Whistleblower's dilemma
Former Federal Air Marshal Robert MacLean has been defending his character for more than a decade 鈥� as well as his decision to reveal Transportation Security Administration plans to effectively cancel air marshal coverage on long-range flights during a period of increased security warnings.
When he couldn鈥檛 find a route to prevent the TSA from going forward with its cash-saving plan in 2003, he went to the press. His disclosure provoked public and congressional outrage and prompted the TSA to reverse course. Because of Mr. MacLean鈥檚 decision to speak out, air marshal coverage was never cancelled. It did, however, cost him his job and a great deal more.
More than a decade after MacLean鈥檚 leak surfaced, the role of whistleblowers and how they are treated after revealing potentially harmful information about government agencies or private companies remains a hotly contested subject. Edward Snowden is perhaps the most controversial figure and the center of the debate. While there are those who hold up the former National Security Agency contractor whose leaks resulted in spy agency reforms as a whistleblower deserving protection, many others say he鈥檚 a traitor deserving federal prosecution.
But since Mr. Snowden鈥檚 leaks, federal lawmakers have taken a harder look at existing whistleblower protections with an eye toward expanding safeguards. In February, a bipartisan group of lawmakers formed the Whistleblower Protection Caucus to develop new ways of protecting employees willing to expose public or private sector wrongdoing.
For MacLean, his conversation with a reporter set off a lengthy and costly legal ordeal that led all the way to the US Supreme Court, ultimately prompting the Department of Homeland Security (TSA is part of Homeland Security) to withdraw charges against him in May 2015.
Although now reinstated with back pay, MacLean doesn鈥檛 know whether he鈥檒l ever fly again as an air marshal. DHS has placed him on restricted duty indefinitely. What鈥檚 more, he鈥檚 been ordered to receive academy training, but classes have been frozen for the foreseeable future. MacLean is pursuing a lawsuit against TSA over pay and promotion issues.
As a result of his ordeal, McLean says the only way to ensure more people are willing to risk coming forward to expose problems is to afford whistleblowers stronger protections. Passcode recently spoke with him about his decision to go public and the consequences that followed.Edited excerpts follow.
Passcode: What lead up to the decision to go public with your complaints about the TSA?
MacLean: In the summer of 2002, the TSA had implemented a strict business clothes policy where we had to wear a suit and tie or we had to wear slacks and a sport coat jacket, and we had to board before the passengers in plain view. We were getting outed very easily and were pretty upset with that. What鈥檚 the point in 鈥淲e鈥檙e supposed to be covert,鈥� if everyone knows who we are and where we鈥檙e seated?
On July 26, 2003, there was an emergency hijacking memo that was distributed and every air marshal had to walk into his field office and obtain an emergency hijacking briefing. The threat was that terrorists were going to circumvent the State Department visa screening process. If you were connecting through the United States, you didn鈥檛 have to go through the usual screening requirements because you weren鈥檛 considered a threat 鈥� you were just flying into an airport in the US and then catching another flight out of the US. The Al Qaeda hijackers were going to exploit that and sneak weapons using camera equipment. We were told, 鈥淭his is it, hopefully you can thwart this.鈥�
Two days later, every air marshal got a text message. We have two different communication devices issued to us 鈥� we had this $22 million smartphone system that was encrypted so we could receive classified information on it. And then we had just a plain, unsecured cellphone. The TSA chose to send this text message to the unsecured cellphones and the message said that all flights requiring hotel rooms are going to be indefinitely cancelled.
Passcode: What did you do next?
MacLean: I called air marshals that I knew and everyone thought it was a test or a joke 鈥� or a mistake. That鈥檚 when I contacted the Federal Air Marshal Service office and spoke to a supervisor. After that I called the Department of Homeland Security Inspector General hotline. I described my concerns and this person asked me,鈥淲ell, where are you located?鈥� I said, 鈥淪outhern Nevada.鈥� So I was given a phone number to contact an office in San Diego. I contacted that office and they told me they were just an audit office and I needed to contact a criminal investigative division. So they gave me a number for an office in Oakland and there I spoke to a criminal investigator who was on detail from the Federal Emergency Management Agency and he politely told me, 鈥淭hese things happen. Agencies run out of money and there鈥檚 nothing that the Inspector General can do.鈥�
Passcode: And so that鈥檚 when you went to the media?
MacLean: I spoke with the Washington correspondent for MSNBC, Brock Meeks. So when he spoke to me again, he said, 鈥淵es, I confirmed it.鈥� And he said he was in touch with Hillary Clinton, Barbara Boxer, Hal Rogers, Chuck Schumer, and John Kerry and several others.
The story came out and it was headline news pretty much all week. I remember seeing it all over CNN, Fox News. I saw Tom Ridge, who was the secretary of DHS at the time 鈥� he had to go and explain that it was a 鈥渕istake.鈥� You could see that TSA was initially denying it and toward the end of the day they issued a statement that it was a mistake. And then they cancelled the plan before it ever went into effect.
Passcode: You had a short time frame 鈥� less than two days 鈥� to determine whether to blow the whistle or not. Do you feel as though you had enough information about your rights and the possibility that the government might retaliate against you?
MacLean: At the time I had no idea what the term whistleblower was 鈥� I didn鈥檛 even know there was a whistleblower law. I didn鈥檛 even know there was an Office of Special Counsel to report whistleblower exposures to. That鈥檚 why I had to identify myself to MSNBC so that they could verify the information but it was all done on the agreement that I remain anonymous. I knew that if it was connected to me, it would pretty much make my life miserable, which it did. Eventually.
Passcode: So even then there was a bit of fear.
MacLean: It鈥檚 pretty cultural since I was in the Air Force and I was a Border Patrol agent before being an air marshal. You don鈥檛 speak against power. You try to keep things in-house. But I saw a lot of ridiculous things when I was in the Air Force and Border Patrol. A lot of it was pretty evident it was just bureaucratic problems. But at TSA we saw our managers just wasting money on the most outrageous projects. After 9/11 we just saw a blank check was given to the TSA and managers to just do whatever they want. They overdrew and the check bounced.
Passcode: What was the TSA鈥檚 response after that initial MSNBC story broke?
MacLean: Supervisors told all of us that the Patriot Act was going to be used to ferret out who the leakers were. That was frightening but I wasn鈥檛 worried about it because I only contacted MSNBC using a calling card on a payphone, although I was concerned about Meeks. But then their threat created a media uproar, so the Inspector General launched a two-pronged investigation 鈥� what caused the agency to blow its budget and which supervisors and managers were telling air marshals that the Patriot Act was going to be used to go through everyone鈥檚 e-mails and phone records.
Passcode: When did the TSA realize you were the one who had blown the whistle?
MacLean: NBC Nightly News was holding a 9/11 anniversary special and they wanted to do a segment on air marshals鈥� identities getting exposed. They contacted me and I cloaked my appearance but somebody recognized my voice. In May 2005, Internal Affairs agents came in to interview me and they asked, 鈥淲ere you the guy who went on this television show?鈥� I admitted to it. And then they pressed me: 鈥淲ell, why did they contact you of all people? Why did they have your contact information?鈥� And I said because I had contacted them for prior stories that I was a source for. And they said, 鈥淵ou need to tell us all of the stories you were a source for.鈥� I had an envelope in my hand with all of the articles and I just handed it to them. Prior to the interview my attorney told me that, 鈥淭hey鈥檝e got you and who knows whether MSNBC has outed you or the Patriot Act outed you, but you need to be 100 percent forthright because if they later discover you withheld any information, that鈥檚 100 times worse. The cover-up is worse than the crime.鈥�
But here鈥檚 the thing. If you read the government鈥檚 briefs about me, they describe me as reckless, dangerous, one called me heinous. So I admit to what they termed a 鈥渉einous, reckless, dangerous article,鈥� [but] for five months TSA took no action against me. They didn鈥檛 take my gun away. I was flying armed missions for five months. It took five months for managers within the TSA, managers within Internal Affairs, and all of the attorneys in the Department of Justice, Homeland Security and the TSA to finally figure out a way to concoct a charge to fire me. And that鈥檚 what they eventually did.
Passcode: TSA retroactively labeled the information you disclosed as sensitive security information, charged you with 鈥渦nauthorized disclosure of sensitive security information,鈥� and fired you on April 11, 2006. Ultimately, this one charge is what you fought all the way to the US Supreme Court until a decision was handed down on Jan. 21, 2015. What helped the Supreme Court decide in your favor?
MacLean: The Whistleblower Protection Act clearly says that you can make any disclosure you want 鈥� any disclosure. You don鈥檛 have to go through the chain of command to make a whistleblower disclosure. You don鈥檛 have to go to the Inspector General. You don鈥檛 have to go to the Office of Special Counsel. You can go to anybody. You can go to Congress, you can go to the media. You can type it online, you can go to WikiLeaks. But you can鈥檛 do it in a way that breaks the law. So if you release confidential, secret, or top secret information, that鈥檚 illegal because it鈥檚 classified information governed by law. Sensitive security information is just a TSA regulation. The message not only wasn鈥檛 marked, but TSA sent it through a means that was not secure when they could have sent it secure. So the Supreme Court simply said, 鈥淥K, MacLean violated a regulation and that鈥檚 not a violation of the law.鈥�
Passcode: Although the Supreme Court decision prompted DHS to withdraw its charge against you on May 3. You鈥檙e now reinstated, and have been promised back pay. What鈥檚 next for you?
MacLean: We tried mediation, but TSA only wanted to mediate on attorney fees 鈥� they basically want a discount on paying my attorney fees. But they refused to discuss my lost promotions and I have peers who have been promoted three times. So now I鈥檓 pursuing litigation against TSA because it could set a dangerous precedent for whistleblowers.
Passcode: The Whistleblower Enhancement Protection Act of 2012 came years after your 2003 disclosure, are there any rights that WEPA provides that you wish you had been entitled to?
MacLean: The new law would have done nothing for me. It would have maybe given me a little extra money for pain and suffering damages, but that鈥檚 it. And I think that鈥檚 capped at like $300,000.
But here鈥檚 my rant on federal whistleblower protections. To me, the whole system is a crapshoot because federal whistleblowers 鈥� and I鈥檓 talking about federal employees who are not in the intelligence community 鈥� don鈥檛 have access to a jury trial. And in my opinion whistleblowers wouldn鈥檛 be so scared to death of appealing their cases or making disclosures if they had a jury trial. When you expose something really high-level 鈥� we鈥檙e talking about millions, billions of dollars 鈥� you piss off everybody who could possibly help you.
Passcode: As someone who has faced the difficult decision of becoming a whistleblower 鈥� and spent years trying to protect himself and uphold the public interest at the same time 鈥� what advice would you offer someone thinking about making a disclosure?
MacLean: It鈥檚 going to change your life. It鈥檚 highly likely you鈥檙e going to go broke. You鈥檒l never be able to find another job, and all of those friends that you made in the workplace? They鈥檙e not going to help you. They can鈥檛 because they could get themselves into trouble. It鈥檚 the biggest risk you can possibly take.
Editor鈥檚 note: This story was updated after publication to correct the network that aired a 9/11 special on which Robert MacLean appeared. It was NBC. Also, the story was updated to clarify the status of Mr. Maclean鈥檚 mediation with the TSA.
