news | title= Air marshal program in disarray, insiders say | url=http://www.usatoday.com/travel/news/2002/2002-08-15-air-marshals.htm | date=2002-08-16 | work=[http://www.usatoday.com/ ''USA Today''] | accessdate=2009-05-30}}</ref>

Two days after the [[Department of Homeland Security]] issued a July 26, 2003 [[al-Qaeda]] suicidal hijacking warning<ref>{{cite web | title= July 26, 2003 Department of Homeland Security al-Qaeda suicidal hijacking warning | url=http://pogoarchives.org/m/hsp/dhs-advisory-20030726.pdf | date=July 26, 2006 | work=[http://www.pogo.org/ Project On Government Oversight] | accessdate=2011-12-19|format=PDF}}</ref> 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.<ref>{{cite news | title= Air marshal program in disarray, insiders say | url=http://www.usatoday.com/travel/news/2002/2002-08-15-air-marshals.htm | date=2002-08-16 | work=[http://www.usatoday.com/ ''USA Today''] | accessdate=2009-05-30}}</ref>

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<ref name="49 U.S.C § 44917">{{cite web | title= Chrysler Corp. v. Brown, 1979, U.S. Supreme Court | url=http://supreme.justia.com/us/441/281/case.html | date=1979-04-18 | work=[http://supreme.justia.com/ Cornell Law School] | accessdate=2012-01-02}}</ref>, 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]].

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,<ref name="49 U.S.C § 44917">{{cite web | title= Chrysler Corp. v. Brown, 1979, U.S. Supreme Court | url=http://supreme.justia.com/us/441/281/case.html | date=1979-04-18 | work=[http://supreme.justia.com/ Cornell Law School] | accessdate=2012-01-02}}</ref> 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.<ref>{{cite news | title= Whistleblowers May Have a Friend in the Oval Office | url=http://www.washingtonpost.com/wp-dyn/content/article/2008/12/10/AR2008121003364.html | date=2008-12-11 | work=[[The Washington Post]] | accessdate=2008-12-28}}</ref> He was fired on April 11, 2006 for making a disclosure that protected aviation and national security.<ref>{{cite web | title= Robert MacLean: Homeland Security Whistleblower | url=http://pogoblog.typepad.com/pogo/2011/08/robert-maclean-homeland-security-whistleblower.html | date=2011-08-10 | work=[http://www.pogo.org/ Project On Government Oversight] | accessdate=2011-09-04}}</ref>

Robert MacLean was a U.S. [[Transportation Security Administration]] [[Federal Air Marshal Service]] air marshal.<ref>{{cite news | title= Whistleblowers May Have a Friend in the Oval Office | url=http://www.washingtonpost.com/wp-dyn/content/article/2008/12/10/AR2008121003364.html | date=2008-12-11 | work=[[The Washington Post]] | accessdate=2008-12-28}}</ref> He was fired on April 11, 2006 for making a disclosure that protected aviation and national security.<ref>{{cite web | title= Robert MacLean: Homeland Security Whistleblower | url=http://pogoblog.typepad.com/pogo/2011/08/robert-maclean-homeland-security-whistleblower.html | date=2011-08-10 | work=[http://www.pogo.org/ Project On Government Oversight] | accessdate=2011-09-04}}</ref>

  | url=http://articles.sfgate.com/2004-06-01/news/17429852_1_air-marshals-traveler-s-creed-air-pound-pups | date=2006-06-01 | work=[http://www.latimes.com/ Los Angeles Times] | accessdate=2011-09-05 | first=Nicole | last=Gaouette}}</ref> and boarding procedures<ref>{{cite news | title= Air marshal program in disarray, insiders say | url=http://www.usatoday.com/travel/news/2002/2002-08-15-air-marshals.htm | date=2002-08-16 | work=[http://www.usatoday.com/ ''USA Today''] | accessdate=2009-05-30}}</ref> 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.

  | url=http://articles.sfgate.com/2004-06-01/news/17429852_1_air-marshals-traveler-s-creed-air-pound-pups | date=2006-06-01 | work=[http://www.latimes.com/ Los Angeles Times] | accessdate=2011-09-05 | first=Nicole | last=Gaouette}}</ref> and boarding procedures<ref>{{cite news | title= Air marshal program in disarray, insiders say | url=http://www.usatoday.com/travel/news/2002/2002-08-15-air-marshals.htm | date=2002-08-16 | work=[http://www.usatoday.com/ ''USA Today''] | accessdate=2009-05-30}}</ref> 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 <ref>[http://youtube.com/watch?v=Wi36t4B2OV4 Federal Air Marshal Fired for Exposing Dangerous Policy], ''CNN Lou Dobbs'', November 20, 2006</ref> based on a July 26, 2006 [[Department of Homeland Security]] (DHS) Advisory describing intelligence of an [[al-Qaeda]] suicide hijack plan. <ref>[http://www.usatoday.com/travel/news/2003/07/30-hijackings.htm U.S. warns of 9/11-style plane attacks], Mimi Hall and Kevin Johnson, ''USA Today'', August 1, 2003</ref>  

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 <ref>[http://youtube.com/watch?v=Wi36t4B2OV4 Federal Air Marshal Fired for Exposing Dangerous Policy], ''CNN Lou Dobbs'', November 20, 2006</ref> based on a July 26, 2006 [[Department of Homeland Security]] (DHS) Advisory describing intelligence of an [[al-Qaeda]] suicide hijack plan.<ref>[http://www.usatoday.com/travel/news/2003/07/30-hijackings.htm U.S. warns of 9/11-style plane attacks], Mimi Hall and Kevin Johnson, ''USA Today'', August 1, 2003</ref>  

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. <ref>[http://www.washingtonpost.com/ac2/wp-dyn/A64871-2003Jul29?language=printer Memo Warns Of New Plots To Hijack Jets], Sara Kehaulani Goo and Susan Schmidt, ''The Washington Post'', July 30, 2003</ref>  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.”<ref>[http://www.law.cornell.edu/uscode/html/uscode49/usc_sec_49_00044917----000-.html 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</ref>   

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.<ref>[http://www.washingtonpost.com/ac2/wp-dyn/A64871-2003Jul29?language=printer Memo Warns Of New Plots To Hijack Jets], Sara Kehaulani Goo and Susan Schmidt, ''The Washington Post'', July 30, 2003</ref>  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.”<ref>[http://www.law.cornell.edu/uscode/html/uscode49/usc_sec_49_00044917----000-.html 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</ref>   

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. <ref>[http://onoekeh.blogspot.com/2003_07_01_archive.html Air Marshals Pulled from 'Key Flights'], Brock Meeks, ''NBC News (MSNBC)'', August 29, 2003</ref>  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 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.<ref>[http://onoekeh.blogspot.com/2003_07_01_archive.html Air Marshals Pulled from 'Key Flights'], Brock Meeks, ''NBC News (MSNBC)'', August 29, 2003</ref>  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. <ref>[http://www.airportbusiness.com/web/online/Airline-and-Airport-Security-News/Ex-Air-Marshal-to-Sue-over-SSI-Label/5$8684 Ex-air marshal to sue over 'SSI' label], Audrey Hudson, ''The Washington Times'', October 30, 2006</ref>  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. <ref>[http://clinton.senate.gov/news/statements/details.cfm?id=235267&& 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</ref>  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."''<ref>[http://www.usatoday.com/travel/news/2003/07/31-air-marshals.htm Air marshals back to long flights], Mimi Hall and Fred Bayles, ''USA Today'', August 1, 2003</ref>

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.<ref>[http://www.airportbusiness.com/web/online/Airline-and-Airport-Security-News/Ex-Air-Marshal-to-Sue-over-SSI-Label/5$8684 Ex-air marshal to sue over 'SSI' label], Audrey Hudson, ''The Washington Times'', October 30, 2006</ref>  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.<ref>[http://clinton.senate.gov/news/statements/details.cfm?id=235267&& 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</ref>  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."''<ref>[http://www.usatoday.com/travel/news/2003/07/31-air-marshals.htm Air marshals back to long flights], Mimi Hall and Fred Bayles, ''USA Today'', August 1, 2003</ref>

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

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

==Termination for Disclosure==

==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. <ref>[http://abcnews.go.com/Politics/wireStory?id=3161282 U.S. Labels 2003 Leaked Memo 'Sensitive'], Larry Margasak, ''Associated Press'', May 10, 2007</ref>  TSA labeled MacLean's disclosure as SSI over three years after it was made public. <ref>[http://www.pogo.org/m/hsp/MacLeanFinalOrderSSI.pdf TSA's August 31, 2006 Final Order on Sensitive Security Information], Andrew Colsky, ''Transportation Security Administration'', August 31, 2006</ref>  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. <ref>[http://www.gao.gov/new.items/d05677.pdf Clear Policies and Oversight Needed for Designation of Sensitive Security Information], Steven J. Pecinovsky, ''Government Accountability Office'', June 1, 2005</ref>  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. <ref>[http://pogo.org/p/government/rmaclean-dhs.html Retroactive Labeling in Robert MacLean v. Department of Homeland Security], Nick Schwellenbach, ''Project On Government Oversight'', May 5, 2007</ref>

On August 31, 2006, a year after proposing to terminate MacLean, the TSA retroactively labeled the July 2003 information he disclosed as SSI.<ref>[http://abcnews.go.com/Politics/wireStory?id=3161282 U.S. Labels 2003 Leaked Memo 'Sensitive'], Larry Margasak, ''Associated Press'', May 10, 2007</ref>  TSA labeled MacLean's disclosure as SSI over three years after it was made public.<ref>[http://www.pogo.org/m/hsp/MacLeanFinalOrderSSI.pdf TSA's August 31, 2006 Final Order on Sensitive Security Information], Andrew Colsky, ''Transportation Security Administration'', August 31, 2006</ref>  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.<ref>[http://www.gao.gov/new.items/d05677.pdf Clear Policies and Oversight Needed for Designation of Sensitive Security Information], Steven J. Pecinovsky, ''Government Accountability Office'', June 1, 2005</ref>  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.<ref>[http://pogo.org/p/government/rmaclean-dhs.html Retroactive Labeling in Robert MacLean v. Department of Homeland Security], Nick Schwellenbach, ''Project On Government Oversight'', May 5, 2007</ref>

==Transportation Security Administration and Department of Justice's Arguments==

==Transportation Security Administration and Department of Justice's Arguments==

==References==

==References==

== Sources ==

== Sources ==

[http://groups.google.com/group/fams-whistleblower-robert-maclean Website Archive of all Case Documents and Videos]

[http://groups.google.com/group/fams-whistleblower-robert-maclean Website Archive of all Case Documents and Videos]

{{DEFAULTSORT:MacLean, Robert}}

{{DEFAULTSORT:MacLean, Robert}}

[[category:United States Department of Homeland Security]]

[[Category:United States Department of Homeland Security]]