A former federal air marshal said he will file suit against the government today to challenge use of a nonclassified label that he says allows Homeland Security officials to cover up dangerous and inept policies.
Robert MacLean, an air marshal who was fired for blowing the whistle on a cutback of flight protections in the wake of a terrorist alert, is the first federal employee to challenge the validity of the "Sensitive Security Information" (SSI) label in court.
Asked why he is challenging the bureaucratic tool, Mr. MacLean said, "Vindictive retaliation like this makes agents unwilling to report gross mismanagement."
Families of victims of the September 11 terrorist attacks and government-watchdog groups have failed to obtain records classified as SSI.
The Government Accountability Office and Congress are critical of the label and say it is overused and stamped on everything from official correspondence to general items such as going-away-party invitations.
According to a June 2005 GAO report, SSI "monitoring controls are weak" and has "led to confusion and unnecessary classification of some materials as SSI."
"Identification of SSI has often appeared to be ad-hoc, marked by confusion and disagreement, depending on the viewpoint, experience and training of the identifier," the report said.
Mr. MacLean revealed to reporters and members of Congress on July 29, 2003, that air marshals were going to protect only flights less than four hours long to reduce costs of overnight hotel stays for long-distance flights. The new order came just three days after the Homeland Security Department issued a warning that terrorists were planning more hijackings.
"Hijackers may attempt to use common items carried by travelers such as cameras modified as weapons," said the July 26, 2003, bulletin from the Department of Homeland Security. "Attack venues may include the United Kingdom, Italy, Australia or the East Coast of the United States due to the relatively high concentration of government, military and economic targets."
"I risked everything to protect national security, but they terminated me for their own dangerous and inane plans," Mr. MacLean said.
"But I have no regrets. I did the right thing," said Mr. MacLean, who still serves as vice president of the Federal Air Marshal Service unit of the Federal Law Enforcement Officers Association (FLEOA).
"MacLean's termination is a case study in the abuse of government secrecy," said Nick Schwellenbach, investigator for the Project on Government Oversight. Mr. MacLean was fired in April and completed the Merit Systems Protection Board hurdles earlier this month. His suit will be filed today in the 9th U.S. Circuit Court of Appeals and challenges SSI as a nonbinding and abused classification.
"SSI was supposed to protect lives, but it is instead used to cover up mistakes or bad decisions," Mr. MacLean said.
Conan Bruce, Federal Air Marshal Service spokesman, declined to comment. "Our standard is we don't discuss personnel matters," he said.
Unlike classifications of information as "secret" or "top secret," SSI is an administrative tool designed to protect information that might endanger air security.
Bob Haefele, a lawyer with Motley Rice LLC, which represents the September 11 families, said SSI is used to "protect weaknesses in the system from disclosure, rather than fixing the weakness."
Adam Miles, legislative director for the Government Accountability Project, said Mr. MacLean's case is on "solid ground."
"The Federal Air Marshal Service is in blatant violation of the Whistleblowers Protection Act, which protects the disclosure of unclassified information that an employee feels endangers public health and safety, and Robert certainly did that," Mr. Miles said.
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