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.
© Las Vegas Review-Journal, 2010, reprinted with permission. Photo by John Gurzinski.
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.