WHISTLEBLOWERS -- A former federal air marshal last week finally
got his day in court to appeal his firing by the Federal Air
Marshal Service (FAMS) three years ago for disclosing "sensitive" but unclassified
information to the media in the summer of 2003, reports Matthew Harwood in Security Management. The whistleblower says his disclosure protected the public from vulnerabilities that
could have led to another 9-11 style attack.

Former Federal Air Marshal Robert MacLean is appealing the FAMS
decision to fire him for disclosing Sensitive Security Information
(SSI) about air marshal deployments to Brock Meeks, a reporter from MSNBC,
in August of 2003. MacLean contests that he cannot be fired for leaking
SSI since the information he leaked was not marked as such and
therefore his disclosure was constitutionally protected speech.

 

SSI is special class of protected information relating to transportation security, according to the Government Accountability Office:
 
Although it is not classified national
security information, SSI is a category of sensitive but unclassified
information ... is specifically exempted by statute from release under
the Freedom of Information Act, and that it is to be disclosed only to
covered persons on a need to know basis.

 

The Department of Homeland Security (DHS), which is the parent
organization of the FAMS, argues MacLean was fired because his
disclosure exposed a vulnerability in the aviation sector. If MacLean
wins his appeal, he will likely be reinstated or have his termination
mitigated to a suspension. DHS, however, could appeal the decision.

 

*****

In late July 2003, MacLean received a text message asking all air
marshals to cancel their hotel accommodations for their upcoming
remain-over-night (RON) flights. Intrigued, he called his Las Vegas
field office to inquire why. He was told by a supervisor from his field
officethat the directive came from FAMS headquarters and that the
agency intended to cancel all FAMS missions on long-distance flights
for 60 days to conserve money. The agency had sent the text message to
the air marshals to cancel their hotel reservations after August 3,
2003, to avoid cancellation fees.

 

These FAMS plans to cancel air marshal coverage of long-distance,
high-risk flights came just after DHS alerted FAMS of a new threat to
commercial aircraft. Only days earlier, MacLean was ordered to attend
what he describes “as unprecedented one-on-one threat briefings” at his
FAMS Las Vegas field office, where he was told of a new al Qaeda plot
to recreate another 9-11 style attack on the United States. The
unredacted DHS advisory obtained by Security Management was
labeled, “Potential Al-Qaeda Hijacking Plot in the U.S. and Abroad,”
and dated July 26, 2003. (The security weaknesses identified in the
advisory have since been shored up.)

 

The DHS advisory stated that al Qaeda was still determined to
attack the commercial aviation sector with a 9-11 style attack after
learning of visa weaknesses.

 
“The plan may involve the use of five-man teams, each of whom
would attempt to seize control of a commercial aircraft either shortly
after takeoff or shortly before landing at a chosen airport,” the
advisory stated. “This type of operation would preclude the need for
flight-trained hijackers.”

 
More ominously, the advisory warned an attack could occur before the end of summer 2003.
 

MacLean felt that cutting air marshals from the same types of
flights that were hijacked on 9-11 was irresponsible and might be
illegal. He contacted three different DHS Office of Inspector General
(OIG) field offices. At the final OIG field office in Oakland,
California, the special agent he spoke with told him that FAMS plan
“was dangerous and a violation of the law, but [that he] would not take
any action,” one of MacLean’s MSPB motions attested.

 
Believing he had no other option, MacLean anonymously contacted
MSNBC’s Meeks, who said he would immediately notify members of Congress
of FAMS plan and write a story.

The result was fast and furious with
both members of Congress and media outlets pummeling the agency for its
decision. During a press conference Sen. Barbara Boxer (D-CA) said “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.” The FAMS, under harsh criticism, revoked its
earlier decision to cut FAMS from long distance, nonstop flights.