Robert MacLean v. Department of Homeland Security (DHS)
In summer 2003, Federal Air Marshal (FAM) Robert MacLean tried to blow the whistle within the Department of Homeland Security (DHS) on an attempt to remove air marshal coverage of "high-risk" flights amidst heightened warnings based on intelligence that terrorists were planning on hijacking planes and flying them into U.S. East Coast targets -- a specific violation of the Aviation & Transportation Security Act of 2001. DHS hatched this plan due to a budget shortfall; their intention was to save money on hotel costs associated with air marshals over-nighting after nonstop, long distance flights. Air Marshal coverage would have been affected until the remainder of the fiscal year -- two months. Supervisors and the DHS Office of Inspector General rebuffed MacLean's concern, so he warned the public by going to the press.
The ageny-wide broadcasted unencrypted cellular phone text message he disclosed was not marked as "Sensitive Security Information" (SSI), the often-abused UNCLASSIFIED information control label within DHS's Transportation Security Administration (TSA) intended to protect information. The text message was sent to all agency-wide Federal Air Marshals' unprotected cellular phones instead of their cellular-ready Smart-Phones/PDAs that had password protection and encryption software. SSI regulations have vague standards for its use, and is one of many so-called "sensitive but unclassified" secrecy markings. For employees dealing with traditional CLASSIFIED information -- which is typically much more sensitive that SSI -- they must be made aware of its status so as to protect it accordingly. MacLean's disclosure helped to draw public scrutiny and congressional outrage to TSA's ill-conceived plan that rapidly led to its reversal. Also, the State Department immediately suspended immigration and visa consular programs that created security loopholes in which terrorists intended to exploit in order to carry out their suicide hijacking plots.
On April 11, 2006, MacLean was fired for his disclosure. After an unblemished record of 14 years of military and federal civil service, he was removed for the single charge of "Unauthorized Disclosure of SSI." In an unprecedented move on August 31, 2006 -- four months after his termination and three years after his disclosure -- TSA issued an "Agency Final Order" which retroactively marked his disclosure as SSI. If the U.S. Merit Systems Protection Board (MSPB) upholds MacLean's removal, these pseudo-classification markings will continually be abused to retroactively mark information as "sensitive" to then retaliate against whistleblowers, possibly decreasing the flow of critical information to the public.
U.S. Merit Systems Protection Board (MSPB) Western Regional Judge Order Granting Motion For Certification as Interlocutory Appeal and Staying Proceedings in the case of former Federal Air Marshal Robert J. MacLean v. Department of Homeland Security, February 10, 2009. [Edits and highlighted added]
"U.S. labels 2003 leaked memo 'sensitive'," By Larry Margasak, Associated Press, USA Today, May 10, 2007.
MacLean's response to Justice Department's April 2, 2007 brief, May 1, 2007.
Justice Department brief responding to MacLean's January 30, 2007 brief, April 2, 2007.
Robert MacLean v. Department of Homeland Security (DHS). 9th Circuit Brief challenging MacLean's termination for successful whistleblowing and the retroactive labeling of information as Sensitive Security Information (SSI) by DHS, January 30, 2007.
Letter from Transportation Security Administration to Representative Ken Calvert (CA), including attachments of federal code
December 5, 2006.
TSA Final Order on SSI which forced Maclean's case into the Federal 9th Circuit Court of Appeals, August 31, 2006.
DHS Homeland Infrastructure Threat and Risk Assessment Center (HITRAC) report, May 18, 2006 - This report confirms the foiled plot associated with MacLean's July 2003 disclosure. A recent Associated Press story also confirms that the Summer 2003 plot was foiled by Saudi officials.
DHS Advisory, July 26, 2003 - This warning, detailing a terrorist suicide hijacking plot, triggered the unprecedented mandatory one-on-one threat briefings to all Federal Air Marshals only a couple of days before TSA devised a plan to remove air marshals from nonstop, long distance flights to save on hotel costs. The story of this warning made the front page of the Washington Post. In addition, Senator Hillary Clinton issued an aviation security press release that responds to MacLean's disclosure. Days after MacLean's disclosure, DHS finally closed several immigration and consular visa screening loopholes that hijackers could have exploited.
For more info, see POGO's original press release on MacLean.
Chart comparing SSI with how national security classified information is used and overseen.
SSI resources, including numerous government reports
"Legislation Needed to Curb Secrecy Contracts," House Committee on Government Operations. House Report 100-991, September 28, 1988.
During the '80s there was conflict between Congress and the Executive over nondisclosure agreements which stated that employees could be penalized for disclosing "classifiable" (rather than classified) information. The primary argument against was that a whistleblower could be retaliated against by a management decision to simply retroactive decide that they disclosed classified information--though it was not classified when the disclosure took place. Ironically, the decision to mark the information as classified would take place only after a disclosure. Furthermore, this would hold employees who disclosed to a higher standard than the person responsible for marking information that should be marked classified. Ultimately, the "classifiable" aspect of the government nondisclosure policies was dropped. However, the same situation has reared its head in the MacLean case, which revolves around a retroactive decision to label information "sensitive security information," years after it was disclosed.
According to the House report from 1988.
"The Administration's most recent attempt to define 'classifiable' holds employees liable for disclosers of unclassified information, without any prior notice to them of its special status. Under Executive Order 12356, classified information is marked as such. Sec. 1.5. Even information that is in the process of a classification determination is given an interim classification marking for a 30-day period. Executive Order 12356, Sections 1.1(c), 1.(e). The employee is, therefore, aware of its special status. 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. As Congresswoman Boxer noted at the hearings, 'I am concerned this will force would-be whistleblowers to have to ask their superiors about classification determinations. This would act to stop the whistleblower.'" (emphasis POGO's)