Whistleblowers hit turbulence; TSA ex-employees say they've been blackballed for revealing problems

Federal investigators worked two years to find out who told the media about a plan to save money by cutting the number of air marshals on long-distance flights. When they finally zeroed in on Federal Air Marshal Robert MacLean, he feared lying would just make matters worse. So he confessed and was soon fired.

Thomas Bittler and Ray Guagliardi saw screeners at Buffalo Niagara International Airport send bag after bag onto planes without proper screening for explosives. But instead of receiving praise when they reported lapses to superiors, the two aviation security trainers were terminated two months later.

Kim Bricker was second in command at Oregon's Medford Airport, but was soon put on involuntary leave and eventually ousted after reporting that her boss had improperly brought an assault rifle to work to show some colleagues.

Investigative teams set up shop twice in three years at Newark Liberty International Airport to try to find the sources for stories about the high percentages of explosives that went undetected during covert tests at checkpoints. The probes continued despite criticism from local members of Congress, who said fixing security holes should take priority over plugging leaks.

When security breaches are exposed at airports around the country, the information frequently comes from TSA screeners or supervisors who see the problems firsthand, but making these disclosures often comes at a devastating personal cost, including harassment, reassignment, suspension and termination.

A total of 79 U.S. Transportation Security Administration employees have filed complaints since 2002 alleging retaliation by agency officials after disclosing shortcomings in aviation security, according to the U.S. Office of Special Counsel, the body responsible for investigating federal employees' claims of whistleblower retaliation.

"Once they know you're going to stand up and question their authority . . . you're history," said James Griffin, a TSA lead screener dismissed at Long Island MacArthur Airport after telling a congressman screener shortages jeopardized passenger safety. "They will make it their business to make sure you leave - one way or the other."

Agency employees and critics say TSA screeners suffer a double-whammy: Federal regulations prohibit them from discussing agency operations with unauthorized individuals, including the media. But even telling their bosses about problems exposes the nation's 43,000 checkpoint and baggage screeners to retaliation because they are not covered by the federal Whistleblower Protection Act.

Retaliation, they say, came whether the disclosure was made to the media, a direct supervisor, further up the appropriate chain-of-command or to the inspector general of the U.S. Department of Homeland Security, which oversees TSA.

TSA officials call the allegations unfounded and say their practices keep critical information out of the hands of terrorists. Few cases, they say, have resulted in findings by the Office of Special Counsel that employees' rights were violated by TSA.

"TSA has always cooperated and worked closely with OSC to ensure whistleblowers are protected," wrote Christopher White, a TSA spokesman, in an e-mail response. "All allegations of reprisal are taken seriously by TSA."

White, however, said TSA must ensure that critical agency policies and procedures are "safeguarded in order to prevent harm to the nation because release of the information could threaten national security."

Much of that material is labeled "security sensitive information," which cannot be released to unauthorized persons, according to TSA.

But Rep. Henry Waxman, a California Democrat who chairs the House Committee on Oversight and Government Reform, said he is concerned agencies like TSA may use labels like "security sensitive information" to keep their failings secret.

"It sounds right now like it's quite arbitrary," said Waxman.

Waxman has sponsored legislation that would cover TSA screeners under the Whistleblower Protection Act for an array of disclosures.

"TSA employees must be allowed to sound the alarm on wrongdoing without fear of retaliation," said Waxman.

Citing privacy regulations, the TSA declined comment on the allegations of individuals named in this report, with one exception: the case of Robert MacLean.

AIR MARSHAL CUTS

MacLean, an Air Force veteran and a U.S. border patrol agent, became a federal air marshal based in Las Vegas a month after the Sept. 11, 2001, terrorist attacks. A marshal's mission is simple, but dangerous: Fly undercover and armed in teams of two on commercial passenger airliners, and use deadly force if necessary to prevent a hijacking.

In July 2003, the U.S. Department of Homeland Security warned terrorists might again try to take over planes, after a plot was foiled overseas. Days later, TSA sent air marshals a text message on their government cell phones, declaring major cutbacks on marshals guarding cross-country flights, which required hotel stays.

MacLean said his superiors told him the reductions were imposed because TSA - which oversees air marshals - faced budget cuts and needed to save money. He said he considered the plan "foolhardy," given both the recent threat and that all four planes terrorists commandeered on 9/11 were cross-country flights.

The air marshal said he first raised objections with a supervisor, but was rebuffed. He said he then raised the issue with several officials within the DHS inspector general's office, but got no one to act.

MacLean said he was so concerned the public would be at risk with fewer air marshals in the skies that he decided publication through the media was the only other choice. Without revealing his identity, MacLean said he leaked the directive in late July 2003 to an MSNBC reporter, four days before it was to take effect so he would not compromise a plan already in progress.

"I was naive when I made that disclosure," said MacLean. "I had no idea there were no protections for somebody who revealed corruption or dangers or mismanagement."

Other media outlets picked up MSNBC's exclusive and members of Congress demanded TSA and DHS withdraw the directive. The agencies quickly relented, found the needed funds and restored air marshal coverage on long-distance flights.

MacLean was pleased, but nervous: He knew TSA officials would try to uncover who leaked the directive.

His apprehensions rose even more as he watched on TV as CNN's Wolf Blitzer questioned then-DHS Secretary Tom Ridge about the plan. He was sure he could tell Ridge was angry, as the secretary acknowledged the idea was a mistake that would be corrected.

"If they find out it's me, they're going to rip me apart," MacLean said he thought to himself. "And they did. They came after me full steam."

MacLean said Las Vegas air marshals were called to a meeting, where they were warned by local agency officials about making unauthorized disclosures. He said they also were told there would be an investigation and the U.S. Patriot Act - the post-9/11 law giving law-enforcement officials authority to use enhanced surveillance techniques to fight terrorism - would be used to find the source.

Eventually, the DHS Office of Inspector General reviewed the allegations of abuse by government investigators, including claims that air marshals were told they would be arrested if found to have leaked the directive.

The review found that "while the alleged threats made to air marshals may have been excessive," there was no evidence authorities had used or threatened to use the Patriot Act. Additionally, the review found the leak investigations conducted by TSA and the Federal Air Marshal service "were appropriate under the circumstances."

MacLean said he confessed in 2005 when confronted directly for the first time by DHS investigators, believing they had evidence against him. Finally, in April 2006, he was fired for releasing what the agency calls "sensitive security information," or SSI.

"Your unauthorized media appearance and unauthorized release of SSI information to the media raise serious doubts about your judgment and trustworthiness," a TSA official wrote to MacLean in his termination letter.

"Moreover, the disclosure of SSI had the potential to reveal vulnerabilities in the aviation security system, and as such, was extremely dangerous to the public we serve," the official added.

MacLean is challenging the designation of the material as SSI and is suing to regain his job, while government watchdog groups say he should be protected under federal law as a "whistleblower."

MacLean's case is pending before the Ninth Circuit of the U.S. Court of Appeals. Nearly a year and a half after being fired, he says he cannot get another job in law enforcement. He has moved his wife and family to California, where they now live with his parents, and is starting an "environmentally safe" pressure-washing business.

"I'm done in federal service," said MacLean. "I've been completely blackballed."

MacLean, now 37, has some ad vice for others who might leak government information they believe puts the public at risk: "It really isn't worth it, unless there's protective measures in place."

UNCHECKED BAGS

Rep. Waxman said the House of Representatives "has not been swayed" by arguments that strengthening the Whistleblower Protection Act will weaken security and it showed this by passing his measure 331-94.

But while Waxman's bill would extend coverage to TSA screeners, the current Senate version - which awaits a vote - does not. And even if the Senate adopts coverage for TSA screeners, the legislation still faces a potential veto by President Bush.

While MacLean's case is spotlighted by whistleblower groups, many other cases also show the tensions between TSA and those who report its failings.

At Buffalo Niagara Airport, two security training officers, Thomas Bittler and Ray Guagliardi, said they became targets within TSA after they reported in the fall of 2003 that baggage screeners were routinely violating procedures when checking for explosives.

"Bags were going through unchecked - period," said Bittler. "And bags that were checked weren't being checked properly."

Guagliardi said the pair tried to do the right thing by going through official channels instead of the media.

"We sent it up the chain-of-command," said Guagliardi. "When nothing was done, we sent it up to (TSA's Virginia) headquarters."

They said they found themselves excluded from staff meetings, ostracized, moved to less desirable offices, had their e-mail accounts shut down and were told they couldn't work the holidays.

"Then two weeks later, we were fired - police-escorted out," said Guagliardi.

The pair also filed a whistle-blower retaliation complaint with the Office of Special Counsel, which did not pursue their case.

In October 2004, The Star-Ledger, citing confidential inspection reports it obtained, reported that screeners at Newark Liberty missed 25 percent of explosives and weapons during weekly internal covert tests over a three-month period. In October 2006, quoting unnamed federal officials, the newspaper reported that screeners missed 20 of 22 explosives and weapons during tests by undercover TSA agents.

In each case, the TSA sent teams of internal affairs agents to Newark Liberty in an effort to find the newspaper's sources. Dozens of screeners were interviewed. Some airport personnel described the probes as intimidating. One individual familiar with the 2004 probe said investigators threatened some employees with jail time for releasing the test scores, which are labeled "se curity sensitive information."

White, the TSA spokesman, offered a nuanced response. He disputed that agents threatened jail time for releasing "security sensitive information," but acknowledged employees were told they could be prosecuted for lying to investigators about whether they released the information.

"Thus the discussion about criminal penalties related to providing false information in a sworn statement and not to the improper release of security sensitive information," the spokesman added.

In October 2006 when the second probe was under way, Rep. William Pascrell (D-8th Dist.) chided TSA for pursuing the leak instead of figuring out why screeners were missing 90 percent of items undercover teams tried to sneak past them. A year later, Pascrell said he has yet to get satisfactory answers from TSA for its actions.

"We've got to make sure these people feel protected and they can come forward," said Pascrell.

WHAT IS CLASSIFIED?

Much of the concern centers on TSA's "security sensitive information," or SSI designation. Critics say the labeling is vague and falls far short of the standards required for the better known label of "classified information," which is used to protect the government's most important secrets by agencies like the CIA.

"It's just an easy way to cover up embarrassing information, rather than tell the truth," said Adam Miles, legislative representative for Government Accountability Project, a nonprofit watchdog group.

White of TSA disagreed.

"If SSI operated under the strict constraints of Classified Information, it would be impossible for the government and stakeholders to quickly and safely share sensitive information facilitating a quick response to threats to our nation's transportation systems," wrote White.

Of the 79 complaints the U.S. Office of Special Counsel has received from TSA screeners, supervisors and other personnel, only three cases have resulted in a suc- cessful conclusion for an employee, said Loren Smith, an OSC spokes- man. Only four cases remain open, with the bulk of the others closed because OSC could not find sufficient proof to uphold the allegations, said Smith.

The OSC may review complaints from TSA screeners and make recommendations, but cannot compel the TSA to take corrective measures. Other TSA officials, including administrative staff, highlevel executives and even air marshals like MacLean are covered by the Whistleblower Protection Act.

But even the covered employees rarely succeed in having the disciplinary actions against them overturned. Critics say this is because the standard of proof is set far too high. Of the hundreds of cases heard before the federal Merit Systems Protection Board between 1999 and 2005, 7 percent were successful, according to the Government Accountability Project. Of 185 cases appealed to U.S. Circuit Court of Appeals in Washington the past 13 years, only two were successful, the group said.

Tom Devine, a lawyer for GAP, said Waxman's legislation would go a long way toward correcting the weaknesses in the Whistleblower Protection Act.

One of OSC's few successful TSA cases eventually vindicated the employee, but the experience still left her embittered.

In May 2003, Kim Bricker, the acting assistant federal security director at Oregon's Medford Airport, happened upon her boss in a conference room, showing his as sault rifle off at lunchtime to several male subordinates.

"This doesn't belong here," Bricker said she told them. "They just laughed it off."

Bricker said she did not trust her own agency and instead reported the gun incident to the DHS inspector general's office. But DHS, which oversees TSA, referred the case back to TSA, which assigned two investigators.

"They basically said: 'Come on, Kim. He didn't point it at you,' " said Bricker, recalling her interview with the TSA agents. "They wanted this thing closed out and they didn't want to write up that these guys were at fault. ... I said, 'I don't care. You don't bring an as sault weapon into my workplace.' "

Meanwhile, Bricker said her boss, Andrew Niero, went on the counterattack and she was accused of infractions, such as improperly escorting another employee through a checkpoint. Within two months, Bricker was suspended with pay and eventually terminated when the TSA sided with Niero.

Undeterred, Bricker filed a complaint with the Office of Special Counsel, which sided with her and won her reinstatement. But Bricker still had to change airports and move her residence because she said TSA told her it no longer had a position for her at Medford.

"This agency is real good at harassing and intimidating," Bricker said of TSA. "It wasn't fun."

Niero was suspended one day and remains a TSA employee at a different airport in a lower-level job. He declined comment.

The OSC said it had investigated Bricker's "allegations and concluded there were reasonable grounds to believe that the person nel actions violated the Whistleblower Protection Act," according to an agency statement released in February 2005

But Bricker said OSC could not have reached any other decision in her case, noting: "This was a no-brainer. This was an easy one."

Ron Marsico may be reached at rmarsico@starledger.com or (973) 392-7860.

Photo Credit: 1. PHOTOS, CLOCKWISE FROM TOP LEFT, BY MARK AVERY, RHEA ANNA, WILLIAM PERLMAN/THE STAR-LEDGER AND JOE BRIER/FOR THE STAR-LEDGER

Graphic Credit: THE STAR-LEDGER

Infobox: 1. "This agency is real good at harassing and intimidating." -KIM BRICKER, FIRED FROM THE TSA

2. "Bags were going through unchecked - period. And bags that were checked weren't being checked properly." -THOMAS BITTLER, SECURITY TRAINING OFFICER, BUFFALO NIAGARA AIRPORT

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