The Great Pretender
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For the longest time, Robert MacLean was hailed as a national hero. He was paraded around by the Government Accountability Project (GAP) and the Project on Government Oversight (POGO) as one of the most important whistleblowers of our generation. The mainstream media published a multitude of articles about MacLean and the horrors he faced for blowing the whistle. GAP and POGO called MacLean a prime example of the federal whistleblower experience. Lawmakers rallied to join the outpouring of support, praising his heroic actions. MacLean declared that as the result of his firing by the Department of Homeland Security, he was destitute, in desperate need of a job and on the verge of bankruptcy. His case sounded like the prototype of a heartbreaking whistleblower story. Trouble is, much of it simply wasn’t true.

Since 2003, Robert MacLean has been quietly leaking internal agency information to news organizations, including CNN and MSNBC. The DHS looked for the leaker, but initially wasn’t able to identify the source. In 2004, MSNBC’s Brock Meeks asked MacLean whether he knew any Air Marshals willing to go on-air, unidentified and appearing in silhouette. MacLean volunteered himself. Once the episode aired, someone within the DHS recognized MacLean’s voice. Based on a September 2004 report of an unauthorized media appearance, the agency initiated an investigation. This inquiry exposed MacLean as the leaker whose identity the agency sought to unearth years earlier.

On May 4, 2005 MacLean admitted under oath: “For the July 29, 2003 article, I informed (the reporter) that all Las Vegas FAMs were sent a text message to their Government issued mobile phones that all RON (Remain Overnight) missions up to August 9 would be canceled.” The agency argued that the information MacLean leaked to the media gravely endangered the nation, by publicly identifying the flights that would not be protected. During his MSPB hearing, Maclean testified, “If I told somebody that a particular flight was not going to have any protection on it, that endangered that specific flight”. That is the very essence of what the TSA considers to be Sensitive Security Information (SSI).

One of the conditions of employment as an Air Marshal states that "The release of sensitive or classified information may be basis for removal from the position." When asked whether “the fact that there is no Federal Air Marshal on that flight considered confidential information,” Maclean replied, “Absolutely.” Still, MacLean wanted it publicized. He testified that based on “moral obligations”, he didn’t see a problem with releasing even “classified” or “top secret information”.

Under 49 C.F.R. § 1520.5(b)(8)(ii), information concerning deployments, numbers and operations of FAMs is considered SSI and its disclosure is strictly prohibited. As the 9th Circuit Court of Appeals ruled in MacLean’s case, “Information falling within this designation is automatically considered “sensitive security information” without further action from the TSA.” Whether or not such information is marked SSI at the time of its transmission is therefore irrelevant.

Another cornerstone of MacLean’s case was his claim that if the government believed the information in question to be SSI, they would not have sent it to Air Marshals via their cell phones, transmitting it to their government-issued PDA’s instead. This claim also doesn’t hold water. MSNBC’s Brock Meeks authored an article, “Air Marshal PDAs Are Field Flop, Voice Use In-Flight Banned Over Interference Concerns”, in which he reported: “The devices are so rarely used for communication that text messages sent out by field office supervisors go to the air marshals’ cellular phones instead of to their PDAs.”

For making an unauthorized disclosure of SSI to a reporter, MacLean was fired. The TSA served MacLean with a notice of his removal from service on April 10, 2006, stating in part, “The information you improperly disclosed concerned RON deployments and such information is protected as SSI pursuant to 49 C.F. R. § 1520.5(b)(8)(ii) which safeguards “Information concerning the deployments, numbers and operations of ... Federal Air Marshals.” The disclosure of this SSI had the potential to reveal vulnerabilities in the aviation security system, and as such, was extremely dangerous to the public we serve.”

Reportedly referred “by an associate in the government oversight field”, MacLean hired attorney Wayne Grant to represent him – but it wasn’t to get his job back. MacLean was going after MSNBC. Even though he wasn’t fired for his TV appearance, he blamed the network for losing his job. They caved in and settled for a seven-digit figure. MacLean was ecstatic. He voluntarily dropped the appeal of his removal by the TSA, which was at the time pending with the Merit Systems Protection Board (MSPB). MacLean’s appeal was officially dismissed on October 5, 2006. He moved his family into a $1.5 million dollar house overlooking the Pacific Ocean, zipped around town in his brand new Porsche Carrera (worth over $120,000.00 dollars), bought a pressure-washing business franchise and threw lavish parties in Las Vegas.

But he soon changed his mind. MacLean wanted more. He referred to himself as someone capable of pulling off “the greatest scam in federal government employment history”. In 2008, he filed another appeal, claiming that his removal from service violated the Whistleblower Protection Act, 5 U.S.C. § 2302, by punishing him for making a protected disclosure. If that truly happened, MacLean’s case could have easily ended up in the 2% of prevailing cases. It sounded great in theory, but wasn’t corroborated by the evidence. In fact, MacLean claimed that he tried to blow the whistle, but was “rebuffed” from doing so. On September 16, 2008, the U.S. Court of Appeals for the Ninth Circuit mentioned in its ruling that MacLean “attempted unsuccessfully to alert the Office of Inspector General”. There is no such thing as trying to blow the whistle. You either do it, or you don’t.

Filing reports with the Office of Inspector General (OIG) or Congress creates an undeniable paper trail. Files get created, case numbers assigned and regardless of the outcome, complainant can prove that they’ve at least attempted to let the government correct the problem. Pursuing those venues before going to the media is what separates whistleblowers from the leakers. MacLean complained that “the DHS OIG and my Congressmen all ignored my complaints,” although this wasn’t true. In his sworn deposition, MacLean admitted that he didn’t report the cancellation of RON missions to Congress, nor did he file an official report regarding the same with the OIG/OPR/OIA prior to his 2003 leak to the media.

When the story broke, the TSA was in a tizzy. MacLean was “pleased, but nervous”. Still, he wasn’t nervous enough to stop leaking to the media. MacLean wasn’t the only Air Marshal who reported this issue to Brock Meeks of MSNBC, but unlike those who managed to retain their positions within federal law enforcement after mishandling SSI, he didn’t regret it. MacLean brazenly asserted, “I have NO REGRETS or feel NO REMORSE”. He testified that “it did not matter to him if the information was confidential, law enforcement sensitive, SSI or classified” and testified he “would not hesitate to report it again.”In his deposition, MacLean asserted that he didn’t expect any of this information to be held back and wanted Meeks “to publicize it”.

Through the years, images of MacLean continued to show up in countless articles about his case. He looked angry and sounded bitter. In personal interactions, his demeanor was also less than endearing, belittling and brow-beating other whistleblowers for not receiving as much press coverage or political support as he managed to finagle. MacLean boasted, “watch ALL the TSA bosses squirm and act dumb when they hear my name despite my case all over NBC News, MSNBC, Fox News, CNN, the Washington Times, the Association Press, the Los Angeles Times, and the Las Vegas Review-Journal… I am getting the same accolades from FAMs in the field. So who is hating me? Some of the flying public doesn't like the scary things I have to say and prefers the TSA dispatch more warm bodies to vegetate in an airline seat.” MacLean continued to cultivate media attention. He shopped around rights to a feature film about his story and even contemplated running for Congress.

On his resume, MacLean listed a “TOP SECRET” security clearance that he claimed was “still active” years after he was fired by the Department of Homeland Security. Security clearances are typically extinguished when a person permanently leaves a position for which the clearance was granted. MacLean also credits himself with being “responsible for starting up the first Federal Air Marshal Service (FAMS) field office in Nevada” and possessing a California Concealed Weapon (CCW) license.

In an apparent attempt to gain public support and sympathy, MacLean claimed that being fired caused his financial ruin, while omitting any mention of his hefty settlement with MSNBC. He claimed to be out of money and in desperate need of a job, publicizing his telephone number all over the Internet. MacLean wrote, “I think every congressional staffer, reporter, blogger, neo-con, hippie, Inspector General agent, internal affairs agent, and collection agency has that number right now. My life is an "open book" at this point of my life.”

MacLean wrote, “For the last four years I have lost EVERYTHING... I've blown my life savings, can't get employment, and I've had to move my wife and kids into my parents house -- not a pretty situation… I am meeting someone today from here about making some green to put my life back together again.” Sadly, those who’ve reached out to help didn’t realize that they shouldn’t be feeling sorry for MacLean, who is living in a $1.5 million-dollar home and receiving monthly trust fund payments from his mother’s multimillion dollar estate since 1993. There’s nothing wrong with being financially comfortable. However, pretending to be destitute in order to elicit help from those who may be less fortunate than you is simply inexcusable.

In all of the proceedings to date, MacLean’s appeals have been denied, to include an adverse credibility finding against him due to conflicting statements he made under oath. Judge Franklin M. Kang ruled, “I found the appellant to be evasive, nuanced, and inconsistent… to the extent the appellant now denies that he conveyed the information specified above involving RON missions out of Las Vegas, I find that the appellant’s testimony to this effect is not creditable… the appellant informed the reporter that all Las Vegas FAMs were sent a text message on their government issued mobile phones that all RON missions up to August 9th would be cancelled, or words to that effect… the Ninth Circuit has ruled that the information contained in the text message qualifies as SSI because it contained specific details of aviation security measures regarding deployment and missions of FAMs… the reporter was not authorized to receive this information…”

This decision was confirmed by the full MSPB on July 25, 2011. They ruled that MacLean’s “disclosure of SSI to the media cannot constitute protected whistleblowing because the appellant violated agency regulations when he made the disclosure.” The Board further ruled that the TSA didn’t retroactively classify the message as SSI, but merely “applied regulations that were in force in 2003” to determine that the content of the message automatically qualified it as such. MSPB noted, “The administrative judge further found that the offense was intentional, i.e., the appellant intentionally made a statement including the SSI to a reporter and he was on clear notice that the information should not be publicly revealed… He noted the appellant’s sworn statement that he had no regrets and felt no remorse for going to the media, and his sworn deposition testimony that it did not matter to him whether or not the information conveyed to the reporter was SSI.”

MacLean supporters were astonished that he lost his case. Many, including the author of this article, were rooting for MacLean at some point in time, based on the way his story was represented. Some expected that Obama’s Board appointees would overturn the original ruling. However, no one can gauge whether the new MSPB will continue its legacy of anti-whistleblower rulings, unless they are being judged based on their decisions in legitimate whistleblower cases.

Abraham Lincoln wisely said, “Stand with anybody that stands right, stand with him while he is right and part with him when he goes wrong.” MacLean could have been a hero, if only he didn’t start rewriting the facts in an attempt to meet legal requirements. He said, “GAP has always represented me as the poster boy for what is wrong with the laws right now.” Since our elected officials reportedly blamed Wikileaks for their unwillingness to improve whistleblower protections, positioning a leaker as a case best suited to represent the plight of an entire class of whistleblowers was highly irresponsible.

When the latest decision against him was published on July 25, 2011, MacLean displayed the image of an American flag upside down on his Twitter account and declared that he would soon be deleting his Facebook account named “TSA Whistleblower”. This was a rather abrupt decision to stop acting like a patriot and a whistleblower, based on losing his legal battle. POGO’s Danni Downing wrote that MacLean’s display of an upside-down American flag was “justified” in his case.

GAP and POGO knew or should have known that by taking the media and general public on a wild goose chase with MacLean’s case, they were taking away from valuable causes and whistleblowers in desperate need of representation. There is no telling just how many cases were rejected, overlooked or forsaken because of time and energy devoted to pursuing an unwinnable MacLean matter. According to POGO’s Danielle Brian, Robert MacLean is entrusted with investigating and vetting whistleblower cases for potential representation by GAP and POGO, as well as referrals for media coverage and congressional testimony.

The whistleblowing community is a critical mass made up of dedicated patriots, explosive personalities, bitter disappointments, profound losses and rare, precious victories. It’s a serious mistake to allow a single case to serve as the poster child of the entire movement. Legal precedents are set and redefined in court battles fought by few on behalf of many. For those in a position to make the difference, doing the right thing simply means picking battles that require nothing but the truth.

Julia Davis, LA Homeland Security Examiner
August 7, 2011 - Like this? Subscribe to get instant updates.