Latest ruling a 'vindication' for fired federal air marshal

[Bob Carswell]

If ever a barrel-chested man with a history of law enforcement
work were to do the Snoopy dance, it would be Robert MacLean.

For seven years, the question of whether fired federal air
marshal MacLean is hero or villain–

whether he endangered the flying public or helped protect it –
has been grinding ominously through the legal system. Is a
federal employee’s ultimate loyalty to the public, or to the
agency he works for? What government secrets must he keep, even
if he foresees terrible danger on the horizon?

This saga began in 2003, after MacLean received an alarming
Department of Homeland Security alert about a possible suicide
hijacking plot that resembled 9/11. Just days later, he received
a text message from the Transportation Security Administration,
saying that overnight missions involving federal air marshals
were being scrapped for several weeks and he should cancel hotel
reservations immediately so the government wouldn’t be charged
cancellation fees.

That, thought MacLean, was crazy. The 9/11 hijackers targeted
long-distance flights because they could do the most damage.
He’d later say in court papers that pulling air marshals from
such flights, precisely when there was warning of a possible
attack, was gross mismanagement – and a “specific threat to
public safety that could lead to catastrophic loss of life.”

MacLean protested to his bosses. Then to their bosses. Finally,
he talked to a reporter for MSNBC. Fallout was fast and furious.
Lawmakers decried the idea as foolish, officials backtracked
and, ultimately, overnight missions continued.

All’s well that ends well? Not quite. Nearly three years later –
in April 2006 (after MacLean became vice president of the air
marshals’ organization and was tussling with management over a
1960s-era dress code that screamed, “Federal air marshal! Aim
here!”) - MacLean was fired from his job for disclosing
“sensitive security information” to the media. He was not
protected by whistleblower laws, judges ruled again and again,
because the information he disclosed was by law a TSA secret.

He fought, but decision after decision went against him. Until
now.

Last week, the United States Court of Appeals for the Federal
Circuit threw out decisions upholding MacLean’s dismissal and
commanded lower officials to concentrate on whether MacLean had
a legitimate fear that the public could be harmed.

It is being hailed as “a major victory for whistleblowers” which
has “restored the cornerstone for enforcement of the
Whistleblower Protection Act – the supremacy of its statutory
free speech rights over conflicting agency secrecy regulations,”
according to the Government Accountability Project, which
defended MacLean through the long ordeal.

“It’s the Waterloo battle in Mr. MacLean’s case, and it’s a
double victory because it closes one of the most frustrating
loopholes that still remained in the Whistleblower Protection
Act,” said Tom Devine, legal director for the Government
Accountability Project.

Up until now, each ruling thwarted MacLean’s defense by ruling
that he wasn’t eligible for free speech protections. Now, Devine
said, the ruling will be whether he’s worthy. “And we’re very
confident about that, since the government responded by saying
that it had made a mistake and correcting it within 24 hours.
That’s a slam-dunk vindication,” Devine said.

Federal Circuit Judge Evan J. Wallach went so far as to submit a
written concurrence to the federal decision that serves as an
exclamation point: “Mr. MacLean presented substantial evidence
that he was not motivated by personal gain but by the desire to
protect the public. He averred proof that he sought direction
from his supervisors before making allegedly protected
disclosures. While I join in the analysis and the result of the
majority opinion, I concur to emphasize that the facts alleged,
if proven, allege conduct at the core of the Whistleblower
Protection Act.”

The TSA/Department of Homeland Security is reviewing the
decision, spokeswoman Lorie Dankers said, declining further
comment.

http://www.ocregister.com/articles/maclean-506405-federal-
law.html