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Protecting Whistleblowers since 1977

Robert MacLean, Air Marshal Whistleblower

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UPDATE: After an 8 1/2 year legal ordeal, Robert MacLean won a 7-2 decision in the Supreme Court, affirming that his disclosures were covered by the Whistleblower Protection Act (WPA). This landmark decision set the important precedent that federal agencies can’t write their own exceptions to the Whistleblower Protection Act. It has additionally been hailed as a major victory for freedom of the press. Congratulations to Robert and all those who worked so hard to ensure truth would prevail!

UPDATE: (11/4/14): DHS v MacLean was heard before the U.S. Supreme Court today. The oral argument was provided by Former Acting Solicitor General Neal Katyal. Hogan Lovells and GAP's brief to the Supreme Court can be viewed here.

UPDATE: (1/28/14): The federal government has appealed the unanimous Federal Circuit decision to the U.S. Supreme Court. Former Acting Solicitor General Neal Katyal authored the Supreme Court brief defending MacLean’s rights. Mr. Katyal’s law firm, Hogan Lovells, is taking the case pro bono in order to support the rights of whistleblowers.

UPDATE: (4/26/13): The U.S. Court of Appeals for the Federal Circuit overturned a MSPB ruling that upheld the termination of Robert MacLean and remanded the case back to the MSPB, effectively restoring the cornerstone for enforcement of the Whistleblower Protection Act.

In 2006, Robert MacLean was an honorably discharged military veteran and a 10-year federal law enforcement officer. Entering civilian life, he chose to continue serving the public as a U.S. Border Patrol Agent and a Federal Air Marshal (FAM) amassing an impressive and impeccable record. In late July 2003, he successfully blew the whistle on shocking agency plans that sought to secretly neutralize budget shortfalls from “buddy system” pork barrel contracts … by canceling long distance air marshal coverage. Most startling, the plan was scheduled to take place during a suicide terrorist hijacking alert for a 9/11-style rerun on a more ambitious, international scale. After public outcry and congressional outrage, DHS withdrew the order, and said it all had been a mistake.

Three years later, however, the agency fired MacLean by retroactively designating the previously-unrestricted information he sent in a text message (his whistleblowing disclosure) as Sensitive Security Information (SSI), which is one of many secrecy categories created by government agencies for unclassified information.

MacLean needed help. GAP has proudly represented MacLean since 2006. In partnership with the Federal Law Enforcement Officers Association (FLEOA), GAP has provided representation for MacLean before the Merit Systems Protection Board Western Regional Office, the full Merit Systems Protection Board, and most recently at the U.S. Federal Circuit Court of Appeals. GAP has recruited congressional support for MacLean through amicus curiae briefs at the MSPB and Federal Circuit, in addition to strategic media coverage and growing public support through petitions, action alerts and social media. 

Background

In late July 2003, TSA received intelligence warnings from the Saudi government, Department of State, and FBI of an imminent terrorist suicide hijacking threat for a 9/11 rerun against a series of American and European cities. It was so severe that all FAMs were mandated to attend unprecedented, one-on-one threat briefings in their field offices, regardless of their duty status. Years later, DHS and CIA Inspector General reports confirmed the plans that were subsequently foiled.

On July 28, 2003, however, MacLean, then a Federal Air Marshal, learned about a serious obstacle to U.S. government defenses against the terrorist plot. Due to a budget shortfall caused by suspect contract spending, 60 days of FAM coverage would be canceled from August 2, 2003 until the fiscal year ending September 30, 2003 for high risk, long distance flights. These flights were chosen because they required the extra cost of overnight accommodations at commercial hotels. MacLean rightfully acted on behalf of the public, and protested the shoddy plan to a supervisor and three DHS Office of Inspector General (OIG) field offices, all of whom declined to act and said he should drop the issue.

When MacLean exhausted his options to blow the whistle within the agency, he anonymously disclosed the TSA text message canceling coverage to a media representative. Curiously, TSA chose to send the unmarked text message to Air Marshals' standard unsecured cellular phones instead of their multimillion dollar encrypted and password-protected smart-phone system. MacLean did not think the message was restricted, because it did not comply with anyof the objective procedures for controlled SSI (no agency experts, except those allegedly retaliating against MacLean and TSA lawyers, thought it was restricted either).

Other media quickly picked up the story, which spread and sparked bipartisan outrage and protest from Congress by Senators Hillary Clinton (D-NY), Barbara Boxer (D-CA), Charles Schumer (D-NY), Frank Lautenberg (D-NJ), John Kerry (D-MA), Ernest Hollings (D-SC), Representatives Carolyn Maloney (D-NY), Hal Rogers (R-KY), Jim Langevin (D-RI), Bill Pascrell (D-NJ), and Jim Turner (D-TX), then-Ranking Member of the Select Committee on Homeland Security, as well as a Rose Garden press confrontation of President Bush by a reporter (see select quotes from senators below). Less than 24 hours after the initial news story and five days before implementing its plan to eliminate coverage, the TSA canceled it, publicly explaining that its orders to every FAM in the country had been “a mistake.” Immediately, TSA management began an unauthorized investigation under the USA Patriot Act to ferret-out the “leaker.” The probe was unsuccessful at the time.

MacLean was so concerned regarding security breakdowns that he co-founded a new FLEOA chapter to blow the whistle on systemic security shortcomings that could expose the identities of undercover agents on individual flights. The identities of undercover agents are inherently SSI, regardless of SSI procedures. In September 2004, MacLean stepped up his anonymous whistleblowing on national television to challenge the institutional exposure of undercover agents.

Retaliation

After MacLean and another FAM whistleblower anonymously disclosed that the TSA was compromising national security by exposing the identity of undercover agents, TSA managers began another retaliatory investigation into that disclosure's origins. During that investigation, MacLean truthfully responded to a question and identified himself to internal affairs investigators as the source for the July 2003 whistleblowing disclosure involving the removal of FAMS from overseas flights. However, during the investigation he said that he had not violated any laws or disclosed any classified or sensitive information. Rather, he emphasized that he was trying to lawfully stop government illegality.

MacLean later discovered through a Freedom of Information Act (FOIA) request that he and Frank Terreri, another FAM whistleblower, were the subjects of a 182-page investigative report by then-FAMS Director Thomas Quinn requesting the DHS Inspector General conduct a criminal investigation. However, Congress confirmed validity of MacLean and other FLEOA members’ dissent, Mr. Quinn was forced to resign, and professional security practices were restored.

Despite FAMS management having knowledge of all MacLean’s disclosures, for several months he was clear to fly armed air marshal missions. Then in September 2005, supervisor Frank Donzanti placed MacLean on administrative leave pending an “Unauthorized Disclosure of Sensitive Security Information” charge, and two other public disclosure charges that were not sustained. While MacLean waited for his termination notice, FAMS management continued to communicate with MacLean and grant him access to classified information through its secure Internet portal.

During the retaliatory investigation, Director Quinn issued an investigative referral memorandum on MacLean to the DHS OIG. MacLean’s FOIA request yielded DHS OIG’s response to Director Quinn. The OIG asserted that “no criminal activities nor serious misconduct issues are alleged; therefore these allegations are best addressed internally by the FAMS senior management.” This conclusion defies credibility for a security clearance reprisal action against MacLean; he had not engaged in activity that would trigger removal of his security clearance. However, by also advising FAMS management to take whatever “corrective program and/or employee disciplinary action” it deemed appropriate, the DHS OIG gave management a green light to continue targeted harassment against MacLean.

In April 2006, Donzanti fired MacLean on grounds that he had disclosed SSI in his disclosure made in July 2003. The TSA justified its position through an ad hoc order – issued three years after his disclosure, and four months after his termination – that retroactively labeled the text message MacLean used as evidence as SSI. Donzanti was the deciding official in MacLean’s termination. However, he did not write the proposal or final removal notices for MacLean. Maclean’s removal was authorized by the same headquarters unit that Quinn had assigned to conduct the witch hunt on MacLean. At the time of MacLean’s termination, Donzanti was under severe pressure for sexual harassment misconduct (which would later result in Donzanti’s two-grade demotion, after Mr. Quinn’s forced resignation). Notwithstanding Donzati’s misconduct, he would be the government’s sole witness in Robert MacLean v. Department of Homeland Security.

The FAMS investigation against MacLean, paired with his termination, has left him blacklisted and subsequently unemployed and on the verge of bankruptcy.

MSPB & Federal Circuit

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. 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‘s plans to allocate resources and forced it to make changes. In a decision that sent confusion and chills throughout the whistleblower community, President Obama’s appointed MSPB Chairman Susan Grundmann upheld the ruling.

MacLean appealed to the Federal Circuit Court of Appeals, which has had a long-standing monopoly on appellate review until recent passage of the Whistleblower Protection Enhancement Act. On January 9, 2013 the Federal Circuit held oral arguments for Robert MacLean v. Department of Homeland Security. Tom Devine, GAP Legal Director and counsel to MacLean, delivered the oral argument. MacLean is also represented by the Federal Law Enforcement Officers Association.

On April 26, 2013 the Federal Circuit issued a decision to vacate the prior MSPB ruling that upheld the termination of MacLean and remanded the case back to the MSPB. The ruling restores WPA rights for MacLean, as the court ruled that he did not cross the legal boundary that would negate his right to make public disclosures  – specifically, there had been no specific congressional ban on MacLean’s disclosure, either directly or indirectly. The MSPB must now decide whether MacLean reasonably believed his warning evidenced a substantial and specific threat to public health or safety.

Court Records (Listed by Chronological Order)

2009 GAP Amicus Curiae Brief to MSPB 

2009 MSPB Decision 

2010 MSPB Administrative Judge Initial Decision 

2011 Congressional Amicus Curiae Brief to MSPB 

2011 MSPB Final Decision 

2012 Congressional Amicus Curiae Brief to Federal Circuit (Part 1, Part 2, Part 3, Part 4, Part 5)

2012 GAP Opening Brief to Federal Circuit

2012 Justice Department Response Brief to Federal Circuit 

2012 GAP Reply Brief to Federal Circuit

Appendix (Exhibits accepted for record at MSPB hearing) Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, Part 8, Part 9

Federal Circuit Oral Arguments Audio Recording 

2013 Federal Circuit Decision

Support for MacLean
MacLean received sweeping support in advance of the November 4th oral arguments before the Supreme Court in Department of Homeland Security v. Robert MacLean.

No amicus curiae, or friend of the court, briefs have been filed in support of the Department of Homeland Security. Amicus briefs supporting Mr. MacLean were filed on behalf of:

  • Six Members of Congress: Senator Charles Grassley (R.-Iowa); Senator Ron Wyden (D.-Ore.); Representative Darrell Issa (R.-Cal.), Chair, House Oversight and Government Reform Committee (OGR); Representative Elijah Cummings (D.-Md.), Ranking Member, OGR; Representative Blake Farenthold (R.-Tex.), Chair, OGR Subcommittee on the Federal Workforce, U.S. Postal Service and the Census; and Representative Stephen Lynch (D.-Mass), Ranking Member, OGR Federal Workforce Subcommittee (PDF)
     
  • U.S. Office of Special Counsel (PDF)
     
  • Thirteen former U.S. government officials with military, intelligence, diplomatic, or information control duties (PDF)
     
  • Federal Law Enforcement Officers Association, the nation’s largest nonprofit representing federal law enforcement officers; in conjunction with Blacks in Government, a civil rights NGO long active in whistleblower issues; and the Emerald Society of the Federal Law Enforcement Associations, a group of officers with Irish heritage (PDF)
     
  • Project On Government Oversight, a government watchdog NGO (PDF)
     
  • FlyersRights.org, a consumer air safety NGO (PDF)
     
  • The Rutherford Institute, a civil liberties NGO (PDF)
     
  • American Federation of Government Employees, the nation's largest federal employee union (PDF)
     
  • David Nolan, a former whistleblower and private attorney

GAP would like to thank the amici for their impressive show of support behind Robert MacLean.

Select Quotes of Outrage from US Senators regarding the FAMs plan (at the time of MacLean's disclosure)

Senator Hillary Clinton (D-NY):

"I also want to reiterate my extreme concern with the Transportation Security Administration (TSA) proposal, in the face of these serious threats, to cut the number of air marshals by canceling critical flight missions because those missions would have required air marshals to spend the night at a hotel."

Senator John Kerry (D-MA):

"I am deeply disappointed to learn that George W. Bush has compromised our Nation's security by proposing to cut the number of air marshals at the very time that his Administration is highlighting a new threat from al-Qaida to use commercial aircraft in suicide bombings. That is illogical, irresponsible, and an ill-conceived notion of how to protect the American people…

"George W. Bush should exercise some leadership here and immediately order his appointees to restore the air marshals to the flights which need them most."

Senator Charles Schumer (D-NY):

"Given the potential fallout of another attack that intelligence reports suggest is on the way, it is incredible that the TSA would consider reducing the air marshal presence on these flights simply to save the cost of an overnight hotel room."

Schumer also called on DHS Secretary Tom Ridge to:

"immediately reverse reported plans to cut air marshal service on coast-to-cost and international flights … in light of intelligence indicating that al-Qaida and other terrorist groups may have stepped up plans…"