Whistleblower's dilemma

Before Snowden, Robert MacLean’s leak ruined his career. Now, he’s calling for stronger whistleblower protection.

Former Federal Air Marshal Robert MacLean has been defending his character for more than a decade — 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’t 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’s 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’s 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’s a traitor deserving federal prosecution.

But since Mr. Snowden’s 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’t know whether he’ll ever fly again as an air marshal. DHS has placed him on restricted duty indefinitely. What’s more, he’s 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’s the point in “We’re supposed to be covert,” if everyone knows who we are and where we’re 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’t have to go through the usual screening requirements because you weren’t considered a threat — 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, “This is it, hopefully you can thwart this.”

Two days later, every air marshal got a text message. We have two different communication devices issued to us — 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 — or a mistake. That’s 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,“Well, where are you located?” I said, “Southern Nevada.” 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, “These things happen. Agencies run out of money and there’s nothing that the Inspector General can do.”

Passcode: And so that’s 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, “Yes, I confirmed it.” 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 — he had to go and explain that it was a “mistake.” 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 — less than two days — 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 – I didn’t even know there was a whistleblower law. I didn’t even know there was an Office of Special Counsel to report whistleblower exposures to. That’s 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’s pretty cultural since I was in the Air Force and I was a Border Patrol agent before being an air marshal. You don’t 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’s 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’t 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 — 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’s 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’ 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, “Were you the guy who went on this television show?” I admitted to it. And then they pressed me: “Well, why did they contact you of all people? Why did they have your contact information?” And I said because I had contacted them for prior stories that I was a source for. And they said, “You need to tell us all of the stories you were a source for.” 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, “They’ve 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’s 100 times worse. The cover-up is worse than the crime.”

But here’s the thing. If you read the government’s briefs about me, they describe me as reckless, dangerous, one called me heinous. So I admit to what they termed a “heinous, reckless, dangerous article,” [but] for five months TSA took no action against me. They didn’t 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’s what they eventually did.

Passcode: TSA retroactively labeled the information you disclosed as sensitive security information, charged you with “unauthorized disclosure of sensitive security information,” 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 — any disclosure. You don’t have to go through the chain of command to make a whistleblower disclosure. You don’t have to go to the Inspector General. You don’t 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’t do it in a way that breaks the law. So if you release confidential, secret, or top secret information, that’s illegal because it’s classified information governed by law. Sensitive security information is just a TSA regulation. The message not only wasn’t 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, “OK, MacLean violated a regulation and that’s not a violation of the law.”

Passcode: Although the Supreme Court decision prompted DHS to withdraw its charge against you on May 3. You’re now reinstated, and have been promised back pay. What’s next for you?

MacLean: We tried mediation, but TSA only wanted to mediate on attorney fees – 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’m 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’s it. And I think that’s capped at like $300,000.

But here’s my rant on federal whistleblower protections. To me, the whole system is a crapshoot because federal whistleblowers — and I’m talking about federal employees who are not in the intelligence community — don’t have access to a jury trial. And in my opinion whistleblowers wouldn’t 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 — we’re talking about millions, billions of dollars — you piss off everybody who could possibly help you.

Passcode: As someone who has faced the difficult decision of becoming a whistleblower — and spent years trying to protect himself and uphold the public interest at the same time — what advice would you offer someone thinking about making a disclosure?

MacLean: It’s going to change your life. It’s highly likely you’re going to go broke. You’ll never be able to find another job, and all of those friends that you made in the workplace? They’re not going to help you. They can’t because they could get themselves into trouble. It’s the biggest risk you can possibly take.

Editor’s 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’s mediation with the TSA.