A former federal air marshal and whistleblower yesterday finally received his day in court to appeal his termination by the Federal Air Marshal Service (FAMS) three years ago for disclosing sensitive information to the media in the summer of 2003. The appellant claims that his disclosure protected the public from vulnerabilities that could have led to another 9-11 style attack.
Former Federal Air Marshal Robert MacLean is appealing the FAMS decision to fire him for disclosing Sensitive Security Information (SSI) about air marshal deployments to Brock Meeks, a reporter from MSNBC
, in August of 2003. MacLean contests that he cannot be fired for leaking SSI since the information he leaked was not marked as such and therefore his disclosure was constitutionally protected speech.
Although it is not classified national security information, SSI is a category of sensitive but unclassified information ... is specifically exempted by statute from release under the Freedom of Information Act, and that it is to be disclosed only to covered persons on a need to know basis.
The Department of Homeland Security (DHS), which is the parent organization of the FAMS, argues MacLean was fired because his disclosure exposed a vulnerability in the aviation sector. If MacLean wins his appeal, he will likely be reinstated or have his termination mitigated to a suspension. DHS, however, could appeal the decision.
The appeal hearing was conducted simultaneously in regional offices of the Merit Systems Protection Board (MSPB)
in Washington, D.C., and San Francisco by video conferencing. The MSPB rules on disputes between federal employees and their agency employers. Administrative Judge Franklin M. Kang presided over the hearing.
In late July 2003, MacLean received a text message asking all air marshals to cancel their hotel accommodations for their upcoming remain-over-night (RON) flights. Intrigued, he called his Las Vegas field office to inquire why. He was told by a supervisor from his field officethat the directive came from FAMS headquarters and that the agency intended to cancel all FAMS missions on long-distance flights for 60 days to conserve money. The agency had sent the text message to the air marshals to cancel their hotel reservations after August 3, 2003, to avoid cancellation fees.
These FAMS plans to cancel air marshal coverage of long-distance, high-risk flights came just after DHS alerted FAMS of a new threat to commercial aircraft. Only days earlier, MacLean was ordered to attend what he describes “as unprecedented one-on-one threat briefings” at his FAMS Las Vegas field office, where he was told of a new al Qaeda plot to recreate another 9-11 style attack on the United States. The unredacted DHS advisory obtained by Security Management
was labeled, “Potential Al-Qaeda Hijacking Plot in the U.S. and Abroad,” and dated July 26, 2003. (The security weaknesses identified in the advisory have since been shored up
The DHS advisory stated that al Qaeda was still determined to attack the commercial aviation sector with a 9-11 style attack after learning of visa weaknesses.
“The plan may involve the use of five-man teams, each of whom would attempt to seize control of a commercial aircraft either shortly after takeoff or shortly before landing at a chosen airport,” the advisory stated. “This type of operation would preclude the need for flight-trained hijackers.”
More ominously, the advisory warned an attack could occur before the end of summer 2003.
MacLean felt that cutting air marshals from the same types of flights that were hijacked on 9-11 was irresponsible and might be illegal. He contacted three different DHS Office of Inspector General (OIG) field offices. At the final OIG field office in Oakland, California, the special agent he spoke with told him that FAMS plan “was dangerous and a violation of the law, but [that he] would not take any action,” one of MacLean’s MSPB motions attested.
Believing he had no other option, MacLean anonymously contacted MSNBC’s Meeks, who said he would immediately notify members of Congress of FAMS plan and write a story. The result was fast and furious with both members of Congress and media outlets pummeling the agency for its decision. During a press conference Sen. Barbara Boxer (D-CA) said “I want to thank the air marshals who came forward and told the truth about what was going on within their agency and bringing this issue into the spotlight.” The FAMS, under harsh criticism, revoked its earlier decision to cut FAMS from long distance, nonstop flights.
During the hearing, Transportation Security Agency’s lead counsel Eileen Dizon Calaguas argued that MacLean had to know the text message he received was SSI and could create a vulnerability terrorists could exploit.
MacLean countered there were two reasons he did not know that the text message was SSI. First the text message was not marked SSI. Second, he was sent the message on his unsecured, FAM-issued Nokia cell phone and not his FAM-issued password protected and software encrypted PDA, where sensitive information had always been previously sent. Three years after his disclosure and four months after he was fired, TSA justified its decision by retroactively marking the text message SSI.
Nevertheless, Frank Donzanti, the FAM official who made the decision to terminate MacLean, testified that MacLean should have known the text message was SSI and called his release “egregious,” tipping off terrorists that flights would not have air marshal coverage. Donzanti, however, revealed how embarrassing MacLean’s leak was and how it jeopardized the public’s trust that the FAMS could prevent another 9-11. He also admitted that he would have fired MacLean even if he was within his rights to disclose the text message information because he couldn’t trust him.
During cross examination, MacLean’s attorney, Tom Devine of the Government Accountability Project (GAP), asked Donzanti whether the text message at the heart of the preceding should have been labeled SSI. He said yes but insisted MacLean should have known the information was SSI anyway.
“So it’s superfluous to mark documents SSI?” Devine retorted.
During MacLean’s cross examination, Calaguas reminded him that he had previously said during his 2006 deposition that he didn’t care if the text message was SSI. MacLean responded by saying he originally said that out of bravado, but argued the message was not SSI.
“I would never break the law to enforce the law,” MacLean said. Until his disclosure, all parties agreed MacLean was an air marshal in good standing and had never been disciplined before.
Asked by Calaguas if he regretted his disclosure, MacLean said he does today because of the pain it has inflicted on his family and the damage it did to his former agency’s image. He has been unemployed since his termination and has had to move his family into his parent’s house. Nevertheless, MacLean reiterated he believes he disclosed the information in good faith to protect the public and U.S. national security from FAM misconduct and mismanagement. At the close of the preceding, Judge Kang asked each party to submit a closing argument by no later November 16, 2009. After reading the arguments and reviewing the evidence, Kang said he will issue a decision on the case.
Since 2000, according to the GAP, only three employees have prevailed before the full MSPB in Washington, D.C. Since the Bush administration, GAP has described the MSPB board as hostile to whistleblowers and federal employees with legitimate complaints.
“For the first time in nearly a decade, leaders of the agency responsible to translate paper rights into reality have a proven commitment to the merit system,” Devine told Security Management. “These appointments are a weathervane that federal workers can trust President Obama’s commitment to protect whistleblowers.”
One of President Obama’s campaign promises was to protect federal whistleblowers who risk their careers to safeguard the public.
♦ Photo of Robert MacLean released by Robert MacLean.