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OC air marshal - fired for revealing bad plan - is denied whistleblower protection
June 25th, 2009, 4:00 am · 27 Comments · posted by Teri Sforza, Register staff writer
Bad news? Fired federal air marshal Robert MacLean was expecting bad news.
So no surprise when an administrative court ruled this week that he is not protected by whistleblower laws (which strongly suggests that he can not have his cop-in-the-sky job back). But MacLean, of Ladera Ranch, was quite surprised that:
- The ruling in his case - MacLean vs. U.S. Department of Homeland Security - could jeopardize whistleblower protections for other federal employees,
- The court topped each page of its decision with the screaming header ”SENSITIVE SECURITY INFORMATION,” and each footer with “ WARNING: This record contains Sensitive Security Information ….No part of this record may be disclosed to persons without a ‘need to know”…. Unauthorized release may result in civil penalty or other action….’”
- And that this decision was posted publicly online anyway, taken down, and then reposted with all that scary ”SSI/Warning” stuff removed. (You can see the original version here: maclean-decision-marked-ssi).
That last bit is funny, or ironic, or sad, depending on your vantage point, because MacLean was fired for disclosing “sensitive security information.”
He argues that he was protecting people’s lives. His former bosses argue that he was endangering people’s lives. So which is it?
A REFRESHER
MacLean was a Border Patrol agent in San Clemente for six years, and then a federal air marshal for four years. In 2003, he received an alarming Department of Homeland Security alert about a possible suicide 
hijacking plot that resembled 9/11; and just days later, he received a text message from the Transportation Security Administration, saying that overnight missions involving federal air marshals were being cancelled for several weeks (to save money on hotel bills).
That, thought MacLean, was crazy. The 9/11 hijackers targeted long-distance flights because they 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.
MacLean protested to his bosses. Then to their bosses. Finally, he showed the text message to a reporter for NBC. Fallout was fast and furious. Lawmakers decried the idea as foolish; officials backtracked; and, ultimately, overnight missions continued, as per usual.
But nearly three years later - in April 2006 - MacLean was fired from his job as a federal air marshal for disclosing sensitive information to the media. That text message, MacLean argued, wasn’t marked as sensitive information; it arrived on his mobile phone, not on his secure PDA. The government argued that the message didn’t need to be marked “sensitive;” all details regarding the deployment, number and operations of federal air marshals were protected information. (Several months after MacLean was 
fired, the government reclassified the contested text message as “sensitive security information.” Just in case?)
THE DECISION
So this week’s decision by the U.S. Merit Systems Protection Board - ”an independent, quasi-judicial agency in the Executive branch that serves as the guardian of Federal merit systems” - was mainly to settle the legal question of whether whistleblower protection extends to people who disclose sensitive security information (regardless of whether they believe such disclosure is in the public’s best interest).
Nope, the board concluded; whistleblower protection does not apply to the disclosure of sensitive security information. Such information cannot be revealed. Period.
Those working to clear MacLean’s name are horrified by the decision. “It is a tragic day in this country when a civil servant who simply wanted to prevent the improper removal of federal air marshals from long distance flights has lost his career and now faces additional hardships in trying to support his family,” said The National Whistleblowers Center in a statement.
“Every federal employee who exposes a threat to public health and safety caused by security related abuses risks being fired,” it continued. “With this decision, the employees also risk having their agency retroactively classify their disclosure and strip them of their whistleblower rights. The MSPB decision demonstrates a troubling insensitivity to the real life dilemmas faced by federal employee who must balance their need for a paycheck with their need to serve the public interest. This decision will have a chilling effect on all federal employees…(it) has placed the public health and safety of every American at risk.”
Also weighing in is the Government Accountability Project, which called the decision ”a landmark ruling against whistleblowers” that “effectively removes any remaining enforcement authority for the already-discredited Whistleblower Protection Act,” GAP said in a statement.
“Until Congress acts, the Whistleblower Protection Act is dead,” GAP legal director Tom Devine told us. “It allows agencies to outlaw free speech merely by issuing gag regulations. That reduces the federal Whistleblower Act to a voluntary guideline for bureaucrats.”
Not that things weren’t bad for whistleblowers before. Of 45 rulings by the administrative court in recent years, it has only backed whistleblowers once, Devine said.
WHAT NEXT?
MacLean- who has applied for law enforcement jobs but has been, surprise surprise, unable to get one - plans to file a motion for reconsideration, hoping that the panel hearing it will see the errors of its ways, or be tr
ansformed by more sympathetic, yet-to-be-named, Obama appointees.
But perhaps the only real hope, at this point, is lawmakers, and Obama himself.
Sen. Barbara Boxer thanked the federal air marshals who outed their bosses’ dumb ideas back in 2003; what does she think of all this now? We asked, but haven’t heard back. Sticky stuff, this.
The president, of course, could sprinkle his magic pixie dust and fix most everything, if he chose to.
“The National Whistleblowers Center calls on President Obama to order the immediate reinstatement of Mr. MacLean with full back pay and promptly review the composition of the lame duck MSPB,” the Whistleblowers’ statement says. “Furthermore, the NWC calls upon President Obama to immediately and publicly request Congress to amend the Whistleblower Protection Act consistent with the his campaign promises of jury trials and coverage for national security employees. These amendments would have provided legal protection for Mr. MacLean and thousands of other federal employees who face similar choices.”
MacLean spends a great deal of time following the fits and starts of whistleblower legislation. He has a wife and two daughters, and they’ve had to move in with his parents. He wants to go back to work.
THE SSI GAFFE
So the irony of posting the MacLean decision re: release of SSI with SSI markings may have a karmic feel to it -but it’s not a great mystery or a big deal, according to Chad Bungard, general counsel for the Merit Systems Protection Board.
“That was an error,” he said simply.
The board has a system in place:
- whenever its clerk believes there might possibly be sensitive information in a decision, that decision gets marked with the SSI label - just in case - and then is circulated to the government agencies and parties involved before publishing.
- If the government says yes, there is sensitive stuff here, that stuff gets redacted - with footnotes explaining why - and the new version is sent back to the board and then released online.
- If there is no SSI in the paperwork, the SSI markings are removed and then the decision is placed online.
- In this case, however, “an internal glitch occurred.” The decision was posted on the web site Monday afternoon with SSI markings intact. The next morning, the decision was removed. Then the TSA assured the board that there was no SSI in the decision, and it was reposted within a few hours, minus the markings.
This has provided a small measure of levity to MacLean, who has not seen much silver lining in life’s clouds lately.
“It was just a nice plus that, after they slammed me for the retroactive SSI label, they, in their own confusion over the pseudo-secrecy marking, violated their own order.”
Mr. President? Sen. Boxer? Again we ask: Is MacLean hero, or villain?
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He should not only get his job back, but he should be elected to public office. This guy had the integrity and the huevos to put himself on the line to protect the public.
This is outrageous. He has integrity, but the powers that be who fired him have none. Now they are the ones in charge of our safety?
So very wrong…
im just glad i saw with my own eyes an interview with our “head of national security office” in an interview 1 week before 9/11/01 on 60 minutes or dateline. dont remember his name, but he was wearing a military uniform, and saying that the “national security office” was in no way prepared for problems that could effect united states of america’s safety. he said the n.s. offices computer and internet equipment and archaich– that we would be powerless if communications were being relied on such as telephone and internet activity.
he said that countries like afghanistan and korea and others were using “state of the art” cutting edge technology, and the f.b.i. and c.i.a. did not share any info at that time!
after 9/11 i really started doubting what our reps in washington, and well everywhere— sometimes should not be believed 100% of the time!
trust but verify–
before something bad happens….
sorry for macleans job situation— but thank you thank you thank you
for the whistleblowers and the stories about them!
This is a perfect example why the “GOV” needs to stay out the private sector: Gov owning,car companies,health care,freddy and fanny…….ect. Obama’s change is slowly taking your freedom!
And now for something totally humorless. The results of the next election have already been declared “Sensitive Security Information”. You will be notified at the proper time who wins elections and who should be leading you.
I was not aware Obama was president and/or in charge of air marshal program in 2006.
Unless, of course, if he could time-travel.
That would be AWESOME.
Maclean went above and beyond his duties.. clearly taking action against the no overnight hotel changes that would give an advantage to any person with bad intentions. I am shocked that this american is being treated like this and no one in the government will step up and do the right thing. so after Maclean took action on the overnight hotel situation, that idea was blocked because it was a high security risk. I hope that Barbara Boxer can fix this and put this american back to work.
lets not forget the only american that could have prevented 9/11 and was forced to retire from the CIA by his boss. In the end that american found a job at the world trade center and was killed during the terrorist attacks.
common sence?
….John O’Neill was the cia man in the pbs special “THE MAN WHO KNEW”
there are only a few americans that have made an impact to our country, and our safety.
He had to have known that releasing this information to the media would have put him in big trouble with his bosses. Why couldn’t he just have given an “anonymous tip” to the media?
OCBased:
I was anonymous in the report, but I had to identify who I was to the reporter and the editors.
Here is the subsequent Inspector General investigation about the TSA invoking the USA Patriot Act to find out who made the disclosure:
“The allegations include a charge that some air marshals have been threatened with having the USA PATRIOT Act used against them.
Five air marshals, from two field offices, said they were threatened with prosecution for disclosing information to the press or public. They said their supervisors’ threats included being led away in handcuffs, being fired and prosecuted, or being subjected to polygraph exams if the leaks continued.
We interviewed 157 air marshals, 120 of whom did not believe that FAMS management had threatened them, and seven of whom refused to comment on this issue.”
http://www.dhs.gov/xoig/assets/mgmtrpts/OIG-05-01_Nov04.pdf
There is no such thing as an anonymous tips anymore.
The best that can be hoped for is to layer the indignation under a stack of highly educated intellegence that can not be disputed. Following guidelines and premise to show abuses and evidence of potential threats or semantics of potential plots.
Followed by facts pertaining to the abuses suffered for raising concerns for the pubilcs safety.
And stacking the fallout of evidience to the point that there is no augument.
The entire Whistle blower shananagan has absolutely NOTHING to do with Obama nor this administration. The protection Act for whistle blowers has been useless for years. Do the research. Mr. MacLean should have utilized his intellect when he decided to go public. His best option would have been to download the text on paper, delete any and all info that would point back to him and than forward it to the media. However, immediate reaction over took sound judgement, and he now suffers the consequence. I do not blame MacLeans concern, yet I can not comprehend how a gov’t employee did not do his homework in researching his rights prior hand. Do I foresee Obama making any exceptions in this case…NO! The fact that this is the only case of its kind at least before the general public, will not be enough to sway in favor of. Will there be implemented changes in the existing act…very unlikely. Theres simply not enough victims to force a congressional debate on this matter. And as for Obama making an individual case decision, would be a factor of whether by doing so may open up a can of worms. Every one wants Obama to be their rescue harness, after they screwed up. I just dont see it happening.
Ralph,
With your rationale, you suggest that firefighters second guess running into a burning building to save lives because the building may collapse on them; or the soldiers who invaded Normandy should have thought of staying on the boats instead of risking a fatal shot.
When I joined the military and then law enforcement, I took an oath and understood I had to risk my life to save others, and to expose violations of law.
You are correct there are very few whistleblowers, that’s because there are no protections for them, and with this decision against me - there will be even less.
Even in the remote chance I were to be reinstated, the past administration will have successfully deterred hundreds of other federal whistleblowers from coming forward to make national security and public safety disclosures.
Here is the law that TSA was PLANNING to violate - keep in mind my disclosure PREVENTED the plan from ever going into operation so there never was any danger to the public. This provision in the Aviation & Transportation Security Act was written by Senator Barbara Boxer (CA):
http://www.boxer.senate.gov/news/releases/record.cfm?id=218836
Sincerely,
Robert MacLean
Mr Maclean, are you saying the reporters gave you up their source? Regardless, you got hosed. When whistle blowing, you have to be very covert to avoid retaliation.
Stan,
TSA’s internal affairs brought me into an interview and asked me if I was making disclosures to the media - you never lie to government investigators, especially when you have no idea what they know, who revealed you, and the possibility of the USA Patriot Act being invoked and it was before in these witch-hunt investigations.
After we got a copy of the investigation, I found out the reporter DID NOT reveal me, TSA did a comprehensive investigation and narrowed it down to me.
To my Orange County community: I appreciate the tremendous support!
Sincerely,
Robert MacLean
As my wife’s grandfather used to say, “There was only perfect man who ever lived and look what they did to him.”
I salute Robert MacLean for his courage and integrity. He is a credit to America and people like Robert made this country great.
But we’re headed down the path to socialism, dependence, mediocrity, and destruction. Just look at who’s in the White House.
We are doomed.
OMG OH NOES EVERYBODY PANIC
There is one big problem for a federal employee trying to do the right thing anonymously in a case like this. When the investigation starts and federal agents start questioning employees, it is a crime to lie about your involvement. During the course of a federal investigation, if you are questioned about your involvement, you have to be honest or under the law you are committing a crime. That is the exact crime Scooter Libby and Martha Stewart were convicted of. Lying to federal investigators. This makes it impossible to me an anonymous whistle blower. Without whistle blower protection you are toast.
In the world of ’secret’s classified’ and ‘need to know, eyes only,’ the public’s right to know goes out the window, without so much as a how do you do.
I find it strange and even obtuse that the current administration’s lack of sensitivity to the issue of whistleblower’s complaints is much like that of the past administration’s. No one would have believed that Obama could sound and act like that person who trampled on the Bill of Rights and shredded the Constitution with such regularity that the people are now lost in the dark about the government’s policies and programs.
I for one am appalled at this recent decision, this man working for the TSA did what anyone faced with extreme idiocy would have done. And now he is unprotected by the very law that was enacted to protect him. Shame on the people of the Merit Service Protection Board, but most of all shame on this president for not overturning this ruling and continuing the illegal and unethical policies of the shrub.
Mr. Robison -
I appreciate your support and passion, but this 2-person panel was comprised of 2 President George W. Bush appointees who have ruled against federal whistleblowers 3-54 cases since their time in control of the U.S. Merit Systems Protection Board (MSPB).
Also, the President Obama administration HAS NOT yet indicated any intention of picking up where the Bush administration last left off. The last action filed by the TSA was during President Bush’s lame-duck administration period, January 9, 2009.
Thank you.
Sincerely,
Robert MacLean
i am soooooooooo tired of people blaming everything on obama… our state of california does not seem to be part of the usa anymore….
you think everything went bad since obama took office??
i grew up in l.a.— im 50. i was here for civil rights, womens rights, riots, peace movement– even NIXON!
remember that patriots??!!
it’s as if the last 30 years have not even happened here in california….
almost seems as if texas, california and alaska have somthing in common…. oil and cheap labor from mexico. and i dont mean cheap as in human beings— i mean our state, texas and alaska using mexico and california for thier crap!! you think the current probs dont have anything to do with that?? this cartel stuff goes waaaaaaaay further than just mexico people– there are some huge u.s. companies who build everything in mexico– we have an immigration policy with every country (even canada) and we just cant get a handle on this one??
give me a break— i think this is the actual reason you got fired mr. maclean– you were connecting the dots a little too quickly… and the past “administration’s” both (stop picking for us john and ken and jay leno!) of california and mexico were getting nervous.. and the federal gov, bush and chaney with the wars and petroleum?? anyone been reading up on any history lately??
i dont hold allegence to liars anymore…
why are we still putting up with having our voices not heard… i dont care how crazy or conspiracy theory people think we are— this crap is going on right under our feet people– to have a man who served our country treated like this?
it’s wrong wrong wrong…
yet it seems that all we hear about on the news is bad economy and get over it–
i believe you mr. maclean, and i have nothing to gain— im not a politician. im a 50 year old woman, 2nd generation californian, with a long memory…
remember ollie north? think the “patriot act” hasnt hurt us as much as it has protected us? my county of orange, or state of california will not return a call to me for the last 6 months… i know they are soooooo busy— im busy too–
knock it off
i cant wait til your story comes out nationally mr. maclean–
a little truth in our state would be such a welcome breath of fresh air—
im tired of all the hiding the elected and appointed officials are doing.
we all desearve better!!
i know i do…
cynthia
costa mesa, ca
oh i forgot–
john o’neil was he the guy who created all the safety training in highrises after the first world trade center attacks?? (which were the same people by the way!)
i worked in a “highrise” 11 story (!) in pasadena— but this man john o’neill had enacted some sort of training requirement for large corporations (i worked at xerox) to train all employees on emergency evactuation from a high rise building espescially. in response to the first attack– it was taken verrrrry seriously by all of us employees and i always felt that i was lucky to have gone through the training. we each had a different role– someone making sure everyone got out, they were not using elevators, moved “far away” from any falling glass and debris … it was like some sort of massive program… it was all put in place all over the u.s. by john o’neill and responsible honorable men and woman who actually cared about our safety.
remember GOP? this was back when we cared about the american employee.. or people working for a company — remember “team training” & “kaisan” it was a big concept!
now it’s cut and run– get your profits before anyone finds out and go hide in some “bunker” or island somewhere…
my father served in WWll– he enlisted when he was 17! can you imagine? 17 year olds now can barely get out of bed…
i have differing political views than my father– but we have one thing very much in common—
the expectation of the truth from our government officials– even if a politician or human makes a mistake– admit your mistake. the people deserve it. when the truth is hidden it only makes those hiding it look more guilty.
together we can fix anything.
apart we can fix nothing.
This so called whistleblower decided he needed to release classified documents without authorization. He is getting just what he deserves. I don’t want some federal employee deciding on hie/her own what “the public has a right to know”. This person can not be trusted and should not work in any area where trust and judgement are required.
I would not feel safe until a brave whistleblower with lots of integrity releases, say, plans of a secret military mission to North Korea, or maybe sketch out secret troop location/movements on national TV during a war. Cause, you know, the public has a right to know about such things.
Ray:
<<>>
The “Sensitive Security Information” or SSI marking is an UNCLASSIFIED information label governed by executive agency regulation, not statutory law like CLASSIFIED information is. CLASSIFIED INFORMATION is “CONFIDENTIAL INFORMATION,” SECRET, and TOP SECRET.
Keep in mind that the TSA retroactively applied their SSI marking three years after their canceled plan.
How can you put an UNCLASSIFIED information label on something that NEVER happened?
Some other UNCLASSIFIED information labels:
FOR OFFICIAL USE ONLY (FOUO)
LAW ENFORCEMENT SENSITIVE (LES)
SENSITIVE BUT UNCLASSIFIED (SBU)
CONTROLLED UNCLASSIFIED INFORMATION (CUI)
Sincerely,
Robert MacLean
Robert,
Sorry to hear about all this, but one thing I know about the government is that when it comes time to making a rational and common sense decision, they are more likely to NOT to make that type of decision. Our country is overrun by a bunch of bafoons who have absolutely no common sense or integrity—thanks to all of those politicians who have failed in intergrity and not been held responsible for their actions——-and hopefully, Kharma comes around to those individuals who have made the poor choices here…You were only to expose this info to better inform our nation of what our government was failing to do in the first place…Sorry, but I don’t see it getting any better with the OB adminstration or OB helping you out…Bush may have had his cronies but what is done is done and you’re labeled a narc….No more fed jobs….
Good Luck Buddy..
Dear “so what”:
You are probably right, but I will continue to stay in this flight and expose the politicians that turn a blind-eye for the sake of their “political security.”
By the way, Congressman Ken Calvert (CA-44th) is definitely the exception:
http://bit.ly/14Bgkk
http://bit.ly/pLDJw
Thank you for paying attention to this issue with billions of federal tax payer dollars going out with questionable accountability.
Sincerely,
Robert MacLean
I was there and worked with this guy. I would trust him with NOTHING, much less national security info !!!! NONE of these people knew him. Again…..I was there. He’s all about lies. Now…if the information he “shared” caused a national incident, everyone would be screaming because no one stopped him. Such fools ye be!!