The U.S. Court of Appeals for the Federal Circuit has ruled on April 26, 2013 that fired federal air marshal Robert MacLean's disclosure to the media of a plan by the Federal Air Marshal Service to temporarily suspend air marshal deployment on overnight flights in July 2003 in spite of a recent intelligence briefing [suggesting ongoing efforts by al-Qaeda to hijack a plane at that time] was not prohibited by law, and that MacLean's disclosure might also be entitled to federal whistleblower protection.
This ruling by the Court in overturning the previous Merit System Protection Board's (MSPB's) ruling in the case that upheld the Federal Air Marshal Service's termination of Robert MacLean and remanding the case back to the MSPB, effectively restores for now the ground for enforcement of the federal whistleblower Protection Act [www.whistleblower.org/"Air Marshal Whistleblower Robert MacLean"; www.fedagent.com/May 9, 2013].
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, as well as a Rose Garden press confrontation of President Bush by a reporter.
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.
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 (Federal Air Marshal Service) 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.
[see, Government Accountability Project ("GAP")/www.whistleblower.org/"Air Marshal Whistleblower Robert MacLean].
www.CharlesJeromeWare.com ("We fight. You win.")
Attorney Charles Jerome Ware is renowned and consistently ranked among the best attorneys and legal counsellors in the United States. [GQ Magazine, The Washington Post, The Baltimore Sun, The Columbia Flier, USA TODAY, The Howard County Sun, The Anniston Star, The New York Times, CNN, MSNBC, CBS, ABC, NBC, FOX-TV NEWS, WHUR, WHUT, MPT, BBC, The Wall Street Journal, ABA Journal, et al.]
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 (Federal Air Marshal Service) 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.
[see, Government Accountability Project ("GAP")/www.whistleblower.org/"Air Marshal Whistleblower Robert MacLean].
www.CharlesJeromeWare.com ("We fight. You win.")
Attorney Charles Jerome Ware is renowned and consistently ranked among the best attorneys and legal counsellors in the United States. [GQ Magazine, The Washington Post, The Baltimore Sun, The Columbia Flier, USA TODAY, The Howard County Sun, The Anniston Star, The New York Times, CNN, MSNBC, CBS, ABC, NBC, FOX-TV NEWS, WHUR, WHUT, MPT, BBC, The Wall Street Journal, ABA Journal, et al.]
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