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Life Arts    H2'ed 10/23/11

Former Federal Air Marshal On Air Safety And Lack Of Viable Whistleblower Protection

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My guest today is former TSA Federal Air Marshal, Robert MacLean. Welcome to OpEdNews, Bob. We've been in touch for a while but finally got to meet in person at this year's National Whistleblower Conference. What brought you there?

I was there to receive the "Profile in Courage Award" from the Project On Government Oversight, the Government Accountability Project, the Liberty Coalition, and the Federal Law Enforcement Officers Association.

Congratulations! What were you being honored for?

I stopped the Transportation Security Administration (TSA) from breaking federal law in July 2003, very specifically, 49 USC - 44917(b):

"deployment of Federal air marshals on [. . .] nonstop, long distance flights, such as those targeted on September 11, 2001, should be a priority"

A day after a Department of Homeland Security (DHS) emergency warning about a very specific al-Qaeda U.S./Europe flights suicidal hijacking plot, that involved smuggling weapons, the TSA planned to remove air marshals from nonstop, long distance flights to save money on hotel stays. Their cost-saving plan was to make up for a budget-shortfall caused by giving out $2 million in bonuses and parties for its senior executives. All of this would later be confirmed by former DHS Inspector General, Clark Kent Ervin.

The TSA informed all air marshals of their plan by sending an unsecured and unmarked text message broadcast to our unprotected Nokia 3360 bar cellular phones. The main purpose of the text message was to make sure that we quickly cancelled our hotel room reservations in order to avoid late-cancellation fees.

When I complained to my chain of command and three different DHS Office of Inspector General field offices, all of them said nothing could be done. I then went to a reporter who had direct connections with other anonymous TSA sources and key members of Congress and congressional aviation security committees.

The day after my disclosure, a bi-partisan group of 11 members of Congress, including Senator Hillary Clinton, protested in official press releases and a televised conferences, forcing the TSA to admit it made a mistake and cancel its plan before ever becoming operational.

In her related press release, Senator Hillary Clinton pointed out that my disclosure ended dangerous security lapses in visa issuance and security screening policies for hijackers to exploit in order to avoid U.S. State Department background checks and U.S. security screening by traveling as Transit Without Visa passengers.

Soon after, TSA managers were telling air marshals to quickly "come clean" about who made the disclosure because the USA Patriot Act was being enacted to search their personal email and phone records in order to ferret out who revealed their plan.

Weeks after my July 2003 disclosure, I co-founded the Federal Air Marshal Service Agency Chapter for the Federal Law Enforcement Officers Association (FLEOA). I served as the Executive Vice President until I was fired. To this day, FLEOA has never stopped its unwavering support for me.

Over a year later, I went on a national network television special about the September 11, 2001 suicide hijackings, while protecting my identity.   Immediately after the program aired, the TSA launched an investigation to find out who the air marshal was. Investigators confronted me, and I admitted to being on the September 11, 2004 television program and, earlier, being one of several sources of the July 29, 2003 disclosure. On April 11, 2006, I was fired with only one charge: violating a back-dated TSA regulation associated with my July 29, 2003 disclosure. No other charges could stick, because my September 11, 2004 disclosures caused Congress to eventually force the TSA to revise all of its dress code and boarding procedures that constantly exposed air marshals.

  Not originally prepared for a landmark case before firing me, four months after I got my pink-slip, a TSA lawyer drafted a one-page memorandum order declaring that the information I disclosed was now SSI. This simple action required over $100,000 in attorney fees to futilely challenge in the U.S. Court of Appeals for the Ninth Circuit. In 2008, the Ninth Circuit ruled that the TSA was within its regulations to designate my 2003 disclosure as SSI, but also gave the MSPB a clear path to rule I was a protected whistleblower .

In 2009, the full U.S. Merit Systems Protection Board (MSPB) in Washington DC allowed the TSA to cancel any Whistleblower Protection Act defenses with it designating my disclosure as UN-classified SSI -- three years after the fact. It ruled that violating a TSA regulation is equal to violating a statutory law enacted by Congress. Then last July, the full MSPB in DC retroactively applied their 2009 decision to my 2003 disclosure -- a practice called applying "ex post facto law." The U.S. Special Counsel, Carolyn Lerner, protested the MSPB's last decision against me, but was ignored. Today I remain without my federal law enforcement career.

Let me make sure I understand exactly what you're saying, Bob. You're saying that the only charge that stuck was based on retroactively classifying your revelations as "sensitive security information".  How have they gotten away with such an egregious act? If people can be convicted based on this principle, none of us are safe from prosecution for anything, ever!

Please Let me correct a common mistake you just made: the TSA retroactively marked my revelations as "sensitive security information" (SSI), an UN-classified information label controlled by the TSA's own regulations. Only Top Secret, Secret, or Confidential information can be classified. CLASSIFIED information is protected by statutory law enacted by Congress. The TSA and the MSPB have successfully elevated an UN-classified information stamp to a fear-mongering term to paint me as a reckless traitor in order gain support from the public.

  Just like the information used to invade Iraq, the MSPB cherry-picked whatever it could to seal my fate.

The current full MSPB's July 25, 2011 decision against me now gives non-intelligence agencies carte blanche to cancel out whistleblower protections on any information that is unsecured, UN-classified, or UN-marked -- even after the fact.

That is scary, Bob. Do you feel the MSPB is serving some other political purpose in the evaluation of your case?

Yes I do. They are facilitating this administration's message and knee-jerk reaction to WikiLeaks: speak to anyone outside of the executive branch and you will be fired or criminally prosecuted. 

What happened to you sounds very similar to what happened more recently to Thomas Drake, the former NSA whistleblower who tried to reveal massive fraud and improprieties.  In his case, the government spent years and millions of dollars to prove their case and was prepared to toss him in prison for decades. It doesn't seem as if we're better off with Obama than Bush; in fact, Drake calls what is going on now "is the federal government's truly unprecedented war on whistleblowers."

I'm conflicted about the President Obama administration's position with non-intelligence community whistleblowers. His U.S. Special Counsel says I am a whistleblower, but his MSPB Chairwoman and Vice Chairwoman say I am a reckless leaker. This doesn't make sense to people outside the Beltway.

I think this administration wants to protect lower-level whistleblowers, as long as they only make disclosures to executive agencies, but never to Congress. In a knee-jerk reaction to WikiLeaks, his appointees at the MSPB sent a loud and clear message in my case that he does not want any executive agency employee going public, no matter how serious the disclosure is. Stealing SKILLCRAFT pens, cheating on your travel voucher, or taking candy bars from the "honor fridge" will be protected, but dangerous mismanagement disclosures that embarrass the bureaucracy's senior executives will be met with dozens of agency attorneys and years of litigation using up millions of taxpayers' dollars.

The message sent in the Tom Drake case was very clear also. It is too obvious the way the U.S. Department of Justice dragged out his case for years and then suddenly settled hours before his trial. The whole thing was carefully orchestrated. I can't imagine the torture his young boys went through, naively believing their father would be in prison for 35 years.


Taking US Border Patrol Agent oath 1996; Maria Luisa Hevia-Suarez

You were hung out to dry after you exposed governmental wrongdoing. You lost your job. You spent money, perhaps a lot of money, on legal fees. The government will not be rushing to find you another job, with TSA or anywhere else, for that matter. Are you sorry that you blew the whistle?

No. I took an oath to protect and serve while risking my life. Doing what we expect of them to do, military, fire and police get severely maimed or killed in action, and don't regret doing what is expected of them -- I'm no better than them. I carried out my mission and lost my job, but I get to walk and live another day.

In a span of almost six years, it took a total sum of 38 months for seven MSPB administrative judges and full three-member panelists to pour over law and draft 88 pages of legal arguments to justify that I committed wrongdoing, and that a single charge warranted ending 18 years of perfect military and federal law enforcement service. If the nit-picky MSPB legalese against me stands, it sends a loud message that the politicians and bureaucrats in charge will force our public safety and military operators to always second-guess putting their lives on the line. Just like the Army platoon and artillery battery that refused to help Marine Corporal Dakota Meyer, the Congressional Medal of Honor recipient who saved 36 of his brothers in arms after he disobeyed three direct "penalty is death" orders from his chain of command.

I'll do what I did again, but will others want to endure years of endless litigation from government lawyers who care less about justice, and just want the winning stat, regardless of the cost?

I wish more politicians and powerful bureaucrats would imagine themselves standing in the rain, cold, and dark -- armed on a front-line in harm's way ready to protect the weak. This country's leadership needs to stop cherry-picking law libraries and second-guessing our bravest who are doing the dirty work they and others can't or won't do.

I couldn't agree with you more What happened to all the congressional support you had early in your case?


After I was fired, and then my disclosure was marked SSI, only U.S. Representatives Carolyn Maloney (NY), Dennis Kucinich (OH), Ken Calvert (CA), and U.S. Senator Harry Reid(NV) have gone on the record to support me.

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Joan Brunwasser is a co-founder of Citizens for Election Reform (CER) which since 2005 existed for the sole purpose of raising the public awareness of the critical need for election reform. Our goal: to restore fair, accurate, transparent, secure elections where votes are cast in private and counted in public. Because the problems with electronic (computerized) voting systems include a lack of (more...)

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