FAM Whistleblower Appeals His Termination; Says He Protected National Security
By Matthew Harwood
Created 11/05/2009 - 18:09
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A former federal air marshal 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.

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.

SSI is special class of protected information relating to transportation security, according to the Government Accountability Office:

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.

Yesterday, however, the Senate confirmed President Barack Obama’s nominations for the MSPB—Susan Grundmann, as chairwoman, and Anne Wagner, as vice chairwoman. Both are considered labor and whistleblower friendly.

“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.

Related Resources:

"Is the Obama Administration Diluting Whistleblower Protections?" by Matthew Harwood, Daily Headlines, Aug. 7, 2009

"Whistleblowers Optimistic About Treatment Under Obama," by Matthew Harwood, Daily Headlines, Aug. 4, 2009

"Whistleblower Protections Denied Fired Air Marshal" by Matthew Harwood, Daily Headlines, June 25, 2009

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TSA in `witch hunt,' air marshals say
Homeland Security denies knowledge of formal investigation
by Brock N. Meeks, MSNBC, 11 August 2003
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WASHINGTON, Aug. 11 -- The Transportation Security Administration is conducting a "witch hunt" to ferret out and discipline employees in the federal air marshal program who have talked to the media, several sources within the program told MSNBC.com. Some air marshals are even being threatened with having the USA Patriot Act, a law enacted to help fight terrorism, used against them. The Department of Homeland Security, which oversees the TSA, denies that any such investigation is taking place.

HOWEVER, A DEPARTMENT Of Homeland Security spokesman did acknowledge that an investigation is under way surrounding the circumstances involving a decision to pull air marshals from high risk flights in an attempt to save money at the cash strapped TSA, a story first reported in late July on MSNBC.com.

DHS is investigating "whether or not certain internal management decisions regarding federal air marshal scheduling were authorized," said Brian Roehrkasse, a department spokesman, "and if so, who may have authorized those."

Shortly after MSNBC.com reported that TSA was pulling air marshals from flights, based on information provided by sources within the air marshal program, an "investigative witch hunt was started," one air marshal who requested anonymity told MSNBC.com.

The air marshals work as undercover law enforcement officers aboard airlines; as such, they are often given access to classified mission information and therefore are made to sign documents pledging they will not divulge information to the media.

NO FORMAL PROBE

Roehrkasse said there has been no formal investigation aimed at uncovering persons within the air marshal program that might have leaked information to the media.

However, Roehrkasse did say DHS "will investigate any incidents" of employees disclosing what they know to be classified information. "Every government employee, including someone in the federal air marshal service, is prohibited by law from releasing sensitive classified information unless given express permission to do so," he said. And if an investigation found that that classified information was divulged outside the agency, it would be a violation of law and the person or persons "subject to arrest and prosecution," Roehrkasse said.

But some air marshals did speak to MSNBC.com about being pulled from high-risk flights because they believed that act alone hurt overall security.

The move on the part of air marshals to come forward drew a nod from Senate Democrats who blasted TSA for considering the move to pull air marshals from some flights simply because of budget woes.

"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," said Sen. Barbara Boxer, D-Calif., during a news conference, "because I believe that cutting air marshals was clearly in the mix of budgetary cuts being considered."

Flip-flop on air marshal schedules

One air marshal told MSNBC.com that his entire field office was given an oral briefing and told "that an investigation is under way" and that in order to help find people talking to the media, "the USA Patriot Act was going to be used" to pull home phone and Internet records. Several other air marshals MSNBC.com heard from told similar stories of an investigation under way; one additional air marshal also mentioned that his supervisor had mentioned the use of the Patriot Act.

"If these allegations are true, they show misplaced priorities," said Rep. Carolyn Maloney, D-N.Y., chair of the Democratic Task Force on Homeland Security. "They shouldn't be going after civil servants doing their patriotic duty; they should be going after whoever made the boneheaded decision and whoever approved it at the OMB."

CAN'T INVOKE PATRIOT ACT

By law, however, the TSA isn't allowed to invoke the Patriot Act. That law was developed to give broader surveillance and prosecutorial power to law enforcement agencies in order to better combat terrorism.

Threatening to use the Patriot Act "is not an act of law, it's an act of intimidation," said Steven Aftergood, who runs the Project on Government Secrecy for the Federation of American Scientists. "The politics of this are the agency is trying to regulate what kind of interaction its employees have with the media and the general public," Aftergood said. "That is something that raises questions of agency good faith."

And from here the next step is "for Congress to investigate the behavior of the agency because they are skirting, if they haven't crossed the boundary, of bad faith," Aftergood said.

That's exactly the thinking of Rep. Maloney; she sent letters to the chairmen of the House and Senate Judiciary committee and the chairman and ranking member of the House Select Committee on Homeland Security urging further action.

"(To) invoke, or threaten to invoke, the USA Patriot Act, a law meant to battle terrorism, to target patriotic employees seems to be not only illogical, but a misuse of the law as well," Maloney says in her letter the Judiciary committee leaders. "I urge your committee to formally investigate the alleged misuse of the USA Patriot Act by DHS for its internal probe of employees."

In the letter to the House Homeland Security Committee, Maloney asks that there be an investigation to find out whether DHS is pursuing an investigation into leaks stemming from those in the Federal Air Marshal program to determine if "resources are being misdirected."

Copyright © 2003 MSNBC

Whistleblower Protections Denied Fired Air Marshal
By Matthew Harwood
Created 06/25/2009 - 14:38

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The decision on Tuesday by the U.S. Merit Systems Protection Board (MSPB) to deny whistleblower protections to a former federal air marshal is the final blow against such protections, argues a whistleblower defense organization.

The decision on Tuesday by the U.S. Merit Systems Protection Board (MSPB) to deny whistleblower protections to a former federal air marshal [2] is the final blow against such protections, argues a whistleblower defense organization.

In a press release, the Government Accountability Project (GAP) alleges that MSPB's decision this week killed the Whistleblower Protect Act (WPA) [3], which protects government employees from retaliation if they speak up against government corruption or negligence.

The decision dealt with the case of Robert MacLean, who was fired from the Federal Air Marshal Service in 2006 after going to the media in 2003 with text-message evidence that the service had cut air marshals from long-distance flights during an elevated threat of suicidal terrorism because of budgetary constraints. The bipartisan outrage provoked by MacLean's leak led the service to cancel their initial plan. MacLean said he went public only after going to a superior and three field offices of the Department of Homeland Security's Office of the Inspector General.

The stated reason for MacLean's termination was that he had disclosed Sensitive Security Information (SSI), sensitive information relating to transportation safety and security, even though MacLean was terminated before that information was classified as SSI.

According to GAP, who filed an amicus curiae brief on behalf of MacLean:

Almost three years later, in April 2006, the TSA fired MacLean, specifically because his disclosure was SSI. The TSA justified its position through an ad hoc order issued on August 31, 2006 (three years after his disclosure – four months after his termination), that the text message was SSI. When he disclosed the message, there had been no markings indicating that the information was classified, SSI, or in any way restricted. It was not sent by secure means.

Nevertheless, according to the MSPB ruling, MacLean's disclosure of SSI denies him any right to whistleblower protections. The MSPB wrote:

Sensitive Security Information is defined in the regulations as, among other things, “[s]pecific details of aviation security measures that are applied directly by the TSA and which includes, but is not limited to, information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.” 49 C.F.R. § 1520.7(j) (2003). Information of this kind, as well as records containing such information, constitutes SSI unless the Under Secretary provides in writing to the contrary. 49 C.F.R. § 1520.7. Based upon the foregoing, we find that Congress provided TSA with the responsibility of defining, regulating, and protecting SSI under 49 U.S.C. § 114(s).

GAP, on the otherhand, argues that under the WPA the only time government employees do not have the right to publicly release information is when Congress explicilty says so, regardless of agency regulations.

“Until Congress acts, the Whistleblower Protection Act is dead," said GAP Legal Director Tom Devine . "The MacLean decision means government agencies can fire employees for any disclosure otherwise protected by the WPA. The decision reduces the WPA to a voluntary guideline that agencies can cancel at will by issuing blanket gag regulations.”