Thursday, March 3, 2016

What happens when a whistleblower returns to work after a decade’s fight

Federal Air Marshal Robert MacLean, photographed at his suburban Virginia home. MacLean was reinstated as an air marshal by the U.S. Supreme Court, who deemed he was entitled to whistleblower protections.



Robert MacLean spent his first official day back at work in nearly a decade appearing on Capitol Hill to explain how he became a pariah in the eyes of the federal government.

As an agent with the Federal Air Marshal Service in 2003, MacLean publicly revealed a Department of Homeland Security plan that would have reduced the number of armed marshals on commercial aircraft at a time when intelligence officials were warning of an imminent al-Qaeda hijacking threat.

MacLean and his supporters believed his actions helped prevent another 9/11. The government claimed he broke the law and fired him.

While he fought to get his job back, MacLean found himself unable to find another law enforcement job.

An Air Force veteran and former federal agent who spoke fluent Spanish generally would have been a dream candidate for a police department. Instead, the rejection letters piled up. One, from the Los Angeles County Sheriff’s Department in October 2007, said MacLean failed to make the cut “due to issues involving INTEGRITY.” As an added slap in the face, the department emphasized the reason in the most 21st century of ways: all caps.

Lawmakers who listened to MacLean upon his return to work didn’t get to hear about his eventual vindication. A bomb threat cleared the Dirksen Senate Office Building in the middle of his testimony.

But for the whistleblower who took his cause all the way to the U.S. Supreme Court and came out on top, the fight to clear his name was really just about one thing: his integrity.

After 9/11, the federal government supersized the Federal Air Marshal Service from three dozen agents to 5,000. Eager to protect his country, MacLean, at 31, left the U.S. Border Patrol and took to the skies.

MacLean had spent much of his adult life in service of his country. Born at Torrejon Air Base in Spain to an American Air Force officer father and a Spanish mother who worked as a translator, Mac­Lean split his childhood between Spain, California and Puerto Rico, and joined the Air Force right out of high school. His duties at Ellsworth Air Force Base in South Dakota included maintenance work on nuclear missiles.

After his discharge, MacLean moved to the San Francisco Bay area to attend community college. He was in his first year there when his mother suffered a car accident in Spain that left her a quadriplegic and severely brain damaged. MacLean quit school, assumed all legal and medical responsibilities for his mother, who had divorced his father, and brought her to the United States. MacLean moved to Southern California and got a job with the Border Patrol.

The seeds of his dissent with the air marshal service were sowed early in his tenure.

Three months after 9/11, MacLean and a fellow air marshal sat on a United Airlines flight from Dulles Airport to Las Vegas, seemingly just another two passengers en route to a Sin City gambling bender. They had a lone task: Be ready for action if anyone threatened the aircraft. Otherwise, blend in.

Halfway through the 4 1/2 -hour flight, the excited talk of a flight attendant and a teenager drew MacLean’s attention to the front of the cabin. No need to reveal himself, MacLean thought. Just keep an eye on it. MacLean’s partner had a different take and rushed up front to join the conversation, which ended upon his arrival. After the plane touched down, MacLean asked his partner about the incident, but he didn’t get a straight answer.

But his partner told others in the Las Vegas field office, including his supervisor, that the impetus for the conversation was a gaffe that, if made public, could have shaken public confidence in the air marshal service. MacLean’s partner had left his loaded .357 in the airplane lavatory. The startled teenager had found the gun and handed it to the flight attendant.

MacLean went to the special agent in charge of his field office and asked whether his partner had been sanctioned. “Everyone makes mistakes,” was the reply.

To MacLean, that screamed amateur hour. What could justify not taking action against an air marshal who left a loaded semiautomatic weapon in the john of a packed flight? In a brave new world of aviation security, MacLean sensed something was very wrong with his employer.

Many of his colleagues shared his concerns. A September 2002 investigation by USA Today painted a bleak picture of the air marshal program, citing the resignation of 80 marshals as evidence of mass dissatisfaction.

The dysfunction emanating from the Las Vegas office seemed particularly acute, as off-duty gunplay turned into a semi-regular occurrence. On a layover in Arlington, Va., a Vegas-based air marshal accidentally shot a hole through the wall of his hotel room. Another marshal fired his service weapon during a scuffle outside a nightclub.

And MacLean’s partner who left his gun in the bathroom? He went on to become a firearms instructor at the air marshal training center in Atlantic City before being selected to manage the San Diego office.

In July 2003, every air marshal received an unsecured text message from the Department of Homeland Security warning that al-Qaeda intended to conduct more hijacking missions. “At least one of these attacks could be executed by the end of the summer 2003,” the memo warned. Three days after this ominous dispatch, the department sent out an internal bulletin announcing a cost-cutting plan to remove air marshals from long-distance flights for the next several weeks.

Stunned, MacLean took his concerns to a supervisor and to his agency’s inspector general’s office. He got no meaningful response. Next, he went to a reporter, who quoted him anonymously. Congressional reaction to the article, published on MSNBC.com, was forceful enough to cause the department to scrap the cutbacks.

The government may never have linked MacLean to the 2003 MSNBC story if he hadn’t later gone on TV to discuss another Transportation Security Administration policy he deemed problematic.

In May 2005, MacLean was called to a meeting with internal affairs agents looking for the source of a nine-month-old “NBC Nightly News” story that featured an interview with a silhouetted marshal who griped about the agency’s strict rule requiring sport coats and dress shirts on all flights. The anonymous marshal said the policy made it too easy for passengers to identify the armed agents. In addition to shielding the agent’s face, NBC was also supposed to distort his voice. That didn’t happen. The head of the Las Vegas office told headquarters that subordinates recognized MacLean’s voice.

When the investigators confronted him, Mac­Lean, who had been transferred recently to Los Angeles, answered honestly. He said he and other air marshals had tried through internal channels to get the TSA to address the clothing policy, to no avail. So he accepted an NBC producer’s invitation to go public. MacLean then admitted he had been the source of the earlier MSNBC story.

In a few months, the dress code was relaxed, but the TSA came after MacLean, first taking away his credentials and equipment, then cutting him off from internal communications, and finally, in April 2006, firing him for a single charge of “unauthorized disclosure of sensitive security information” related to the planned 2003 cutbacks. Thomas Quinn, former director of the air marshal service, called that disclosure “one of the most heinous leaks” of information related to aviation security.

MacLean, who never faced prosecution for his actions, believed he would be back on the job before long. His supervisor acknowledged his record was “exemplary.” And the memo in question wasn’t classified. Three months after MacLean’s dismissal, the TSA stamped the memo as “sensitive security information (SSI).”

But what did that label even mean?




After 9/11, the Federal Aviation Administration had ceded responsibility for civil aviation security to the newly formed TSA, which drafted new regulations concerning sensitive but unclassified information. It didn’t take long for transparency advocates and members of Congress to voice opposition. At a House subcommittee hearing in August 2004, Rep. Christopher Shays (R-Conn.) lamented what he viewed as a counterproductive era of government secrecy. “Current classification practices are highly subjective, inconsistent and susceptible to abuse,” Shays said. “One agency protects what another releases. … The dangerous, if natural, tendency to hide embarrassing or inconvenient facts can mask vulnerabilities and only keeps critical information from the American people.”

In his 2013 book about aviation security, Kip Hawley, who headed the TSA from 2005 to 2009, wrote that the “TSA designates material as SSI that it believes would be harmful to the national security if it were made public.”

Fearful of what might have happened to a commercial airliner if the TSA plan hadn’t been made public, MacLean simply did what he thought was right. That’s why he vowed to fight. But when MacLean developed into a poster child for post-9/11 whistleblowers, it became all the more important to the government to defeat him.

To this day, MacLean is astonished that the government went to such lengths to justify his firing.

“I didn’t reveal classified information,” he says. “I revealed information that was put out on an unsecured phone system. Everyone I talked to who knew anything about how these situations played out expected the TSA to mitigate the charge and suspend me for a few days or something like that. What I did was so obviously a whistleblower disclosure.”

The organizations that advised MacLean, including the Government Accountability Project and the Project on Government Oversight, encouraged him to steer clear of the agency that should have been in the best position to help him: The U.S. Office of Special Counsel, the government’s whistleblower protection office, was facing accusations from whistleblower advocates that it summarily dismissed cases and that its head, Scott Bloch, retaliated against whistleblowers by making them choose between relocating to a new Detroit field office or resigning. In 2008, the FBI raided Bloch’s office in an obstruction-of-justice probe, and he later pleaded guilty to a misdemeanor charge of destroying government property.

So MacLean took his battle to the court system. The U.S. Court of Appeals for the 9th Circuit in California took two years to simply pass off Mac­Lean’s wrongful termination case to the U.S. Merit Systems Protection Board, which decides on whether executive branch employees should be granted whistleblower status. Another 20 months passed before the board ruled against MacLean, in June 2009, stating that he couldn’t qualify as a whistleblower because his disclosure violated the law.

The pace of the proceedings had discouraged several of MacLean’s former colleagues from subjecting themselves to the process.

Craig Sawyer, a former Navy SEAL and one of the air marshal service’s original 33 pre-9/11 agents, resigned from his supervisory post in Las Vegas in 2004 after accusing the TSA of forcing air marshals to meet monthly quotas for “Surveillance Detection Reports,” suspicious-activity logs that could land someone on a no-fly list.

“I launched all my rockets,” Sawyer says. “I went to the MSPB, the Office of Special Counsel and the inspector general, but none of them were inclined to help. Neither were senators or congressmen. So I decided to go on with my life. I’ve looked at MacLean over the years and thought how glad I was that I didn’t keep fighting.”

A Government Accountability Office report that blasted the TSA for its haphazard system of labeling information emboldened MacLean, but at some point, the day-to-day reality of joblessness set in.

MacLean realized he might never work in law enforcement again. In fall 2007, he used all of his savings to start a parking-lot cleaning business. His timing couldn’t have been worse. After the Great Recession hit, property managers had bigger worries than whether they maintained spotless parking areas.

As his case pinballed between venues, he immersed himself in the whistleblower cause. But when he tried to garner the support of politicians of both parties, he found out that the same lawmakers who condemned the TSA for contemplating the cutbacks he had disclosed were less inclined to fully back the man who blew the whistle on the plan.

President Obama’s arrival in the White House gave MacLean hope. Former federal employees seeking whistleblower protections had been rebuffed by Bush administration appointees to the Merit Systems Protection Board. As an Illinois state senator, Obama helped get whistleblower protection legislation passed. And before taking office in January 2009, his transition-team website stated his support for government employees who speak out against government malfeasance.

But the board handed MacLean another defeat in July 2011, saying it was “not persuaded that [Mac­Lean] believed in ‘good faith’ that he was permitted to share [the] plans.”

MacLean refers to the day of that verdict as one of the worst of his life. “It’s over,” he remembers thinking.

In his days as a federal agent, MacLean could run a mile and a half in under 10 minutes. Out of work, he packed on 50 pounds. On some days, he would sit at his Orange County home and stare at the clock, waiting for 5 to roll around so he could treat himself to a shot of bourbon. His wife understood, but his two kids couldn’t make sense of their dad’s change in appearance and disposition. MacLean’s older daughter, who was almost 10, turned to the Internet for answers. One night she asked, “How come you got fired, Daddy?”

Former air marshal Spencer Pickard was one of the few people who knew what MacLean was up against. In 2009, he and MacLean were among a group of ex-federal employees who testified before Congress about the need for better whistleblower protections. Pickard resigned under pressure from the air marshal service after publicly criticizing policies that he felt compromised agents’ ability to work undercover. Also unable to find work, Pickard got divorced and moved back in with his parents.

By 2012, he had picked up the pieces of his life and become the general manager of a Texas-based roofing company. When Pickard called his old colleague and asked if he’d be interested in a job, MacLean accepted and relocated to a storm-ravaged area of Tennessee. There, the former federal agents who once worked 30,000 feet in the air spent a year patching roofs 30 feet up.

But MacLean couldn’t leave his anxieties behind. Nearly every night, he was jolted awake by the sensation of electricity running through his body. He would lose his peripheral vision or even black out. His doctor told him he was experiencing panic attacks.

Tom Devine, MacLean’s lead attorney from the Government Accountability Project, which helped MacLean pro bono, urged him not to give up. “His life was imploding around him,” Devine said. “He was blacklisted from law enforcement, which was his calling. He was either going to get legal vindication or be out in the cold for the rest of his life. I told him every whistleblower case was a marathon struggle.”

In November 2012, Congress passed an updated whistleblower law that gave TSA employees new protections. Four months later, the U.S. Court of Appeals for the Federal Circuit kept MacLean’s case alive, barely, ruling that he could continue to pursue his whistleblower defense.

The Department of Homeland Security appealed it all the way to the Supreme Court, which had never before heard a case directly pertaining to a federal whistleblower.

With the case set for a high-court showdown, MacLean found redemption from an unlikely source.

In large part because of his case, Congress set out in spring 2014 to learn more about the TSA’s “pseudo-classification” of information. The resulting report by the House Oversight and Government Reform Committee concluded that the agency improperly designated certain information as secret.

Andrew Colsky, the government expert who retroactively determined in 2006 that MacLean had unlawfully disclosed secret information, told the committee he was under “extreme pressure” to keep potentially embarrassing documents from public view. The report included an email from Colsky to TSA attorneys that referenced the MacLean case.

“I am very uncomfortable in that I have personally given a deposition under oath in a very similar case supporting the fact that this is SSI and a man lost his job over it,” Colsky wrote. “I am unable to assist OCC [Office of Chief Counsel] with any testimony in future cases as I don’t know what to honestly call SSI anymore.”

The official who concluded that MacLean had disclosed secret information was now suggesting that the label was arbitrary and part of “security theater.”

The tide had shifted.

As the Supreme Court prepared to hear oral arguments in MacLean’s case, six members of Congress submitted “friends of the court” briefs on his behalf. So did the U.S. Office of Special Counsel.

In January 2015, the Supreme Court ruled, 7-2, that the Merit Systems Protection Board had erred in concluding that MacLean didn’t qualify for whistleblower protection. A month after the ruling, Mac­Lean was one of four whistleblowers invited to participate in the launch of the Whistleblower Protection Caucus, a bipartisan congressional group.

“It’s rare for a whistleblower case to get that kind of review, and even rarer to get a win,” said Debra Katz, a Washington attorney who specializes in whistleblower cases. “Robert MacLean is a patriot for fighting this for all those years, at all those levels. It was an extraordinary victory for whistleblowers. If the court had gone the other way, it would have sent the message that the government has carte blanche to punish people who speak out.”

The judicial branch can determine only whether a fired federal employee broke the law, not whether that person was a whistleblower, so the Supreme Court decision did not put an end to the saga.

With the case still in litigation, DHS gave Mac­Lean his job back in May but declined to offer him back pay or compensation for lost promotions. They treated him like a new employee, requiring him to repeat training. He was put in a one-man class taught by instructors who didn’t join the agency until after he was fired.

In November, Administrative Judge Franklin M. Kang formally declared MacLean a whistleblower and ordered that he receive back pay. The issue of lost promotions has yet to be resolved. In a twist of irony, the TSA attempted to prevent Kang’s ruling from going public by labeling it as “sensitive security information.” MacLean got that reversed. The ink was barely dry on Kang’s order when the State Department invited MacLean to work on a project aimed at educating the people of Macedonia on the importance of government transparency.

Even now that the case has been resolved, the TSA still won’t speak about MacLean.

For months, the TSA denied MacLean’s request for a ground-based assignment. No longer the face of a movement, the agency expected him to once again be a faceless federal agent working undercover.

“He’s the most famous air marshal in the agency’s history,” Devine said. “Now he’s supposed to do undercover missions? It’s as if DHS is retaliating against Mr. MacLean for defeating them.”

Other air marshals, many of them 20 years his junior, quietly express their admiration for him and seem surprised that MacLean, who turns 46 on March 8, is being treated like a rookie. They wonder why he returned to the TSA. The answer: MacLean believes he can help the agency get better. His goal is to be elevated to a supervisory position.

On Feb. 25, in the face of further legal action from MacLean’s attorneys, the TSA temporarily removed MacLean from further flight assignments, bringing him a step closer to coming out of the shadows again.

Alan Maimon is a freelance writer based in Hopewell, N.J., and co-author, with Jim Palmer, of the upcoming book “Nine Innings to Success: A Hall of Famer’s Approach to Achieving Excellence.”

Editor’s note: A version of this story appears in the print magazine of March 6, 2016. After this story was delivered to the printer, the TSA gave MacLean a temporary ground-based job. That development has been incorporated into this version.

Original article can be found here:  https://www.washingtonpost.com

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