By TERI SFORZA

He’s been warned that judges can be kindly Dr. Jekylls in the courtroom, and terrifying Mr. Hydes when they write their decisions in the quiet of their chambers.

He’s been warned that fired federal employees who fight their terminations get their jobs back less than 5 percent of the time.

But, dang it, for the first time in years, fired federal air marshal Robert MacLean of Ladera Ranch is feeling a little – dare we say it? – optimistic.

It’s not just that the judge who heard his appeal allowed testimony that the government tried to block. And it’s not just that the man who actually did the firing was finally there in the hot seat, admitting that MacLean was a tip-top employee until the single transgression that ruined his career.

It’s that even if MacLean loses – again! – the truly final arbiters of whether he is hero or villain, of whether he endangered the flying public or helped protect it, are no longer Bush appointees. They are, instead, newly-installed, and far more whistleblower-friendly, Obama appointees.

MacLean, you may recall, was axed from his cop-in-the-sky job after letting the world know about an ill-conceived plan to remove federal air marshals from long distance flights in 2003 – just days after a terrifying suicide hijacking alert. (This to save money on hotel bills.) There was a huge outcry; the plan was scrapped; and missions went on as per usual. But MacLean was fired for disclosing “sensitive security information” (even though the message wasn’t marked as such, and went to his non-secure cell phone, rather than his secure PDA). Then he was denied whistleblower status.

“You folks have raised some interesting issues in this appeal,” Administrative Judge Franklin M. Kang said at the Nov. 5 proceeding – a dramatic “High Noon” face off between MacLean and the guy who fired him. Judge Kang ordered both sides to submit written closing arguments by today; his decision is expected within the next few weeks.

“It was a very compelling vindication for Robert emotionally,” said MacLean’s lawyer, Tom Devine. ”The only agency official who spoke for the DHS couldn’t defend the action to fire Robert, and after a while seemed to accept the facts of life, that they didn’t have any credible explanations for the action. Robert was magnificent as an Everyman trying to do his duty in the midst of hopelessly insane bureaucracy. We had a great time.”

MacLean, who was very nervous through the proceedings, said, “I’m being cautiously optimistic.”

A REFRESHER

MacLean was a Border Patrol agent in San Clemente for six years, and then a federal air marshal for four years. In 2003, he received an alarming Department of Homeland Security alert about a possible suicide hijacking plot that resembled 9/11; and just days later, he received a text message from the Transportation Security Administration, saying that overnight missions involving federal air marshals were being cancelled for several weeks and he should cancel hotel reservations immediately so the government wouldn’t be charged cancellation fees.

That, thought MacLean, was crazy. The 9/11 hijackers targeted long-distance flights because they could do the most damage. Pulling air marshals from such flights, precisely when there was warning of a possible attack, was gross mismanagement – and a “specific threat to public safety that could lead to catastrophic loss of life,” he’d say later in court papers.

MacLean protested to his bosses. Then to their bosses. Finally, he talked to a reporter for NBC. Fallout was fast and furious. Lawmakers decried the idea as foolish; officials backtracked; and, ultimately, overnight missions continued.

But nearly three years later – in April 2006, after he became vice president of the air marshals’ organization that was tussling with management – MacLean was fired from his job for disclosing “sensitive security information” to the media. That text message, MacLean argued, wasn’t marked as sensitive information and arrived on his mobile phone, not on his secure PDA. The government argued that the message didn’t need to be marked “sensitive;” all details regarding the deployment, number and operations of federal air marshals were protected information. (Several months after MacLean was fired, the government reclassified the contested text message as “sensitive security information,” just to be on the safe side.)

Maclean has a wife and two daughters. They’ve moved in with his parents. He’s tired of following the fits and starts of whistle-blower legislation. He wants his regular life back.

THE APPEAL

It was a “High Noon,” mano-a-mano, one-on-one showdown before the judge Nov. 5.

The one and only witness for the Department of Homeland Security was Frank Joseph Donzanti, the guy who fired MacLean.

The one and only witness for MacLean was MacLean himself.

The transcript is riveting and provides a glimpse into the inner workings of the world of aviation safety – complete with MacLean’s chilling account of being called into the office for an emergency one-on-one suicide hijacking briefing..

But what’s more pertinent to the case at hand is the testimony of boss Donzanti, who didn’t put up much of a fight. MacLean “had a clean record, no disciplinary issues,” Donzanti said. “He got along well with his other FAMs…. He showed up to work on time. And he did his job, and he did it in an exemplary manner. Minus the incident that he had in Las Vegas, he performed his duties well.”

MacLean, he said, should have known better than to talk about the plan to pull the air marshals off overnight flights. He should have known the information was SSI.

Was there basis for MacLean to be confused about what was SSI and what wasn’t? Yes, Donzanti admitted. Department policy is that sensitive information must be marked “SSI” at the beginning and end of the document. It must be sent only on password-protected, encoded transmissions. And the information that MacLean was fired for releasing was not marked, or securely transmitted, Donzanti said.

“Did you consider whether Mr. MacLean made that unauthorized disclosures of SSI maliciously or for some type of personal gain?” lawyer Devine asked.

“No, I don’t believe he did,” Donzanti said. “I just think he was misguided. I don’t think there’s any maliciousness involved in this whatsoever.”

“And was there any direct harm from Mr. MacLean’s disclosure?” Devine asked.

“It created vulnerability as soon as he made the disclosure. That would be the harm.”

The exchange that follows is fabulous, and we copy it here from the transcript (the Qs are Devine, the As are Donzanti, and Ms. Eileen Calaguas is the DHS attorney):

Q. Now “vulnerability” is kind of a speculative concept. Was there any direct harm that actually occurred from his disclosure?

MS. CALAGUAS: Objection, move to strike the argumentative comment.

JUDGE KANG: The motion to strike is denied. You know, I’m the Judge here. You don’t have to worry about me taking things out of context here. Please repeat your question, Mr. Devine, for clarity.

MR. DEVINE: Yes, sir.

BY MR. DEVINE:

Q. Was there any actual harm from Mr. MacLean’s disclosure?

A. There could have been. From my perspective, I – I know that the division that –

Q. Excuse me, sir. I didn’t say “could have.” Was there any actual harm? Do you know of any?

A. Well, I’m going to explain that in a minute. We have a division that schedules flights. And in light of that disclosure that Mr. MacLean made, now they would have to do excessive work to either correct that or make some decisions. It would be conversations, and it would be work lost. And ultimately some kind of risk associated with the fact that the people that are scheduling flights and – and looking at intelligence are now busy rescheduling flights or doing whatever they had to do to kind of make a correction here with this vulnerability that now existed.

Q.Thank you. So the harm that occurred from this disclosure was the extra work of reversing the order; is that correct?

A. That’s part of it. That’s – that’s the part that I could explain.

Perhaps one of the strongest facts in MacLean’s favor is what happened to Anthony Rine – another air marshal who did almost exactly what MacLean did, for almost exactly the same reasons.

Days after a United Kingdom liquid explosives plot was unmasked, Rine posted (anonymously, on the Internet) that air marshal missions were being canceled on flights between the UK and Atlanta nonetheless. He was supposed to get the boot as well – but his punishment was reduced to a 14-day suspension.

Lawyer Devine is working to keep everyone’s expectations in check. “We’re not letting the euphoria of the event spill over into optimistic expectations about the official outcome,” Devine said. “Rulings are almost always against employees.

“But it’s just so healthy for the soul when you have an opportunity to confront your accusers and they can’t defend themselves. Many whistleblowers I’ve represented have said that’s more important than the outcome – the chance to look each other in the eye, as one human being to another, and acknowledge that the actions were indefensible.”

Well, there’s that. But someone has to be in that 5 percent who actually end up winning, right?