BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
In a series of unyielding hearings and letters, Congress has demanded answers around the retaliation of nationally vindicated U.S. Federal Air Marshal Robert MacLean. In 2003, MacLean warned Congress that the Transportation Security Agency (TSA) intended to go AWOL during a confirmed terrorist hijacking alert (in an attempt to save money that it had mismanaged). Thanks to his whistleblowing, the security risk was addressed within 24 hours. However, three years later TSA terminated MacLean for the release of retroactively-labeled “Sensitive Security Information” – the very evidence he used to keep the flying public safe. Nine years later, in a 7-2 landmark decision, the U.S. Supreme Court ruled that MacLean was improperly terminated and ordered his reinstatement.
TSA responded by assigning MacLean on flights to the Middle East, at the same time that Al Qaeda was studying the internet to identify and target Air Marshals. After GAP filed a lawsuit challenging the "suicide missions," MacLean found himself assigned to an empty room with no duties in 2016. His treatment has not gone unnoticed, however.
During an Oversight hearing in May, Chairman Mark Meadows of the House Subcommittee on Government Operations grilled TSA Administrator Peter Neffenger on the proper restoration of MacLean’s position: “What really bothers me is that I protect my whistleblowers, and for you to get up here and talk about how wonderful the rank and file is, and how you’re looking out for their best interest, and to see evidence that retaliation continues … it has a chilling effect, don’t you think?”
In June, MacLean’s representatives, Senator Mark Warner (D-VA) and Congresswoman Barbara Comstock (R-VA), also demanded answers. Unsatisfied by TSA’s assertion that it has complied with court rulings to date, on August 12 Senate Judiciary Chairman Charles Grassley, leadership of the House Oversight and Government Reform Committee, and leadership of the Subcommittee on Transportation and Public Assets firmly asked TSA Administrator Peter Neffenger to “help the Committee understand how TSA responds to cases of whistleblower retaliation.” Among the information requested include “For each FAM who has worked for the agency since 2005, the number and percentage who have not received a promotion” and “TSA’s justification for assigning Mr. MacLean to an empty room with no duties.”
Administrator Neffenger has until tomorrow at 5:00 pm to get specific in defending its actions toward Robert MacLean. Its handling of the MacLean case is a litmus test for the agency’s commitment to protecting the flying public and encouraging whistleblowing. TSAs current track record does not bode well, as a growing number of whistleblower complaints underscore the agency’s culture of fear and intimidation.