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The whistleblower won his job back thanks to the U.S. Supreme Court – a rare victory, and a vindication. But what does winning mean when you actually show up at work?
For improperly fired air marshal Robert MacLean, it meant six months in a far-flung office with no colleagues and no duties. It meant complaints filed with various governmental agencies over continued retaliation. And, as of last month, it meant finally being sprung from near-solitary confinement and assigned to the Transportation Security Administration’s VIPER team in Washington D.C.
That’s “Visible Intermodal Prevention and Response” to you and me. Its mission is counterterrorism, and it patrols aviation, rail and marine facilities nationwide.
“I’m actually doing police work,” said MacLean, formerly of Ladera Ranch, who was blackballed from law enforcement after the TSA fired him for disclosing information that embarrassed the agency.
“Last time I did foot patrol was back when I was in the Border Patrol, right before 9/11,” MacLean said. “I didn’t join law enforcement expecting to be on foot patrol at this stage of my career – but anything’s better than that solitary confinement. It’s one of the worst things you can do to a person, to place them in an empty room doing nothing.”
But all is not quite well. The reunion between employer and employee has been arduous, at best, with MacLean making fresh reports about potential threats to passenger safety aboard aircraft, a security clearance stuck in suspended animation and continued conflict over precisely how much back pay he should get.
“They’re not giving up on getting rid of him,” said MacLean’s attorney, Tom Devine, legal director for the Government Accountability Project in Washington, D.C.
The TSA declined comment, saying it does not comment on matters involving current or pending litigation.
‘SENSITIVE SECURITY INFORMATION’
MacLean’s saga began in 2003, when he received an alarming emergency alert from the Department of Homeland Security, TSA’s parent agency, detailing “a more ambitious, broader-scale version of the 9/11 plot,” according to court briefs.
Within 48 hours, he got an unencrypted text message from the TSA scrapping all overnight missions to save money on hotel rooms.
That, MacLean thought, was crazy. He protested up the food chain, got nowhere, and finally shared the information with a reporter from MSNBC. Fallout was fast and furious: Lawmakers decried the cost-cutting idea as foolish, officials backtracked, and overnight missions continued as usual.
Three years later, during a conflict over the outdated formal dress code for air marshals, MacLean’s bosses discovered that he was the source of the embarrassing hotel leak. The message he shared in 2003 was retroactively stamped “sensitive security information,” and MacLean was fired.
He fought in court for years, seeking whistleblower protection, but lost at most every turn. His reputation was battered, his law enforcement career shattered, his finances destroyed. But in January 2015, the Supreme Court said the Whistleblower Protection Act was intended to protect employees like him, who were trying to protect the public – and MacLean got his job back.
MacLean has become a celebrity in whistleblower protection circles and a poster boy for their causes. He will get the Joe A. Callaway Award for Civic Courage later this month, which recognizes individuals who, “with integrity and at some personal risk, take a public stance to advance truth and justice, and who challenged prevailing conditions in pursuit of the common good.”
Despite the fact that MacLean’s case, and face, have been all over the news – making him perhaps the best-recognized undercover agent in the federal government – the TSA put him back on flights as a covert air marshal.
He flew missions for nearly three months before the TSA assigned him to fly Middle Eastern routes. Attorney Devine likened it to “putting a red X on every flight MacLean is assigned to. It’s a risk not only to him, but to the passengers on those planes.”
MacLean filed a complaint with the U.S. Office of Special Counsel in February, and the TSA pulled him from flights and assigned him to a deserted office in Chantilly, Va. The U.S. House Committee on Oversight and Government Reform blasted the TSA over MacLean’s treatment in May, and the new ground-based assignment came last month.
There are still outstanding issues, however. The biggest one may be MacLean’s security clearance. He has been working on an interim clearance while the agency processes his permanent clearance – something which usually takes just a few months, but which has been grinding on for 16 months for MacLean.
The TSA has hired contract investigators in four states, attorney Devine said, and they’re asking his friends and family questions like, “If he was willing to leak information to the press in 2003, how can we trust him not to leak classified information to the press today?”
Devine thinks there may never be peace for MacLean at the TSA. He has filed a legal action under the new Presidential Policy Directive 19 for MacLean, which is designed to ensure that intelligence community employees can report waste, fraud and abuse while protecting classified information – and protect employees from retaliation.
MacLean’s pay is also stuck in 2005, where it was when the TSA put him on administrative leave before improperly firing him. The two sides are fighting about whether he would have had promotions in that time, and if the government should pay for them.
“The genuinely good news, though, is that Robert has had a real job, real duties,” Devine said. “He’s no longer sitting in a room, paid to bounce off the walls.”