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.
Robert MacLean is the first federal employee to challenge the validity of the "Sensitive Security Information" (SSI) label in court.
Protection for screeners could be coming under the Whistleblower Protection Act
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