Robert MacLean
Encyclopedia
On August 25, 2011, the United States Office of Special Counsel
( OSC ) declared former TSA Federal Air Marshal Robert MacLean a whistleblower. On July 28, 2003, MacLean made a disclosure exposing the Transportation Security Administration
's cost-cutting plan that would have violated federal law 49 USC 44917(b), committed gross mismanagement, and endangered public safety. Eleven members of the 108th United States Congress
supported MacLean's actions.
Robert J. MacLean (born March 8, 1970) is a United States Air Force
, United States Border Patrol
, and U.S. Federal Air Marshal Service
veteran.
Robert MacLean was a U.S. Transportation Security Administration
Federal Air Marshal Service
air marshal. He was fired on April 11, 2006 for making a disclosure that protected aviation and national security.
After a year went by that the U.S. Transportation Security Administration
's (TSA) dress code and boarding procedures were routinely exposing the identities of U.S. Federal Air Marshals, and three days after a terrorist suicide hijacking plot was discovered by U.S. and foreign intelligence agencies in the summer of 2003, the TSA formulated an operational plan to remove air marshals from nonstop, long distance flights—the type of flight used for the September 11 attacks in 2001. TSA formulated the plan after facing a budget shortfall; the purpose was to cut the costs due to air marshals having to lodge overnight at hotels after a full duty day of long distance missions traveling away from their duty stations. Air marshals would have been absent from nonstop long-distance flights for the two months until the new federal Fiscal Year 2004. Immediately after congressional outrage the day after MacLean's disclosure, the plan was rescinded: air marshal coverage of long haul flights was not changed.
The government supports its dismissal of MacLean by declaring he endangered the nonstop, long distance flights that the TSA planned to remove air marshals from for two months in order to save costs associated with hotel rooms required for air marshals. The TSA then retroactively (four months after firing him) labeled his disclosure with its unclassified information marking regulation: Sensitive Security Information
(SSI). MacLean argues that it is naive to believe that air marshal's significant others, pilots, flight attendants, airline gate agents, and frequent fliers already used to watching mandated suit and tie air marshals overtly pre-board aircraft—would have eventually raised their own concern to the media long after the plan was already operational. Had there been a disclosure after the plan went into effect, it would have taken the TSA and airline bureaucracies weeks to reverse course while nonstop, long distance flights were vulnerable—specifically violating Section 105 of the Aviation and Transportation Security Act
of 2001; and USC Title 49 § 44917 (b).
(MSPB) filed an amicus curiae with the United States Merit Systems Protection Board
( MSPB ) in support of Robert MacLean. The motion requests that the MSPB reverse its June 22, 2009 and July 25, 2011 decisions.
U.S. Special Counsel Carolyn Lerner wrote:
After four years of active duty, FAM 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 in 1992. In the Air Force, MacLean was awarded the Basic Training Honor Graduate Ribbon
, Outstanding Unit Award
s, the National Defense Service Medal
, and the Air Force Good Conduct Medal
MacLean's Air Force Specialty Code
AFSC was a nuclear weapons maintenance technician for Intercontinental Ballistic Missile
s (ICBMs). At the age of 18, MacLean was required to have a TOP SECRET clearance and be certified under the Department of Defense's Personnel Reliability Program
(PRP) in order to have direct access to nuclear weapons components.
Among one of the PRP's main goals are, (Quoting from Department of Defense Directive 5210.42):
After his discharge, MacLean entered the U.S. Border Patrol as a border patrol agent and served almost six years in its San Diego Sector as a trainer. MacLean was recruited by the Federal Aviation Administration
's (FAA) tiny, but elite Federal Air Marshal program immediately after the September 11 attacks. MacLean was in the first air marshal class to graduate after the September 11, 2001 Attacks
. After subsequently hiring a significant amount of new air marshals, the FAA program was moved under the new Department of Homeland Security's Transportation Security Administration and called the Federal Air Marshal Service
(FAMS). In MacLean's Federal Air Marshal Service termination notice, it cited his 14-year unblemished record of honorable service to his county:
MacLean's deciding official for his termination gave him the highest praise for his service as a Federal Air Marshal:
(TSA) on a plan to reduce air marshal coverage of nonstop, long distance flights amidst heightened warnings based on a July 26, 2003 Department of Homeland Security (DHS) Advisory and confirmed by a May 18, 2006 Department of Homeland Security's Homeland Infrastructure Threat & Risk Analysis Center (HITRAC) Report describing intelligence of an al-Qaeda
suicide hijack plan that would exploit a U.S. immigration loophole enabling a suicidal 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 without being screened by that U.S. airport's security. 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 with the smuggled weapons would overpower the crew, take control, and fly the hijacked aircraft into U.S. east coast targets. The plan was in direct violation of the Aviation and Transportation Security Act
(Public Law 107–71), Title 49 of the United States Code
Section 44917:
from New York, now Secretary of State, wrote a letter to DHS Secretary Tom Ridge
about MacLean's disclosure:
U.S. Senator Barbara Boxer
from California wrote this provision into ATSA. Senator Boxer also called for better protection of the identities of Federal Air Marshals and greater oversight of the Federal Air Marshal Service.
FAM Robert MacLean was rebuffed by his TSA managers and a Department of Homeland Security Office of Inspector General
(DHS/OIG) field agent, so he warned the public by going to NBC News. MacLean was quoted, anonymously, along with other unnamed sources, in a story written by Brock N. Meeks
, Chief Washington correspondent for MSNBC.com. That article broke the story and set off a chain reaction among national media outlets resulting in dozens of articles and televised broadcasts. The message MacLean disclosed was not marked as Sensitive Security Information
(SSI), the often abused unclassified information control mark used to protect information within the DHS's Transportation Security Administration
(TSA). Given that text message was sent nationally to all FAMS employees' unencrypted and password-protected cellular phones and did not contain SSI marking, MacLean was 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.
FAM Robert MacLean's disclosure helped draw public scrutiny and bipartisan congressional outrage to TSA's plan which rapidly led to its reversal. TSA first denied that air marshals would have been shifted, but the morning after MacLean's disclosure, U.S. Senators Hillary Rodham Clinton
(New York), Barbara Boxer
(California), and Charles Schumer
(New York) held video press conferences condemning the plan forcing the TSA to reverse its plan before going into effect.
U.S. Senator Frank Lautenberg
of New Jersey was "furious" and issued this July 30, 2003 press release:
U.S. Senator Charles Schumer
of New York stated the following:
U.S. Senator Charles Schumer
of New York also called on DHS Secretary Ridge to:
Fearful that fewer air marshals might travel on cross-country flights into San Francisco, Senator Boxer told reporter Edward Epstein of the San Francisco Chronicle
that she had offered to send the TSA a list of hotels near San Francisco International Airport where air marshals could book rooms for well under $100 a night. In a discussion with Senator Schumer, DHS Assistant Secretary of Border & Transportation Asa Hutchinson also admitted the plan to remove air marshals from nonstop, long distance flights was an error:
U.S. Senator John Kerry of Massachusetts told the Wall Street Journal that President Bush's tax cuts for the wealthy caused the TSA to consider implementing the plan:
Congresswoman Carolyn B. Maloney
of New York issued a press release on her official congressional website:
Congressmen Bill Pascrell, Jim Turner
, and James Langevin
together issued press releases about their letter to DHS Secretary Tom Ridge
:
Congressman Bill Pascrell:
Congressman James Langevin
:
Congressman Hal Rogers
(Republican) of Kentucky told Fox News:
U.S. Senator Ernest Hollings of South Carolina:
was being enacted to find who made the disclosure. Senator Barbara Boxer praised the air marshals who disclosed the plan to remove Federal Air Marshals from nonstop, long distance flights:
U.S. Congresswoman Carolyn B. Maloney
of New York also expressed her support for the air marshals who came forward, and called for an investigation into the retaliatory witch-hunt:
More than a year after the disclosure, the Department of Homeland Security's Inspector General, Clark Kent Ervin confirmed that TSA and FAMS managers did in fact threaten air marshals:
Right after Mr. Ervin issued his report on Robert MacLean's disclosure, he was forced out of his position by the White House.
Weeks after MacLean made the disclosure, he stopped being anonymous and exposed himself to retaliation from TSA and FAMS management by founding the Federal Law Enforcement Officers Association's Federal Air Marshal Service agency chapter and then accepting the position of Executive Vice President.
, confirmed that Saudi Arabian authorities foiled the suicide hijacking plot associated with MacLean's disclosure.
The attackers planned to transit through the U.S. to another destination so they could avoid applying for hard-to-get American visas required for Saudi nationals. The anonymous official said the militants were preparing to execute the alleged plot when it was stopped.
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,
's Transit Without Visa (TWOV) and the International-to-International transit (ITI) programs.
(SSI), an unclassified information category. On August 30, 2006, TSA retroactively marked MacLean's disclosure more than 6 months after he was fired on April 11, 2006. The Government Accountability Office
(GAO) issued a scathing report criticizing TSA for failing to have clear policies and oversight of its SSI designations, and using vague standards for its use. If TSA succeeds in retroactively marking whistleblower disclosures, these pseudo-classification markings will be abused to further retaliate against future whistleblowers, possibly decreasing the flow of critical information to the public.
Congresswoman Carolyn B. Maloney
asked DHS's and TSA's chief attorneys "to complete a full review" of MacLean's termination and provide her office with their findings.
While FAM Robert MacLean waits almost three years for the United States Merit Systems Protection Board
(MSPB) to review his termination, other air marshals who have committed serious crimes have gone with little or no punishment with the appearance of TSA executive and local law enforcement cover-up.
, Co-Chair of the Presidential transition of Barack Obama
team and President & CEO of the Center for American Progress
, testified before congress on September 16, 2008 regarding secrecy reform.:
Mark D. Agrast
, then a Senior Fellow for the Center for American Progress
cited Robert MacLean's case during his June 28, 2007 congressional testimony titled, "Over-Classified and Pseudo-Classified":
A June 2006 report from the U.S. Government Accountability Office
(GAO) titled "Clear Policies and Oversight Needed for Designation of Sensitive Security Information
(SSI), "criticized TSA's monitoring controls.
The GAO report cited an October 14, 2004, memorandum designed to centralize the administration of SSI within the TSA. The memo indicated that TSA’s Internal Security Policy Board recognized that the handling and identification of SSI had become problematic:
In a September 28, 1988 United States House of Representatives
“Committee on Government Operations” report, Senator Barbara Boxer
(then member of the House) warned Congress and the public about unclassified information markings being abused to prevent whistleblower from making disclosures. The Ronald Reagan
Administration's attempt to define 'classifiable' holds employees liable for disclosures of unclassified information, without any prior notice to them of its special status. Under Executive Order 12356, classified information is marked as such. Even information that is in the process of a classification determination is given an interim classification marking for a 30-day period. The employee is, therefore, aware of its special status. Without the classification markings on unclassified information, however, an employee cannot be sure that the nondisclosure agreements' restrictions apply to that material. Consequently, they must check with their supervisors, thereby alerting them to the [ whistleblower ] disclosure. That invites a chilling effect. As Congresswoman Boxer noted at the hearings:
, a forum in which the "evidentiary standard" is extremely high. September 16, 2008, a Ninth Circuit panel consisting of a majority of Presidents George H. W. Bush
and George W. Bush
appointees ruled that the Transportation Security Administration was within its authority to issue a Final Order that retroactively marks MacLean's disclosure as UNCLASSIFIED Sensitive Security Information
(SSI) over three years after it was disseminated. The court's ruling stated:
Going now over three years since TSA proposed to remove FAM Robert MacLean, his case is now before a regional United States Merit Systems Protection Board
(MSPB) Administrative Judge.
On December 23, 2008, the regional MSPB administrative judge (AJ) tossed out the 9th Circuit's ruling against MacLean citing the fact that the TSA's retroactive "Final Order on Sensitive Security Information (SSI)" issued four months after firing him was ad hoc. The Bush TSA successfully filed a motion for Interlocutory Appeal of the AJ's order to the full MSPB in Washington DC and forced a stay in MacLean regional MSPB case. To this day the full MSPB has not issued a decision and MacLean has not had his initial hearing over three years since filling his initial appeal before the regional MSPB.
On June 22, 2009, the full MSPB panel in Washington DC, consisting entirely of President George W. Bush appointees, Neil McPhie and Mary Rose, who effectively killed MacLean's case and the Whistleblower Protection Act in their single landmark decision. Right after the panel issued their decision declaring that MacLean is not protected under the Whistleblower Protection Act because he violated a retroactively applied unclassified information label—Sensitive Security Information (SSI) -- regulation, the panel then marked their entire decision with SSI labels and "WARNING" nondisclosure disclaimers and uploaded it onto their public website ( www.MSPB.gov ). The panel has since removed the SSI labels and removed it from their public website.
U.S. Senator Claire McCaskill of Missouri made this comment to the Washington Post about the MSPB's decision against MacLean:
(POGO) an advocate for MacLean. The lawyers for the Government Accountability Project
(GAP), and the Federal Law Enforcement Officers Association (FLEOA) represent him.
On November 25, 2008, POGO issued a 36 page report regarding the U.S. Office of Special Counsel (OSC) ignoring whistleblowers. Scott Bloch
was the U.S. Special Counsel from June 26, 2003 until he was abruptly fired by the White House on October 23, 2008. The OSC is an executive agency tasked with investigating whistleblower reprisal. MacLean's termination case was highlighted in their report.
Even if enhanced whistleblower protection legislation is enacted, it will not be retroactive. Employees who blew the whistle in the past will still be in dead-end positions or unemployed. Many whistleblower protection acts have been passed since the Lloyd-La Follette Act of 1912, but to this day, there is very little faith in the system - to would-be whistleblowers, any new law is just another piece of paper without teeth. Employees do not research law or consult with an attorney prior to exposing violations that may end their careers; they only read the news about legitimate whistleblowers still unemployed while they spend their life savings trying to win their jobs back in overburdened venues such as the U.S. Merit Systems Protection Board (MSPB). MacLean told congress on ABC News that no one will risk their career to expose wrongdoing if past whistleblowers are still twisting in the wind.
of Nevada—the state where MacLean was based out of when he made his disclosure—told the Las Vegas Review-Journal
that Senator Reid supports MacLean and another former Las Vegas Federal Air Marshal, Spencer Pickard. It further stated that it has asked the Obama administration to conduct a review of their cases with respect to Department of Justice/Office of Legal Policy Deputy Assistant Attorney General Rajesh De's testimony to the Senate on June 11, 2009. Deputy Assistant Attorney General De told the United States Senate Committee on Homeland Security and Governmental Affairs
' United States Senate Homeland Security Subcommittee on Oversight of Government Management, the Federal Workforce and the District of Columbia that the administration "should" and "certainly" will consider the "retroactive review" of past whistleblower cases.
(Republican) from California introduced a favorable news article into the Congressional Record:
(SSI) marked airport screening procedures manual, including some of the most closely guarded secrets regarding special rules for diplomats, CIA agents, and Federal Air Marshals.
The subsequent Department of Homeland Security/Office of Inspector General concluded this in its investigation:
(MSPB) attorney examiner (administrative judge) in San Francisco, Franklin M. Kang, issued an Initial Decision to uphold the TSA's removal of Robert MacLean. Franklin M. Kang also serves as a Major with the U.S. Army Reserves Judge Advocate General (JAG) and an executive officer for the Organization of Chinese Americans, Inc. MacLean has appealed the Franklin M. Kang Initial Decision to the 3-member appellate MSPB panel in Washington DC. For three consecutive years (2007–2009), the MSPB's Franklin Kang only ruled in favor of one federal employee in 235 cases he reviewed.
of Arizona. For a short period of time, the Federal Air Marshal Service was under the purview of ICE.
A significant investigation of Las Vegas field office most senior managers was completed in 2007 and is considered a key piece of evidence that could exhonerate Robert MacLean and other Federal Air Marshal Service whistleblowers who were fired or marginalized.
The Department of Homeland Security (DHS) declines to release the report despite several Freedom of Information Act (FOIA) requests and a federal lawsuit filed in the United States District Court, District of Nevada by retired Federal Air Marshal P. Jeffrey Black. A November 7, 2007 FOIA office response to a request by P. Jeffrey Black, acknowledges that a 575-page report of investigation exists.
More mystery emerged on November 1, 2010, when Congresswoman Giffords' District Director emailed a former Las Vegas-based Federal Air Marshal supervisor that a former Chief of Staff for DHS Secretary Janet Napolitano
told them that:
DHS responded to a Las Vegas Review-Journal
inquiry that they are still deciding what portions of the report are public record.
On January 26, 2011, the DHS now admits that 6,250 pages of the report of investigation exist and denied MacLean any portion of it in response to his November 19, 2010 Freedom of Information Act (FOIA) request.
in Washington DC conducted an investigation and discovered that the senior manager who was the sole witness and deciding official has been demoted twice since he fired Robert MacLean. MacLean's deciding official, Frank Donzanti, went from the Special Agent in Charge of all TSA law enforcement operations in California and Hawaii to a non-supervisory position at a small airport.
Since February 2010, Donzanti has been under investigation by the TSA Office of Inspection and the U.S. Office of Special Counsel for sexual harassment and quid pro quo arrangement allegations.
and Congresswoman Carolyn B. Maloney
filed an amicus curiae ("friend of the court") brief with the U.S. Merit Systems Protection Board in favor of Robert MacLean.
Their offices conducted an investigation and discovered that during Congress' debate prior to passing the Whistleblower Protection Act
of 1989 (the current federal whistleblower protection law in effect) it had specifically removed language in the bill that canceled out whistleblower protections for employees who make disclosures that violate executive agency "rule or regulation" -- the TSA retroactively marked MacLean's July 2003 disclosure as "Sensitive Security Information (SSI)." SSI is a TSA unclassified marking governed in its Code of Federal Regulations
(CFRs). After Congress removed "rule or regulation," the final bill signed into law only barred disclosures that violated law. This motion is significant because it proves that Congress had clear intent it wanted to prevent executive agencies from using their own secrecy regulations to retaliate against whistleblowers:
(MSPB) in Washington DC denied all of MacLean's Whistleblower Protection Act of 1989 defenses and affirmed the TSA's decision to terminate him. The three member panel consisted of President Barack Obama appointees Chairwoman Susan Tsui Grundmann, Vice Chairwoman Anne M. Wagner, and George W. Bush appointee, Mary M. Rose. The panel initially designated their decision as "Sensitive Security Information
," but later removed the markings.
MacLean is appealing to the United States Court of Appeals for the Federal Circuit
by September 25, 2011.
United States Office of Special Counsel
The United States Office of Special Counsel is a permanent independent federal investigative and prosecutorial agency whose basic legislative authority comes from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act and the Hatch Act...
( OSC ) declared former TSA Federal Air Marshal Robert MacLean a whistleblower. On July 28, 2003, MacLean made a disclosure exposing the Transportation Security Administration
Transportation Security Administration
The Transportation Security Administration is an agency of the U.S. Department of Homeland Security that exercises authority over the safety and security of the traveling public in the United States....
's cost-cutting plan that would have violated federal law 49 USC 44917(b), committed gross mismanagement, and endangered public safety. Eleven members of the 108th United States Congress
108th United States Congress
The One Hundred Eighth United States Congress was the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives from January 3, 2003 to January 3, 2005, during the third and fourth years of George W. Bush's...
supported MacLean's actions.
Robert J. MacLean (born March 8, 1970) is a United States Air Force
United States Air Force
The United States Air Force is the aerial warfare service branch of the United States Armed Forces and one of the American uniformed services. Initially part of the United States Army, the USAF was formed as a separate branch of the military on September 18, 1947 under the National Security Act of...
, United States Border Patrol
United States Border Patrol
The United States Border Patrol is a federal law enforcement agency within U.S. Customs and Border Protection , a component of the Department of Homeland Security . It is an agency in the Department of Homeland Security that enforces laws and regulations for the admission of foreign-born persons to...
, and U.S. Federal Air Marshal Service
Federal Air Marshal Service
The Federal Air Marshal Service is a United States federal law enforcement agency under the supervision of the Transportation Security Administration of the United States Department of Homeland Security...
veteran.
Robert MacLean was a U.S. Transportation Security Administration
Transportation Security Administration
The Transportation Security Administration is an agency of the U.S. Department of Homeland Security that exercises authority over the safety and security of the traveling public in the United States....
Federal Air Marshal Service
Federal Air Marshal Service
The Federal Air Marshal Service is a United States federal law enforcement agency under the supervision of the Transportation Security Administration of the United States Department of Homeland Security...
air marshal. He was fired on April 11, 2006 for making a disclosure that protected aviation and national security.
After a year went by that the U.S. Transportation Security Administration
Transportation Security Administration
The Transportation Security Administration is an agency of the U.S. Department of Homeland Security that exercises authority over the safety and security of the traveling public in the United States....
's (TSA) dress code and boarding procedures were routinely exposing the identities of U.S. Federal Air Marshals, and three days after a terrorist suicide hijacking plot was discovered by U.S. and foreign intelligence agencies in the summer of 2003, the TSA formulated an operational plan to remove air marshals from nonstop, long distance flights—the type of flight used for the September 11 attacks in 2001. TSA formulated the plan after facing a budget shortfall; the purpose was to cut the costs due to air marshals having to lodge overnight at hotels after a full duty day of long distance missions traveling away from their duty stations. Air marshals would have been absent from nonstop long-distance flights for the two months until the new federal Fiscal Year 2004. Immediately after congressional outrage the day after MacLean's disclosure, the plan was rescinded: air marshal coverage of long haul flights was not changed.
The government supports its dismissal of MacLean by declaring he endangered the nonstop, long distance flights that the TSA planned to remove air marshals from for two months in order to save costs associated with hotel rooms required for air marshals. The TSA then retroactively (four months after firing him) labeled his disclosure with its unclassified information marking regulation: Sensitive Security Information
Sensitive Security Information
Sensitive Security Information is a category of sensitive but unclassified information under the United States government's information sharing and control rules...
(SSI). MacLean argues that it is naive to believe that air marshal's significant others, pilots, flight attendants, airline gate agents, and frequent fliers already used to watching mandated suit and tie air marshals overtly pre-board aircraft—would have eventually raised their own concern to the media long after the plan was already operational. Had there been a disclosure after the plan went into effect, it would have taken the TSA and airline bureaucracies weeks to reverse course while nonstop, long distance flights were vulnerable—specifically violating Section 105 of the Aviation and Transportation Security Act
Aviation and Transportation Security Act
The Aviation and Transportation Security Act was enacted by the 107th United States Congress in the immediate aftermath of the September 11, 2001 attacks. The Act created the Transportation Security Administration within the U.S. Department of Transportation...
of 2001; and USC Title 49 § 44917 (b).
U.S. Office of Special Counsel intervenes in support of Robert MacLean
On August 25, 2011, U.S. Special Counsel Carolyn Lerner of the United States Office of Special CounselUnited States Office of Special Counsel
The United States Office of Special Counsel is a permanent independent federal investigative and prosecutorial agency whose basic legislative authority comes from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act and the Hatch Act...
(MSPB) filed an amicus curiae with the United States Merit Systems Protection Board
United States Merit Systems Protection Board
The Merit Systems Protection Board is an independent quasi-judicial agency established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management...
( MSPB ) in support of Robert MacLean. The motion requests that the MSPB reverse its June 22, 2009 and July 25, 2011 decisions.
U.S. Special Counsel Carolyn Lerner wrote:
Biography
After four years of active duty, FAM Robert MacLean (born on March 8, 1970, in Torrejon Air Base
Torrejon Air Base
Madrid-Torrejón Airport is a commercial airport in Spain. It is a joint-use facility between the Spanish Ministry of Defence and the Ministry of Public Works. The civil part is dedicated primarily to executive and private aviation. The airport is located northeast of Madrid, west of Alcalá de...
, Madrid, Spain) elected not to reenlist and was honorably discharged from the U.S. Air Force in 1992. In the Air Force, MacLean was awarded the Basic Training Honor Graduate Ribbon
Basic Training Honor Graduate Ribbon
The Basic Training Honor Graduate Ribbon is a military award of the United States Air Force and Coast Guard which recognizes top recruits who graduate at the top of their training classes upon completion of basic training.-Air Force:...
, Outstanding Unit Award
Outstanding Unit Award
The Air Force Outstanding Unit Award is an award of the United States Air Force which was first created in 1954. The award is presented as a ribbon to any command of the U.S...
s, the National Defense Service Medal
National Defense Service Medal
The National Defense Service Medal is a military service medal of the United States military originally commissioned by President Dwight D. Eisenhower...
, and the Air Force Good Conduct Medal
MacLean's Air Force Specialty Code
Air Force Specialty Code
The Air Force Specialty Code is an alphanumeric code used by the United States Air Force to identify an Air Force Specialty . Officer AFSCs consist of four characters and enlisted AFSCs consist of five characters. A letter prefix or suffix may be used with an AFSC when more specific identification...
AFSC was a nuclear weapons maintenance technician for Intercontinental Ballistic Missile
Intercontinental ballistic missile
An intercontinental ballistic missile is a ballistic missile with a long range typically designed for nuclear weapons delivery...
s (ICBMs). At the age of 18, MacLean was required to have a TOP SECRET clearance and be certified under the Department of Defense's Personnel Reliability Program
Personnel Reliability Program
Personnel Reliability Program is a United States Department of Defense psychological evaluation program, designed to permit only the most trustworthy individuals to have access to nuclear weapons, chemcial weapons, biological weapons....
(PRP) in order to have direct access to nuclear weapons components.
Among one of the PRP's main goals are, (Quoting from Department of Defense Directive 5210.42):
After his discharge, MacLean entered the U.S. Border Patrol as a border patrol agent and served almost six years in its San Diego Sector as a trainer. MacLean was recruited by the Federal Aviation Administration
Federal Aviation Administration
The Federal Aviation Administration is the national aviation authority of the United States. An agency of the United States Department of Transportation, it has authority to regulate and oversee all aspects of civil aviation in the U.S...
's (FAA) tiny, but elite Federal Air Marshal program immediately after the September 11 attacks. MacLean was in the first air marshal class to graduate after the September 11, 2001 Attacks
September 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
. After subsequently hiring a significant amount of new air marshals, the FAA program was moved under the new Department of Homeland Security's Transportation Security Administration and called the Federal Air Marshal Service
Federal Air Marshal Service
The Federal Air Marshal Service is a United States federal law enforcement agency under the supervision of the Transportation Security Administration of the United States Department of Homeland Security...
(FAMS). In MacLean's Federal Air Marshal Service termination notice, it cited his 14-year unblemished record of honorable service to his county:
MacLean's deciding official for his termination gave him the highest praise for his service as a Federal Air Marshal:
Whistleblower disclosure, and protecting aviation and national security
While the general public watched in plain sight air marshals trying to accomplish their missions under strict Federal Air Marshal Service (FAMS) dress-code, hotel, check-in, and boarding policies the U.S. Government Accountability Office (GAO) in January 2009 reported to have all been finally rescinded, in July 2003, Las Vegas, Nevada Federal Air Marshal (FAM) Robert MacLean tried to blow the whistle within the Transportation Security AdministrationTransportation Security Administration
The Transportation Security Administration is an agency of the U.S. Department of Homeland Security that exercises authority over the safety and security of the traveling public in the United States....
(TSA) on a plan to reduce air marshal coverage of nonstop, long distance flights amidst heightened warnings based on a July 26, 2003 Department of Homeland Security (DHS) Advisory and confirmed by a May 18, 2006 Department of Homeland Security's Homeland Infrastructure Threat & Risk Analysis Center (HITRAC) Report describing intelligence of an al-Qaeda
Al-Qaeda
Al-Qaeda is a global broad-based militant Islamist terrorist organization founded by Osama bin Laden sometime between August 1988 and late 1989. It operates as a network comprising both a multinational, stateless army and a radical Sunni Muslim movement calling for global Jihad...
suicide hijack plan that would exploit a U.S. immigration loophole enabling a suicidal 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 without being screened by that U.S. airport's security. 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 with the smuggled weapons would overpower the crew, take control, and fly the hijacked aircraft into U.S. east coast targets. The plan was in direct violation of the Aviation and Transportation Security Act
Aviation and Transportation Security Act
The Aviation and Transportation Security Act was enacted by the 107th United States Congress in the immediate aftermath of the September 11, 2001 attacks. The Act created the Transportation Security Administration within the U.S. Department of Transportation...
(Public Law 107–71), Title 49 of the United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
Section 44917:
Senator Hillary Clinton and ten other members of Congress supported MacLean's actions
U.S. Senator Hillary Rodham ClintonHillary Rodham Clinton
Hillary Diane Rodham Clinton is the 67th United States Secretary of State, serving in the administration of President Barack Obama. She was a United States Senator for New York from 2001 to 2009. As the wife of the 42nd President of the United States, Bill Clinton, she was the First Lady of the...
from New York, now Secretary of State, wrote a letter to DHS Secretary Tom Ridge
Tom Ridge
Thomas Joseph "Tom" Ridge is an American politician who served as a member of the United States House of Representatives , the 43rd Governor of Pennsylvania , Assistant to the President for Homeland Security , and the first United States Secretary of Homeland Security...
about MacLean's disclosure:
U.S. Senator Barbara Boxer
Barbara Boxer
Barbara Levy Boxer is the junior United States Senator from California . A member of the Democratic Party, she previously served in the U.S. House of Representatives ....
from California wrote this provision into ATSA. Senator Boxer also called for better protection of the identities of Federal Air Marshals and greater oversight of the Federal Air Marshal Service.
FAM Robert MacLean was rebuffed by his TSA managers and a Department of Homeland Security Office of Inspector General
Department of Homeland Security Office of Inspector General
-Purpose:The United States Congress enacted the Inspector General Act of 1978 to ensure integrity and efficiency in government. The Homeland Security Act of 2002, as amended, established an Office of Inspector General in the Department of Homeland Security...
(DHS/OIG) field agent, so he warned the public by going to NBC News. MacLean was quoted, anonymously, along with other unnamed sources, in a story written by Brock N. Meeks
Brock N. Meeks
Brock N. Meeks is an award-winning investigative journalist. He pioneered the field of online journalism and founded one of the preeminent online publications, CyberWire Dispatch, in 1994. At its peak, CyberWire Dispatch was distributed to more than 800,000 readers via mailing lists and newsgroups...
, Chief Washington correspondent for MSNBC.com. That article broke the story and set off a chain reaction among national media outlets resulting in dozens of articles and televised broadcasts. The message MacLean disclosed was not marked as Sensitive Security Information
Sensitive Security Information
Sensitive Security Information is a category of sensitive but unclassified information under the United States government's information sharing and control rules...
(SSI), the often abused unclassified information control mark used to protect information within the DHS's Transportation Security Administration
Transportation Security Administration
The Transportation Security Administration is an agency of the U.S. Department of Homeland Security that exercises authority over the safety and security of the traveling public in the United States....
(TSA). Given that text message was sent nationally to all FAMS employees' unencrypted and password-protected cellular phones and did not contain SSI marking, MacLean was unaware of any obligation to protect the information. For employees dealing with traditional Classified Information
Classified information
Classified information is sensitive information to which access is restricted by law or regulation to particular groups of persons. A formal security clearance is required to handle classified documents or access classified data. The clearance process requires a satisfactory background investigation...
, which is typically much more sensitive that SSI, they must be made aware of its status so as to protect it accordingly.
FAM Robert MacLean's disclosure helped draw public scrutiny and bipartisan congressional outrage to TSA's plan which rapidly led to its reversal. TSA first denied that air marshals would have been shifted, but the morning after MacLean's disclosure, U.S. Senators Hillary Rodham Clinton
Hillary Rodham Clinton
Hillary Diane Rodham Clinton is the 67th United States Secretary of State, serving in the administration of President Barack Obama. She was a United States Senator for New York from 2001 to 2009. As the wife of the 42nd President of the United States, Bill Clinton, she was the First Lady of the...
(New York), Barbara Boxer
Barbara Boxer
Barbara Levy Boxer is the junior United States Senator from California . A member of the Democratic Party, she previously served in the U.S. House of Representatives ....
(California), and Charles Schumer
Charles Schumer
Charles Ellis "Chuck" Schumer is the senior United States Senator from New York and a member of the Democratic Party. First elected in 1998, he defeated three-term Republican incumbent Al D'Amato by a margin of 55%–44%. He was easily re-elected in 2004 by a margin of 71%–24% and in 2010 by a...
(New York) held video press conferences condemning the plan forcing the TSA to reverse its plan before going into effect.
U.S. Senator Frank Lautenberg
Frank Lautenberg
Frank Raleigh Lautenberg is the senior United States Senator from New Jersey and a member of the Democratic Party. Previously, he was the Chairman and Chief Executive Officer of Automatic Data Processing, Inc.-Early life, career, and family:...
of New Jersey was "furious" and issued this July 30, 2003 press release:
U.S. Senator Charles Schumer
Charles Schumer
Charles Ellis "Chuck" Schumer is the senior United States Senator from New York and a member of the Democratic Party. First elected in 1998, he defeated three-term Republican incumbent Al D'Amato by a margin of 55%–44%. He was easily re-elected in 2004 by a margin of 71%–24% and in 2010 by a...
of New York stated the following:
U.S. Senator Charles Schumer
Charles Schumer
Charles Ellis "Chuck" Schumer is the senior United States Senator from New York and a member of the Democratic Party. First elected in 1998, he defeated three-term Republican incumbent Al D'Amato by a margin of 55%–44%. He was easily re-elected in 2004 by a margin of 71%–24% and in 2010 by a...
of New York also called on DHS Secretary Ridge to:
Fearful that fewer air marshals might travel on cross-country flights into San Francisco, Senator Boxer told reporter Edward Epstein of the San Francisco Chronicle
San Francisco Chronicle
thumb|right|upright|The Chronicle Building following the [[1906 San Francisco earthquake|1906 earthquake]] and fireThe San Francisco Chronicle is a newspaper serving primarily the San Francisco Bay Area of the U.S. state of California, but distributed throughout Northern and Central California,...
that she had offered to send the TSA a list of hotels near San Francisco International Airport where air marshals could book rooms for well under $100 a night. In a discussion with Senator Schumer, DHS Assistant Secretary of Border & Transportation Asa Hutchinson also admitted the plan to remove air marshals from nonstop, long distance flights was an error:
U.S. Senator John Kerry of Massachusetts told the Wall Street Journal that President Bush's tax cuts for the wealthy caused the TSA to consider implementing the plan:
Congresswoman Carolyn B. Maloney
Carolyn B. Maloney
Carolyn Bosher Maloney is the U.S. Representative for , serving since 1993. She is a member of the Democratic Party. The district, popularly known as the "silk stocking district", includes most of Manhattan's East Side; Astoria and Long Island City in Queens; and Roosevelt Island.-Early life,...
of New York issued a press release on her official congressional website:
Congressmen Bill Pascrell, Jim Turner
Jim Turner
Jim Turner may refer to:* Jim Turner , American football player* Jim Turner , American football player* Jim Turner , Major League Baseball pitcher...
, and James Langevin
James Langevin
James R. Langevin is the U.S. Representative for , serving since 2001. He is a member of the Democratic Party.-Early life and education:Langevin was born in Providence, Rhode Island...
together issued press releases about their letter to DHS Secretary Tom Ridge
Tom Ridge
Thomas Joseph "Tom" Ridge is an American politician who served as a member of the United States House of Representatives , the 43rd Governor of Pennsylvania , Assistant to the President for Homeland Security , and the first United States Secretary of Homeland Security...
:
Congressman Bill Pascrell:
Congressman James Langevin
James Langevin
James R. Langevin is the U.S. Representative for , serving since 2001. He is a member of the Democratic Party.-Early life and education:Langevin was born in Providence, Rhode Island...
:
Congressman Hal Rogers
Hal Rogers
Harold Dallas "Hal" Rogers is the U.S. Representative for , serving since 1981. He is a member of the Republican Party.-Early life, education, and early career:...
(Republican) of Kentucky told Fox News:
U.S. Senator Ernest Hollings of South Carolina:
Investigation into abuse of the USA Patriot Act
Immediately after FAM MacLean made this disclosure, TSA managers began an unauthorized investigation to ferret-out him and anyone else involved. TSA managers were informing Federal Air Marshal employees that the USA Patriot ActUSA PATRIOT Act
The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...
was being enacted to find who made the disclosure. Senator Barbara Boxer praised the air marshals who disclosed the plan to remove Federal Air Marshals from nonstop, long distance flights:
U.S. Congresswoman Carolyn B. Maloney
Carolyn B. Maloney
Carolyn Bosher Maloney is the U.S. Representative for , serving since 1993. She is a member of the Democratic Party. The district, popularly known as the "silk stocking district", includes most of Manhattan's East Side; Astoria and Long Island City in Queens; and Roosevelt Island.-Early life,...
of New York also expressed her support for the air marshals who came forward, and called for an investigation into the retaliatory witch-hunt:
More than a year after the disclosure, the Department of Homeland Security's Inspector General, Clark Kent Ervin confirmed that TSA and FAMS managers did in fact threaten air marshals:
Right after Mr. Ervin issued his report on Robert MacLean's disclosure, he was forced out of his position by the White House.
Weeks after MacLean made the disclosure, he stopped being anonymous and exposed himself to retaliation from TSA and FAMS management by founding the Federal Law Enforcement Officers Association's Federal Air Marshal Service agency chapter and then accepting the position of Executive Vice President.
Saudi terrorist plot
On November 2, 2008, an official with the Saudi Arabian government reported through their official newspaper, Al-Watan (Saudi Arabia)Al-Watan (Saudi Arabia)
Al-Watan is a leading reformist newspaper in Saudi Arabia. The main production centre is at Abha in the south of the country, close to the Yemen border.-External links:*...
, confirmed that Saudi Arabian authorities foiled the suicide hijacking plot associated with MacLean's disclosure.
The attackers planned to transit through the U.S. to another destination so they could avoid applying for hard-to-get American visas required for Saudi nationals. The anonymous official said the militants were preparing to execute the alleged plot when it was stopped.
White House reaction
During a July 30, 2003 White House press conference, President George W. BushGeorge W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
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,
Change to visa issuance and screening inbound passengers transiting through the U.S.
Immediately after FAM Robert MacLean's disclosure, DHS took measures to close a dangerous immigration loophole that allowed foreign passengers to avoid U.S. consular screening when air traveling through the U.S. under the United States Department of StateUnited States Department of State
The United States Department of State , is the United States federal executive department responsible for international relations of the United States, equivalent to the foreign ministries of other countries...
's Transit Without Visa (TWOV) and the International-to-International transit (ITI) programs.
MacLean appears on NBC Nightly News special for the September 11, 2001 attacks anniversary to complain about the air marshal dress code, military grooming, and overt boarding procedures
Termination for whistleblower disclosure
On August 31, 2006, over a year after proposing to terminate FAM Robert MacLean, and more than three years after MacLean disclosure forced TSA to rescind their plan, the TSA retroactively marked his July 2003 disclosure as being Sensitive Security InformationSensitive Security Information
Sensitive Security Information is a category of sensitive but unclassified information under the United States government's information sharing and control rules...
(SSI), an unclassified information category. On August 30, 2006, TSA retroactively marked MacLean's disclosure more than 6 months after he was fired on April 11, 2006. The Government Accountability Office
Government Accountability Office
The Government Accountability Office is the audit, evaluation, and investigative arm of the United States Congress. It is located in the legislative branch of the United States government.-History:...
(GAO) issued a scathing report criticizing TSA for failing to have clear policies and oversight of its SSI designations, and using vague standards for its use. If TSA succeeds in retroactively marking whistleblower disclosures, these pseudo-classification markings will be abused to further retaliate against future whistleblowers, possibly decreasing the flow of critical information to the public.
Congresswoman Carolyn B. Maloney
Carolyn B. Maloney
Carolyn Bosher Maloney is the U.S. Representative for , serving since 1993. She is a member of the Democratic Party. The district, popularly known as the "silk stocking district", includes most of Manhattan's East Side; Astoria and Long Island City in Queens; and Roosevelt Island.-Early life,...
asked DHS's and TSA's chief attorneys "to complete a full review" of MacLean's termination and provide her office with their findings.
While FAM Robert MacLean waits almost three years for the United States Merit Systems Protection Board
United States Merit Systems Protection Board
The Merit Systems Protection Board is an independent quasi-judicial agency established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management...
(MSPB) to review his termination, other air marshals who have committed serious crimes have gone with little or no punishment with the appearance of TSA executive and local law enforcement cover-up.
Abuse of unclassified information markings
John PodestaJohn Podesta
John David Podesta was the fourth and final White House Chief of Staff under President Bill Clinton, from 1998 until 2001. He is the president of the Center for American Progress, a liberal think tank in Washington, D.C., and is also a Visiting Professor of Law at the Georgetown University Law...
, Co-Chair of the Presidential transition of Barack Obama
Presidential transition of Barack Obama
The presidential transition of Barack Obama began when he won the United States presidential election on November 4, 2008, and became the President-Elect. He was formally elected by the Electoral College on December 15, 2008...
team and President & CEO of the Center for American Progress
Center for American Progress
The Center for American Progress is a progressive public policy research and advocacy organization. Its website states that the organization is "dedicated to improving the lives of Americans through progressive ideas and action." It has its headquarters in Washington D.C.Its President and Chief...
, testified before congress on September 16, 2008 regarding secrecy reform.:
Mark D. Agrast
Mark D. Agrast
Mark David Agrast is an American lawyer who is a Deputy Assistant Attorney General in the United States Department of Justice, overseeing criminal and national security matters for the department's Office of Legislative Affairs....
, then a Senior Fellow for the Center for American Progress
Center for American Progress
The Center for American Progress is a progressive public policy research and advocacy organization. Its website states that the organization is "dedicated to improving the lives of Americans through progressive ideas and action." It has its headquarters in Washington D.C.Its President and Chief...
cited Robert MacLean's case during his June 28, 2007 congressional testimony titled, "Over-Classified and Pseudo-Classified":
A June 2006 report from the U.S. Government Accountability Office
Government Accountability Office
The Government Accountability Office is the audit, evaluation, and investigative arm of the United States Congress. It is located in the legislative branch of the United States government.-History:...
(GAO) titled "Clear Policies and Oversight Needed for Designation of Sensitive Security Information
Sensitive Security Information
Sensitive Security Information is a category of sensitive but unclassified information under the United States government's information sharing and control rules...
(SSI), "criticized TSA's monitoring controls.
The GAO report cited an October 14, 2004, memorandum designed to centralize the administration of SSI within the TSA. The memo indicated that TSA’s Internal Security Policy Board recognized that the handling and identification of SSI had become problematic:
In a September 28, 1988 United States House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
“Committee on Government Operations” report, Senator Barbara Boxer
Barbara Boxer
Barbara Levy Boxer is the junior United States Senator from California . A member of the Democratic Party, she previously served in the U.S. House of Representatives ....
(then member of the House) warned Congress and the public about unclassified information markings being abused to prevent whistleblower from making disclosures. The Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
Administration's attempt to define 'classifiable' holds employees liable for disclosures of unclassified information, without any prior notice to them of its special status. Under Executive Order 12356, classified information is marked as such. Even information that is in the process of a classification determination is given an interim classification marking for a 30-day period. The employee is, therefore, aware of its special status. Without the classification markings on unclassified information, however, an employee cannot be sure that the nondisclosure agreements' restrictions apply to that material. Consequently, they must check with their supervisors, thereby alerting them to the [ whistleblower ] disclosure. That invites a chilling effect. As Congresswoman Boxer noted at the hearings:
Cancellation of whistleblower protection for retroactive unclassified information designation of disclosure
After the TSA issued its August 31, 2008 "Final Order on Sensitive Security Information (SSI)," the TSA argued that the MSPB had no jurisdiction to challenge an "Agency Order." The MSPB Administrative Judge dismissed the appeal without prejudice so MacLean could challenge the Agency Order in the United States Court of Appeals for the Ninth CircuitUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
, a forum in which the "evidentiary standard" is extremely high. September 16, 2008, a Ninth Circuit panel consisting of a majority of Presidents George H. W. Bush
George H. W. Bush
George Herbert Walker Bush is an American politician who served as the 41st President of the United States . He had previously served as the 43rd Vice President of the United States , a congressman, an ambassador, and Director of Central Intelligence.Bush was born in Milton, Massachusetts, to...
and George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
appointees ruled that the Transportation Security Administration was within its authority to issue a Final Order that retroactively marks MacLean's disclosure as UNCLASSIFIED Sensitive Security Information
Sensitive Security Information
Sensitive Security Information is a category of sensitive but unclassified information under the United States government's information sharing and control rules...
(SSI) over three years after it was disseminated. The court's ruling stated:
Going now over three years since TSA proposed to remove FAM Robert MacLean, his case is now before a regional United States Merit Systems Protection Board
United States Merit Systems Protection Board
The Merit Systems Protection Board is an independent quasi-judicial agency established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management...
(MSPB) Administrative Judge.
On December 23, 2008, the regional MSPB administrative judge (AJ) tossed out the 9th Circuit's ruling against MacLean citing the fact that the TSA's retroactive "Final Order on Sensitive Security Information (SSI)" issued four months after firing him was ad hoc. The Bush TSA successfully filed a motion for Interlocutory Appeal of the AJ's order to the full MSPB in Washington DC and forced a stay in MacLean regional MSPB case. To this day the full MSPB has not issued a decision and MacLean has not had his initial hearing over three years since filling his initial appeal before the regional MSPB.
On June 22, 2009, the full MSPB panel in Washington DC, consisting entirely of President George W. Bush appointees, Neil McPhie and Mary Rose, who effectively killed MacLean's case and the Whistleblower Protection Act in their single landmark decision. Right after the panel issued their decision declaring that MacLean is not protected under the Whistleblower Protection Act because he violated a retroactively applied unclassified information label—Sensitive Security Information (SSI) -- regulation, the panel then marked their entire decision with SSI labels and "WARNING" nondisclosure disclaimers and uploaded it onto their public website ( www.MSPB.gov ). The panel has since removed the SSI labels and removed it from their public website.
U.S. Senator Claire McCaskill of Missouri made this comment to the Washington Post about the MSPB's decision against MacLean:
Support from accountability and oversight organizations
The Project On Government OversightProject on Government Oversight
The Project On Government Oversight , founded in 1981, is an independent non-profit organization in the United States which investigates and seeks to expose corruption and other misconduct. POGO assists whistleblowers and investigates federal agencies, Congress, and government contractors...
(POGO) an advocate for MacLean. The lawyers for the Government Accountability Project
Government Accountability Project
The Government Accountability Project is a leading United States whistleblower protection organization. Through litigating of whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability...
(GAP), and the Federal Law Enforcement Officers Association (FLEOA) represent him.
On November 25, 2008, POGO issued a 36 page report regarding the U.S. Office of Special Counsel (OSC) ignoring whistleblowers. Scott Bloch
Scott Bloch
Scott Bloch is a US attorney, former deputy director and counsel to the Department of Justice's Task Force for Faith-based and Community Initiatives, and former Special Counsel at the United States Office of Special Counsel...
was the U.S. Special Counsel from June 26, 2003 until he was abruptly fired by the White House on October 23, 2008. The OSC is an executive agency tasked with investigating whistleblower reprisal. MacLean's termination case was highlighted in their report.
Congress encourages president to enact an executive proposal to resurrect the careers of past whistleblowers
A group of whistleblowers led by Robert MacLean have sent a proposal to President Barack Obama requesting that he enact an order that would give immediate relief and redress to past federal law enforcement and national security whistleblowers. On April 30, 2009, a bipartisan group of congressmen sent a letter to President Obama urging him to enact MacLean's proposal:Even if enhanced whistleblower protection legislation is enacted, it will not be retroactive. Employees who blew the whistle in the past will still be in dead-end positions or unemployed. Many whistleblower protection acts have been passed since the Lloyd-La Follette Act of 1912, but to this day, there is very little faith in the system - to would-be whistleblowers, any new law is just another piece of paper without teeth. Employees do not research law or consult with an attorney prior to exposing violations that may end their careers; they only read the news about legitimate whistleblowers still unemployed while they spend their life savings trying to win their jobs back in overburdened venues such as the U.S. Merit Systems Protection Board (MSPB). MacLean told congress on ABC News that no one will risk their career to expose wrongdoing if past whistleblowers are still twisting in the wind.
Congressional hearings
During hearings, U.S. Congressman Bill Pascrell questioned TSA Assistant Secretary Kip Hawley during a Committee on Homeland Security, Subcommittee On Transportation Security and Infrastructure Protection hearing held on October 16, 2007 in which he cited a New Jersey Star-Ledger opinion editorial. Two years later on July 23, 2009, Rep. Pascrell did not forget about MacLean and other Federal Air Marshal Service whistleblowers and expressed his displeasure to TSA/FAMS Director Robert Bray that Hawley ignored his office:Requests for White House and Department of Justice reviews
The office of Senate Majority Leader Harry ReidHarry Reid
Harry Mason Reid is the senior United States Senator from Nevada, serving since 1987. A member of the Democratic Party, he has been the Senate Majority Leader since January 2007, having previously served as Minority Leader and Minority and Majority Whip.Previously, Reid was a member of the U.S...
of Nevada—the state where MacLean was based out of when he made his disclosure—told the Las Vegas Review-Journal
Las Vegas Review-Journal
The Las Vegas Review-Journal is published in Las Vegas, Nevada, United States. It is the largest circulating daily newspaper in Nevada, and one of two daily newspapers in Las Vegas . It is the flagship publication of Stephens Media LLC...
that Senator Reid supports MacLean and another former Las Vegas Federal Air Marshal, Spencer Pickard. It further stated that it has asked the Obama administration to conduct a review of their cases with respect to Department of Justice/Office of Legal Policy Deputy Assistant Attorney General Rajesh De's testimony to the Senate on June 11, 2009. Deputy Assistant Attorney General De told the United States Senate Committee on Homeland Security and Governmental Affairs
United States Senate Committee on Homeland Security and Governmental Affairs
The United States Senate Committee on Homeland Security and Governmental Affairs has jurisdiction over matters related to the Department of Homeland Security and other homeland security concerns, as well as the functioning of the government itself, including the National Archives, budget and...
' United States Senate Homeland Security Subcommittee on Oversight of Government Management, the Federal Workforce and the District of Columbia that the administration "should" and "certainly" will consider the "retroactive review" of past whistleblower cases.
Favorable news article into the Congressional Record
From the House floor, U.S. Congressmen Ken CalvertKen Calvert
Kenneth Stanton "Ken" Calvert is the U.S. Representative for , and previously the 43rd, serving since 1993. He is a member of the Republican Party. The district is part of the Inland Empire and south Orange County areas of Southern California.-Early life, education and career:Calvert was born in...
(Republican) from California introduced a favorable news article into the Congressional Record:
TSA releases online its entire security checkpoint screening standard operating procedures manual
In December 2009, it was discovered that TSA inadvertently posted online its Sensitive Security InformationSensitive Security Information
Sensitive Security Information is a category of sensitive but unclassified information under the United States government's information sharing and control rules...
(SSI) marked airport screening procedures manual, including some of the most closely guarded secrets regarding special rules for diplomats, CIA agents, and Federal Air Marshals.
The subsequent Department of Homeland Security/Office of Inspector General concluded this in its investigation:
December 2009 Christmas "underwear bomber" attack brings déjà vu to TSA's 2003 security lapses
Initial Decision by the regional Merit Systems Protection Board administrative judge Franklin M. Kang
On May 12, 2010, Western Region United States Merit Systems Protection BoardUnited States Merit Systems Protection Board
The Merit Systems Protection Board is an independent quasi-judicial agency established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management...
(MSPB) attorney examiner (administrative judge) in San Francisco, Franklin M. Kang, issued an Initial Decision to uphold the TSA's removal of Robert MacLean. Franklin M. Kang also serves as a Major with the U.S. Army Reserves Judge Advocate General (JAG) and an executive officer for the Organization of Chinese Americans, Inc. MacLean has appealed the Franklin M. Kang Initial Decision to the 3-member appellate MSPB panel in Washington DC. For three consecutive years (2007–2009), the MSPB's Franklin Kang only ruled in favor of one federal employee in 235 cases he reviewed.
Elusive Office of Professional Responsibility report of investigation of Federal Air Marshal Service Las Vegas field office managers
An Immigration and Customs Enforcement (ICE) Office of Professional Responsibility report of investigation about whistleblower retaliation, unauthorized document shredding, and mandatory intelligence reporting quotas at the TSA Federal Air Marshal Service Las Vegas field office, has proven difficult to obtain, according to a U.S. congresswoman who sought a copy of the document, Gabrielle GiffordsGabrielle Giffords
Gabrielle Dee "Gabby" Giffords is an American politician. A Democratic member of the United States House of Representatives, she has represented since 2007. She is the third woman in Arizona's history to be elected to the U.S. Congress...
of Arizona. For a short period of time, the Federal Air Marshal Service was under the purview of ICE.
A significant investigation of Las Vegas field office most senior managers was completed in 2007 and is considered a key piece of evidence that could exhonerate Robert MacLean and other Federal Air Marshal Service whistleblowers who were fired or marginalized.
The Department of Homeland Security (DHS) declines to release the report despite several Freedom of Information Act (FOIA) requests and a federal lawsuit filed in the United States District Court, District of Nevada by retired Federal Air Marshal P. Jeffrey Black. A November 7, 2007 FOIA office response to a request by P. Jeffrey Black, acknowledges that a 575-page report of investigation exists.
More mystery emerged on November 1, 2010, when Congresswoman Giffords' District Director emailed a former Las Vegas-based Federal Air Marshal supervisor that a former Chief of Staff for DHS Secretary Janet Napolitano
Janet Napolitano
Janet Napolitano is the third and current United States Secretary of Homeland Security, serving in the administration of President Barack Obama. She is the fourth person to hold the position, which was created after the 9/11 terrorist attacks. A member of the Democratic Party, she was the 21st...
told them that:
DHS responded to a Las Vegas Review-Journal
Las Vegas Review-Journal
The Las Vegas Review-Journal is published in Las Vegas, Nevada, United States. It is the largest circulating daily newspaper in Nevada, and one of two daily newspapers in Las Vegas . It is the flagship publication of Stephens Media LLC...
inquiry that they are still deciding what portions of the report are public record.
On January 26, 2011, the DHS now admits that 6,250 pages of the report of investigation exist and denied MacLean any portion of it in response to his November 19, 2010 Freedom of Information Act (FOIA) request.
Sole witness and deciding official for the TSA's case has been demoted twice since firing Robert MacLean
In March 2011, the Project On Government OversightProject on Government Oversight
The Project On Government Oversight , founded in 1981, is an independent non-profit organization in the United States which investigates and seeks to expose corruption and other misconduct. POGO assists whistleblowers and investigates federal agencies, Congress, and government contractors...
in Washington DC conducted an investigation and discovered that the senior manager who was the sole witness and deciding official has been demoted twice since he fired Robert MacLean. MacLean's deciding official, Frank Donzanti, went from the Special Agent in Charge of all TSA law enforcement operations in California and Hawaii to a non-supervisory position at a small airport.
Since February 2010, Donzanti has been under investigation by the TSA Office of Inspection and the U.S. Office of Special Counsel for sexual harassment and quid pro quo arrangement allegations.
Members of Congress conduct investigation of Congress' 1989 intent and file motion with the Merit Systems Protection Board in favor of MacLean
On April 12, 2011, Congressman Dennis KucinichDennis Kucinich
Dennis John Kucinich is the U.S. Representative for , serving since 1997. He was furthermore a candidate for the Democratic nomination for President of the United States in the 2004 and 2008 presidential elections....
and Congresswoman Carolyn B. Maloney
Carolyn B. Maloney
Carolyn Bosher Maloney is the U.S. Representative for , serving since 1993. She is a member of the Democratic Party. The district, popularly known as the "silk stocking district", includes most of Manhattan's East Side; Astoria and Long Island City in Queens; and Roosevelt Island.-Early life,...
filed an amicus curiae ("friend of the court") brief with the U.S. Merit Systems Protection Board in favor of Robert MacLean.
Their offices conducted an investigation and discovered that during Congress' debate prior to passing the Whistleblower Protection Act
Whistleblower Protection Act
-Whistleblower Protection Act of 1989:The Whistleblower Protection Act of 1989 is a United States federal law that protects federal whistleblowers who work for the government and report agency misconduct...
of 1989 (the current federal whistleblower protection law in effect) it had specifically removed language in the bill that canceled out whistleblower protections for employees who make disclosures that violate executive agency "rule or regulation" -- the TSA retroactively marked MacLean's July 2003 disclosure as "Sensitive Security Information (SSI)." SSI is a TSA unclassified marking governed in its Code of Federal Regulations
Code of Federal Regulations
The Code of Federal Regulations is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.The CFR is published by the Office of the Federal Register, an agency...
(CFRs). After Congress removed "rule or regulation," the final bill signed into law only barred disclosures that violated law. This motion is significant because it proves that Congress had clear intent it wanted to prevent executive agencies from using their own secrecy regulations to retaliate against whistleblowers:
Full U.S. Merit Systems Protection Board denies MacLean's Petition For Review and affirms the TSA's decision to terminate him
On July 25, 2011, the full United States Merit Systems Protection BoardUnited States Merit Systems Protection Board
The Merit Systems Protection Board is an independent quasi-judicial agency established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management...
(MSPB) in Washington DC denied all of MacLean's Whistleblower Protection Act of 1989 defenses and affirmed the TSA's decision to terminate him. The three member panel consisted of President Barack Obama appointees Chairwoman Susan Tsui Grundmann, Vice Chairwoman Anne M. Wagner, and George W. Bush appointee, Mary M. Rose. The panel initially designated their decision as "Sensitive Security Information
Sensitive Security Information
Sensitive Security Information is a category of sensitive but unclassified information under the United States government's information sharing and control rules...
," but later removed the markings.
MacLean is appealing to the United States Court of Appeals for the Federal Circuit
United States Court of Appeals for the Federal Circuit
-Vacancies and pending nominations:-List of former judges:-Chief judges:Notwithstanding the foregoing, when the court was initially created, Congress had to resolve which chief judge of the predecessor courts would become the first chief judge...
by September 25, 2011.
TSA arguments
The TSA makes several arguments:- Robert MacLean was trained in the safeguarding of SSI and that the information he disclosed did not require any markings despite Code of Federal RegulationsCode of Federal RegulationsThe Code of Federal Regulations is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.The CFR is published by the Office of the Federal Register, an agency...
(CFRs) that mandate the contrary. - MacLean brought embarrassment and caused the TSA to disrupt their operations in order to cancel their plan to remove FAMs from nonstop, long distance flights.
- Had TSA decided to 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.
- That front-line law enforcement officers and other low-level field employees do not have the authority, education, or experience to determine if dangerous executive plans are gross mismanagement, violate law, or endanger public safety and national security; and that such determinations can only be made by the executive agency's senior executives.
- Senior executives can at anytime retroactively mark or label documents or mobile telephone text messages with UNCLASSIFIED information categories such as "Sensitive Security Information" (SSI) no matter how dated the information is.
- That a violation of an unclassified information marking regulation is equal to a "violation of law," therefore the Whistleblower Protection ActWhistleblower Protection Act-Whistleblower Protection Act of 1989:The Whistleblower Protection Act of 1989 is a United States federal law that protects federal whistleblowers who work for the government and report agency misconduct...
of 1989 (WPA) does not protect Robert MacLean's disclosure due to the TSA retroactively marking it as UNCLASSIFIED SSI.