OSC Finds "More Could be Done" to Ensure Anonymity;
Absolves Agency Based on Secret Meeting
(Washington, D.C.) – The Government Accountability Project (GAP) and Federal Air Marshal (FAM) Frank Terreri responded today to the U.S. Office of Special Counsel's recent resolution of Mr. Terreri's whistleblowing disclosure.
In 2006, Terreri disclosed evidence to OSC concerning the Federal Air Marshal Service's (FAMS) failure to fully protect the anonymity of air marshals on flights. He expressed hope at the time that his disclosures to OSC would "bring attention to significant aviation terrorism vulnerabilities, and more importantly, facilitate necessary improvements that will allow FAMS to better fulfill its mission to protect the flying public."
In response, Special Counsel Scott Bloch ordered the Secretary of Homeland Security to investigate Terreri's allegations. The Department of Homeland Security (DHS) and FAMS issued two brief reports to OSC that outlined several changes in FAMS policies made subsequent to Terreri's disclosures. These reports addressed modifications to the FAMS dress code, the rules governing air marshal check-in at airports and hotels, and proposed changes to boarding policy. Terreri credits the new leadership team at FAMS for these changes. "Federal Air Marshal Director Dana Brown and FAMS' management have taken several steps since the filing of my complaint to ensure the anonymity of Federal Air Marshals," stated Terreri, who is also the President of the Federal Law Enforcement Officers Association Federal Air Marshal Agency (FLEOA-FAM). Terreri's initial complaint was informed by and represented the concerns of over 1,500 Federal Air Marshals that belong to FLEOA-FAM.
A February 29, 2008 letter from Special Counsel Scott Bloch to President Bush characterized the DHS reports as a "reasonable" response to Terreri's disclosures. Relying in part on assurances received in a personal meeting with FAMS Director Dana Brown, Bloch approved the DHS reports, despite also finding that "more could be done to strengthen the anonymity of Federal Air Marshals" and that the reports did not "adhere to all of the technical, statutory requirements" of the Whistleblower Protection Act (WPA).
In fact, the reports made no effort to account for Terreri's specific allegations concerning air marshal management's endorsement of at least six national news segments that revealed the exact weapon air marshals use on flights and the methods air marshals use to respond to a hijacking. Terreri warned that the impact of disclosing this information publicly "gives terrorists a greater tactical advantage in a setting already tipped in their favor." The security breaches caused by these public disclosures were so flagrant they prompted the FBI to send a memo to DHS warning about the specific threat they posed to air marshals on flights. Terreri alleged that the public disclosures violated the FAMS own rules for protecting Sensitive Security Information (SSI), yet the agency simply cited its SSI policy back to OSC in its report.
"The report cites a policy that purports to understand the importance of protecting Sensitive Security Information, but it ignores my specific allegations," stated Terreri. "This is an example of the FAMS 'do as I say, not as I do' mentality that created these threats in the first place," noting further that FAMS has aggressively and repeatedly investigated individual air marshals for alleged SSI violations.
GAP characterized Special Counsel Scott Bloch's handling of the Terreri matter as troubling, noting that OSC failed to demand a full, public accounting of all the specific issues raised in the complaint. The WPA requires an agency head to "conduct an investigation" in response to a referral from the Special Counsel. The Special Counsel has the right to reject an agency's report until it fully complies with all of the accountability measures in the law. Bloch accepted the reports, despite noting that they do "not reflect that a formal investigation was conducted."
Also, in May 2007, Bloch told Federal News Radio that FAMS had "done a good job" dealing with the anonymity issues disclosed by Terreri. These comments were made after Bloch received a personal briefing from Director Brown, but while the whistleblower complaint was pending. Terreri had not yet seen the reports, or had a chance to comment, which he is authorized by statute to submit before the Special Counsel makes any determination on the investigation.
"The unfortunate implication is that if an agency head has a personal meeting with the Special Counsel, he's not required to follow the law when responding to a whistleblower's evidence" stated GAP Legislative Representative Adam Miles commented.
"This is fundamentally at odds with the accountability goals of the WPA." GAP legal director Tom Devine added, "Mr. Bloch personally erased detailed statutory ground rules since 1978 that ban on the record whitewashes as an option in agency whistleblower reports. Instead, he accepted a secret, off the record whitewash. He does not lawfully have that option." Devine announced that GAP will go to court under the Freedom of Information Act to obtain any secret records that in any way provided a basis for the Special Counsel's decision.
Terreri added, "The undisclosed meeting with Bloch and FAMS management makes it difficult to maintain confidence as a whistleblower that the process is being respected by those tasked with enforcing the law." Terreri also noted that attrition remains a fundamental problem within the air marshal service because management has failed to address scheduling and disciplinary issues, pay parity with other law enforcement officers, and promotional processes. Terreri believes these issues have forced many of the top air marshals from the agency, and in turn, adversely impact aviation security.