Air marshal whistle-blower fired in 2006 claims big win in court

Former Air Marshal Robert MacLean, fired after revealing plans to remove armed officers from some flights, is confident of reinstatement after an appeals court win.

By Dan Weikel, Times staff writer
6:32 PM PDT, May 25, 2013
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Two years after 9/11, federal Air Marshal Robert MacLean turned whistle-blower.

He revealed to MSNBC reporters that the government planned to remove armed security officers from long-distance passenger flights to reduce hotel expenses despite reports that Al Qaeda was plotting to hijack more airliners to hit targets in the U.S. and Europe.

Later, wearing a hooded sweatshirt and with only his silhouette appearing on camera, MacLean told NBC's "Nightly News" that the business suits, ties and sport coats air marshals had to wear on duty could tip off terrorists that they were present.

Congress quickly reacted to MSNBC's online story, and the plan to cut back security on commercial flights was shelved. A critical report by the Government Accountability Office eventually prompted changes in the dress code.

But MacLean was fired in 2006 for violating security rules.

Now, after a seven-year legal battle, the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., has cleared the way for the former air marshal to seek reinstatement with back pay and benefits. Late last month, the court unanimously ruled that MacLean's disclosures were covered under the Whistleblower Protection Act and requested new hearings to reconsider his firing.

The 1989 whistle-blower law prohibits retaliation against federal workers for disclosing information that exposes mismanagement, abuses of power, the waste of government money and serious threats to public health or safety.

"There were a lot of crazy arguments against me that kept getting upheld," MacLean, 43, said of his court case. "I lost a lot of faith in the system, but you have to keep fighting these things."

MacLean's attorneys, the Federal Law Enforcement Officers Assn. and government watchdog groups, such as the Project on Government Oversight, say the court ruling represents a victory for the public and whistle-blowers, who often face lengthy, unsuccessful legal battles to keep their jobs with federal agencies or federal contractors.

His attorneys contend that had the court ruled against MacLean, of south Orange County, such a precedent could have emboldened government agencies to impose broad secrecy regulations on their employees without authority from Congress, essentially stripping whistle-blowers of protections.

"This case destroys the often-repeated notion that national security is threatened by many of these disclosures," said Tom Devine, legal director for the Government Accountability Project and MacLean's co-counsel. "In this instance, secrecy might have been fatal. We could have been caught flat-footed had Al Qaeda attacked."

Officials of the U.S. Department of Justice, which is seeking to uphold MacLean's firing, declined to comment, saying it was policy not to discuss pending legal matters. Government attorneys have argued that the former air marshal threatened national security.

MacLean, married with three children, was fired after serving 14 unblemished years in the Air Force, the Border Patrol and the Federal Air Marshal Service, where he went to work in 2001 after the terrorist attacks in which airliners were used to damage the Pentagon and destroy the World Trade Center in New York.

The Transportation Security Administration began investigating MacLean in 2004, when a co-worker reported that he recognized MacLean's voice while watching him talk on NBC about the air marshals' dress code.

MacLean later acknowledged that he appeared on "Nightly News" and was also the source for MSNBC's story about the plan to remove security from airline flights.

It was odd, he said, that after his admissions the TSA left him on active duty for almost five months with access to classified information although his case was described by the head of the Air Marshal Service "as one of the most heinous leaks" related to the agency's operations.

The TSA fired MacLean on the grounds that his disclosures to MSNBC violated agency rules barring the release of "sensitive security information," which is not a classified designation.

Though the plan to cut back service was not marked sensitive when it was communicated to air marshals via unencrypted text messages, the TSA, according to court records, retroactively designated the message as "sensitive security information" under agency rules.

During the next several years, MacLean challenged his removal twice before the Merit Systems Protection Board, which adjudicates matters involving whistle-blowers.

He said that the original cellphone text about security cutbacks was not marked sensitive and that his disclosures to MSNBC were justified because removing security from flights would endanger the public.

But the board upheld MacLean's firing, stating that the rule he was fired under carried the weight of law. Congress, the panel argued, had in effect handed its authority to determine secrecy measures to the Department of Homeland Security, which runs the TSA.

The federal circuit threw out the ruling in late April on the grounds that MacLean's disclosure was not specifically prohibited by the Whistleblower Protection Act, and sent the matter back to the Merit Systems Protection Board.

Government attorneys may request that the decision be reconsidered by the federal circuit. If denied, they can appeal to the U.S. Supreme Court.

"I'm confident I will be reinstated. It's just a matter of how long the government wants to delay it," MacLean said. "It's very easy now to armchair-quarterback my actions, but given the culmination of events in July 2003, any law enforcement officer today would have done what I did."

dan.weikel@latimes.com