Robert MacLean

Robert J. MacLean (born March 8, 1970) is a former Transportation Security Administration air marshal. On July 28, 2003, he made disclosures to national media about proposed TSA operational changes that he believed would have reduced aviation security. He was fired on April 11, 2006, and has claimed whistleblower protections.

On April 26, 2013, a unanimous panel of three United States Court of Appeals for the Federal Circuit Judges found that MacLean was entitled to protections under the Whistleblower Protection Act and remanded the case to the Merit Systems Protection Board for further proceedings.

Early career


MacLean served in the U.S. Air Force from 1988 to 1992. In the Air Force, MacLean was a nuclear weapons maintenance technician for Intercontinental Ballistic Missiles (ICBMs). He was awarded the Basic Training Honor Graduate Ribbon, Outstanding Unit Awards, the National Defense Service Medal, and the Air Force Good Conduct Medal

After his discharge, MacLean entered the U.S. Border Patrol as a border patrol agent and served almost six years in its San Diego Sector as a trainer. MacLean was recruited by the Federal Aviation Administration's Federal Air Marshal program immediately after the September 11 attacks. MacLean was in the first air marshal class to graduate after the September 11, 2001 attacks. After subsequently hiring a significant amount of new air marshals, the FAA program was moved under the new Department of Homeland Security's Transportation Security Administration and called the Federal Air Marshal Service.

Whistleblowing and subsequent outrage from Congress forces TSA to cancel its plans
On July 28, 2003, MacLean told an NBC News reporter that every federal air marshal in the U.S. and in his Las Vegas office received an unsecured text message ordering them to cancel their hotel reservations from August 2, 2003 and on. MacLean had been told that in an effort to reduce spending, air marshals would be removed from many long-distance flights that required hotel stays. The next day, MSNBC would report that several sources would confirm that every Federal Air Marshal was sent this text message. The TSA sent the unmarked message to unsecured cellular phones as opposed to the password-protected encrypted cellular Smartphone or Personal digital assistant (PDA).

MacLean said he previously brought his concerns to his TSA managers and a Department of Homeland Security Office of Inspector General field agent, but was rebuffed, leading him to make contact with national media. MacLean was quoted, anonymously, along with other unnamed sources, in a story written by Brock N. Meeks, Chief Washington correspondent for MSNBC.com.

Over a dozen bipartisan Members of Congress publicly protested the TSA's plan, including Hillary Rodham Clinton, John Kerry, and Chuck Schumer.

TSA first denied that air marshals would have been shifted, but the morning after MacLean's disclosure, the agency changed its plans and dropped the plan.

TSA investigation and self-identification
Immediately after the disclosure, TSA managers began an investigation to determine the source of the leaks. Department of Homeland Security Inspector General Clark Kent Ervin later confirmed that TSA and FAMS managers threatened air marshals with prosecution for talking to the press. Weeks after MacLean made the disclosure, he stopped being anonymous, founded the Federal Law Enforcement Officers Association's Federal Air Marshal Service agency chapter and accepted the position of Executive Vice President.

On May 4, 2005, MacLean admitted to internal affairs agents that he appeared on the September 9, 2004 NBC Nightly News television segment. He also admitted to being a source for the July 29, 2003 MSNBC.com article stemming from the text message the TSA would retroactively designate as SSI and accuse him of failing to personally designating the text message, sent to his unsecured cellular phone, as Sensitive Security Information (SSI) — a TSA Sensitive but unclassified information marking. Despite admitting to the July 29, 2003 MSNBC.com disclosure, no action was taken against MacLean, i.e. restricted to administrative duty, placement on administrative leave, suspension of his Top Secret Security clearance, for almost five months after.

Firing by TSA and administrative appeals
MacLean was fired by the TSA on April 11, 2006, on the grounds that he disclosed prohibited security information. On August 31, 2006, more than six months after he was fired, the TSA retroactively marked MacLean's July 2003 disclosure as being SSI, an unclassified information category.

MacLean appealed this decision to the Merit Systems Protection Board, but after the TSA issued its August 31, 2008 "Final Order on Sensitive Security Information," the agency argued that the MSPB had no jurisdiction to challenge an "Agency Order." The MSPB Administrative Judge dismissed the appeal without prejudice so MacLean could challenge the Agency Order in the United States Court of Appeals for the Ninth Circuit. On September 16, 2008, a Ninth Circuit panel ruled that the Transportation Security Administration was within its authority to retroactively classify the information as SSI, but found that MacLean could contest his termination before the MSPB under the authority of the Whistleblower Protection Act by arguing that he had a "good-faith belief" that the information did not qualify as "sensitive security information."

On June 22, 2009, a two-person MSPB panel declared that disclosures of SSI cancel out Whistleblower Protection Act protections. On May 12, 2010, MSPB administrative law judge Franklin M. Kang issued an Initial Decision to uphold MacLean's removal. MacLean appealed the decision to a 3-member appellate MSPB panel in Washington DC, but on July 25, 2011, the full panel denied all of MacLean's Whistleblower Protection Act defenses and affirmed the TSA's decision to terminate him.

Appellate court decision
A unanimous panel of three United States Court of Appeals for the Federal Circuit Judges ruled in favor of MacLean on April 26, 2013. The court ruled that MacLean's disclosure did not violate the law and he may have defenses under the Whistleblower Protection Act of 1989 (WPA). In a concurring decision, Judge Evan Wallach wrote "Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public."

Government appeals to all of the federal appeals court circuit judges
On July 10, 2013, the government filed an appeal of the United States Court of Appeals for the Federal Circuit's decision with a "panel rehearing and rehearing en banc" petition. On August 30, 2013, the entire court denied the government's petition without comment.

MacLean's attorney, Thomas M. Devine, told CNN News that the government can now either petition the Supreme Court of the United States or go back to the United States Merit Systems Protection Board and argue that MacLean did not have a "reasonable belief" that the TSA's operational plan was a danger to public safety or in violation of the law making "nonstop, long distance flights, such as those targeted on September 11, 2001" a priority for air marshal coverage, the Aviation and Transportation Security Act (49 USC § 44917(b)).

U.S. Solicitor General opens docket in U.S. Supreme Court
On November 18, 2013, United States Solicitor General Donald Verrilli Jr. requested from Chief Justice of the United States John Roberts a 30-day extension to file a writ of Certiorari on behalf of the United States Department of Homeland Security. Chef Justice Roberts granted Solicitor General Verrilli's request. The government's writ of certiorari is due December 28, 2013.