Robert MacLean

For other people named Robert MacLean, see Robert MacLean (disambiguation).

Robert J. MacLean
Robert MacLean, U.S. Air Force, September 1988 Robert J. MacLean, former U.S. Air Force, U.S. Border Patrol, U.S. Federal Air Marshal Service
Born	March 8, 1970 (1970-03-08) 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 United States Air Force, United States Border Patrol, and U.S. Federal Air Marshal Service veteran.

On August 25, 2011, the United States Office of Special Counsel ( OSC ) declared former Transportation Security Administration (TSA) Federal Air Marshal Robert MacLean a whistleblower.

Two days after the Department of Homeland Security issued a July 26, 2003 al-Qaeda suicidal hijacking warning for cross-Atlantic U.S. flights, MacLean made a disclosure exposing the TSA's cost-cutting plan that would have specifically violated federal law 49 USC § 44917(b). Eleven members of the 108th United States Congress publicly supported MacLean's actions that led to the TSA canceling its plans. Over three years after the fact, the TSA backdated MacLean's 2003 whistleblower disclosure with a TSA-regulated unclassified information marking. The TSA applied its marking and then charged MacLean for violating it after investigating him for appearing in a 2004 September 11, 2001 attacks anniversary national television news special regarding the TSA's failure to protect the identities of Federal Air Marshals. A year before MacLean's July 2003 disclosure, the TSA implemented dress code, airport security checkpoint bypass, and pre-boarding policies which routinely exposed Federal Air Marshal identities.

On July 25, 2011, the United States Merit Systems Protection Board (MSPB) ― an Executive (government) branch panel currently made up of one George W. Bush and two Barack Obama appointees limited to a 5 or 7-year term ― defended the TSA's actions of backdating MacLean's 2003 disclosure with its unclassified marking regulations. This board ruled that a 1979 Supreme Court of the United States decision, Chrysler Corp. v. Brown, cancels out MacLean's Whistleblower Protection Act of 1989 defenses. MacLean has filed a Petition For Review of this executive branch decision to the United States Court of Appeals for the Federal Circuit.

Robert MacLean was a U.S. Transportation Security Administration Federal Air Marshal Service air marshal. He was fired on April 11, 2006 for making a disclosure that protected aviation and national security.

After a year went by that the U.S. Transportation Security Administration's (TSA) dress code and boarding procedures were routinely exposing the identities of U.S. Federal Air Marshals, and two days after a terrorist suicide hijacking plot was discovered by U.S. and foreign intelligence agencies in the summer of 2003, the TSA formulated an operational plan to remove air marshals from nonstop, long distance flights—the type of flight used for the September 11 attacks in 2001. TSA formulated the plan after facing a budget shortfall; the purpose was to cut the costs due to air marshals having to lodge overnight at hotels after a full duty day of long distance missions traveling away from their duty stations. Air marshals would have been absent from nonstop long-distance flights for the two months until the new federal Fiscal Year 2004. Immediately after congressional outrage the day after MacLean's disclosure, the plan was rescinded: air marshal coverage of long haul flights was not changed.

The government supports its dismissal of MacLean by declaring he endangered the nonstop, long distance flights that the TSA planned to remove air marshals from for two months in order to save costs associated with hotel rooms required for air marshals. The TSA then retroactively (four months after firing him) labeled his July 28, 2003 disclosure with its unclassified information marking regulation: Sensitive Security Information (SSI). MacLean argues that it is naive to believe that air marshal's significant others, pilots, flight attendants, airline gate agents, and frequent fliers already used to watching mandated suit and tie air marshals overtly pre-board aircraft—would have eventually raised their own concern to the media long after the plan was already operational. Had there been a disclosure after the plan went into effect, it would have taken the TSA and airline bureaucracies weeks to reverse course while nonstop, long distance flights were vulnerable—specifically violating Section 105 of the Aviation and Transportation Security Act of 2001; and USC Title 49 § 44917 (b).

U.S. Office of Special Counsel intervenes in support of Robert MacLean

PUBLIC ASTONISHMENT: Cartoonist Chris Britt of The State Journal-Register ridicules the TSA's plan to remove Federal Air Marshals from nonstop, long distance flights in order to save on hotel costs and make up for overspending on senior executives' cash bonuses. Reprinted in USA Today newspaper, August 3, 2003

On August 25, 2011, U.S. Special Counsel Carolyn Lerner of the United States Office of Special Counsel (MSPB) filed an amicus curiae with the United States Merit Systems Protection Board ( MSPB ) in support of Robert MacLean. The motion requests that the MSPB reverse its June 22, 2009 and July 25, 2011 decisions.

U.S. Special Counsel Carolyn Lerner wrote:

“

Whistleblowers should not have to guess whether information that they reasonably believe evidences waste, fraud, abuse, illegalities or public dangers might be later designated as SSI [unclassified sensitive security information] and therefore should not be disclosed. Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual's employment. . . . No specific statute exists that would allow the TSA to negate [ Civil Service Reform Act of 1978 (CSRA)] whistleblower protections. The statute that the TSA relied upon to retroactively designate MacLean's protected disclosure as SSl does not establish particular criteria for withholding and does not refer to particular types of matters to be withheld . . . The Board’s expansion of the exception to CSRA protected whistleblowing is contrary to the plain meaning and intent of the statute and significantly expands what Congress intended to be a very narrow exception to CSRA protected whistleblowing, thereby chilling would-be whistleblowers.

”

Biography

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

After four years of active duty, FAM Robert MacLean (born on March 8, 1970, in Torrejon Air Base, Madrid, Spain) elected not to reenlist and was honorably discharged from the U.S. Air Force in 1992. In the Air Force, MacLean was awarded the Basic Training Honor Graduate Ribbon, Outstanding Unit Awards, the National Defense Service Medal, and the Air Force Good Conduct Medal

MacLean's Air Force Specialty Code AFSC was a nuclear weapons maintenance technician for Intercontinental Ballistic Missiles (ICBMs). At the age of 18, MacLean was required to have a TOP SECRET clearance and be certified under the Department of Defense's Personnel Reliability Program (PRP) in order to have direct access to nuclear weapons components.

Among one of the PRP's main goals are, (Quoting from Department of Defense Directive 5210.42):

“

Only those personnel who have demonstrated the highest degree of individual reliability for allegiance, trustworthiness, conduct, behavior, and responsibility shall be allowed to perform duties associated with nuclear weapons, and they shall be continuously evaluated for adherence to PRP standards.

”

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 (FAA) tiny, but elite 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. 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 (FAMS). In MacLean's Federal Air Marshal Service termination notice, it cited his 14-year unblemished record of honorable service to his county:

“

I considered your combined 14 years of military and civilian federal service, including your 5 years as a Federal Air Marshal. I also considered that you have no previous discipline with the [TSA's Federal Air Marshal Service] and that your previous performance appraisals were satisfactory.

”

MacLean's deciding official for his termination gave him the highest praise for his service as a Federal Air Marshal:

“

[Robert MacLean] had a clean record, no disciplinary issues ... He got along well with his other [Federal Air Marshals] ... He showed up to work on time. And he did his job, and he did it in an exemplary manner

”

Whistleblower disclosure, and protecting aviation and national security

While the general public watched in plain sight air marshals trying to accomplish their missions under strict Federal Air Marshal Service (FAMS) dress-code, hotel, check-in, and boarding policies the U.S. Government Accountability Office (GAO) in January 2009 reported to have all been finally rescinded, in July 2003, Las Vegas, Nevada Federal Air Marshal (FAM) Robert MacLean tried to blow the whistle within the Transportation Security Administration (TSA) on a plan to reduce air marshal coverage of nonstop, long distance flights amidst heightened warnings based on a July 26, 2003 Department of Homeland Security (DHS) Advisory and confirmed by a May 18, 2006 Department of Homeland Security's Homeland Infrastructure Threat & Risk Analysis Center (HITRAC) Report describing intelligence of an al-Qaeda suicide hijack plan that would exploit a U.S. immigration loophole enabling a suicidal terrorist, without a U.S. visa, to take a flight from a country with less-stringent security to a U.S. airport and roam that U.S. airport during a layover before taking a second connecting flight to the destination country without being screened by that U.S. airport's security. Once inside a U.S. airport, terrorists would smuggle weapons onto aircraft by hiding weapons inside camera equipment and children's toys. During flight, the terrorists with the smuggled weapons would overpower the crew, take control, and fly the hijacked aircraft into U.S. east coast targets. The plan was in direct violation of the Aviation and Transportation Security Act (Public Law 107–71), Title 49 of the United States Code Section 44917:

“

deployment of Federal air marshals on every such flight determined by the Secretary to present high security risks … [and on] nonstop, long distance flights, such as those targeted on September 11, 2001, should be a priority

”

Senator Hillary Clinton and ten other members of Congress supported MacLean's actions

U.S. Senator Hillary Rodham Clinton from New York, now Secretary of State, wrote a letter to DHS Secretary Tom Ridge about MacLean's disclosure:

“

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.

”

U.S. Senator Barbara Boxer from California wrote this provision into ATSA. Senator Boxer also called for better protection of the identities of Federal Air Marshals and greater oversight of the Federal Air Marshal Service.

FAM Robert MacLean was rebuffed by his TSA managers and a Department of Homeland Security Office of Inspector General (DHS/OIG) field agent, so he warned the public by going to NBC News. MacLean was quoted, anonymously, along with other unnamed sources, in a story written by Brock N. Meeks, Chief Washington correspondent for MSNBC.com. That article broke the story and set off a chain reaction among national media outlets resulting in dozens of articles and televised broadcasts. The message MacLean disclosed was not marked as Sensitive Security Information (SSI), the often abused unclassified information control mark used to protect information within the DHS's Transportation Security Administration (TSA). Given that text message was sent nationally to all FAMS employees' unencrypted and password-protected cellular phones and did not contain SSI marking, MacLean was unaware of any obligation to protect the information. For employees dealing with traditional Classified Information, which is typically much more sensitive that SSI, they must be made aware of its status so as to protect it accordingly.

FAM Robert MacLean's disclosure helped draw public scrutiny and bipartisan congressional outrage to TSA's plan which rapidly led to its reversal. TSA first denied that air marshals would have been shifted, but the morning after MacLean's disclosure, U.S. Senators Hillary Rodham Clinton (New York), Barbara Boxer (California), and Charles Schumer (New York) held video press conferences condemning the plan forcing the TSA to reverse its plan before going into effect.

U.S. Senator Frank Lautenberg of New Jersey was "furious" and issued this July 30, 2003 press release:

“

You have to ask yourself: What are they thinking? First, the Administration issues an alarming statement that puts fear into the public, then they want to scale back security on airplanes. Does the left arm know what the right arm is doing over at the Department of Homeland Security?

”

U.S. Senator Charles Schumer of New York stated the following:

“

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

”

U.S. Senator Charles Schumer of New York also called on DHS Secretary 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

”

Fearful that fewer air marshals might travel on cross-country flights into San Francisco, Senator Boxer told reporter Edward Epstein of the San Francisco Chronicle that she had offered to send the TSA a list of hotels near San Francisco International Airport where air marshals could book rooms for well under $100 a night. In a discussion with Senator Schumer, DHS Assistant Secretary of Border & Transportation Asa Hutchinson also admitted the plan to remove air marshals from nonstop, long distance flights was an error:

“

'[DHS Assistant Secretary Hutchinson] said it was a mistake,' said Schumer.

”

U.S. Senator John Kerry of Massachusetts told the Wall Street Journal that President Bush's tax cuts for the wealthy caused the TSA to consider implementing the plan:

“

President George W. Bush should exercise some leadership by realizing that tax cuts for the wealthy take money away from the protection of the American people

”

Congresswoman Carolyn B. Maloney of New York issued a press release on her official congressional website:

“

One day its taking air marshals off the flights to avoid hotel costs at Motel 6, the next its holding back on training for them to do their jobs, all in the name of cost-cutting. I don't know what to expect next - they'll probably make air marshals fly stand-by. It's clear that they are playing a shell game with homeland security programs. It is essential that they tell us which programs are next to be cut. We shouldn't have to wake up one day to find out that airliners, ports, cargo or any other targets are unguarded because they have decided to cut the programs.

”

Congressmen Bill Pascrell, Jim Turner, and James Langevin together issued press releases about their letter to DHS Secretary Tom Ridge:

Congressman Bill Pascrell:

“

AIR MARSHAL DECISION AN ABOMINATION: The sheer idiocy of this determination is mind blowing. Only four days ago the TSA issued an urgent memo to all U.S. airlines and airport security managers detailing very specific intelligence related to hijacking and suicide missions by terrorists this summer. So now is a good time to pull air marshals from cross-country flights. The four planes hijacked on September 11th were all scheduled cross-country flights. Couple this knowledge with the new intelligence warnings-the most specific to date-about current hijacking plots, and there is absolutely no excuse for the TSA to scale back security.

”

Congressman James Langevin:

“

"As reports of potential terrorist attacks on commercial airliners surface, homeland security officials should be strengthening the air marshal program, not weakening it. We cannot afford to cut corners when it comes to protecting the safety of Americans. At a time of heightened alert, the thought of curbing the air marshal program to save costs on overnight hotel stays is absurd. Your statement today that 'every air marshal is being deployed' does not answer the question of whether air marshals are being removed from flights that would result in overnight hotel stays. We note that such flights would typically be cross-country routes, like those hijacked on September 11.

”

Congressman Hal Rogers (Republican) of Kentucky told Fox News:

“

The Federal Air Marshal program is absolutely critical to fighting terrorism and keeping the flying public safe. Given new warnings from DHS about possible hijacking attempts, it is foolish to even consider cutting back the number of air marshals on commercial flights.

”

U.S. Senator Ernest Hollings of South Carolina:

“

The word came categorically down from the White House they've got a scheme and a plan on course, 'Let's cut the taxes, cut the taxes, cut the taxes,' and then to sort of make it look legitimate, cut all spending.

”

Investigation into abuse of the USA Patriot Act

Immediately after FAM MacLean made this disclosure, TSA managers began an unauthorized investigation to ferret-out him and anyone else involved. TSA managers were informing Federal Air Marshal employees that the USA Patriot Act was being enacted to find who made the disclosure. Senator Barbara Boxer praised the air marshals who disclosed the plan to remove Federal Air Marshals from nonstop, long distance flights:

“

I want to thank the air marshals who came forward and told the truth about what was going on within their agency and bringing this issue into the spotlight... because I believe that cutting air marshals was clearly in the mix of budgetary cuts being considered.

”

U.S. Congresswoman Carolyn B. Maloney of New York also expressed her support for the air marshals who came forward, and called for an investigation into the retaliatory witch-hunt:

“

We saw reports that the Transportation Security Administration planned to remove air marshals from a number of high-threat flights to save on hotel costs. I immediately criticized the move and the decision was reversed in the midst of a firestorm of criticism.

”

More than a year after the disclosure, the Department of Homeland Security's Inspector General, Clark Kent Ervin confirmed that TSA and FAMS managers did in fact threaten air marshals:

“

Five air marshals, from two field offices, said they were threatened with prosecution for disclosing information to the press or public. They said their supervisors’ threats included being led away in handcuffs, being fired and prosecuted, or being subjected to polygraph exams if the leaks continued.

”

Right after Mr. Ervin issued his report on Robert MacLean's disclosure, he was forced out of his position by the White House.

Weeks after MacLean made the disclosure, he stopped being anonymous and exposed himself to retaliation from TSA and FAMS management by founding the Federal Law Enforcement Officers Association's Federal Air Marshal Service agency chapter and then accepting the position of Executive Vice President.

Saudi terrorist plot

On November 2, 2008, an official with the Saudi Arabian government reported through their official newspaper, Al-Watan (Saudi Arabia), confirmed that Saudi Arabian authorities foiled the suicide hijacking plot associated with MacLean's disclosure.

The attackers planned to transit through the U.S. to another destination so they could avoid applying for hard-to-get American visas required for Saudi nationals. The anonymous official said the militants were preparing to execute the alleged plot when it was stopped.

White House reaction

During a July 30, 2003 White House press conference, President George W. Bush was prompted for his reaction to the July 26, 2003 DHS Advisory concerning the al-Qaeda threat of suicide hijacks during the summer of 2003. President Bush stated,

“

The threat is a real threat...we obviously don't have specific data... al-Qaeda tends to use the methodologies that worked in the past... we're focusing on the airline industry right now and we've got reason to do so.

”

Change to visa issuance and screening inbound passengers transiting through the U.S.

Immediately after FAM Robert MacLean's disclosure, DHS took measures to close a dangerous immigration loophole that allowed foreign passengers to avoid U.S. consular screening when air traveling through the U.S. under the United States Department of State's Transit Without Visa (TWOV) and the International-to-International transit (ITI) programs.

“

Recent specific intelligence indicates that terrorist groups have been planning to exploit these transit programs to gain access to the U.S. or U.S. airspace without going through the consular screening process. The steps announced today are designed to augment security against possible terrorist threats and to protect U.S. citizens and foreign nationals who fly into and out of the United States.

”

MacLean appears on NBC Nightly News special for the September 11, 2001 attacks anniversary to complain about the air marshal dress code, military grooming, and overt boarding procedures

“

'We're not asking for more money,' says [later identified in a DHS internal affairs investigation as Robert MacLean], who works as a marshal and asked not to be further identified. 'We're asking to do our jobs without worrying about getting our throats cut.' . . . First, say marshals, drop all dress code, hotel and flight restrictions so they can blend in. Then, buff up the service's prestige so it can attract the best applicants — with the goal of making America safer and with the safety of the nation's skies on the line.

”

Termination for whistleblower disclosure

On August 31, 2006, over a year after proposing to terminate FAM Robert MacLean, and more than three years after MacLean disclosure forced TSA to rescind their plan, the TSA retroactively marked his July 2003 disclosure as being Sensitive Security Information (SSI), an unclassified information category. On August 30, 2006, TSA retroactively marked MacLean's disclosure more than 6 months after he was fired on April 11, 2006. The Government Accountability Office (GAO) issued a scathing report criticizing TSA for failing to have clear policies and oversight of its SSI designations, and using vague standards for its use. If TSA succeeds in retroactively marking whistleblower disclosures, these pseudo-classification markings will be abused to further retaliate against future whistleblowers, possibly decreasing the flow of critical information to the public.

Congresswoman Carolyn B. Maloney asked DHS's and TSA's chief attorneys "to complete a full review" of MacLean's termination and provide her office with their findings.

While FAM Robert MacLean waits almost three years for the United States Merit Systems Protection Board (MSPB) to review his termination, other air marshals who have committed serious crimes have gone with little or no punishment with the appearance of TSA executive and local law enforcement cover-up.

Abuse of unclassified information markings

John Podesta, Co-Chair of the Presidential transition of Barack Obama team and President & CEO of the Center for American Progress, testified before congress on September 16, 2008 regarding secrecy reform.:

“

Over the past seven years, the American people have come to understand what [ Senator Daniel Patrick Moynihan, the Chairman of The Commission on Protecting and Reducing Government Secrecy ] meant. During this period, the Bush administration has increased secrecy and curtailed access to information through a variety of means, including by: Presiding over an explosion in the use of 'controlled unclassified' markings, most of which have never been authorized by statute, to restrict access to unclassified information Threatening journalists, whistleblowers, and other private citizens with criminal prosecution for the possession or publication of national security information; and perhaps most egregious of all, the issuance of secret orders and legal opinions to shield illegal actions from public scrutiny

”

Mark D. Agrast, then a Senior Fellow for the Center for American Progress cited Robert MacLean's case during his June 28, 2007 congressional testimony titled, "Over-Classified and Pseudo-Classified":

“

[F]ederal air marshal [ Robert MacLean ] blew the whistle when TSA attempted to reduce security on “high risk” flights, and the agency retaliated by retroactively designating the material he had disclosed as Sensitive Security Information.

”

A June 2006 report from the U.S. Government Accountability Office (GAO) titled "Clear Policies and Oversight Needed for Designation of Sensitive Security Information (SSI), "criticized TSA's monitoring controls.

“

Monitoring Controls Are Weak.... Specifically, TSA has not established and documented policies and internal control procedures for monitoring compliance with the regulations, policies, and procedures governing its SSI designation process, including ongoing monitoring of the process.

”

The GAO report cited an October 14, 2004, memorandum designed to centralize the administration of SSI within the TSA. The memo indicated that TSA’s Internal Security Policy Board recognized that the handling and identification of SSI had become problematic:

“

Lacking a central policy program office for [ Sensitive Security Information (SSI) ] has led to confusion and unnecessary classification of some materials as SSI. Adherence to handling requirements within TSA has been inconsistent, and there have been instances where SSI has been mishandled outside of TSA. Identification of SSI has often appeared to be ad-hoc, marked by confusion and disagreement depending on the viewpoint, experience, and training of the identifier. Strictures on the release of SSI and other SSI policy or handling–related problems have occasionally frustrated industry stakeholders, Congress, the media, and our own employees trying to work within the confines of the restrictions. Significant time and effort has been devoted to SSI issues, and it is not likely that the current approach to addressing such issues can be sustained.

”

In a September 28, 1988 United States House of Representatives “Committee on Government Operations” report, Senator Barbara Boxer (then member of the House) warned Congress and the public about unclassified information markings being abused to prevent whistleblower from making disclosures. The Ronald Reagan Administration's attempt to define 'classifiable' holds employees liable for disclosures of unclassified information, without any prior notice to them of its special status. Under Executive Order 12356, classified information is marked as such. Even information that is in the process of a classification determination is given an interim classification marking for a 30-day period. The employee is, therefore, aware of its special status. Without the classification markings on unclassified information, however, an employee cannot be sure that the nondisclosure agreements' restrictions apply to that material. Consequently, they must check with their supervisors, thereby alerting them to the [ whistleblower ] disclosure. That invites a chilling effect. As Congresswoman Boxer noted at the hearings:

“

I am concerned this will force would-be whistleblowers to have to ask their superiors about classification determinations. This would act to stop the whistleblower.

”

Cancellation of whistleblower protection for retroactive unclassified information designation of disclosure

After the TSA issued its August 31, 2008 "Final Order on Sensitive Security Information (SSI)," the TSA 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, a forum in which the "evidentiary standard" is extremely high. September 16, 2008, a Ninth Circuit panel consisting of a majority of Presidents George H. W. Bush and George W. Bush appointees ruled that the Transportation Security Administration was within its authority to issue a Final Order that retroactively marks MacLean's disclosure as UNCLASSIFIED Sensitive Security Information (SSI) over three years after it was disseminated. The court's ruling stated:

“

MacLean may still contest his termination before the MSPB, where he may raise the Whistleblower Protection Act (WPA) of 1989 and contend that the lack of clarity of the TSA's 2003 'sensitive security information' regulations is evidence MacLean disseminated the text message under a good faith belief the information did not qualify as 'sensitive security information'.

”

Going now over three years since TSA proposed to remove FAM Robert MacLean, his case is now before a regional United States Merit Systems Protection Board (MSPB) Administrative Judge.

On December 23, 2008, the regional MSPB administrative judge (AJ) tossed out the 9th Circuit's ruling against MacLean citing the fact that the TSA's retroactive "Final Order on Sensitive Security Information (SSI)" issued four months after firing him was ad hoc. The Bush TSA successfully filed a motion for Interlocutory Appeal of the AJ's order to the full MSPB in Washington DC and forced a stay in MacLean regional MSPB case. To this day the full MSPB has not issued a decision and MacLean has not had his initial hearing over three years since filling his initial appeal before the regional MSPB.

On June 22, 2009, the full MSPB panel in Washington DC, consisting entirely of President George W. Bush appointees, Neil McPhie and Mary Rose, who effectively killed MacLean's case and the Whistleblower Protection Act in their single landmark decision. Right after the panel issued their decision declaring that MacLean is not protected under the Whistleblower Protection Act because he violated a retroactively applied unclassified information label—Sensitive Security Information (SSI) -- regulation, the panel then marked their entire decision with SSI labels and "WARNING" nondisclosure disclaimers and uploaded it onto their public website ( www.MSPB.gov ). The panel has since removed the SSI labels and removed it from their public website.

U.S. Senator Claire McCaskill of Missouri made this comment to the Washington Post about the MSPB's decision against MacLean:

“

"It is no secret in Washington that the MSPB has not provided adequate protections to federal whistleblowers for years now. It's way past due that we provide more meaningful protections to the brave federal employees who are willing to step out and risk their careers to expose fraud, waste and abuse of taxpayer dollars, much as we are doing for whistleblowers at federal contractors."

”

Support from accountability and oversight organizations

The Project On Government Oversight (POGO) an advocate for MacLean. The lawyers for the Government Accountability Project (GAP), and the Federal Law Enforcement Officers Association (FLEOA) represent him.

On November 25, 2008, POGO issued a 36 page report regarding the U.S. Office of Special Counsel (OSC) ignoring whistleblowers. Scott Bloch was the U.S. Special Counsel from June 26, 2003 until he was abruptly fired by the White House on October 23, 2008. The OSC is an executive agency tasked with investigating whistleblower reprisal. MacLean's termination case was highlighted in their report.

Congress encourages president to enact an executive proposal to resurrect the careers of past whistleblowers

A group of whistleblowers led by Robert MacLean have sent a proposal to President Barack Obama requesting that he enact an order that would give immediate relief and redress to past federal law enforcement and national security whistleblowers. On April 30, 2009, a bipartisan group of congressmen sent a letter to President Obama urging him to enact MacLean's proposal:

“

In addition to these forward-looking reforms, we encourage you to take action to restore the careers of employees who were wrongly terminated or marginalized by previous administrations after blowing the whistle. Specifically, we recommend the issuance of an Executive Order establishing a program to review individual cases, and where significant injustice has occurred, to make the employee whole by restoring them to government service. The country can undoubtedly benefit from the professionalism and expertise of many of the employees who were wrongly removed from federal service.

”

Even if enhanced whistleblower protection legislation is enacted, it will not be retroactive. Employees who blew the whistle in the past will still be in dead-end positions or unemployed. Many whistleblower protection acts have been passed since the Lloyd-La Follette Act of 1912, but to this day, there is very little faith in the system - to would-be whistleblowers, any new law is just another piece of paper without teeth. Employees do not research law or consult with an attorney prior to exposing violations that may end their careers; they only read the news about legitimate whistleblowers still unemployed while they spend their life savings trying to win their jobs back in overburdened venues such as the U.S. Merit Systems Protection Board (MSPB). MacLean told congress on ABC News that no one will risk their career to expose wrongdoing if past whistleblowers are still twisting in the wind.

Congressional hearings

During hearings, U.S. Congressman Bill Pascrell questioned TSA Assistant Secretary Kip Hawley during a Committee on Homeland Security, Subcommittee On Transportation Security and Infrastructure Protection hearing held on October 16, 2007 in which he cited a New Jersey Star-Ledger opinion editorial. Two years later on July 23, 2009, Rep. Pascrell did not forget about MacLean and other Federal Air Marshal Service whistleblowers and expressed his displeasure to TSA/FAMS Director Robert Bray that Hawley ignored his office:

“

Rep. Bill Pascrell Jr. (D-N.J.) asked Robert Bray, director of the Federal Air Marshal Service, why air marshals who were fired for bringing to light issues that were later found to be valid have not been returned to service. Pascrell specifically mentioned the case of Robert MacLean, an air marshal who was fired in 2006 after he revealed that the TSA plans to stop sending marshals on long-haul flights because the agency did not want to pay their overnight expenses. MacLean is "still twisting in the wind," [Rep. Pascrell] said during an interview. "I think it's very unfair."

”

Requests for White House and Department of Justice reviews

The office of Senate Majority Leader Harry Reid of Nevada—the state where MacLean was based out of when he made his disclosure—told the Las Vegas Review-Journal that Senator Reid supports MacLean and another former Las Vegas Federal Air Marshal, Spencer Pickard. It further stated that it has asked the Obama administration to conduct a review of their cases with respect to Department of Justice/Office of Legal Policy Deputy Assistant Attorney General Rajesh De's testimony to the Senate on June 11, 2009. Deputy Assistant Attorney General De told the United States Senate Committee on Homeland Security and Governmental Affairs' United States Senate Homeland Security Subcommittee on Oversight of Government Management, the Federal Workforce and the District of Columbia that the administration "should" and "certainly" will consider the "retroactive review" of past whistleblower cases.

Bipartisan support for MacLean's actions submitted into the Congressional Record

U.S. Congressman Edolphus Towns from New York thanks MacLean for his actions:

“

We have heard from dozens of whistleblowers who support this bill. I want to acknowledge one in particular. Mr. Robert, MacLean is a former Federal Air Marshal who, was fired after disclosing a threat to aviation, safety. Mr. MacLean's case has been lingering, for far too long under the current system. He, has championed this bill because he knows, first hand that the current system is broken. I, thank him for his efforts on behalf of the country.

”

From the House floor, U.S. Congressman Ken Calvert from California introduced a favorable news article into the Congressional Record:

“

Friday, July 10, 2009 Did fired OC Air Marshal endanger flying public or protect it? Hon. Ken Calvert of California in the House of Representatives Friday, July 10, 2009 Mr. Calvert: "Madam Speaker, I rise today to discuss the [Orange County Register] article titled 'Did Fired OC Air Marshal Endanger Flying Public, or Protect It?'" The article was posted online on May 8, 2009 and I believe my colleagues in Congress will benefit from the article and the topic of whistleblower protection.

”

TSA releases online its entire security checkpoint screening standard operating procedures manual

In December 2009, it was discovered that TSA inadvertently posted online its Sensitive Security Information (SSI) marked airport screening procedures manual, including some of the most closely guarded secrets regarding special rules for diplomats, CIA agents, and Federal Air Marshals.

The subsequent Department of Homeland Security/Office of Inspector General concluded this in its investigation:

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When TSA learned that SSI was publically [sic] available, it took immediate actions and began intermediate and long-term measures to mitigate vulnerabilities. In reviewing the events and circumstances surrounding the SSI release, we determined that [the TSA's Office of SSI's] failure to follow its procedures resulted in an improper redaction of SSI. Further, TSA and the department’s internal controls for reviewing, redacting, and coordinating the protection of SSI are deficient.

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December 2009 Christmas "underwear bomber" attack brings déjà vu to TSA's 2003 security lapses

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In July 2003, MacLean was a federal air marshal in good standing, part of the thin blue line sent to the skies in the wake of 9/11. He had been called in to his Las Vegas field office for a chilling, unprecedented, face-to-face emergency threat briefing: An al-Qaida suicide plan would exploit airport security loopholes abroad by allowing terrorists to fly from countries with less-stringent screening (such as, say, Nigeria) to airports in Europe (such as, say, Amsterdam), where they would escape further security screening. Thus armed with weapons/explosives, the terrorists would catch connecting flights to their final destinations in the states or Europe -- and exact their bloody revenge.

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Initial Decision by the regional Merit Systems Protection Board administrative judge Franklin M. Kang

On May 12, 2010, Western Region United States Merit Systems Protection Board (MSPB) attorney examiner (administrative judge) in San Francisco, Franklin M. Kang, issued an Initial Decision to uphold the TSA's removal of Robert MacLean. Franklin M. Kang also serves as a Major with the U.S. Army Reserves Judge Advocate General (JAG) and an executive officer for the Organization of Chinese Americans, Inc. MacLean has appealed the Franklin M. Kang Initial Decision to the 3-member appellate MSPB panel in Washington DC. For three consecutive years (2007–2009), the MSPB's Franklin Kang only ruled in favor of one federal employee in 235 cases he reviewed.

Elusive Office of Professional Responsibility report of investigation of Federal Air Marshal Service Las Vegas field office managers

An Immigration and Customs Enforcement (ICE) Office of Professional Responsibility report of investigation about whistleblower retaliation, unauthorized document shredding, and mandatory intelligence reporting quotas at the TSA Federal Air Marshal Service Las Vegas field office, has proven difficult to obtain, according to a U.S. congresswoman who sought a copy of the document, Gabrielle Giffords of Arizona. For a short period of time, the Federal Air Marshal Service was under the purview of ICE.

A significant investigation of Las Vegas field office most senior managers was completed in 2007 and is considered a key piece of evidence that could exhonerate Robert MacLean and other Federal Air Marshal Service whistleblowers who were fired or marginalized.

The Department of Homeland Security (DHS) declines to release the report despite several Freedom of Information Act (FOIA) requests and a federal lawsuit filed in the United States District Court, District of Nevada by a retired Federal Air Marshal. A November 7, 2007 FOIA office response to a request acknowledges that a 575-page report of investigation exists.

More mystery emerged on November 1, 2010, when Congresswoman Giffords' District Director emailed a former Las Vegas-based Federal Air Marshal supervisor that a former Chief of Staff for DHS Secretary Janet Napolitano told them that:

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The report is a key document in getting justice for you but it has either disappeared or was put out of reach before the new [President Barack Obama] administration took office.

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DHS responded to a Las Vegas Review-Journal inquiry that they are still deciding what portions of the report are public record.

On January 26, 2011, the DHS now admits that 6,250 pages of the report of investigation exist and denied MacLean any portion of it in response to his November 19, 2010 Freedom of Information Act (FOIA) request.

Sole witness and deciding official for the TSA's case has been demoted twice since firing Robert MacLean

In March 2011, the Project On Government Oversight in Washington DC conducted an investigation and discovered that the senior manager who was the sole witness and deciding official has been demoted twice since he fired Robert MacLean. MacLean's deciding official, Frank Donzanti, went from the Special Agent in Charge of all TSA law enforcement operations in California and Hawaii to a non-supervisory position at a small airport.

Since February 2010, Donzanti has been under investigation by the TSA Office of Inspection and the U.S. Office of Special Counsel for sexual harassment and quid pro quo arrangement allegations.

Members of Congress conduct investigation of Congress' 1989 intent and file motion with the Merit Systems Protection Board in favor of MacLean

On April 12, 2011, Congressman Dennis Kucinich and Congresswoman Carolyn B. Maloney filed an amicus curiae ("friend of the court") brief with the U.S. Merit Systems Protection Board in favor of Robert MacLean.

Their offices conducted an investigation and discovered that during Congress' debate prior to passing the Whistleblower Protection Act of 1989 (the current federal whistleblower protection law in effect) it had specifically removed language in the bill that canceled out whistleblower protections for employees who make disclosures that violate executive agency "rule or regulation" -- the TSA retroactively marked MacLean's July 2003 disclosure as "Sensitive Security Information (SSI)." SSI is a TSA unclassified marking governed in its Code of Federal Regulations (CFRs). After Congress removed "rule or regulation," the final bill signed into law only barred disclosures that violated law. This motion is significant because it proves that Congress had clear intent it wanted to prevent executive agencies from using their own secrecy regulations to retaliate against whistleblowers:

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When the bill, S. 2640 [Whistleblower Protection Act of 1989], was originally introduced in the Senate, Section 2302(b)(8)(A) excluded protection for public disclosures that were in violation of "law, rule or regulation." After discussion and debate, restrictions on protection due to violations of "rule or regulation" were removed by the Senate, so that restrictions imposed by an agency itself could not circumvent the employee's rights. S. Rep. No. 95-969, 95th Cong., 2d Sess., 12 (1978), reprinted in 1978 U.S. Code & Admin. News 2723, 2743 ("Senate Report"); Vaughn, Statutory Protection of Whistleblowers in the Executive Branch, 1982 U. Ill. L.R. 615, 629. The version passed by the Senate excluded whistleblower protection only for disclosures that were prohibited by "statute." . . . After [members of Congress had] discussion and debate, "rule or regulation" was deleted by the House, just as it had been deleted by the Senate, and the version passed by the House excluded whistleblower protection only for disclosures that were prohibited by "law." The House Conference Report explained exactly what the House intended by its deletion of "rule or regulation" and what the House meant by "prohibited by law:"(Emphasis added) "Prohibited by law refers to statutory law and court interpretations of those statutes ... not ... to agency rules and regulations." HR Conf. Rep. No. 95-717, 95th Cong., 2d Sess. 130, reprinted in 1978 USCCAN 2860, 2864 (Emphasis supplied).

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Full U.S. Merit Systems Protection Board denies MacLean's Petition For Review and affirms the TSA's decision to terminate him

On July 25, 2011, the full United States Merit Systems Protection Board (MSPB) in Washington DC denied all of MacLean's Whistleblower Protection Act of 1989 defenses and affirmed the TSA's decision to terminate him. The three member panel consisted of President Barack Obama appointees Chairwoman Susan Tsui Grundmann, Vice Chairwoman Anne M. Wagner, and George W. Bush appointee, Mary M. Rose. The panel initially designated their decision as "Sensitive Security Information," but later removed the markings.

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"If front-line, non-intelligence government employees cannot disclose wrongdoing to the public that was never classified and then that information can be stamped years later with an unclassified TSA marking, the First Amendment is now meaningless," [MacLean told CNN News].

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MacLean is appealing to the United States Court of Appeals for the Federal Circuit by September 25, 2011.

TSA arguments

The TSA makes several arguments:

1. Robert MacLean was trained in the safeguarding of SSI and that the information he disclosed did not require any markings despite Code of Federal Regulations (CFRs) that mandate the contrary.
2. MacLean brought embarrassment and caused the TSA to disrupt their operations in order to cancel their plan to remove FAMs from nonstop, long distance flights.
3. Had TSA decided to continue with their plan, despite public and congressional outrage, MacLean's disclosure would have alerted all terrorists that nonstop, long distance flight would not be staffed with FAMs.

1. That front-line law enforcement officers and other low-level field employees do not have the authority, education, or experience to determine if dangerous executive plans are gross mismanagement, violate law, or endanger public safety and national security; and that such determinations can only be made by the executive agency's senior executives.
2. Senior executives can at anytime retroactively mark or label documents or mobile telephone text messages with UNCLASSIFIED information categories such as "Sensitive Security Information" (SSI) no matter how dated the information is.
3. That a violation of an unclassified information marking regulation is equal to a "violation of law," therefore the Whistleblower Protection Act of 1989 (WPA) does not protect Robert MacLean's disclosure due to the TSA retroactively marking it as UNCLASSIFIED SSI.