Note: this article, featuring our client Robert MacLean and our Legal Director Tom Devine, was originally published here.
Air War: A Relentless Whistleblower Once More Girds for Battle Over Aviation Safety
Robert MacLean, a former federal air marshal, carries a lot of baggage. Twice dismissed by his bosses at the Transportation Security Administration, he has been criticized for being “paranoid” and not being a team player.
But you don’t get to be the nation’s most prolific aviation safety whistleblower without having a track record. And today, MacLean says, warning signs of ineffectual air safety regulation are blinking red.
Since 9/11, the Federal Aviation Administration has mandated steps to protect flight decks from intrusion, including the installation of reinforced cockpit doors on U.S. and foreign passenger flights to and from the United States. The doors provide protection when they remain closed and locked throughout a flight.
But that is the rub: access to food or bathrooms or the need for a crew change require that the cockpit doors be opened during flight, even if just for a few seconds. And that is enough time for a sprinting passenger intent on mayhem to gain access to the flight deck.
To MacLean, that vulnerability, long acknowledged by the airline industry and regulators, is part of the unfinished business of 9/11 that continues to imperil air safety. Secondary barriers that provide an extra layer of cockpit protection – at an estimated cost of $5,000 to $12,000 – have been available for years. The will to require them has not.
Last year, Congress, with the support of unions for the nation’s airline pilots and flight attendants, passed legislation to require secondary barriers on newly manufactured commercial aircraft; the FAA is studying the issue, and no one knows exactly when the law, which was opposed by the airline industry, will be implemented.
“We are basically waiting for a jet to fall out of the sky,” MacLean says. Besides the warning, he has come up with an idea for what he says is a better secondary barrier system, although none of the airlines has been beating a path to his door.
Fired, rehired, then fired again
MacLean, 49, is hard to dismiss.
In 2006, he was fired by the TSA for disclosing confidential information to the media, but won his job back after a nine-year legal fight that went all the way to the U.S. Supreme Court – only to be fired again this spring, for insubordination.
Over the years, he has been a vexing presence at the federal agency by alleging a wide array of misconduct, from security breakdowns and wasteful spending to what his lawyer calls illegal “sexual play for promotion” in the air marshal corps. Many of the claims were filed with the federal Office of Special Counsel, which provides employment protections to federal whistleblowers who make disclosures that are deemed in the public interest.
Among other things, MacLean has raised concerns over how air marshals were not being equipped with Narcan to neutralize attacks on flight crews with weaponized synthetic opioids such as fentanyl, and how the TSA prohibited its personnel from conducting random searches of Kosher and other catered religious meals that had been privately screened. In many cases, the special counsel’s office found that his allegations had merit.
To his supporters, MacLean personifies the best traits of whistleblowers, irrepressibly enthusiastic about exposing the government’s dirty laundry, at a high personal cost. “During your time in federal service, you have demonstrated your commitment to protecting the American public, and for that you are a true patriot,” the current Special Counsel, Henry J. Kerner, said in a recent letter to MacLean.
To his critics, he’s an obsessive and even vengeful ex-federal employee who chronically disrupted his workplace and overstepped his bounds. “Your actions failed to meet the standards of good judgment and reliability,” a TSA official said in a March letter terminating MacLean that was reviewed by FairWarning.
The official said employees had described MacLean as “hostile” and “paranoid,” and that he was being dismissed “to promote the efficiency of the service.”
Concerns “hitting the mark”
“Robert was a nightmare they couldn’t wake up from,” says Tom Devine, legal director at the Government Accountability Project, a Washington-based nonprofit whistleblower protection and advocacy organization, which has represented MacLean since 2009. “His attacks were hitting the mark over and over again, and as a matter of bureaucratic survival, TSA chose to take him out.”
TSA, citing a policy against commenting on personnel actions, declined comment about MacLean, but issued a prepared statement in response to questions from FairWarning.
“The safety and well-being of all our Federal Air Marshals is paramount and TSA consistently reviews and updates training and deployment techniques to better serve the traveling public,” the agency said in the statement. “The Federal Air Marshal Services track record of securing our nation’s airways is clearly successful and we should all support their important mission.”
Joining the air marshal service in Las Vegas two months after the Sept. 11 attacks, McLean, then 31, was part of the first class of recruits deployed by the federal government as it ramped up security to protect passenger jets from potential hijackings. A U.S. Air Force veteran, who was a maintenance specialist on missile and space systems, MacLean had joined the U.S. Border Patrol in San Diego in 1996 as a Spanish language instructor and training officer. He developed a reputation as an effective watchdog, even reaching out to other agencies with tips about what he saw as potential criminal wrongdoing.
“Every time I thought he was off the rails I was wrong,” says Paul Bonin, a retired FBI special agent, with whom MacLean shared leads while he was in the Border Patrol. “Robert has a lot of credibility with me.” While Bonin declines comment on specific cases, MacLean says his tips led to criminal prosecutions for such disparate crimes as mortgage fraud and drug dealing.
But MacLean said his career began to unravel in July 2003, after federal officials at the Department of Homeland Security got word of a potential hijacking plot targeting U.S. flights by the terrorist group al Qaeda. The threat information was credible enough that TSA summoned all air marshals, including MacLean, for face-to-face briefings.
A few days later, MacLean said he received a TSA text message canceling missions on cross-country and international flights beginning in early August. MacLean said he believed that canceling those missions during a hijacking alert was dangerous and illegal. He asked a supervisor why the TSA had canceled the missions, he said, and was told that the TSA wanted “to save money on hotel costs because there was no more money in the budget.” A special agent with the DHS Inspector General told him there was nothing that could be done, he said.
Media coverage stirs tension
Unwilling to accept those responses, MacLean contacted an MSNBC reporter and told him about the canceled missions. A subsequent news report brought swift criticisms from members of Congress, and within 24 hours, the TSA reversed course and scrapped plans to pull air marshals from the flights.
Confronted by his bosses, MacLean acknowledged being the source for the report, and three years later, in April 2006, he was fired for disclosing without authorization what TSA had retroactively classified as sensitive security information.
MacLean appealed the decision, but for nine years was unemployable in his chosen field. He moved back home to Southern California, where he said he scraped together a living doing odd jobs, power-washing parking garages and selling solar panels door-to-door. He was the breadwinner for his wife, a public school volunteer who teaches English to Spanish-speaking students, and their three children.
But in January 2015, he was vindicated when the U.S. Supreme Court held that he had been terminated in violation of the federal Whistleblower Protection Act. The court held that TSA, without specific authorization from Congress, could not issue a regulation prohibiting the disclosure of information that effectively canceled his rights under the whistleblower law.
Moving to Washington, D.C., MacLean was reinstated and continued where he had left off, identifying and exposing security threats. A 2016 performance report heaped praise on him as someone who “continuously looks for security threats and anomalies” and who “not only reports issues he also suggests solutions.” He gained a measure of fame in the media and before congressional panels.
But MacLean said senior officials at the agency he had defeated in court were intent on driving him out again. According to MacLean, a request for a transfer back to the Border Patrol — like TSA, a part of Homeland Security –was denied. He was put back on planes as an air marshal, even though his media appearances made him identifiable. He vented, often in crude language, on a private air marshal Facebook page. He was ordered to undergo a psychiatric exam, according to email correspondence and personal medical records.
The accidental whistleblower
Terminating MacLean a second time, TSA cited violations of agency policy, including posting “sexually inappropriate, offensive and intimidating” remarks about co-workers on a Facebook page, according to the March letter reviewed by FairWarning that quotes vile statements MacLean made about some colleagues. MacLean and his attorney claim the remarks, directed at TSA supervisors and subordinates who allegedly engaged in “illegal sexual activity,” were protected speech. While challenging his latest dismissal, he has started driving for Uber.
All of which brings him, one recent morning, to a McDonald’s in Northern Virginia, not far from the Pentagon. Aside from everything else, the parking app on his phone has gone haywire, and MacLean obsesses over getting a ticket, which he can hardly afford. “I have way too much anxiety going on,” he says, abruptly getting up from breakfast to check on his car.
He presents as a stocky and slightly menacing rebel with a cause, a far cry from the fresh-faced recruit taking his oath as a Border Patrol agent more than two decades ago.
As he tells the story, he became a whistleblower sort of by accident. “When I was fired in 2006, I had never heard of the term ‘whistleblower,’” he says.
Over the years, he says he has taken grief from friends and neighbors for putting his advocacy over the interests of his family. “People ask me, ‘Aren’t you stressed?’” he says. “But I don’t know anything else. My life has been in turmoil since 2003.”
The vulnerability of open cockpit doors has long been on his radar and, apparently, that of terrorists as well. “No one takes page 158 seriously,” he says. He’s referring to a page of the final report of the independent federal commission that investigated the 9/11 attacks. The report describes a December 1999 meeting in Karachi where the hijackers, as part of their training on casing flights, were told to note “whether the captain went to the lavatory during the flight” and “whether the flight attendants brought food into the cockpit.”
9/11 spurs initial action
Whether the advice factored into the events of 9/11, to MacLean the passage vividly illustrates the continuing risk, which he says has yet to be effectively addressed. The nightmare scenario, he points out, was also a plot line in an episode of the CBS drama “SEAL Team” this past January. In it, a passenger in a bulkhead seat leaps over a galley cart and fights his way into the cockpit, as a flight attendant screams helplessly.
After 9/11, regulators and the airline industry quickly shored up security weaknesses with the flight decks of U.S. passenger flights. Cockpit doors were reinforced to withstand intrusions and small-arms fire. And those doors had to remain closed and locked throughout the flight except during crew changes, bathroom and food breaks.
United Airlines, owner of two of the four planes downed on 9/11, went a step further, developing the first secondary barrier–a retractable wire door between the cockpit and cabin. The aim was not to stop the initiation of an attack or protect the flight deck indefinitely, but rather to delay an intruder long enough so the crew could react and shut the fortified cockpit door. Studies have indicated a barrier is deemed effective if it can withstand a 200-pound assailant for five seconds.
“It was a big push. It was produced and installed on several aircraft,” recalls a person familiar with early industry efforts to develop a secondary barrier, who requested anonymity to speak freely about the issue. But over time, interest waned.
“After nothing happened, the industry, like any other place, just lost interest in it,” this person said. “I think the industry thinks it is an added cost that is just not necessary anymore.”
United did not respond to questions about its use of barriers and how many are still on its planes.
Airlines for America, the Washington, D.C.-based trade organization for major North American carriers, declines to say how many planes serving the U.S. have secondary barriers. “Some U.S. airlines have determined that secondary cockpit barriers are appropriate on certain types of aircraft, and we support the individual airlines’ discretion in whether to install these systems,” the group said in a statement.
Flight attendants as human shields
Under FAA rules, airlines have developed “alternative” procedures to block the path of a would-be intruder when cockpit doors are open. But those procedures – parking a food and drink cart in the aisle or having flight attendants stand in the aisle as a kind of human shield to intercept an attacker – have drawn criticism.
“It is an absurd practice, to have flight attendants use their own bodies as the barrier between the cabin and the cockpit,” Sara Nelson, president of the Association of Flight Attendants International, testified at a February 2019 congressional hearing. The 50,000-member union, which has unsuccessfully pushed the industry and regulators for mandatory self-defense training for flight attendants, has long supported secondary barriers.
The Radio Technical Commission for Aeronautics, a nonprofit organization that has long advised federal regulators on aviation issues, also found problems with some of the alternative procedures, according to a 2011 study that was commissioned by the FAA. Role-playing terrorists, the group found, were able to blow by a flight attendant and cart and enter the cockpit, despite the presence of air marshals. Portions of the report concerning the testing were classified as sensitive security information.
The inspector general of the U.S. Department of Transportation, which includes the FAA, subsequently criticized the agency for not effectively communicating what it called potentially “critical” findings to airlines and inspectors. MacLean got a redacted copy of the radio technical commission report soon after he was reinstated at TSA in 2016, and shared it with air marshal colleagues, many of whom were surprised and angry. The FAA later told DOT that it disagreed with some of the findings; an FAA spokeswoman declined to elaborate.
Whistleblower seeks patent
MacLean’s idea is a kind of converted food and drink cart that locks into place at the entrance of the forward galley, securing the flight deck from the main cabin.
The cart contains a barrier that folds out from the top. It would be deployed when the cockpit doors open, and stowed at other times. A big potential advantage: the stand-alone unit can be repaired without the aircraft being taken out of service. A potential disadvantage: finding space on the aircraft to put it. The U.S. Patent and Trademark Office recently indicated it is close to granting him a patent on the invention. It would be MacLean’s first, although he says his grandfather designed and patented detonation devices for aerial bombs as a U.S. Navy officer in World War II.
“We don’t want to stop a rhinoceros,” he says. “We just want to hold back a human for five seconds.” Money for development has been scarce, although he says he has been talking with several potential partners and is optimistic. A friend whose family owns a drag racing team is using its expertise to help him build a prototype.
“We’ve got the product,” says Sean Spradlin, a retired U.S. Air Force lieutenant colonel and air battle manager who is helping with the prototype. “The challenges are economic and a paradigm shift in the politics and in the regulation.”
Last year, Congress passed, and President Trump signed into law, a requirement that the FAA mandate secondary barriers on newly manufactured aircraft. The law, which does not affect existing aircraft, is considered a symbolic first step, at best.
The agency has established a working group “to provide recommendations and benefit/cost data” for implementing the law and a “status report” is due in December, according to an FAA email statement to FairWarning. (MacLean applied to join the working group but was rejected.) Proponents view the group as a stalling tactic, and fear it may be months, if not years, before the mandated barriers become a reality.
“The FAA has thumbed its nose at Congress, threatened the flying public, disrespected pilots, and has done the bidding of special interests,” says Joe DePete, president of the 63,000-member Air Line Pilots Association.
FAA, airlines weigh risk vs. cost
The industry contends the small risk posed by the brief opening of cockpit doors is not worth the cost of retrofitting a fleet of thousands.
“Government mandates without credible analysis and industry involvement can create market disruptions without any beneficial impact or value related to the safety of the aircraft,” said a group of manufacturers, including the Boeing Co., in a letter to members of Congress opposing the secondary barrier legislation.
The FAA has adopted the industry line. “It is unlikely that the benefit of mitigating the very small remaining risk with a secondary cockpit door or other secondary barrier would outweigh the high cost of requiring secondary barriers across the commercial fleet,” Michael Huerta, then FAA administrator, told members of Congress in 2015.
But the cost – $23 million to $54 million to retrofit every U.S. carrier – works out to just pennies for each of the 700 million or so ticketed passengers who travel on U.S. flights each year, according to a 2018 study by the Congressional Research Service, the non-partisan research and analysis arm of Congress. For newer aircraft, the CRS found, the cost of the barriers per passenger “would likely be less than one cent.”
“The airlines say the cost is astronomical, but at worst, it is a $12,000 door,” says Ellen Saracini, whose husband, Victor, was the pilot of United Flight 175 that terrorists hijacked and crashed into the South Tower of the World Trade Center, and who has led the fight for barriers in Congress. “Listen, the effects of 9/11 cost us trillions of dollars, and that does not even take into account the loss of life.” The new law, the Saracini Aviation Safety Act of 2018, is named for her husband.
And while the industry says there has not been a successful breach of the flight deck since cockpit doors were hardened in 2003, attempts occur fairly regularly. In July, for example, a Delta Air Lines flight to New York had to return to San Juan, Puerto Rico, after a passenger, declaring himself “God” and saying he was going to “save the world” and “end terrorism,” attempted to enter the cockpit. The man was quickly restrained and later arrested.
On Sept. 23, the FAA issued a special notice urging airlines to “review established procedures and re-emphasize the importance of remaining vigilant while conducting flight deck door opening procedures,” according to a copy of the notice.
“Reinforced messaging on proper flight deck door security procedures is needed in light of continued passenger incidents in and around the cockpit door involving mistaking the flight deck door for the lavatory, intoxication incidents, or mental instability episodes,” the notice stated.
It concluded: “[T]he anniversary of 9/11 serves as a good reminder that hostile actors present an ongoing safety and security risk to airline operations and these hostile actors may still pursue hijack planning involving an attempt to gain unauthorized entry to the flight deck.”