Former Federal Air Marshal Robert MacLean is appealing the FAMS decision to fire him for disclosing Sensitive Security Information (SSI) about air marshal deployments to Brock Meeks, a reporter from MSNBC, in August of 2003. MacLean contests that he cannot be fired for leaking SSI since the information he leaked was not marked as such and therefore his disclosure was constitutionally protected speech.
SSI is special class of protected information relating to transportation security, according to the Government Accountability Office: Although it is not classified national security information, SSI is a category of sensitive but unclassified information ... is specifically exempted by statute from release under the Freedom of Information Act, and that it is to be disclosed only to covered persons on a need to know basis.
The Department of Homeland Security (DHS), which is the parent organization of the FAMS, argues MacLean was fired because his disclosure exposed a vulnerability in the aviation sector. If MacLean wins his appeal, he will likely be reinstated or have his termination mitigated to a suspension. DHS, however, could appeal the decision.
In late July 2003, MacLean received a text message asking all air marshals to cancel their hotel accommodations for their upcoming remain-over-night (RON) flights. Intrigued, he called his Las Vegas field office to inquire why. He was told by a supervisor from his field officethat the directive came from FAMS headquarters and that the agency intended to cancel all FAMS missions on long-distance flights for 60 days to conserve money. The agency had sent the text message to the air marshals to cancel their hotel reservations after August 3, 2003, to avoid cancellation fees.
These FAMS plans to cancel air marshal coverage of long-distance, high-risk flights came just after DHS alerted FAMS of a new threat to commercial aircraft. Only days earlier, MacLean was ordered to attend what he describes “as unprecedented one-on-one threat briefings” at his FAMS Las Vegas field office, where he was told of a new al Qaeda plot to recreate another 9-11 style attack on the United States. The unredacted DHS advisory obtained by Security Management was labeled, “Potential Al-Qaeda Hijacking Plot in the U.S. and Abroad,” and dated July 26, 2003. (The security weaknesses identified in the advisory have since been shored up.)
The DHS advisory stated that al Qaeda was still determined to attack the commercial aviation sector with a 9-11 style attack after learning of visa weaknesses. “The plan may involve the use of five-man teams, each of whom would attempt to seize control of a commercial aircraft either shortly after takeoff or shortly before landing at a chosen airport,” the advisory stated. “This type of operation would preclude the need for flight-trained hijackers.” More ominously, the advisory warned an attack could occur before the end of summer 2003.
MacLean felt that cutting air marshals from the same types of flights that were hijacked on 9-11 was irresponsible and might be illegal. He contacted three different DHS Office of Inspector General (OIG) field offices. At the final OIG field office in Oakland, California, the special agent he spoke with told him that FAMS plan “was dangerous and a violation of the law, but [that he] would not take any action,” one of MacLean’s MSPB motions attested. Believing he had no other option, MacLean anonymously contacted MSNBC’s Meeks, who said he would immediately notify members of Congress of FAMS plan and write a story.
The result was fast and furious with both members of Congress and media outlets pummeling the agency for its decision. During a press conference Sen. Barbara Boxer (D-CA) said “I want to thank the air marshals who came forward and told the truth about what was going on within their agency and bringing this issue into the spotlight.” The FAMS, under harsh criticism, revoked its earlier decision to cut FAMS from long distance, nonstop flights.