Note: this article, featuring our client Robert MacLean and our Legal Director Tom Devine, was originally published here.

Flight Security ‘Hopelessly Inadequate’ to Stop Another 9/11-Style Attack, Whistleblower Says

Extra layer of protection for flight deck is too expensive for airline industry, says Robert MacLean.

As hordes of harried travelers clog airports this holiday season, a former federal air marshal and whistleblower has a disturbing warning: “Current security measures are hopelessly inadequate to stop another terrorist attack.”

Despite the bullet-proofing of cockpit doors after 9/11, true secondary barriers are still missing on the vast majority of the nation’s flying fleet. While cockpits on Israel’s national airline have double doors separated by a narrow hallway — El Al pilots must close one door before opening the other —  U.S. carriers rely on drink carts and flight attendants to foil would-be attackers.

After years of industry push-back, Congress last year mandated true secondary barriers, such as metal security screens, on new aircraft. But a bill requiring the same for the entire existing fleet — more than 7,000 planes — has been stuck in a congressional committee since February.

“In the 18 years since 9/11, we have yet to fix the lapse in aviation security caused when pilots exit to sleep, eat or use the lavatory,” says Robert MacLean, the whistleblowing air marshal twice fired by the Transportation Security Administration,

“It’s preposterous that we still expect flight attendants and drink carts to guard unlocked cockpits,” MacLean said in a prepared statement from the Government Accountability Project, charging TSA with covering up an ongoing aviation security breakdown.

Pilots and flight attendants feel much the same way.

“We completely support secondary barriers in all of our aircraft,” Sara Nelson, president of the Association of Flight Attendants International, told a congressional committee in February. “It’s an absurd practice to have flight attendants use their own bodies as the barrier between the cabin and the cockpit.’”

Secondary barriers would cost some $12,000 per plane, at their priciest.

MacLean’s public charges come after what he called officials’ unsatisfactory investigations into his numerous complaints about aviation safety lapses, and their determination to bury his concerns.

“Most of TSA’s resources are focused on screening passengers who need to board their flights,” wrote MacLean, originally from Ladera Ranch, in a missive to lawmakers recently. “TSA spends significantly less resources to address the homicidal or unbeknownst threats that exist among airport workers. This is commonly referred to as the ‘Insider Threat.’ “

For example, trucks containing meals prepared for religious diets have been exempted from surprise inspections, even though they access secured areas of airports, he charged.

Another weakness is that many cockpit doors still open inward, making them more vulnerable; and that flights haven’t been equipped with Narcan to neutralize potential attacks using fentanyl and carfentanil, deadly drugs that can evade metal detection and allow terrorists to gain control of an aircraft, he said.

Waste of money?

And the whole air marshal exercise has gone awry, MacLean claims: Federal air marshals should have been a stopgap solution to protect planes until cockpits could be hardened against would-be terrorists. Instead, the program morphed into a “career law enforcement agency fraught with problems, yet only able to cover a single-digit percentage of the almost 80,000 daily U.S. flights,” he wrote.

MacLean has become skilled at mining public records. He found a “quietly conducted study” in 2011 in which air marshal instructors, who were expecting an attack drill, were unable to stop role-playing hijackers who began their assault within 40 feet of the cockpit.

Several other reports have found that the air marshal program is “ineffective,” and that half of its annual budget — almost $400 million of $800 million — could be better spent elsewhere.

Some $3.5 billion may have been wasted since 9/11 on an air marshal program that should have only been temporary until cockpits were fully secured, MacLean wrote.

Though jarring, MacLean’s charges are consistent with his mantle as a whistleblower. He has long been poking his finger in the TSA’s eyes, and the TSA apparently responds in kind. It fired MacLean, for the second time, in March.

“TSA can exile Mr. MacLean, but it cannot exile the basic truths of his whistleblowing disclosure: America remains as vulnerable today to terrorist attacks inside commercial aircraft as before 9/11, and our government has said it will not act,” said MacLean’s lawyer, Tom Devine of the Government Accountability Project, in a statement.

‘Layers of protection’

Several of MacLean’s complaints were found to have merit by the U.S. Office of Special Counsel, the independent federal agency that handles whistleblower disclosures. It asked the TSA to investigate and respond to MacLean’s charges.

The secondary barrier issue — and whether cockpit doors open inward or outward — is not its purview, the TSA said; that’s the bailiwick of the Federal Aviation Administration.

The opening direction of doors is a matter of engineering and is related to the pressurization of the plane; and the FAA accepts three methods of secondary flight deck security, it said. There’s the installation of physical secondary barriers, as MacLean has urged; “improvised non-installed secondary barriers,” such as drink carts; and “human secondary barriers,” or flight crew members.

“To date, all aircraft carriers are in compliance … utilizing one of the three methods of secondary flight deck security,” the TSA said.

The TSA uses a “layered” approach to security, including screening all passengers and baggage, putting air marshals on some flights — and more — to keep the skies safe for travelers, the agency has said.

For its part, the FAA has tasked its Aviation Security Advisory Committee with taking another look at the secondary barrier issue. The committee will study cost/benefit data on physical barriers and make recommendations. Its report is due in March, an FAA spokesman said.

MacLean and Devine argue that the TSA is the agency tasked with protecting the flying public, and it can’t absolve itself of responsibility by saying, “It’s the FAA’s problem.” They’ve asked the Office of Special Counsel to send the issues back to the Department of Homeland Security — TSA’s parent agency — so it can “responsibly address his disclosure of illegality, gross mismanagement, abuse of authority and substantial and specific danger to public health or safety.”

The TSA did not respond to requests for comment.

“FAA and TSA have abandoned any plans to prevent another 9/11 because it would be too expensive for the airline industry,” attorney Devine said.

Bad blood

MacLean was a nuclear weapons maintenance technician in the Air Force who later became a Border Patrol agent. The Sept. 11, 2001, attacks inspired him to become an air marshal, and his saga began shortly thereafter.

In 2003, MacLean received an alarming emergency alert from the Department of Homeland Security 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 air marshals from long-distance flights to save money on hotel rooms.

That, MacLean thought, was crazy. The 9/11 terrorists targeted long-distance flights specifically because they carry more fuel. He protested up the chain of command, got nowhere, and finally told 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 in 2006, MacLean’s bosses discovered he was the source of that embarrassing no-hotel-bills disclosure. The message he shared in 2003 was retroactively stamped “sensitive security information,” and MacLean was fired.

MacLean fought his termination for nearly a decade, claiming he acted to protect the public and deserved whistleblower protection. He lost at every turn. He couldn’t get a job in law enforcement. He was financially crippled.

Then in 2015, the U.S. Supreme Court agreed to hear his case. In a stunning and rare victory,  the high court concluded that his dismissal for disclosing “sensitive security information” was wrong, and that the Whistleblower Protection Act was designed to safeguard employees like him.

The TSA had to reinstate him to his job, and MacLean proceeded to make a series of new whistleblower reports detailing what he considered threats to public safety and illegal activity.

Enormous conflict ensued. MacLean, pugnacious and unwilling to back down, was accused by his bosses of being a conspiracy theorist. Gaining the new security clearance required to do his job dragged on for months. TSA forced him to get a psychiatric evaluation. And despite the fact that MacLean’s case and face were 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.

Devine likened that 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.”

It was on those flights that MacLean grew aghast that security was much as he left it in 2006 — and the secondary barrier issue was especially troubling to him. His supervisors praised him for proposing solutions, including two designs for secondary barriers. He patented one of them.

TSA soon sent MacLean to a far-flung office with no colleagues and no duties. Then it assigned him to the agency’s VIPR team — Visible Intermodal Prevention and Response — in Washington, D.C., patrolling aviation, rail and marine facilities. All the while, squabbles raged over how much back pay MacLean was due for the improper firing.

MacLean had pleaded for a transfer back to Customs & Border Patrol or another federal department shortly after he returned to duty, but TSA refused. He filed complaints over continued retaliation. He clashed with some co-workers. And finally, officials accused him of making “abusive/offensive comments” in the closed Facebook group “Flying Pigs,”  where federal air marshals vent their frustrations.

On March 21, the TSA fired MacLean. Again.

Take two

The past four years have been rougher on MacLean and his family than when he worked as a janitor and “gypsy roofer” to make ends meet after his first firing in 2006, he said.

Lately, he’s been driving for Uber in the Washington, D.C., area, where he was last assigned.

“It’s actually fun,” he said. “I help a lot of old ladies get groceries from the store into the house. It’s enjoyable because I’m helping people again. You get to talking and if they ask, I tell them my story.”

Devine and MacLean will challenge this latest firing to the U.S. Merit Systems Protection Board — the agency that handles personnel issues for the federal government. He didn’t get much love from the board last time around — his case wound up in the Supreme Court, after all — and he hopes it doesn’t take another decade and high court intervention this time around.

He also hopes that no tragedy hits due to any of the weaknesses he’s identified.

“This is really serious,” MacLean said. “Put in the barriers.”