By GAP Legal Director Tom Devine and Federal Air Marshal Frank Terreri.
A congressional investigation made public in late May confirms what whistleblowers have been warning for years: The Federal Air Marshal Service, FAMS, has been systematically blowing the cover of its covert marshals who are charged with overcoming hijackers to prevent another major terrorist attack.
The report by the House Judiciary Committee concludes that “it is unacceptable for FAMS management to be oblivious to the problems facing their organization. … Any policy or procedure that potentially compromises the identity of a federal air marshal is a policy or procedure that compromises aviation safety and national security.”
Anonymity is the only way air marshals can get the jump on a hijacker, and without it they may as well have an X branded on their chests. Amazingly, however, the committee found that FAMS sabotages its mission with requirements for air marshals to:
- Wear formal slacks and dress shoes, even on flights to Florida and the Southwest.
- Publicly display their law enforcement credentials at least three times in airports, routinely to personnel who do not have security clearances.
- Wait to be escorted onto flights directly before and in front of waiting passengers.
- Openly display their credentials (again) to uncleared hotel staff in order to receive a special FAMS rate – which is slightly more than the normal government rate.
- Stay clustered in the same hotel, contrary to the government-wide practice of scattering undercover agents, again to receive the nonexistent discount. (This resulted in one hotel boasting in July 2005 that FAMS was its “Company of the Month.”)
In October 2004, former FAMS chief Thomas Quinn tried to assuage Congress by asserting that no marshal had suggested a better way to operate. In reality, thousands had. A year earlier, the above practices were challenged on behalf of 1,500 air marshals.
Mr. Quinn responded by ordering four consecutive nonstop investigations over the next two years. Being a whistleblower was the primary accusation.
In the first case, the charge was “harassing” an agency spokeswoman by complaining that she publicized air marshal tactics for a national television puff piece. The FBI has sent FAMS headquarters similar warnings about its promotional pieces. But in the surreal FAMS mindset, it was misconduct for an air marshal to ask the agency to stop broadcasting its tactics to the enemy. Another recent accusation was the misuse of government business cards.
Not only do these abuses of power effectively set up the marshals as terrorist targets, but those who protest are gagged, subjected to nonstop witch hunts and accused of disloyalty for working to defend the front lines of America’s anti-hijacking defenses from threats by their own government.
Disloyalty to whom? An air marshal’s first loyalty should be to the flying public, not to a keystone bureaucracy. The marshals face a Catch-22: It’s dangerous to the flying public for them to acquiesce to indefensible government mismanagement, but it’s professional suicide to speak out.
In theory, the retaliation is illegal under the Whistleblower Protection Act, passed unanimously by Congress in 1989. But that law has become the best reason to look the other way and remain silent. Activist court decisions gutted the protections Congress intended, and whistleblowers have lost 119 of the last 120 final decisions under the act.
Legislation to correct this trend was inserted last month into the Senate’s version of the fiscal year 2007 defense authorization bill. But with adamant Justice Department opposition, it’s a long way before these accountability measures become law.
Congress must pass this long-stalled legislation to restore the judicially gutted whistleblower law. It is unrealistic to expect whistleblowers to defend the public if they can’t defend themselves.