MacLean had little chance for rehabilitation as a marshal.
Stephen Losey, Federaltimes.com
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A fired air marshal is suing to regain his job in a case that could draw the line between blowing the whistle on mismanagement and protecting sensitive information.
Robert MacLean sued Oct. 30 in the U.S. Court of Appeals for the 9th Circuit in San Francisco, arguing that the Whistleblower Protection Act should have covered him when he told a reporter in 2003 that the Federal Air Marshal Service was eliminating assignments on cross-country flights.
Experts say MacLean's case raises questions about a gray area of government secrecy -- information that the government says is sensitive but is not classified. Government watchdog groups say they think MacLean is the first federal employee fired for revealing sensitive security information, or SSI -- unclassified data on the U.S. transportation network's security programs, vulnerabilities and screening equipment that is restricted from the public.
The government is designating more and more unclassified information under similar categories, and the rules governing that data -- and consequences of revealing it -- are often unclear and untested.
Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, said it's not clear whether federal employees are protected as whistleblowers when they disclose sensitive but unclassified information. He said the outcome of MacLean's case could prove decisive.
"The government has already shown they are willing to punish unauthorized disclosures," Aftergood said. "If it's overturned by a court, that could have significant ramifications."
Some worry that the Homeland Security Department's crackdown on MacLean could stifle future whistleblowers from revealing information about mismanagement, security flaws or other problems that endanger the public.
"I don't think Congress intended for SSI to be used to hide embarrassing and dangerous mistakes, or to retaliate against federal agents," MacLean said in an Oct. 30 interview with Federal Times.
Spokesman Conan Bruce said the Federal Air Marshal Service (FAMS) had no comment.
First-class whistleblower
MacLean became an air marshal in October 2001, part of the first graduating class of marshals after Sept. 11. He left a five-year stint as a Border Patrol agent in San Diego partly because he wanted to protect the country against terrorists. He also had soured on the Border Patrol, where he said politics were hamstringing efforts to safeguard the border.
McLean found a new set of frustrations after joining FAMS, which is part of the Transportation Security Administration. Agency policies on dress codes and boarding procedures unnecessarily exposed undercover air marshals and put their lives at risk, MacLean said, and caused marshals to clash with former FAMS director Thomas Quinn and other supervisors.
He said he saw the July 2003 cancelation of marshals' assignments on long-distance flights as another example of poor management and misguided priorities at FAMS, and felt compelled to act.
Days before marshals were notified by text message that they no longer would fly on flights requiring overnight hotel stays, a warning had gone out that a hijacking plot similar to the devastating Sept. 11 attacks might be in the works.
MacLean said the new flight policy would have kept marshals off exactly the type of nonstop, cross-country flights used by hijackers on Sept. 11.
And when his supervisor told him the policy was because FAMS couldn't afford hotel rooms, MacLean became angry. FAMS was jeopardizing the public's safety for financial reasons, he said.
MacLean said he tried to go through the proper channels and called Homeland Security inspector general offices in Washington, San Diego and Oakland, Calif., but was transferred or rebuffed each time. He said he called MSNBC reporter
Brock Meeks as his last resort.
FAMS reinstated long-distance flights immediately after Meeks' July 29, 2003, report, which quoted MacLean anonymously.
MacLean admitted he was MSNBC's source during a subsequent internal investigation. In September 2005, he was taken off flying status and told the agency planned to fire him. He was officially fired April 11.
In MacLean's termination letter, TSA acknowledged his 14 years of federal and military service and satisfactory performance appraisals but said his "unauthorized media appearance and unauthorized release of SSI information to the media raise serious doubts" about his judgment and trustworthiness. TSA said
MacLean had little chance for rehabilitation as a marshal.
Sensitive but unclassified
MacLean's lawsuit also challenges whether the information he revealed was SSI. He claims the information was not marked SSI in July 2003 and was designated as such retroactively by TSA on Aug. 31, 2006. MacLean says he is being punished unfairly for doing something that was not, at the time, forbidden.
MacLean has until Dec. 15 to file another case with the Merit Systems Protection Board arguing for whistleblower protections.
The Project on Government Oversight and the Government Accountability Project are helping MacLean.
"TSA didn't even attempt to camouflage its rationale for terminating Robert MacLean -- they did it because he blew the whistle," GAP legislative representative Adam Miles said in an Oct. 30 news release.
Rep. Carolyn Maloney, D-N.Y., sent a letter Oct. 20 to general counsels at Homeland Security and TSA asking them to review MacLean's case.
"Agency rules creating hybrid secrecy categories like 'SSI' do not cancel out the employee protections under the WPA [Whistleblower Protection Act]," Maloney wrote.
Government watchdog groups warn that secrecy in the government is spreading. A September report by OpenTheGovernment.org and similar groups found that the number of categories of sensitive but unclassified document designations increased from 50 in fiscal 2004 to 60 the next year.
TSA decides what is SSI and prohibits the disclosure of information that it determines may reveal a systemic vulnerability of the aviation system or aviation facilities to attack, according to Transportation Security Regulations.
But TSA's use of SSI has been questioned before. A February 2004 report from the Congressional Research Service reported concerns from airline industry representatives that SSI was being used to muzzle debate over effective security measures. And the Government Accountability Office in June 2005 said TSA did not have rules governing the use of SSI and did not have adequate controls to ensure SSI was being designated across the department.
MacLean sees a double standard in the way he was treated and the freedom senior Homeland Security officials have to disclose operational secrets.
Homeland Security Secretary Michael Chertoff told reporters in August, after the unraveling of a London-based terrorist plot to bomb U.S.-bound flights, that air marshals were going to focus on similar flights.
"I can't disclose that they're taking air marshals off four-plus-hour flights, but Michael Chertoff can say they're expanding air marshal coverage of U.S.-London flights right after another foiled hijacking plot?" MacLean said. "I think they're hypocrites."
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