Robert J. MacLean
This article features Government Accountability Project and our client Robert J. MacLean and was originally published here.
It makes sense that federal agencies have whistleblowers. Whistleblowers are individuals who have integrity, courage, honor, and a belief that the arc of justice will bend their way because truth is the touchstone on which they build their lives. It also makes sense why, when fired, whistleblowers will engage in years of litigation, engagement in a battle they may not win, because they cannot do any less when presented with a cover-up of the truth.
Robert MacLean is one of those individuals who has been thrown into a decades-long maelstrom for merely telling the truth to save lives. He stated that “people cannot believe the government can do what happened, and what is happening to me.”
MacLean was born in Torrejon Air Base, Madrid, Spain, in 1970. His father was an Air Force officer, and his mother was a Spanish national who was working for the U.S Department of the Air Force. MacLean’s mother was “stubborn strong.” He was a good student and was elected student body president in high school. He was on the varsity football, track, field, wrestling, and wrote for the school newspaper.
MacLean served in the U.S. Air Force from 1988 to 1992 and was a nuclear weapons maintenance technician for Intercontinental Ballistic Missiles. MacLean attended junior college but had to drop out after his mother was in a “horrific car accident that left her with severe brain damage and quadriplegic.” That experience solidified MacLean’s feelings about bureaucracy. Alone and having to keep his mother alive, he had to deal with health insurance, the hospital, and government bureaucracies. As his first exposure to the fact that bureaucracies were “not kind to people who were not important,” MacLean got the feeling they “did not care whether his mother died, wanting to keep things simple.” His “mother was a single woman…a divorced woman,” and MacLean felt the bureaucracy did not care. MacLean was trying to save his mother’s life, and he got the feeling that people wondered, “Who the fuck is this 23-year-old guy who is telling us what to do?” He had to pester government agencies, health, and hospital providers to do the right thing and save his mother’s life. The experience left him feeling awful. His mother passed away after twenty years of care by MacLean, his wife, and others.
After being discharged from the military, MacLean became a border patrol agent with U.S. Border Patrol, served six years in San Diego, and was routinely detailed to Arizona and California. He was then recruited by the Federal Aviation Administration (FAA) as a Civilian Aviation Security Specialist immediately after September 11, 2001, which transitioned into the Transportation Security Administration (TSA) Air Marshal program. MacLean was in the first air marshal class to graduate after the attacks. His job was to prevent terrorists and bombs from getting on planes. The Federal Air Marshal Service went from three dozen agents to 5,000 shortly after 9/11.
MacLean stated that many Secret Service managers were brought into the TSA Air Marshal program, and they wanted all air marshals to wear suits and ties and have military grooming standards. One of MacLean’s first disclosures was that terrorists easily identified air marshals by the way they dressed and looked. This disclosure got national attention. MacLean also exposed an event that his agency tried to cover up: an air marshal had left his gun in a public restroom, and a teenager had retrieved it.
MacLean’s third disclosure alleged that there was a mandate to submit false intelligence reports on innocent passengers, as the agency tried to justify its existence. MacLean tried to bring his concerns to his TSA managers and the Department of Homeland Security’s (DHS) Office of Inspector General, but he was continually rebuffed. In 2002, an investigation by USA Today showed a disturbing picture of TSA when eighty dissatisfied marshals resigned.
In July of 2003, the DHS issued an emergency alert that noted a broader-scale version of the 9/11 attacks was possible. The warning indicated that an attack could be accomplished by the end of summer 2003; shortly afterward, the TSA stopped assigning Air Marshals overnight long-distance flights to save money on hotel rooms. MacLean knew that terrorists targeted long-distance flights because they carried more fuel, so he protested the overnight flights’ stoppage. He went through his chain of command and got nowhere. MacLean then contacted a reporter from MSNBC. He reported his concerns anonymously, and the news coverage was massive. Lawmakers were in an uproar over the stoppage of overnight flights, and once TSA officials were caught in the crosshairs, the overnight missions continued.
Although MacLean contacted the San Diego Office TSA, the Oakland TSA, and the DHS’s Office Inspector General multiple times over issues concerning air safety procedures, no one took his concerns seriously. MacLean feared not only for the passengers’ safety on planes but also for his safety. His concerns also extended to airline staff using the food cart as a barrier if the pilot left the cockpit (for the restroom). Terrorists were aware that even if an air marshal was seated in the front, there was not enough reaction time to reach the terrorist if they decided to vault over the food cart on their way to the cockpit.
In 2005, MacLean appeared again on national media, after receiving no support from his agency and the DHS Inspector General. He also exposed gaps in airline safety protocols. Although the appearance was supposed to be anonymous, MacLean’s voice was recognized by TSA officials. When confronted by TSA, MacLean admitted to the 2005 media appearance and the 2003 MSNBC interview.
TSA fired MacLean in 2006 for “disclosing security information.” More than six months after being fired, the TSA retroactively marked MacLean’s 2003 disclosure as “Sensitive Security Information.” At no point, Maclean advised, did he ever provide classified information to anyone outside of the TSA, therefore “never breaking any laws.” MacLean stated that any disclosure that does not violate a law or is unclassified could be provided to others. His supervisor had previously noted that his work record was exemplary.
MacLean was determined to fight the TSA on his termination and appealed the TSA decision to the Merit Systems Protection Board (MSPB). TSA argued that the MSPB had no jurisdiction to challenge the TSA on their “Agency Orders,” and the judge dismissed the appeal without prejudice. MacLean challenged the decision in the United States Court of Appeals for the Ninth Circuit. On September 16, 2008, the Ninth Circuit ruled that MacLean could contest his termination before the MSPB under the Whistleblower Protection Act.
On June 22, 2009, the MSPB declared MacLean was not protected under the Whistleblower Protection Act. On July 25, 2011, MSPB denied all of MacLean’s Whistleblower Protection Act defenses and upheld the TSA’s decision to fire MacLean. MacLean appealed to the United States Court of Appeals, and in 2013 they ruled in his favor, instructing MSPB to reconsider whether MacLean’s disclosures qualified for whistleblower protection. The federal government appealed to the Federal Circuit’s decision and then appealed it to the Supreme Court. In January of 2015, the Supreme Court upheld the Federal Circuit’s decision, ruling that MacLean could pursue a whistleblower defense before the MSPB.
Celebrations were in order. Senator Chuck Grassley (R-IA), who had championed MacLean’s cause, held a ceremony for MacLean in Washington, D.C. The MSPB remanded MacLean’s case back to an Administrative Judge. MacLean was designated a whistleblower in November of 2015 and reinstated by the DHS.
But the victory was sweet for only a short time. MacLean returned to work but faced a hostile work environment. DHS refused to offer MacLean back pay or compensation for his lost promotions. He was treated like a new employee and had to repeat training. Because of the publicity generated by MacLean’s disclosures and his identity being circulated throughout the press, MacLean asked for a posting for a job on the ground, which was denied. The most famous whistleblower in TSA history was working undercover, exposed, and it looked like pure retaliation.
In March of 2019, MacLean was fired again after three years. During those three years, he made sure he documented everything and followed the advice of managers trying to assist him. The TSA ultimately found a message board for air marshals that was not open to the public, on which MacLean allegedly wrote “inappropriate posts.” The TSA also accused him of lying about how he obtained information about potential witnesses testifying against him.
MacLean has pending litigation and is determined to clear his name and get the money the government owes him. Tom Devine of the Government Accountability Project has represented MacLean throughout the whole ordeal. Devine and MacLean lobbied Congress for secondary barriers on aircraft from 2009 to 2017. On February 11, 2019, Congress introduced a bill mandating the immediate installation of secondary cockpit barriers on all aircraft, new and old. MacLean stated the aircraft lobby successfully got old aircraft off the list, installing the secondary obstacles only on new planes. MacLean noted that since this information was made public, a terrorist would know this fact, so he made another disclosure on how security is still lacking in older aircraft.
MacLean is currently involved in an Equal Employment Opportunity Commission (EEOC) case concerning a supervisor who called him a homicidal rapist. The case has been sitting in the EEOC office for five years. How many whistleblower complaints does MacLean have pending? MacLean responds: “Four pending disclosures since January 2018. I have four ‘Danger to Public Disclosures.’”
Financially, MacLean is hurting. He has a child with a congenital heart defect, and since being fired two years ago, he has only COVID 19, keeping him from being homeless and keeping creditors at bay.
MacLean’s advice to other whistleblowers is: “Don’t do it. If you’re going to do it, get ready to bring misery on your family, you’re going to lose the good life. You will be distracted from your hobbies, daily activities, kids, and spouse’s activities. When the agency comes after you, you will be consuming twelve to sixteen hours a day protecting yourself. Nine times out of ten, you will not prevail.”
“But if you do it (whistleblowing), try to build, I say, build alliances in your shop. Try to go to the people you trust, go to the people who have credibility, avoid the sewer snakes, build alliances that way, and collectively involve everybody. The smartphone is the whistleblower’s greatest friend. You can video record, audio record; you can email yourself, your attorneys, and protect yourself. Recording everything you do contemporaneously is important.”
“Your spouse and kids will think you are crazy, obsessed. Whistleblowing is also a great friend filter. You find some friends are not your friends; some people you do not even know will provide support.”
Why does MacLean keep going? MacLean responds, “I think because these disclosures are black and white. I had a law changed, which mandates secondary barriers to be installed on newly built aircraft. I have two patents for secondary barriers on planes. A stand-alone, modular cockpit secondary barrier system.”
Was blowing the whistle worth it? “Yes, I am saving lives and may save more in the future. It is in my nature. The experience of my mother’s horrible car accident, her brain damage, and quadriplegia revealed that people did not care until I got a lawyer involved. I have a higher than average intelligence, and I am not intimidated.” The downside, MacLean comments, “is that nine times out of ten, it is going to be disastrous for the whistleblower.”
MacLean stated that he would do it again, “but that does not resonate into me telling someone else to do it.” MacLean is pessimistic that his case will ultimately be successful because it is “all about liability” for federal agencies. MacLean admitted that this battle is “eating him up.”
Although MacLean voted for Trump four years ago because he promised whistleblower protection, the federal government has operated without a functioning agency to protect whistleblowers.
MacLean and other whistleblowers have historically seen presidents and Congress promise whistleblower protections but ultimately sell out whistleblowers as they travel a well-worn path seeking justice.