Robert MacLean

Robert MacLean is an Aviation & National Security Whistleblower.

In July 2003, U.S. Federal Air Marshal (FAM) Robert MacLean tried to blow the whistle [cite web | title= Homeland Insecurity | url=http://youtube.com/watch?v=Wi36t4B2OV4 | date=2006-11-20 | work= [http://www.cnn.com/ "CNN Lou Dobbs"] | accessdate=2007-06-30] within the Unites States Transportation Security Administration (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" Report [cite web | title= May 18, 2006 Department of Homeland Security HITRAC Report | url=http://www.pogo.org/m/gp/gp-MacLean-FOIA-06162006.pdf | date=May, 18, 2006 | work= [http://www.pogo.org/ Project On Government Oversight] | accessdate=2008-05-18|format=PDF] describing intelligence of an al-Qaeda suicide hijack plan [cite web | title= U.S. warns of 9/11-style plane attacks | url=http://www.usatoday.com/travel/news/2003/07/30-hijackings.htm | date=2003-08-01 | work= [http://www.usatoday.com/ "USA Today"] | accessdate=2007-06-03] that would exploit a U.S. immigration loophole enabling a suicidal terrorist [cite web | title= Top al Qaeda operative told of possible hijackings | url=http://www.cnn.com/2003/US/07/30/airline.warning/index.html?iref=newssearch | date=2003-07-31 | work= [http://www.cnn.com/ "CNN"] | accessdate=2008-08-01] , 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. [cite web | title= Memo Warns Of New Plots To Hijack Jets | url=http://www.washingtonpost.com/ac2/wp-dyn/A64871-2003Jul29?language=printer | date=2003-07-30 | work= [http://www.washingtonpost.com/ The Washington Post] | accessdate=2003-07-30] 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: cquote|

"“Deployment of Federal Air Marshals... [on] nonstop, long distance flights, such as those targeted on September 11, 2001, should be a priority.”" [cite web | title= 49 U.S.C § 44917 | url=http://www.law.cornell.edu/uscode/html/uscode49/usc_sec_49_00044917----000-.html | date=2001-11-19 | work= [http://www.law.cornell.edu/uscode/ Cornell Law School] | accessdate=2007-05-15]

MacLean was rebuffed by his TSA managers and the Department of Homeland Security Office of Inspector General (DHS/OIG), so he warned the public by going to the NBC News. He was quoted, anonymously, along with other unnamed sources, in a story written by Brock N. Meeks, chief Washington correspondent for MSNBC.com. [cite web | title= Flying Into Career Troubles | url=http://www.whistleblower.org/content/press_detail.cfm?press_id=1212 | date=2007-10-14 | work= [http://www.nj.com/ "New Jersey Star Ledger"] | accessdate=2007-12-08] That article broke the story and set off a chain reaction among national media outlets resulting in dozens of articles and televised broadcasts. [cite web | title= Air Marshals Pulled from 'Key Flights' | url=http://onoekeh.blogspot.com/2003_07_01_archive.html | date=2003-07-30 | work= [http://www.msnbc.msn.com/ NBC News] | accessdate=2006-10-30] The message he disclosed was not labeled as "Sensitive Security Information" (SSI), the often abused information control label within the DHS's Transportation Security Administration (TSA) used to protect information--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.

MacLean's disclosure helped to draw public scrutiny and Republican and Democratic congressional outrage [cite web | title= Uproar Over Air Marshal Cuts | url=http://www.cbsnews.com/stories/2003/07/31/terror/main566052.shtml?source=search_story | date=2003-07-31 | work= [http://www.cbsnews.com/ CBS News] | accessdate=2008-08-01] to TSA's ill-conceived plan which rapidly led to its reversal. [cite web | title= Ex-air marshal to sue over 'SSI' label | url=http://washingtontimes.com/news/2006/oct/29/20061029-115609-8718r/ | date=2006-10-30 | work= [http://www.washingtontimes.com/ The Washington Times] | accessdate=2007-07-11] TSA first denied that air marshals would have been shifted, but the morning after MacLean's disclosure, Senators Hillary Clinton, Barbara Boxer, and Charles Schumer held press conferences condemning the plan forcing the TSA to backpedal. [cite web | title= Senator Clinton Reiterates Call on TSA to Justify Security Cuts at Nation’s Airports | url=http://clinton.senate.gov/news/statements/details.cfm?id=235267&& | date=2003-07-30 | work= [http://clinton.senate.gov/ Official Site of the U.S. Senate] | accessdate=2007-06-03] Later that day the TSA acknowledged that schedules had been changed, their spokesman, Robert Johnson, stated in a press conference, "Those actions were premature and a mistake by the people who were involved." [cite web | title= Air marshals back to long flights | url=http://www.usatoday.com/travel/news/2003/07/31-air-marshals.htm | date=2003-08-01 | work= [http://www.usatoday.com/ USA Today] | accessdate=2007-05-20]

White House Reaction

During a July 30, 2003 White House press conference, President George W. Bush 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, cquote|

"The threat is a real threat...we obviously don't have specific data...al-Qaeda tends to use the methodologies that worked in the past...we're focusing on the airline industry right now and we've got reason to do so."" [cite web | title= President Bush Discusses Top Priorities for the U.S. ("Minute 10:53 of video") | url=http://www.whitehouse.gov/news/releases/2003/07/20030730-newsconference.v.html | date=July 30, 2003 | work= [http://www.whitehouse.gov/ White House Official Website] | accessdate=2007-06-22]

Termination for Disclosure

On August 31, 2006, over a year after proposing to terminate MacLean, and more than 3 years after MacLean went to NBC News, the TSA retroactively labeled his July 2003 disclosure as being SSI. [cite web | title= U.S. Labels 2003 Memo 'Sensitive' | url=http://www.usatoday.com/news/washington/2007-05-10-1106927580_x.htm | date=May 10, 2007 | work= [http://abcnews.go.com/ Associated Press] | accessdate=2007-05-10] TSA labeled MacLean's disclosure as SSI over three years after it was made public. [cite web | title= TSA's August 31, 2006 Final Order on Sensitive Security Information | url=http://www.pogo.org/m/hsp/MacLeanFinalOrderSSI.pdf | date=May, 10, 2007 | work= [http://www.pogo.org/ Project On Government Oversight] | accessdate=2007-05-20] The Government Accountability Office (GAO) has criticized the DHS for failing to have clear policies and oversight of its SSI designations, and using vague standards for its use. [cite web | title= Clear Policies and Oversight Needed for Designation of Sensitive Security Information | url=http://www.gao.gov/new.items/d05677.pdf | date=2005-07-01 | work= [http://www.gao.gov/ Government Accountability Office] | accessdate=2007-05-19] If the TSA and the Department of Justice (DOJ) succeed, these pseudo-classification markings will be abused to retroactively mark information as "sensitive" to then retaliate against whistleblowers, possibly decreasing the flow of critical information to the public. [cite web | title= Retroactive Labeling in Robert MacLean v. Department of Homeland Security | url=http://pogo.org/p/government/rmaclean-dhs.html | date=2007-05-10 | work= [http://pogo.org/ Project On Government Oversight] | accessdate=2007-05-20]

While FAM Robert MacLean continues to wait over 2 years for a federal court 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. [cite web | title= AIR MARSHALS: Uncivil Aviation | url=http://www.lvrj.com/news/26219069.html | date=August 3, 2008 | work= [http://www.lvrj.com/ Las Vegas Review Journal] | accessdate=2008-08-03]

Retroactive Unclassified Information Labeling

Almost two and a half years after MacLean was fired, a federal appeals court ruled on September 16, 2008 [cite web | title= MacLean v. Department of Homeland Security | url=http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E276163F5AD0C2C8882574C5008009E4/$file/0675112.pdf | date=2008-09-16 | work= [http://www.ca9.uscourts.gov/ United States Court of Appeals for the Ninth Circuit] | accessdate=2008-09-16] , that the Transportation Security Administration can label MacLean's disclosure as Unclassified Sensitive Security Information (SSI) over three years after the fact. [cite web | title= The Olympics Are Not Over for Federal Air Marshal Whistleblower | url=http://pogoblog.typepad.com/pogo/2008/09/the-olympics-ar.html | date=2008-09-16 | work= [http://pogo.org/ Project On Government Oversight] | accessdate=2008-09-16] The ruling stated the following, cquote|

"MacLean may still contest his termination before the MSPB, where he may raise the Whistleblower Protection Act and contend that the lack of clarity of the TSA's 2003 'sensitive security information' regulations is evidence MacLean disseminated the text message under a good faith belief the information did not qualify as 'sensitive security information.'""

Now MacLean can resume his termination appeal he filed in the Merit Systems Protection Board (MSPB) back in May 2006.

Biography

After four years of active duty, 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's specialty was a nuclear weapons maintenance technician for Intercontinental Ballistic Missiles (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 DOD Personnel Reliability Program'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, 2001 attacks. MacLean was in the first air marshal class to graduate after the September 11, 2001 Attacks. [cite web | title= Air marshal’s firing prompts whistleblower suit | url=http://www.federaltimes.com/index.php?S=2331806 | date=2006-11-07 | work= [http://www.federaltimes.com/ Federal Times] | accessdate=2006-11-07] 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).

Transportation Security Administration and Department of Justice's Arguments

TSA and DOJ make 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 Regulations (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. The government argues that front-line law enforcement field officers do not have the authority, education, or experience to determine if policies 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. Executives can at anytime retroactively mark or label documents or messages with unclassified information categories such as "Sensitive Security Information" (SSI) no matter how dated the information is.

References

External links

* [http://groups.google.com/group/fams-whistleblower-robert-maclean All case documents and video on MacLean v. Department of Homeland Security]