Fired air marshal loses battle in job fight
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Merit Board Decision

Washington (CNN) -- A federal air marshal fired after revealing the government was cutting back air marshal coverage at a time of heightened hijacking concern has lost a major battle in his fight to reclaim his job.

A federal panel, upholding a decision by an administrative judge, said this week it has ruled the Transportation Security Administration's decision to fire Robert MacLean was legal and "did not exceed the bounds of reasonableness."

The Merit System Protection Board said it accepted MacLean's statements he was motivated by a desire to protect the flying public, but said his leak "could have created a significant security risk." Further, it said, MacLean cannot claim whistle-blower protections because his disclosure "was specifically prohibited by law."

MacLean said he will appeal the decision.

The case began in July of 2003, when MacLean, an air marshal based in Las Vegas, Nevada, anonymously tipped off an MSNBC reporter that the TSA was temporarily suspending missions that would require marshals to stay in hotels -- basically taking them off coast-to-coast or overseas flights -- just days after air marshals were briefed about a new "potential plot" to hijack U.S. airliners.

The agency planned the cutback because it was running out of money at the end of the fiscal year.

The news caused an immediate uproar on Capitol Hill and the TSA retreated, withdrawing the scheduling cuts before they went into effect.

A year later, MacLean appeared on "NBC Nightly News" -- in disguise and identified only as "Air Marshal 'Mike'" -- to criticize the agency's dress policy, which, he said, made it easier for terrorists to identify the undercover air marshals.

But someone from the TSA recognized MacLean's voice and the agency ordered an investigation into MacLean for an "unauthorized media appearance." During that investigation, MacLean admitted he leaked the information to the media about the 2003 suspension of long-distance flights.

The agency fired MacLean, saying his leak was an unauthorized disclosure of "sensitive security information," or SSI.

MacLean's case has become celebrated by whistle-blower advocates and government watchdog groups. Rep. Dennis Kucinich, D-Ohio, and Rep. Carolyn Maloney, D-New York, filed a brief on his behalf.

Supporters argue MacLean brought to public light a TSA action that violated federal law, which mandates the agency give priority to flights that present high security risks, specifically mentioning "nonstop, long-distance flights." They say the information he gave was factual and that it ultimately protected passengers by changing a flawed policy.

In court filings, MacLean argued the information he disclosed was not protected. The TSA had sent the information to him as a text message on his cell phone, instead of as an encrypted message on his password-protected pager. And it was not labeled SSI. Indeed, it was three years later -- in August of 2006 -- that the TSA officially issued an order classifying the directive as "sensitive security information."

MacLean argued his firing in retaliation for union activities, and the agency discriminated against him by imposing a harsher penalty than it imposed against others who had disclosed sensitive information.

But the Merit System Protection Board said that even if the scheduling directive was not labeled SSI, deployment information was "within the definition of SSI." MacLean "admittedly knew that he was not permitted to tell anyone about (air marshal) scheduling, yet he did so anyway, and it could have created a significant security risk," the board said.

The board said there is "no direct evidence" the agency retaliated or discriminated against MacLean for his union activities. It confirmed the TSA treated other air marshals less harshly for disclosing information, but said the circumstances were different.

The board notes that MacLean raised his concerns with his supervisor and with the agency's inspector general's office and was not satisfied with the response he received. But MacLean did not take his complaint to an authorized committee of Congress, nor to the Office of Special Counsel, and thereby was not entitled to whistle-blower protection, the board ruled.

MacLean said the board ruling will have a chilling effect on whistle-blowers if it is allowed to stand.

"If front-line, non-intelligence government employees cannot disclose wrongdoing to the public that was never classified and then that information can be stamped years later with an unclassified TSA marking, the First Amendment is now meaningless," he said.