Last week, the United States Supreme Court heard oral arguments in the case of Department of Homeland Security v MacLean. It involves the appeal by the government of a circuit court decision finding that Robert MacLean, a former Air Marshal, may qualify as a whistleblower protected under the Whistleblower Protection Act.
In 2003, Mr. MacLean and other Air Marshals received a secret alert that there was a terrorist threat targeting air flights. Days later, he received another alert that coverage of flights by Air Marshals would be pulled due to budget constraints. He informed higher-ups of his concern that this decision would endanger public safety, but to no avail. He pushed further, alerting the press and members of Congress of the threat, resulting in the agency’s reversal of its decision to pull coverage. However, after an internal investigation, Mr. MacLean’s identity as the whistleblower was uncovered, and he was fired. Here is part one of our interview with Robert MacLean.
Whistleblower Insider: Tell me a bit about your background.
MacLean: I grew up a military brat – both my parents were military veterans. When I was 17, I enlisted in the Air Force as a nuclear weapons specialist for four years, after which I started college. But then my mother was involved in a bad car accident that left her as a quadriplegic with severe brain damage, so I dropped out to take care of her. As soon as I got everything settled I joined the Border Patrol, where I became a Border Patrol Agent, and I was there for approximately six years, serving as a national recruiter, field training officer, and in other roles. And then the 9-11 attacks hit us and I was specially recruited to be in the first class of 35 Air Marshals to graduate after the 9-11 attacks. My job description was to conduct safety and security investigations for aviation security.
Whistleblower Insider: Was this a program created specifically in response to the September 11 attacks?
MacLean: The program already existed. It was called the Federal Air Marshal Division, within the Federal Aviation Administration. At the time there were 33 Air Marshals, they called them Civil Aviation Security Specialists, that were assigned to the Federal Air Marshal Division. Pretty much every single one of the 33 members were former Tier 1 Special Forces operators, which is Navy Seal Team 6, Army Delta, Air Force Pararescue, and Air Force Combat Controllers.
Whistleblower Insider: So how big did this office become in its early years?
MacLean: It grew to the thousands. It grew to be absolutely huge.
Whistleblower Insider: So, we’re in what, the end of 2001, the beginning of 2002?
MacLean: Yes, I started to fly missions right after Thanksgiving 2001.
Whistleblower Insider: That was right when we went into Afghanistan, back in November of 2001?
MacLean: Yes, and remember a wide-bodied jet, American Airlines jet, crashed in the middle of Queens in New York. And then the shoe bomber was caught, I believe it was either Christmas or Christmas Eve of that year. That last one was a non-stop, long distance flight across the Atlantic, it was a US aircraft from, I believe it was Boston to Paris, and there were no Air Marshals aboard.
“There were no Air Marshals on that flight. And that’s been confirmed.”
Whistleblower Insider: Is that because the program hadn’t gone into full swing yet, there weren’t enough people?
MacLean: A lot of people forgot about this. Just about every DEA agent, ATF agent, and other criminal investigator throughout the government was detailed into the Air Marshal program at that time. So while we were training to become permanent employees, thousands of government agents were working as temporary Air Marshals.
Whistleblower Insider: Was one of the temporary agents on the plane?
MacLean: There were no Air Marshals on that flight. And that’s been confirmed.
Whistleblower Insider: But wasn’t the idea, at least in the first six months or something after the September 11th attacks, to have someone on every plane?
MacLean: It actually was the law. There’s a section in the Aviation and Transportation Security Act that says that non-stop, long distance aircraft such as those targeted on 9-11 should be a priority for Air Marshals. In her online senatorial biography, U.S. Senator Barbara Boxer (Democrat, California) says this was her provision. She thanked me and the other whistleblowers who stopped the Transportation Security Administration’s (TSA) August 3, 2003 plans.
Whistleblower Insider: Do you have any understanding of why there was no one on the shoe bomber flight?
MacLean: Probably just poor planning and lack of oversight. But it’s worth noting that 8 years later the exact same thing happened with the underwear bomber. The underwear bomber was flying from Amsterdam to Minneapolis, and there were no Air Marshals on that flight either.
Whistleblower Insider: It’s a little disturbing.
“Air Marshals were not able to do the necessary proactive or reactive law enforcement – they were doing administrative work.”
MacLean: The program was poorly managed and the resources were misguided. A lot of money was being spent to pay six-figure supervisors’ salaries, fund outrageous facilities, hire needless contractors, buy useless equipment, and buy vehicle fleets. Air Marshals were not able to do the necessary proactive or reactive law enforcement – they were doing administrative work. There was a lot of money being spent, with a small percentage of the workforce actually doing the mission.
Whistleblower Insider: Eventually, it’s no secret, you became a whistleblower – but how did it start for you?
MacLean: Well everything started going terribly wrong in the summer of 2002. New management came in and said they were disturbed that Air Marshals were not wearing suits, had hair that was too long, and even complained about facial hair. They implemented a suit and tie policy with a military grooming standard. So now you would have two large muscular individuals wearing suits and ties boarding an aircraft on a Sunday morning in Las Vegas in front of the general public – another thing is we were mandated to pre-board. So you can imagine, it’s Sunday morning, you’re leaving Las Vegas for Phoenix or Miami and you see two large individuals in suits and ties looking like enforcement agents of some type or another boarding before the people with small children and the handicapped.
Whistleblower Insider: It would be pretty obvious what’s going on.
“We felt that we were now simply ammo pouches for a would-be hijacker.”
MacLean: We had grandma and kids shaking our hands, buying us a snack, trying to give us gifts, and thanking us for being on board the aircraft and protecting them. So – that’s how the agency’s new focus was. They wanted to build confidence in the public, so we were pretty disturbed by this because we felt that we were now simply ammo pouches for a would-be hijacker, and we were walking around with huge targets on our back.
Whistleblower Insider: What was it that pushed you over the edge that made you realize that you needed to speak up?
MacLean: We were constantly being outed. We had no anonymity. Air Marshals were scared to death of getting ambushed because of our high profile. We just were uncomfortable with it. We were trained to think like the bad guys and how the bad guys operate. We train in all of these special circumstances. The bottom line is, we got out in the field and everybody knew who we were. If the Air Marshals are afraid of their own lives being taken, obviously we can’t protect the passengers because we were holding weapons and several magazines full of ammo, and everybody knows who we are. So we felt ineffective. We felt like scarecrows.
But the agency’s priority – well, it got so bad that the agency was dispatching supervisors to the airports, not to do investigations or try to find IEDs or look for suspicious passengers, but to find Air Marshals not wearing suits and ties to discipline them.
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