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Did fired OC air marshal endanger flying public, or protect it?
May 8th, 2009, 3:00 am · 23 Comments · posted by Teri Sforza, Register staff writer
On July 26, 2003, the Department of Homeland Security issued an alert to all U.S. airlines, airport security managers and federal air marshals:
A possible hijacking plot was in the works, involving five-man teams that might try to seize planes and fly them into government, military or economic targets.
Robert MacLean of Ladera Ranch (below right) had been working as a federal air marshal since shortly after 9/11. So it struck him as particularly bizarre when - just three days later - a text message popped up on his government-issued mobile phone:
Overnight missions involving federal air marshals will be cancelled from late July through early August.
What? No overnights? That meant no air marshals on long-distance flights. To save money on hotel rooms, MacLean would come to understand.
This, thought MacLean, was crazy. The 9/11 hijackers targeted long-distance 
flights because they hauled the most fuel and could do the most damage. Pulling air marshals from such flights, precisely when there was warning of a possible attack, was gross mismanagement - and a “specific threat to public safety that could lead to catastrophic loss of life,” he’d say later in court papers.
So Maclean took his concerns to his supervisor and other officials.
He didn’t get far.
TOP SECRET?
That text message, MacLean would later argue, wasn’t marked as sensitive information. It arrived on his mobile phone, not on his secure PDA.
And so, on July 29, 2003, MacLean disclosed the message to - gasp! - a member of the press. NBC.
Fallout was fast and furious. Lawmakers decried the idea as foolish; Sen. Barbara Boxer offered to send the Transportation Security Administration a list of hotels near San Francisco International Airport where rooms cost less than $100 a night. Officials said they had made no final decisions yet; and overnight missions continued, as per usual, on the full schedule of cross-country and international flights.
ALL’S WELL THAT ENDS WELL?
Not quite.
Nearly three years later - in April 2006 - MacLean was fired from his job as a federal air marshal. Grounds for dismissal: disclosing sensitive information to the media.
The message didn’t need to be marked “sensitive,” the government argued; all details regarding the deployment, number and operations of federal air marshals were protected information.
“Your unauthorized media appearance and unauthorized release of SSI (sensitive security) information to the media raise serious doubts about your judgment and trustworthiness,” says MacLean’s dismissal notice, signed by Frank Donzanti, special agent in charge with the Transportation Security Administration.
“Moreover, the disclosure of this SSI had the potential to reveal vulnerabilities in the aviation security system, and as such, was extremely dangerous to the public we serve. As such, I find little chance for your rehabilitation as a FAM (federal air marshal). Based on the egregiousness of your actions I have lost confidence in your ability to perform and find that removal from Federal employment for your unauthorized disclosure of SSI is necessary to promote the effectiveness of the FAM Service,” the letter says.
LEGAL LABYRINTH
So was MacLean endangering the public safety by revealing the message? Or was he protecting it?
Is he a villain, or a hero?
Maclean argues that he should be protected as a federal whistleblower, and filed a whistleblower suit against the government. Many machinations have followed, in that tortured, slow, legal sort of way. ”I want to get back to federal law enforcement,” said MacLean, 39, who says he has applied at a dozen local police departments, but remains jobless. “I want to go back to serving as if I had never blown the whistle before.”
MacLean was a Border Patrol agent in San Clemente for six years, and a federal air marshal for four years. He has a wife and two daughters, 5 and 7. They’ve moved in with his parents. These days he spends time tracking the fits and starts of whistleblower-protection legislation that seems to come up every year, and die every year.
THIS TIME, MORE HOPE
Last week, a letter signed by seven congressmen and women went to President Obama, urging him to swift action on the issue of whistleblower protection for federal employees.
“Whistleblowers are our nation’s best resource against fraud and abuse of the public trust,” the letter says. ”Legal victories for employees who have been retaliated against for blowing the whistle are almost non-existent. We encourage you to support congressional efforts to reform the inadequate system of whistleblower protections, such as H.R. 1507….In addition to these forward-looking reforms, we encourage you to take action to restore the careers of employees who were wrongly terminated or marginalized by previous administrations after blowing the whistle.”
And other lawmakers are getting on board as well. There have been meetings at the White House. MacLean’s documents live on the Project on Government Oversight’s web site. He has his own page on Wikipedia. Officials did not rush to get back to us to discuss his case; but he has made appearances on many news programs and is not shy about pressing the righteousness of his position.
He hopes for a resolution soon. Watch CNN’s version of his story below and decide for yourself.
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Very fair and balanced article about my termination. In the case those of you are bothered by the fact that I could have alerted terrorists to those flights — like the TSA and Department of Justice lawyers argue: First of all, the plan never went operational since I disclosed it six days before it would go into effect. Another fact, the TSA had already been using air marshals as highly visible deterrents - for instance: We had to wear suits & ties — even on a Southwest weekend flight to Las Vegas — and maintain a military grooming standard, we were required to walk up the exit lanes — setting off alarms and freaking out the TSA screeners — in order to get our weapons past security, and finally, we were required to “pre-pre-board” our mission flights in plain view of the general public — before the families with small children and the handicapped. So I certainly was not alerting the terrorists to anything new — toddlers could pick us out.
Here is an ABC News 20/20 special about all of the TSA’s policies put in place for us:
http://abcnews.go.com/video/playerIndex?id=7070437
Agencies have rules and a hierarchy to process concerns among their employees. It would destroy these agencies if every employee who disagreed with a policy went to the press about it.
Robert: You could have blown your whistle at your congressman or our CA senators before going to the media. If you did, please let us know because that would be an important part of the story. I know my congressman Dana Rohrebacher (R) is very responsive to his constituents and I am not a Republican.
BTW in the public sector, we deal with out of touch executives who are clueless to what actually happens on the ground. The headline on this article is right on.
So you think Bush would have protected Maclean had he gone to congress??? Look what Obama did when an attempt was made to protect whistle-blowers who make disclosures to CONGRESS. U.S. Senator Grassely is a Republican: Click on “Iowa Citizen” above to read Senate Grassley criticizing Obama for refusing to protect whistle-blowers who go to congress.
To put it bluntly you got a “screwing.” Sensitive?…..LOL
Robert: Did you file a complaint with the Office of Special Counsel or your Congressman? The article wasn’t clear on this and that would make a big difference in my opinion here. Isn’t that what the whislteblower law says you must do to get your job back? There is no excuse for releasing classified information to the media though. You might have been right, but you were also wrong. I think TSA just focused on and fired you for the wrong part of what you did.
Chico:
Do you think that once the plan became operational that the pilots, flight attendants, gate agents, air marshal spouses, and terrorists would quickly figure out “paraded” air marshals were suddenly missing on 747s, 777s, and 767s?
I first went to a field supervisor who told me that it was a headquarters plan put together because the agency had run out of money and had to cancel nonstop, long distance flight missions until the end of the fiscal year — two entire months. Then I went to the Office of Inspector General — I had no clue that the U.S. Office of Special Counsel handled whistleblower complaints, I thought they investigated corrupt politicians, which I later find out is the Department of Justice Office of Special Counsel. The Whistleblower Protection Act (WPA) does not specify at all the route or manner to make whistleblower disclosures - it only states that you cannot violate the law doing so, this is why the TSA retroactively marked my disclosure with one of their regulatory labels — SEE BELOW. The confusion as to how to make a whistleblower disclosure is supposed to be cleared up in the new legislation: H.R. 1507
“Sensitive Security Information” (SSI) is an UNCLASSIFIED information MARKING/LABEL like “Law Enforcement Sensitive” or “Unclassified // For Official Use Only” (UC//FOUO), that is guided by the executive agency’s OWN regulation - not CONGRESSIONAL STATUTE. Note also that my disclosure was marked SSI over three years after I made it and four months AFTER they fired me.
The TSA is using this regulatory information label to artificially manufacture a “violation of law.”
Does this clear things up?
Good conversation here people.
WOW, what are the odds the actual guy who this story is about is here commenting. Thats very cool of you Robert & thank you for your service of protecting us in the air. I hope you get your job back in the near future.
BTW: What kind of firearms do you folks carry on a plane? I would think anything beyond a 9mm would be to dangerous to shoot.
I am not comfortable with providing that information, but the TSA has done a very good job of blabbing to the media the exact type of weapon U.S. Federal Air Marshals and armed pilots use so that terrorists know exactly which type of weapon to train with when they take them away from them after being parading onto the aircraft.
A Google or YouTube search will reveal what you are looking for.
I hope the public feels safe now with all of armed air marshals, armed pilots, armed dead-heading pilots, and armed non-air marshals (IRS Agents) flying our “friendly skies”…
Putting armed air marshals on flight immediately after the September 11, 2001 Attacks may have been the right thing to do - but is it still the best for aviation security to have so many armed people who have to abide by all of the TSA and airline industry’s telegraphing boarding procedures?
NO he actually exposed the corruptness in our government. way to go Mr MacLean. i would of done the same exact thing.
Whistleblowing is reporting fraud or other violations, not announcing plans or procedures with which you disagree. When I was in intelligence in the Marines, my superiors made one thing very clear: everything we discussed about equipment, deployments, duty assignments, etc., even though it wasn’t classified, was still FOUO - For Official Use Only.
Complaints about the grooming/boarding/etc. policies were widely publicized (which was stupid to begin with — if it was so obvious, then it shouldn’t have been news to anyone), but that doesn’t mean that every other weakness or vulnerability should be announced to the public. No system is perfect or foolproof, and many seek to decrease risk rather than eliminate it. Imperfect does not mean useless.
Josh:
Let’s not confuse “POLICY” with an inane “OPERATIONAL PLAN.”
Dress/grooming, checkpoint bypass, and boarding procedures are POLICY.
Three days before the TSA concocted this emergency cost-cutting plan from their Ivory Towers, the DHS gave us emergency briefings to be aware of hijackers using international flights to smuggle weapons in camera equipment and toys to overpower the crew and crash aircraft into U.S. east coast and European targets. This hijacking threat made the front page of the Washington Post:
http://www.washingtonpost.com/ac2/wp-dyn/A64871-2003Jul29?language=printer
Like I explained to Chico: Do you really believe that for two months, pilots, flights attendants, gate agents, check-in agents, hotel clerks (remember that POLICY?), hotel shuttle drivers, significant others, airport janitors, etc., etc. — would have noticed? Was I wrong to alert congress 6 days BEFORE this plan went operational for two months?
To confirm that it was going to last two months, just read the 2004 U.S. Government Accountability Office (GAO) report on the incident I posted above.
The TSA is using the same arguments you are, and they keep losing and filing retroactive UNCLASSIFIED information orders that force the case into the U.S. Court of Appeals for the 9th Circuit (22 month delay), and just recently filing another Interlocutory Appeal that has now delayed my case another four months and counting. For over three years, the TSA has done a fine job delaying my reinstatement and forcing my attorneys to bill more hours.
Thanks for the tough questions.
I did a Google search and came of with this interesting story on Robert McLean:
Mr. MacLean was responsible for safeguarding sensitive security information and there is no excuse for him leaking such information to the media. Mr. MacLean had a number of options. He could have reported his concerns through the grievance process, or he could have filed a report with the Office of the Ombudsman, the TSA Office of Inspection, the Office of Security Operations Management Inquiry Branch, the Office of Special Counsel, and yes, he could have even filed an official complaint with the Office of Inspector General hotline, which we now know Mr. MacLean did not do but falsely claims he did. The Federal Air Marshal Service has a zero-tolerance for whistleblower retaliation. No employee who in good faith reports waste, fraud, abuse, gross mismanagement or any other violation of law or agency policy shall ever be subjected to any form of harassment, adverse employment actions or any other form of retaliation. Mr. MacLean has no excuse for endangering the lives of his fellow air marshals and the airline passengers but for his own profit and publicity. This is a fine example of shoddy journalism. It is apparent that you Ms. Hudson have not even bothered reading the Whistleblower Act, for if you had you would know the legal definition of what a whistleblower is and it would have been obvious to you that Mr. MacLean isn’t and never has been a “whistleblower” as you claim in your article. I would like to shed some light on your failure to properly research your sources. Soon after Mr. MacLean received the message about flights being cancelled, he immediately contacted NBC and leaked this highly sensitive information to a reporter. Within 36 hours, the information was being reported by NBC. At no time did MacLean ever submit a whistleblower claim to agency managers or to the DHS Inspector General’s Office. I contacted a colleague of mine who works in the DHS OIG office and I asked him how Mr. MacLean might have filed a complaint. He informed me that there are three ways for an employee to file a whistleblower complaint: by calling the DHS OIG hotline number, by sending an email to the hotline email address or by mailing in a complaint to OIG headquarters. All of these options are listed on the OIG website. Once this is completed the OIG fills out an intake form then sends the employee a letter acknowledging receipt of their complaint. So Ms. Hudson, have you asked Mr. MacLean for a copy of the acknowledgment letter which would verify his alleged story that he actually filed a legitimate complaint? My source in the IG’s office tells me they have no record of Mr. MacLean ever filing a complaint with their office. Don’t your readers have a right to know whether Mr. Maclean is telling the truth about his claim of being a bona-fide whistleblower? Don’t your readers have a right to know that Mr. MacLean leaked very sensitive information to the media and then profited from his leak? Don’t your readers have a right to know that Mr. MacLean subsequently received over one million dollars from NBC as a result of his leaking this sensitive information to them? Oh yes Ms. Hudson, we know about the pay-off from NBC. That must have just been an oversight on your part I’m sure.
http://www.washingtontimes.com/news/2009/feb/02/whistleblowers-want-protection/comments/?cpage=1
alterego55:
One of the “proper” ways to make federal whistleblower disclosure is through the appropriate Office of Inspector General - I did that - first their DC office - which routed me to their San Diego office - which then routed me to their Oakland office. I spoke to a Special Agent who was already aware of all of our problems, but that the agency can formulate these plans to save money and was not really violating the law. He then gave me some fatherly advice: “You do not want to kill your career over this.” - nor was he going to stick his neck out either…
Another route I could have taken was through the U.S. Office of Special Counsel, headed by Scott Bloch - the federal official who quietly hired “Geeks on Call” to conduct 7-level swipes on his government computers before the FBI raided his office. Bloch was the only Bush appointee to be ceremoniously fired - armed agents escorted him out of the building:
http://www.nytimes.com/2008/05/07/washington/07inquire.html
If you read the articles - we were being paraded since summer of 2002. We constantly went to congress only to have congress call the TSA to have TSA tell them, “Oh we are protecting the anonymity of our air marshals.” Congress was oblivious and did nothing for years.
Notice in the May 2006 ABC News 20/20 video that Brian Ross had to “hold a gun” to congress to finally get them to release this House Judiciary Report. Here is the full report they titled, “In Plane (sic) Sight” - note the air marshal incident reports dating back to 2002:
http://www.cuacalifornia.com/House_Committee_Judiciary_HCJ_In_Plane_Sight_FAMS_June_2006_Report.pdf
My caveat to getting this story to NBC News was that they would first be in touch with congress before the article came out. If you read the subsequent articles in the Wikipedia.com page, Senators Charles Schumer (D-NY), Clinton (D-NY), Boxer (D-CA), and Rep. Harold Rogers (R-KY) all held press conferences the next day. TSA then responded that the “actions were premature and a mistake by the people who were involved.” DHS Secretary Tom Ridge also embarked on a “we made a mistake” tour that entire week with the media. If you also read the government’s own arguments - they declare that it was only a plan, and that they never intended to implement it. The government’s lawyers defending my termination apparently forgot to read their 2004 testimony they gave the U.S. Government Accountability Office who investigated the incident. They admitted to the GAO — long before they found out I made the disclosure — they made a mistake:
http://www.gao.gov/new.items/d04577r.pdf
They got caught and are now foolishly backtracking.
The system is a mess, this is why bipartisan federal whistleblower protection reform legislation is being introduced again. Let’s hope that this time around it does not get killed in another secret backroom meeting in congress.
I hope this clears some complex issues.
Wonder what impact his firing is having on other government agents who see screwy stuff happening.
My guess: No need for me to say anything. It’s not my tail-end to keep quiet and go along, where it is my tail-end to stand up and say what’s right.
I also chuckle at the folks here who think going to a Congress member or other elected officials would have kept it quiet … some elected official looking for airtime would have been out front with that in a minute.
Good luck, sir, and thank you for what you did.
Jonathan:
You nailed it. Past administrations crucify whistleblowers with prima facie cases by exploiting every loophole they can find and making a mockery of the federal personnel board (U.S. Merit Systems Protection Board) that was established to mediate “office spats” — not reviewing national security whistleblower cases. When employees see what happens to people like me, they themselves turn a blind eye and won’t risk losing their career. The government may lose this case against me, but the end result is that they prevented many others from making whistleblower disclosures.
Going to congress can politicize the issue, that is why NBC News did a good job of gathering a coalition of bipartisan members when they issued the story.
The system is a mess and reform legislation (H.R. 1507) needs to pass.
Robert I am with you 100% I know what it like to work in that sector you have people that are clueless on how things are supposed to be done. I appreciate that you stood up to these bullies and that is all they are.The air marshalls have a job of protecting us while we are in the air.How soon we forget 9/11.
Thank you for putting our safety first. You are to be commended.If I were in the line of fire, I would want you to have my back. Good luck. Semper Fi.
Wow! I think you did the right thing going to the media. It seems as though the government doesn’t do anything to rectify a problem unless the general public hear about it. I wish you the best of luck!
This is situation is not an isolated incident. Many retired government workers are disgusted with the direction their agency has gone and with the corrupt and inexperienced political appointees and/or other agency castoffs now in charge. That said, the retirees will not jeopardize their retirement pensions by whistleblowing. Too many Non-Disclosure Agreements were signed to keep their silence and for them to retain their pensions.
This situation is just one of many many cases of inept management by political cronies and their “hand picked” managers.
Good luck with the suit! However, expect harassment from different agencies of the federal government. Your file has probably already been flagged and your personal security clearance tagged to all inquires by law enforcement agencies
The government bureaucracy is very unforgiving.
Hi Raymond -
I am also a highly placed official in Washington DC who is well aware of the financial assistance given Mclean after he was outed on the evening news for bravely trying to make disclosures of public danger and violation of law. The story you posted is a farce. Very funny someone is trying to say Mclean got “millions,” given the fact that he has had to fight for his job through the courts (without a single hearing) for over three years and can’t get a job - the money he got went to his attorneys, investigators, depositions, etc. - and to put food on the table for his two young daughters. There were no “millions” or even a million >>> The U.S. Office of Special Counsel should have funded his defense like they are bound by law to do, but apparently they are busy running from the FBI. You must be a minion for the air marshal director who was fired for his ineptitude, Thomas D. Quinn. But I digress, Mclean does deserve “millions” for what they did to him and hopefully he gets his day in court.
As you can see, the mud-slinging is not just isolated to their court briefs. Teri Sforza is welcome to see the title to my parent’s house and all of my tax returns since 2006 to realize that I never received the “millions” “Raymond” is referring to. Had I not received the legal assistance I got - I would have taken the usual deal the government gives whistleblowers: Resign and we “sanitize” your record and you keep your TOP SECRET clearance to get another government job — which of course they still bash you off the record when you apply for other government jobs. With the help I am getting, I choose to dig in and fight…but I never thought I would be at this for well over three years without a single hearing.
My case and life is an open book for all to see in the article’s links.
Thank you to all of those who support me, but please do not forget that other Federal Air Marshals made sacrifices: Spencer Pickard, Frank Terreri, and George Randall Taylor — all of whom have been marginalized or pushed out.
I thought you might be interested in this letter written by Army Corps of Engineers whistleblower Bunny Greenhouse, who was retaliated against after she testified to Congress last week. Ms. Greenhouse is calling on all Americans to support whistleblower protection for federal employees. To read her letter go to http://capwiz.com/whistleblowers/issues/alert/?alertid=13371836