Government Accountability Project

The Government Accountability Project (GAP) today released two documents on significant developments in the pending whistleblower appeal of former Federal Air Marshal (FAM) Robert MacLean – the courageous FAM fired for publicly protesting TSA plans in 2003 to abandon Air Marshal coverage during a confirmed terrorist plan for an oversees airlines hijacking.

In a desperate attempt to save face, three years after MacLean’s disclosures – which prevented the cancellation of FAMs on high risk flights – the TSA retroactively labeled the evidence MacLean used to make disclosures to Congress as “Sensitive Security Information.” TSA asserted that, in turn, MacLean violated agency regulations and used this fabrication as grounds for his termination. Yesterday, two congressional offices, those of House Oversight and Government Reform senior members Dennis Kucinich (D.-Ohio) and Carolyn Maloney (D.-NY), filed an amicus curiae, or friend of the court, brief with the U.S. Merit Systems Protection Board (MSPB), where MacLean’s appeal is pending.

In conjunction with the brief, MacLean submitted evidence that the agency’s only witness against him has been demoted two grades for alleged sexual misconduct. This demotion took place after a recently-completed Transportation Security Administration (TSA) internal investigation of the official, on charges that he was shielded from disciplinary action in exchange for purging TSA whistleblowers and leaders of the Federal Law Enforcement Officers Association (FLEOA).

Background: In June 2009, President Bush’s appointed MSPB Chairman, Neil McPhie, issued a precedent that MacLean had no rights under the Whistleblower Protection Act (WPA), which established that agency secrecy rules trump statutory free speech rights. The current Board’s 2010 report, “Challenges Whistleblowers Face,” rightfully juxtaposes the McPhie decision to a 1993 Reagan/Bush appointed Board decision in Kent V. General Services Administration that clearly established “the term ‘law’ as used in 5 U.S.C. § 2302(b)(8) ‘was not intended to encompass rules or regulations.’” Zeroing in on MacLean’s case, it further asserts, “In 2009, the Board modified its 1993 Kent decision by eliminating its bright line distinction between a disclosure prohibited by law and a disclosure prohibited by regulation.”

Case law aside, in May 2010 Administrative Judge Franklin Kang upheld the termination in an initial ruling. Judge Kang ruled that MacLean acted in good faith to protect national security, that he succeeded, and that there were no disadvantages to the agency beyond embarrassment and the cost of correcting its mistake. Nevertheless, he held that MacLean’s termination upheld the efficiency of the service, because he challenged agency management and forced it to change plans.

It’s alarming, to say the least, that taking preventive measures during a confirmed terrorist hijacking plan is not calculated into the agency’s “efficiency” criterion. The 9/11 tragedy, which arguably could have been prevented had the government heeded the warning’s of law enforcement such as FBI whistleblower Coleen Rowley, gave rise to the very agency that houses TSA - the Department of Homeland Security (DHS). DHS’ budget request was $55 billion for FY 2010. To add insult to injury, the agency directive to cancel Air Marshals came after it exhausted its budget on failed sweetheart contracts for an unrelated project.

The proper yardstick for efficiency of the service should be the Code of Ethics, not whether an agency is embarrassed or absolute bureaucratic power is challenged. As asserted by the Maloney/Kucinich brief: “Unfortunately, in the present proceeding the Board has not recognized the relevance of the Code of Ethics. The loyalty priorities of the Code of Ethics stand in opposition to the decision on appeal that the extra work and embarrassment of correcting a mistake, which risked a national tragedy, are more important than preventing that tragedy.”

The amicus curiae brief can be found here.
MacLean's additional evidence can be viewed here.

Shanna Devine is Legislative Coordinator for the Government Accountability Project, the nation's leading whistleblower advocacy organization.