Robert MacLean

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After four years of active duty, Robert MacLean (born on March 8, 1970, in Torrejon Air Base, Madrid, Spain) elected not to reenlist and was honorably discharged from the U.S. Air Force. MacLean then entered the U.S. Border Patrol and served almost six years until he transferred to the U.S. Transporation Security Administration (TSA) immediately after the September 11, 2001 attacks. MacLean was in the first FAMS class to graduate after the September 11, 2001 Attacks. [1]

Aviation Security Whistleblower

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 [2] based on a July 26, 2006 Department of Homeland Security (DHS) Advisory describing intelligence of an al-Qaeda suicide hijack plan. [3] 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 would overpower the crew, take control, and fly the hijacked aircraft into U.S. east coast targets. [4] 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.”[5]

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. [6] The message he disclosed was not labeled as "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. [7] 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. [8] 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."[9]

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." [10]

Termination for Disclosure

On August 31, 2006, a year after proposing to terminate MacLean, the TSA asserted that the July 2003 information he disclosed was SSI. [11] TSA labeled MacLean's disclosure as SSI over three years after it was made public. [12] 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. [13] 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. [14]

Transporation 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 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. ↑ Air marshal’s firing prompts whistleblower suit, Stephen Losey, Federal Times, November 7, 2006
  2. ↑ Federal Air Marshal Fired for Exposing Dangerous Policy, CNN Lou Dobbs, November 20, 2006
  3. ↑ U.S. warns of 9/11-style plane attacks, Mimi Hall and Kevin Johnson, USA Today, August 1, 2003
  4. ↑ Memo Warns Of New Plots To Hijack Jets, Sara Kehaulani Goo and Susan Schmidt, The Washington Post, July 30, 2003
  5. ↑ 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
  6. ↑ Air Marshals Pulled from 'Key Flights', Brock Meeks, NBC News (MSNBC), August 29, 2003
  7. ↑ Ex-air marshal to sue over 'SSI' label, Audrey Hudson, The Washington Times, October 30, 2006
  8. ↑ 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
  9. ↑ Air marshals back to long flights, Mimi Hall and Fred Bayles, USA Today, August 1, 2003
  10. ↑ 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
  11. ↑ U.S. Labels 2003 Leaked Memo 'Sensitive', Larry Margasak, Associated Press, May 10, 2007
  12. ↑ TSA's August 31, 2006 Final Order on Sensitive Security Information, Andrew Colsky, Transportation Security Administration, August 31, 2006
  13. ↑ Clear Policies and Oversight Needed for Designation of Sensitive Security Information, Steven J. Pecinovsky, Government Accountability Office, June 1, 2005
  14. ↑ Retroactive Labeling in Robert MacLean v. Department of Homeland Security, Nick Schwellenbach, Project On Government Oversight, May 5, 2007

Sources

Website Archive of all Case Documents and Videos

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