Robert MacLean

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Robert J. MacLean
Robert MacLean, U.S. Air Force, September 1988.jpg
Robert J. MacLean, former U.S. Air Force, U.S. Border Patrol, U.S. Federal Air Marshal Service, September 1988
Born (1970-03-08) March 8, 1970 (age 44)
Torrejón Air Base, Madrid, Spain
Allegiance United States
Service/branch United States Air Force
Years of service

U.S. Air Force: 1988–1992

United States Border Patrol Agent: 1996-2001

U.S. Federal Air Marshal: 2001-2006
Rank Senior Airman
Unit 44th Strategic Missile Wing
Awards Air Force Good Conduct Medal
Basic Training Honor Graduate Ribbon
Air Force Outstanding Unit Award
National Defense Service Medal

Robert J. MacLean (born March 8, 1970) is a former Transportation Security Administration air marshal.[1] On July 28, 2003, he made disclosures to national media about proposed TSA operational changes that he believed would have reduced aviation security. He was fired on April 11 2006 and has claimed whistleblower protections.[2]

On April 26, 2013, a unanimous panel of three United States Court of Appeals for the Federal Circuit Judges found that MacLean was entitled to protections under the Whistleblower Protection Act and remanded the case to the Merit Systems Protection Board for further proceedings.[3]

Early career[edit]

Robert MacLean takes oath of office at the Federal Law Enforcement Training Center in Glynco, GA, October 1996

MacLean served in the U.S. Air Force from 1988 to 1992. In the Air Force, MacLean was a nuclear weapons maintenance technician for Intercontinental Ballistic Missiles (ICBMs). He was awarded the Basic Training Honor Graduate Ribbon, Outstanding Unit Awards, the National Defense Service Medal, and the Air Force Good Conduct Medal

After his discharge, MacLean entered the U.S. Border Patrol as a border patrol agent and served almost six years in its San Diego Sector as a trainer. MacLean was recruited by the Federal Aviation Administration's Federal Air Marshal program immediately after the September 11 attacks. MacLean was in the first air marshal class to graduate after the September 11, 2001 attacks.[4] After subsequently hiring a significant amount of new air marshals, the FAA program was moved under the new Department of Homeland Security's Transportation Security Administration and called the Federal Air Marshal Service.

Whistleblowing and subsequent outrage from Congress forces TSA to cancel its plans[edit]

On July 28, 2003, MacLean told an NBC News reporter that every federal air marshal in the U.S. and in his Las Vegas office received an unsecured text message ordering them to cancel their hotel reservations from August 2, 2003 and on. MacLean had been told that in an effort to reduce spending, air marshals would be removed from many long-distance flights that required hotel stays. The next day, MSNBC would report that several sources would confirm that every Federal Air Marshal was sent this text message. The TSA sent the unmarked message to unsecured cellular phones as opposed to the password-protected encrypted cellular Smartphone or Personal digital assistant (PDA).[5]

MacLean said he previously brought his concerns to his TSA managers and a Department of Homeland Security Office of Inspector General field agent, but was rebuffed, leading him to make contact with national media. MacLean was quoted, anonymously, along with other unnamed sources, in a story written by Brock N. Meeks, Chief Washington correspondent for MSNBC.com.[5][6][7]

Over a dozen bipartisan Members of Congress publicly protested the TSA's plan,[8] including Chuck Schumer,[9] John Kerry:

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.[10]

and Hillary Rodham Clinton:

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.[11]

TSA first denied that air marshals would have been shifted, but the morning after MacLean's disclosure, the agency changed its plans and dropped the plan.[12][13]

TSA investigation and self-identification[edit]

Immediately after the disclosure, TSA managers began an investigation to determine the source of the leaks. Department of Homeland Security Inspector General Clark Kent Ervin later confirmed that TSA and FAMS managers threatened air marshals with prosecution for talking to the press.[14][15] Weeks after MacLean made the disclosure, he stopped being anonymous, founded the Federal Law Enforcement Officers Association's Federal Air Marshal Service agency chapter and accepted the position of Executive Vice President.[16]

On May 4, 2005, MacLean admitted to internal affairs agents that he appeared on the September 9, 2004 NBC Nightly News television segment. He also admitted to being a source for the July 29, 2003 MSNBC.com article stemming from the text message the TSA would retroactively designate as SSI and accuse him of failing to personally designating the text message, sent to his unsecured cellular phone, as Sensitive Security Information (SSI) — a TSA Sensitive but unclassified information marking.[17] Despite admitting to the July 29, 2003 MSNBC.com disclosure, no action was taken against MacLean, i.e. restricted to administrative duty, placement on administrative leave, suspension of his Top Secret Security clearance, for almost five months after.[18]

Firing by TSA and administrative appeals[edit]

MacLean was fired by the TSA on April 11, 2006, on the grounds that he disclosed prohibited security information. On August 31, 2006, more than six months after he was fired, the TSA retroactively marked MacLean's July 2003 disclosure as being SSI, an unclassified information category.[19]

MacLean appealed this decision to the Merit Systems Protection Board, but after the TSA issued its August 31, 2008 "Final Order on Sensitive Security Information," the agency argued that the MSPB had no jurisdiction to challenge an "Agency Order." The MSPB Administrative Judge dismissed the appeal without prejudice so MacLean could challenge the Agency Order in the United States Court of Appeals for the Ninth Circuit.[20] On September 16, 2008, a Ninth Circuit panel ruled that the Transportation Security Administration was within its authority to retroactively classify the information as SSI, but found that MacLean could contest his termination before the MSPB under the authority of the Whistleblower Protection Act by arguing that he had a "good-faith belief" that the information did not qualify as "sensitive security information."[21]

On June 22, 2009, a two-person MSPB panel declared that disclosures of SSI cancel out Whistleblower Protection Act protections.[22] On May 12, 2010, MSPB administrative law judge Franklin M. Kang issued an Initial Decision to uphold MacLean's removal.[23] MacLean appealed the decision to a 3-member appellate MSPB panel in Washington DC,[24] but on July 25, 2011, the full panel denied all of MacLean's Whistleblower Protection Act defenses and affirmed the TSA's decision to terminate him.

Appellate court decision[edit]

A unanimous panel of three United States Court of Appeals for the Federal Circuit Judges ruled in favor of MacLean on April 26, 2013.[25] The court ruled that MacLean's disclosure did not violate the law and he may have defenses under the Whistleblower Protection Act of 1989 (WPA).[26] In a concurring decision, Judge Evan Wallach wrote "Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public."[27]

Government appeals to all of the federal appeals court circuit judges[edit]

On July 10, 2013, the government filed an appeal of the United States Court of Appeals for the Federal Circuit's decision with a "panel rehearing and rehearing en banc" petition.[28][29][30] On August 30, 2013, the entire court denied the government's petition without comment.[31][32]

MacLean's attorney, Thomas M. Devine, told CNN News[33] that if the Supreme Court of the United States rejects the Obama administration's appeal, the case will go back to the United States Merit Systems Protection Board and finally MacLean can argue that he had a "reasonable belief"[34] that the TSA's operational plan was a danger to public safety or in violation of the law making "nonstop, long distance flights, such as those targeted on September 11, 2001" a priority for air marshal coverage, the Aviation and Transportation Security Act (49 USC § 44917(b)).[35]

Department of Homeland Security appeals to the U.S. Supreme Court[edit]

On January 27, 2014, the United States Solicitor General, Donald Verrilli Jr., filed a petition for writ of Certiorari with the Supreme Court of the United States[36] on behalf of the United States Department of Homeland Security.[37] MacLean has the option to file a "Brief in Opposition" to a petition for a writ of certiorari.[38]

On February 28, 2014, former United States Solicitor General Neal Katyal, representing Robert MacLean, filed a "Brief in Opposition" of the Department of Homeland Security's "petition for writ of certiorari."[39]The Supreme Court will decide to grant or deny the government's appeal in May 2014.[40]

References[edit]

  1. ^ "Whistleblowers May Have a Friend in the Oval Office". The Washington Post. 2008-12-11. Retrieved 2008-12-28. 
  2. ^ "Robert MacLean: Homeland Security Whistleblower". Project On Government Oversight. 2011-08-10. Retrieved 2011-09-04. 
  3. ^ "What TSA Whistleblower Robert MacLean Tells Us About Post-9/11 Security". Mother Jones. 2013-05-09. Retrieved 2013-06-11. 
  4. ^ "Robert MacLean letter to Congressman Darrell Issa". Make It Safe Coalition. 2010-12-16. Retrieved 2013-11-30. 
  5. ^ a b "Fired federal air marshal loses whistle-blower battle". The Orange County Register. 2011-08-08. Retrieved 2012-11-12. 
  6. ^ "Whistleblowers hit turbulence; TSA ex-employees say they've been blackballed for revealing problems". New Jersey Star Ledger. 2007-10-14. Retrieved 2007-12-08. 
  7. ^ "Air Marshals Pulled from 'Key Flights'". NBC News. 2003-07-30. Retrieved 2006-10-30. 
  8. ^ "Air Marshal Whistleblower Robert MacLean". The Government Accountability Project. 2013-04-30. Retrieved 2013-11-10. 
  9. ^ Morrison, Blake (July 30, 2003). "Officials deny cuts to air marshal program". USA Today. Retrieved 2013-11-10. 
  10. ^ "STATEMENT OF JOHN KERRY REGARDING: BUSH ADMINISTRATION PROPOSAL TO CUT AIR MARSHALS IN THE WAKE OF NEW AL-QAIDA SUICIDE BOMBING THREAT". U.S. Senator John Kerry (archive). 2003-07-30. Retrieved 2013-11-10. 
  11. ^ "Senator Clinton Reiterates Call on TSA to Justify Security Cuts at Nation’s Airports". U.S. Senate Committee on Environment & Public Works. 2003-07-30. Retrieved 2013-11-10. 
  12. ^ "Team Bush Scrubs Plan to Cut Air Marshal Force". New York Daily News. 2003-07-31. Retrieved 2007-07-11. 
  13. ^ "July 30, 2003 CNN Television Transcripts". CNN. 2003-07-30. Retrieved 2008-11-24. 
  14. ^ "Review Of Alleged Actions By Transportation Security Administration To Discipline Federal Air Marshals For Talking To The Press, Congress, Or The Public". Official Website for the Department of Homeland Security Office of Inspector General. 2003-08-11. Retrieved 2008-11-15. 
  15. ^ "Watchdogs, not lapdogs by Clark Kent Ervin". Los Angeles Times. 2007-05-19. Retrieved 2009-09-06. 
  16. ^ "Ex-air marshal to sue over 'SSI' label". The Washington Times. 2006-10-30. Retrieved 2008-11-15. 
  17. ^ "U.S. to fired air marshal: You should have known better, kid". Orange County Register . 2009-11-19. Retrieved 2013-11-30. 
  18. ^ "Air marshal whistle-blower fired in 2006 claims big win in court". Los Angeles Times. 2013-05-25. Retrieved 2013-11-30. 
  19. ^ Margasak, Larry (May 10, 2007). "U.S. Labels 2003 Memo 'Sensitive'". Associated Press. Retrieved 2007-05-10. 
  20. ^ "Did O.C. air marshal endanger public, or protect it?". Orange County Register . 2009-05-15. Retrieved 2009-05-30. 
  21. ^ "MacLean v. Department of Homeland Security". United States Court of Appeals for the Ninth Circuit. 2008-09-16. Retrieved 2008-09-16. 
  22. ^ "Air marshal in legal battle". Orange County Register . 2009-06-26. Retrieved 2009-07-02. 
  23. ^ "Fired air marshal’s saga conjures 'Animal Farm,' supporters say". Orange County Register . 2010-05-19. Retrieved 2010-07-19. 
  24. ^ "The MSPB's Terrible Ruling on Robert MacLean". The Government Accountability Project. 2010-05-18. Retrieved 2010-07-19. 
  25. ^ "Appeals Court Questions Firing of Air Marshal Who Blew Whistle". The Wall Street Journal. 2013-04-26. Retrieved 2013-05-02. 
  26. ^ "Whistleblowing Air Marshal Robert MacLean's Case Gets New Life". FindLaw. 2013-04-26. Retrieved 2013-05-02. 
  27. ^ "Latest ruling a 'vindication' for fired federal air marshal". The Orange County Register. 2013-05-02. Retrieved 2013-05-02. 
  28. ^ "DHS seeking reconsideration of MacLean decision". The Federal Times. 2013-07-11. Retrieved 2013-10-05. 
  29. ^ "Homeland Security Appeals Air Marshal Whistleblower Case". Government Executive. 2013-07-11. Retrieved 2013-10-05. 
  30. ^ "Feds want do-over on air marshal ruling". The Orange County Register. 2013-08-21. Retrieved 2013-05-02. 
  31. ^ "Whistleblower MacLean may finally get his job back". The Orange County Register. 2013-09-06. Retrieved 2013-05-02. 
  32. ^ "Justice, DHS Lose Round in TSA Whistleblower Case". Government Executive. 2013-09-04. Retrieved 2013-10-05. 
  33. ^ "Fired air marshal will get new hearing". CNN. 2013-08-30. Retrieved 2013-10-05. 
  34. ^ "Court rejects Obama administration secrecy plea". The Center for Public Integrity. 2013-09-06. Retrieved 2013-10-05. 
  35. ^ "49 USC § 44917 - Deployment of Federal air marshals". United States Code - Cornell University Law School. 2002-01-01. Retrieved 2013-11-30. 
  36. ^ Verrilli Jr., Donald (January 27, 2014). "U.S. Department of Homeland Security's Petition for writ of certiorari". Scribd. Retrieved 2014-01-29. 
  37. ^ Gershman, Jacob (January 28, 2014). "U.S. Takes Whistleblower Case Against Air Marshal to Supreme Court". The Wall Street Journal. Retrieved 2014-01-29. 
  38. ^ "Department of Homeland Security, Applicant v. Robert J. MacLean". Supreme Court of the United States official website. 2013-11-19. Retrieved 2013-11-19. 
  39. ^ "MacLean Files Opposition to Cert. in DHS Whistleblower Case". FindLaw. 2014-04-04. Retrieved 2014-04-05. 
  40. ^ "The Whistleblower Wars Go to Court". The American Conservative Magazine. 2014-03-04. Retrieved 2014-04-05.