This week the Federal Circuit Court of Appeals accepted a "friend of the court" or amicus curiae brief in support of Federal Air Marshals (FAM) whistleblower Robert MacLean from three Members of Congress who long have been champions of the Whistleblower Protection Act (WPA). Representatives Elijah Cummings (D-MD), Dennis Kucinich (D-OH) and Carolyn Maloney (D-NY) urged the court:

...to restore a basic premise for merit systems principles, and to restore the statutory infrastructure necessary for the WPA to be viable – that only Congress through exercising its statutory authority, or the President through appropriate Executive Order, can restrict the public free speech rights of government employees to disclose information protected under the WPA, and Congress must act with specificity. An agency's rules and regulations cannot cancel or otherwise modify the right to public freedom of expression codified in the WPA, whether issued at its own initiative, or through derivative authority from a broad congressional directive to manage its information. This principle was a carefully considered, repeatedly reaffirmed cornerstone premise when whistleblower rights were created in the Civil Service Reform Act of 1978.

This congressional advocacy is particularly significant, because Cummings and Maloney are the two most senior, ranking members of the House Oversight and Government Reform Committee

MacLean's appeal has stakes unsurpassed by any whistleblower dispute of recent years – not just for whistleblower decisions, but for public safety as well. The roots of retaliation occurred in 2003, after intelligence agencies confirmed a planned, more ambitious rerun of 9/11 by al-Qaeda. In the midst of unprecedented emergency measures, the Federal Air Marshall Service (FAMS) inexplicably reversed course and canceled all FAM protection for targeted flights.

A new Department of Homeland Security (DHS) Office of Inspector General (OIG) Report, "Allegations of Misconduct and Illegal Discrimination and Retaliation in the Federal Air Marshal Service," released in embargoed form to select news agencies, appears to be a significant vindication for Federal Air Marshal whistleblowers.

Prompted by a 2010 CNN exposé that there was rampant discrimination and whistleblower retaliation at the Orlando Federal Air Marshals Service (FAMS) office, the DHS OIG investigated agency-wide abuses. The report confirms a pattern of retaliation against Air Marshals who challenged security breaches by FAMS management. It singled out the termination of a whistleblower to illustrate a culture of retaliation and resulting mistrust that it warned will be TSA's largest challenge to overcome, and recommended corrective action.

The best corrective action would be to reinstate the whistleblower who was fired, Robert MacLean. Currently TSA is fighting his legal appeal in court.

Click here to tell your member of Congress to support MacLean!

 

MacLean blew the whistle successfully to challenge a 2003 FAMS order canceling Air Marshal coverage during a confirmed terrorist plan for a hijacking reminiscent of the 9/11 attacks. The reason for cancelled coverage? TSA wanted to save money on overnight hotel costs after blowing its budget on failed buddy system contracts.

Dear GAP Supporter:

When former federal air marshal Robert MacLean discovered that the Transportation Security Administration (TSA) was planning to cut costs by removing air marshals from flights – at a time during heightened intelligence warning of hijackings – he did the right thing and blew the whistle. Many senators, at the time, praised the warning and fixed the situation by calling for the TSA to correct it (which the agency did). But MacLean was fired for his disclosure, and the government board that was supposed to protect him from retaliation sided with TSA.

Now, MacLean has one last chance to appeal the ruling made by the U.S. Merit Systems Protection Board. Representatives Carolyn Maloney (D-NY) and Dennis Kucinich (D-OH), plan to submit a friend of the court brief in defense of MacLean.

Sign our petition & tell your Member of Congress to show support for whistleblowers by defending MacLean.

 

The retaliation against MacLean sets a dangerous precedent for whistleblowers who want to speak out. In his case, TSA retroactively marked his disclosure as "Sensitive Security Information" (SSI) three years after the fact, and then used that marking to retaliate against MacLean.These types of secret classifications are a concept so broad that they can be applied to any disclosure, if certain Department of Homeland Security officials decide that such an action would "be detrimental to the security of transportation."

Courtesy of Flickr user steakpinballThe first time I heard the words "stare decisis" was my in my first term at law school in a rainy corner of England. My tutor explained that stare decisis is an accepted legal convention by which courts are bound by previous decisions they have made and by those of higher courts – also known as binding precedent.

The purpose of this principle is to ensure legal certainty and fairness for litigants. It also means there is a built-in check on judicial activism, so that society is less likely to end up with 'Judge made law'.

In United Kingdom courts, stare decisis is an accepted convention in judicial decision-making, and is only occasionally challenged. So, as a lawyer working on whistleblowing issues in the UK, I was very interested to come across this term several years after law school when I attended The Matthew Fogg Symposia on the Vitality of Stare Decisis in America in October, an event sponsored by the National Forum of Judicial Accountability (NFoJA) and GAP at the University of Baltimore.

The relationship between whistleblowing cases and stare decisis is not a connection that I have made while practicing in the UK. While there have been moments of judicial activism in UK courts (most notably, Lord Denning sitting in the Court of Appeal during the 1970s), our courts will generally defer to Parliament and recognize that law-making should be left to the legislature. So I was surprised to attend a conference dedicated to the issue of stare decisis, and to learn that that this was problematic for US whistleblowers.

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).

On January 26th, 2011, former Federal Air Marshal (FAM) turned whistleblower Robert MacLean received a curt "final denial" of his Freedom of Information Act (FOIA) request to the U.S. Immigrations and Custom Enforcement (ICE). However, the denial letter spoke volumes.

MacLean requested documentation pertaining to a series of retaliatory investigations enacted by the Federal Air Marshal Service against himself and several other FAM whistleblowers. What’s more, the pretext to open these investigations was often withheld or lacked merit. However, the common thread between these targeted FAMs is that they all warned of unsafe agency plans that made the flying public more vulnerable to terrorist hijackings. Instead of allocating agency funds to correct these national security loopholes, taxpayer dollars were used to conduct illegal investigations on FAM whistleblowers.

The FOIA response states:

A search of the ICE Office of Professional Responsibility (OPR) produced a total of thirteen (13) compact discs including audio recordings and document files with approximately three-thousand (3000) pages of records, eight (8) analog tapes, and an estimated three-thousand two-hundred fifty (3250) pages of physical records that were located. After a complete review of the records I have determined that, absent a privacy waiver regarding the subjects named in the investigation, all records will be withheld pursuant to FOIA Exemptions 6 and 7(C) of the FOIA.

Robert MacLean served as a Federal Air Marshall (FAM) with the Transportation Security Administration. In 2003, MacLean revealed a cost-cutting plan, via text message, to cancel FAM coverage from long distance flights on the eve of a confirmed al-Qaeda suicidal hijacking plan. The plan never went into effect after Congress protested – based solely on his whistleblowing disclosure.

However, MacLean was fired three years later, when the Transportation Security Administration retroactively labeled the information he reported with a “hybrid-secrecy” label – “sensitive security information.” MacLean fought back against the retaliation, but several years later he still awaits a decision on his appeal before the full Merit Systems Protection Board, which now has new members appointed by President Obama.

GAP: How did people try to stop you from divulging the information you had, and what barriers did you face going forward?

MacLean: At the time, even with my eight years of federal law enforcement experience, I had no clue what the U.S. Office of Special Counsel was. And if you asked me what that office was, I probably would have told you that was a special agency in the DOJ that prosecuted people for political corruption. So I had no idea that it was a place that whistleblowers could go outside of their agencies to make disclosures. I pretty much thought you could only go up your chain of command, eventually to the Inspector General (IG). Even making disclosures to Congress for me was illegal, because it’s going outside the executive branch.

The IG was well aware of the ridiculous and absurd policies going on with FAMs, because he flew often and would see Air Marshals being paraded in front of passengers. But he ultimately said that the agency is going to do what it wants, and there’s nothing anybody can really do. He essentially advised me not to go forward, so at that point I just decided to talk to somebody. I chose a reporter from MSNBC because he had been doing a lot of reporting on the Air Marshall Service, and seemed to have a very good background of their retaliatory history and general mismanagement.

GAP: Part of your case involves the discrepancy over whether the information was classified or unclassified. Do you think that classification markings are being abused to retroactively mark information as “sensitive” and retaliate against whistleblowers? What needs to be done to change this?

MacLean: In my case and in the Thomas Drake case without a doubt, it is being abused. The text message that was sent to me did not have any markings or labels. It was sent by unsecured means. Four months after firing me, they had to put together some order that retroactively classified the message with this marking.

What’s really scary is that you hear a lot about top-secret security clearances being revoked…but the executive agency is supposed to jump through a lot of hoops to revoke your clearance. In my case, all they did is send one piece of paper by an agency attorney that designated my disclosure with this unclassified information marking. The only appeal I was afforded was to go to an appellate court in my jurisdiction, and that cost me over two years of waiting and almost $100,000 in legal fees. Yes, there is an appeals process – but you have to appeal to an appellate court, which is very expensive and very time-consuming. Most people won’t even bother.

So it’s really imperative right now, with the Whistleblower Protection Enhancement Act (WPEA) before the House and Senate, that a provision is included that doesn’t allow what happened to me to ever happen again. Because any agency that can do this basically cancels out the WPEA.

GAP: What are your thoughts on the attempted 2009 Christmas bombing?

MacLean: It’s pretty ironic that I was fired for letting Congress and the public know that Air Marshals were being taken off long-distance flights when the two attempted bombings (the Richard Lee shoe bomber incident in 2001 and Christmas incident in 2009) were both long haul, U.S. flagged flights to Europe, exactly like those I received warnings about two days before my disclosure. Obviously there is a problem if Marshals are not on these flights that are consistently being attacked.

GAP: What are your thoughts on the status of current air safety?

MacLean: In my opinion, the Obama administration has finally begun to respond by focusing on long-haul flights, whereas the prior administration made Air Marshals fly a bunch of short hop flights in the same day in order to make their numbers look good for Congressional reviews. Under President Obama long-haul flights have rightfully become the primary focus.

GAP: One criticism of the 2009 attempted bombing is that the suspect was not subject to body scans. What do you think of whole body imaging?

MacLean: I think that body imaging could be done correctly. I like the idea but I don’t think it’s a fix-all for the whole problem, and there are privacy issues. You would have to have a male and female officer in a completely separated room, and once the image is viewed and it’s confirmed there is no threat, there should be a way to completely erase it from the system. How long the images should be kept is debatable – but there are ways to erase those images forever so that people’s identities are completely protected. I think non-governmental groups should get together with TSA to make sure that the process does not violate privacy rights.

GAP: Where should Homeland Security be focusing its resources in terms of advancing flight safety?

MacLean: I’m a big believer in behavioral-detection techniques. There’s a big difference between profiling and behavioral detection. Most people who are willing to do the dirty work (e.g. the underwear bomber) are not the brightest people in the galaxy. Other people chose him because he was young and easily manipulated. I believe a good law enforcement officer would have picked out the underwear bomber on this flight because the guy was traveling from Africa to the United States with no bags, had a passport from a foreign country, and had no destination address. At the very least a law enforcement officer should have spoken with him. I would have just simply asked him a few questions and done some secondary screening. When humans lie or they try to cheat somebody, it shows in physical characteristics. I believe it’s a very effective technique. The secret service uses it to protect the President by focusing on that one person that sticks out in the crowd because they’re acting, dressing, or looking different than everyone else. It has nothing to do with skin color or religion – it’s all about behavioral detection.

GAP: How has GAP helped you?

MacLean: GAP has always represented me as the poster boy for what is wrong with the laws right now, and of course GAP has cited my case in Congressional hearings and used it in order to hopefully get an unclassified information provision into a new bill. And of course, [GAP Legal Director] Tom Devine has personally taken my case. After $100,000 in legal fees was blown in my case and my attorneys pretty much disowned me, Tom came in (along with the Federal Law Enforcement Association General Counsel) to save my case, and they’ve been a tremendous help that way.

GAP: Would you blow the whistle again, knowing what you know now? What advice would you give to would-be whistleblowers?

MacLean: At the time, I thought I went through every channel I was supposed to go. And I felt, because the threat was so imminent, that I should use the media as a buffer in order to let Congress know about what was going on. Had I known about the Office of Special Counsel I would have probably gone to them. Had I known GAP existed at the time, maybe I would have gone to GAP. But I consider myself pretty knowledgeable about how the government works, and in all of my years in federal law enforcement I was only ever instructed to call the Inspector General. In the military and in law enforcement there are stickers and signs everywhere that say, “If you have witnessed fraud, waste, or abuse, please call the Inspector General hotline.” And that’s what they orientate you to throughout all of your years.

I have no regrets about what I did. I had an honorable military career. But if somebody came to me right now and wanted to do what I did then, I would caution them that there is a very good chance you’re going to lose your career, your friends and family will suffer, and you will go into a depression. Especially with the way the judiciary system operates with federal whistleblowers. I would definitely warn would-be whistleblowers about what they would be facing.