Ten years ago California-based Federal Air Marshal Robert MacLean informed the public about the Transportation Security Administration’s plan to cut back on marshals assigned to flights just as intelligence alarms were sounding about a threat to long distance nonstop flights possibly worse than 9/11. The disclosure and its public reaction led TSA to cancel the cutback, but MacLean was later fired for going public with his concerns after getting nowhere going up the chain of command. He’s now been vindicated by what’s seen as a major victory for the federal Whistleblower Protection Act—a judge’s ruling just days ago that the law protects employees even in at least some sensitive jobs like those in the Department of Homeland Security, unless the information constituting an illegal leak is expressly described by Congress. Dylan Blaylock with he Government Accountability Project has the story.
Last Friday, the U.S. Court of Appeals for the Federal Circuit effectively restored the cornerstone for enforcement of the Whistleblower Protection Act (WPA), the key whistleblower protection law for most federal employees. The Government Accountability Project (GAP) is hailing the decision as a major victory for federal whistleblowers, and an important judicial decision outlining that statutory free speech rights trump conflicting federal agency regulations.
The court overturned a U.S. Merit Systems Protection Board (MSPB) ruling that upheld the termination of Federal Air Marshal (FAM) and GAP client Robert MacLean. MacLean successfully warned the media, public and congressional officials of Transportation Security Administration (TSA) plans to cancel Marshal coverage during a 2003 al Qaeda terrorism plot – confirmed by intelligence agencies – that involved suicide airplane hijackings in what would have been a more ambitious effort than the tragic events of September 11, 2001.
Last Friday’s decision restores WPA rights for MacLean, as the court ruled that he did not cross the legal boundary that would negate his right to make public disclosures – specifically, there had been no specific congressional ban on MacLean’s disclosure, either directly or indirectly. The Federal Circuit sent the case back to the MSPB to decide whether MacLean reasonably believed his warning evidenced a substantial and specific threat to public health or safety. As MacLean’s whistleblowing sparked the correction of a conceded mistake that would have removed Marshals from airline flights vulnerable to hijackings, MacLean’s attorneys – GAP Legal Director Tom Devine and Lawrence Berger of the Federal Law Enforcement Officers Association (FLEOA) – are highly confident that the MSPB decision will be favorable.
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