Robert MacLean: Homeland Security Whistleblower

By NICK SCHWELLENBACH and DANIELLE BRIAN

At the end of July, Robert MacLean learned the outcome of over a year of waiting. He was waiting on a second ruling from the relatively obscure and awkwardly named Merit Systems Protection Board (MSPB, or the “Board”). The three-member Board in Washington, DC, is an administrative quasi-court that handles federal government whistleblower claims of retaliation, among other things. MacLean is a former federal air marshal who blew the whistle in July 2003 on his agency, the Transportation Security Administration, or TSA. After lengthy reviews by the U.S. Court of Appeals for the Ninth Circuit and two by this Board, the first one in 2009, MacLean lost his claim that he was retaliated against.

There are important takeaways from the MSPB’s ruling.

First, the ruling should put to rest any doubts about whether MacLean is a whistleblower. Although he lost, the Board wrote that the TSA does not dispute that MacLean blew the whistle to the media, that his whistleblowing sparked outrage in Congress and stopped what the TSA intended to do that was believed to create a homeland security risk, and that his termination was due to his whistleblowing. MacLean blew the whistle on a TSA plan to reduce air marshal coverage of international and long-distance commercial flights two days after the federal government was circulating warnings of a heightened risk of an Al-Qaeda suicide hijacking plot to exploit a visa and screening loophole—the TSA disputed none of this.

It’s also worth noting that no one, not even the TSA, disputes that MacLean spoke with the Department of Homeland Security Office of Inspector General (IG) about his concerns before going to the media, but that MacLean felt the IG did not seem interested in his concerns. The TSA also does not dispute that the information MacLean shared with the media was not marked as sensitive or classified in any way. It is not in dispute that the basis for his termination was the release of information that was not marked as sensitive or classified.

If you have any doubts about my characterization of the facts that are not in dispute, please read pages 2 through 4 of the Board’s July 25, 2011 ruling in Robert J. Maclean v. Department of Homeland Security.

Second, the ruling underscores just how weak and ineffectual current whistleblower protections are. What is in dispute in this case is whether MacLean deserves protection under the Whistleblower Protection Act. In general, the weakness of the law is why many whistleblowers do not win under the Board, or in appeal before the U.S. Court of Appeals for the Federal Circuit. Just because a whistleblower does not win before the Board does not mean they are not a whistleblower. They simply have been denied protection under the current law.

Specifically in MacLean’s case, the Board said there are no whistleblower protections available to him under the law if he publicly disclosed information “specifically prohibited by law” from disclosure to the public. But there is an important additional twist here, which brings us to…

The third key takeaway: the ruling highlights major weaknesses in policies regarding the marking of unclassified information and the burden placed on potential whistleblowers. There is a dispute over whether or not TSA employees should be able to be retaliated against for mishandling information that could be construed as “Sensitive Security Information” (SSI) even if it is not marked as such at the time of disclosure. The Board basically ruled that it didn’t matter whether the information was marked SSI or not—that MacLean should have known better. The Board wrote, “the outcome of this case does not turn on whether the appellant credibly testified that he did not know the [Remain Overnight] directive was SSI when he disclosed it to the MSNBC reporter.”

Congress, however, has argued otherwise. From a House of Representatives report in the late 1980s:

Without the classification markings on unclassified information, however, an employee cannot be sure that the nondisclosure agreements' restrictions apply to that material. Consequently, they must check with their supervisors, thereby alerting them to the disclosure. That invites a chilling effect.

A system outlined in the MSPB ruling—in which it doesn’t matter if information is marked as something that should be protected at the time it is disclosed—invites abuse by the executive branch. This is the main reason why POGO has long been an advocate of MacLean—we also think his whistleblowing itself was worthwhile.

To explain the policy implications further: It is bad enough that national and homeland security whistleblowers lose their jobs and are prosecuted when they blow the whistle in a system that virtually everyone says is awash in vast overclassification. Much of the information that is marked as classified, or as SSI in the aviation security world, is innocuous and/or should not be marked. Now, whistleblowers working in national security or aviation security must be prepared to be told that information that is not marked could later be deemed classified or sensitive and thus can be utilized as a reason to retaliate against them. Of course, whistleblowers could try to work solely within the system, a system that often fails to adequately investigate their allegations and, when it does, often does nothing to address the substantiated problems. These failures of the system are often why whistleblowers take great risks and go to the media.

At the end of the day, the MacLean case is important because it helps define the parameters of homeland security employee free speech rights. The Board ruling is troubling because we believe it shifts an unreasonable burden on TSA employees to know what information could be considered secret—and thus used as a reason by management to retaliate—even if the information is not labeled as secret at the time.

Nick Schwellenbach is POGO's Director of Investigations. Danielle Brian is POGO's Executive Director.

Comments

[data center recovery]

nice post thanks for the info great work

[Robert MacLean]

The story made the front page headline (above the fold) in yesterday's Orange County Register local section.

You can click above on my name to see the image.

[Gregg S]

You think whistleblowing is wortwhile?
Try telling that to my family! It was the biggest mistake of my life! Can POGO warn other potential whistleblowers of the danger expecialy with OSHA whistleblower protection program!
Why did POGO not post my last comment?
Im running out of time.
My god even my second OSHA 11c investigator blasted OSHA whistleblower protection program!
There is no justice or protection for whistleblowers why cant you just post this truth?
Gregg S
PROUD NAVY DAD

[Gregg S]

becoming a whistleblower with OSHA ON 3/11/09 and illegaly fired for it on 4/20/09 was the biggest mistake of my life. after warning my employer through the complete chain of command i contacted OSHA only to find out first hand how weak OSHA is at protecting whistleblowers!Even after two more technicions came forward and contacted OSHA.one 15 months after me and fired two months later,third five months later i do not know his status yet.you think OSHA would listen.Then i found out why not first hand with the second OSHA 11C investigator who turned out to know my brother where they hung out together on a street corner in philadelphia in the 70s.This investigator was one of the new hires and i guess he felt comfortable to talk and boy did he! Let me tell potenital whistleblowers out there now KEEP YOU MOUTH SHUT DO NOT DESTROY YOUR CAREER AND FAMILY!
This ivestigator stated even with the extra investigators there hireing were still overwhelmed thats why i cant spend much time on your case.There is not enough space on this comment secion to put what else he stated or even how much evidence we provided OSHA!It does not work it should be called "employer protection program" I posted just some of my case on YOUTUBE under(OSHA whistleblower)in four parts.
The videos do not even cover how we were retaliated against.They will come later.Im tired and running out of time ,trust me dont do it
Gregg S
PROUD NAVY DAD

[Greg Williams]

Robert, Nick & Danielle,

Keep up the good work. Without you, we'd be a poorer, less safe country.

Greg

[Robert MacLean]

The U.S. Court of Appeals for the Ninth Circuit (9th), all of the Western Regional U.S. Merit Systems Protection Board (MSPB) attorney examiners, the full MSPB in Washington DC, and the Transportation Security Administration never disputed that I went to a supervisory and the Oakland Department of Homeland Security Office of Inspector General (DHS/OIG) after calling their 1-800 hot-line and their San Diego audit office.

Even when questioned by the TSA lawyer, I NEVER stated that I attempted to go to the U.S. Office of Special Counsel or Congress -- only the three DHS/OIG offices.

From the 9th:

"He raised this concern with his supervisor, who did not make further inquiry. MacLean then attempted unsuccessfully to alert the Office of Inspector General."

http://www.ca9.uscourts.gov/datastore/opinions/2008/09/15/0675112.pdf"]http://www.ca9.uscourts.gov/datastore/opinions/2008/09/15/0675112.pdf

"He raised his concerns with his supervisor and with an employee in the agency’s Inspector Generals office but was not satisfied with the responses he received. Id. at 84-88."

http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=628202&version=630085&application=ACROBAT"]http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=628202&version=630085&application=ACROBAT

[Nick]

Joe,

Great points, I'm glad you've made them. I did not intend for this to a comprehensive analysis.

Julia,

The name "Merit Systems Protection Board" isn't particularly catchy, and I don't think I'm going out on a limb by saying most people who are not federal government employees have never heard of it.

My understanding is MacLean did not make as much money as you claim in his separate legal dispute with MSNBC. And after lawyers' fees and taxes, MacLean received a small fraction of the amount you assert and is now struggling financially. However, either way, it is immaterial to the issues at hand. These issues can affect many whistleblowers working in the aviation security context who deal with unclassified information.

The MSPB itself indicates that had SSI not been involved in this case, MacLean would have had an outcome similar to Teresa Chambers earlier this year. She won. According to the MSPB decision:

"...the case of Chambers v. Department of the Interior, 602 F.3d 1370 (Fed. Cir. 2010), while appearing to have some similarity to this case, is distinguishable. Ms. Chambers, like the appellant herein, publicly disclosed information about the deployment of law enforcement officers. Id. at 1378. Ms. Chambers’s disclosure of a substantial and specific danger to public health or safety, id. at 1379, was protected under 5 U.S.C. § 2302(b)(8)(A)(ii), however, because it was not 'specifically prohibited by law.' By contrast, while the appellant was also arguably disclosing a substantial and specific danger to public health or safety, his disclosure cannot similarly be protected under 5 U.S.C. § 2302(b)(8)(A)(ii) because it contained SSI, the disclosure of which was 'specifically prohibited by law' under a regulatory nondisclosure scheme mandated by Congress."

Also, whistleblowers often do disclose information to the media. The two things are not mutually exclusive. Case in point: Dan Ellsberg. The issue here is: when are whistleblowers entitled to protections under the law and when are they not. The issue is not whether they blew the whistle.

Finally, we have not rejected any cases because of MacLean.

[Joe Carson]

Your analysis lets too many responsible parties "off the hook." Specifically: Was Robert MacLean trained in the all the various ways he could lawfully disclose SSI? No.

Has MSPB conducted the special studies of TSA that should have revealed that the agency head was not complying with his duty to prevent PPPs because (if for no other reason) MacLean was not trained in how to lawfully disclose SSI? No.

And where, oh where, has OSC been? It could have intervened, made the arguments you have, and could have made a difference.

[Julia Davis]

Let me get this straight, POGO refers to the same entity they want to invest with even MORE power in the pending whistleblowing legislation, the WPEA, as "the relatively obscure and awkwardly named Merit Systems Protection Board"? Also, since MacLean never made any formal complaints to the OIG/OPR/OSC or Congress and went straight to the media, he is a leaker and not a legitimate whistleblower. Since he made a lot of money because of his firing and falsely claimed to be destitute, he is not even an honest leaker. Sorry, this is not the kind of a case POGO and GAP should be touting. How many cases did POGO and GAP reject based on MacLean's "investigating and vetting" them? What made him such an authority to investigate other cases, when he doesn't qualify as a whistleblower himself?