Will it ever end?
The clock has been ticking toward Nov. 28 for fired federal air marshal Robert MacLean – the date by which the Department of Homeland Security had to decide if it would lose quietly or continue its fight against him.
It has done, essentially, neither – instead buying more time to decide, stretching out MacLean’s seven-year saga for, oh, another 31 days or so.
This week, the U.S. Department of Justice asked the U.S. Supreme Court for another month to make up its mind about how to handle the MacLean saga – and its own recent defeats. Chief Justice John Roberts said OK, giving the DOJ until Dec. 28 to file the required arguments.
Happy holidays! Insert MacLean’s eye-rolling here.
“If this administration goes through with its appeal, it will completely contradict all of the criticism of the Edward Snowden disclosures,” MacLean, of Ladera Ranch, told us by email. “The information I disclosed was unrestricted. I first went through proper channels, and, three weeks later, I dedicated most of my off-duty time founding the air marshal chapter of the Federal Law Enforcement Officers Association in order for air marshals to have a collective voice before Congress to address aviation security issues.”
This saga began in 2003, after MacLean received an alarming Department of Homeland Security alert about a possible suicide hijacking plot that resembled 9/11. Just days later, he received a text message from the Transportation Security Administration, saying that overnight missions involving federal air marshals were being scrapped for several weeks and that 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 later say in court papers.
MacLean protested to his bosses. Then to their bosses. Finally, he talked to a reporter for MSNBC.
Fallout was fast and furious. Lawmakers decried the changes as foolish, officials backtracked and, ultimately, overnight missions continued.
Nearly three years later – in April 2006 (after MacLean became vice president of the air marshals’ organization and was tussling with management over a 1960s-era dress code that screamed, “Federal air marshal! Aim here!”) – MacLean was fired for disclosing “sensitive security information” to the media. He was not protected by whistleblower laws, judges ruled again and again, because the information he disclosed was, by law, a secret.
He fought, but each judge thwarted his defense by ruling that he wasn’t eligible for free-speech protections. It was defeat after defeat. Work was hard to come by. His finances went down the drain.
But in April, everything changed. The U.S. Court of Appeals threw out earlier decisions upholding MacLean’s dismissal and commanded lower courts to concentrate on the issue of whether MacLean had a legitimate fear that the public could be harmed. Was MacLean, indeed, a whistleblower? Did he endanger the flying public, or protect it?
His former bosses at the Department of Homeland Security didn’t much like that. In July, they asked for a do-over, arguing that the federal court made a slew of mistakes when it concluded that MacLean may deserve whistleblower protection. They asked that the judges either reconsider their decision or have a full panel of federal judges revisit the entire issue.
In August, in a curt order, the federal court said no.