[Updated 8/30/13] The Department of Homeland Security’s attorneys filed an appeal late Wednesday of a unanimous panel of three U.S. Court of Appeals for the Federal Circuit judges in the case of whistleblower Robert MacLean, formerly an air marshal with the Transportation Security Agency. DHS requests a “panel rehearing” and a “rehearing en banc” of the Federal Circuit panel’s precedential April26 decision in MacLean’s favor.
DHS claims MacLean disclosed Sensitive Security Information when he reported an alarming cutback in air marshals aboard commercial flights. It has been established already that DHS labeled the information SSI only after it was reported by MSNBC (below)/
July 29, 2003, Despite renewed warnings about possible airline hijackings, the Transportation Security Administration has alerted federal air marshals that as of Friday they will no longer be covering cross-country or international flights, MSNBC.com has learned. The decision to drop coverage on flights that many experts consider to be at the highest risk of attack apparently stems from a policy decision to rework schedules so that air marshals don’t have to incur the expense of staying overnight in hotels.
Importantly, MacLean took his concerns to MSNBC after he complained internally to his supervisor and the Office of Inspector General, “who responded that nothing could be done.” His experience demonstrates that official “channels” serve mainly to channel disclosures into File 13.
How long this seven-year battle will continue is anyone’s guess, but MacLean shows no signs of giving up. In a superb June 1 commentary, “Homeland Insecurity: Robert MacLean and TSA,” Peter Van Buren writes:
“Here’s the miracle at the heart of this tale: MacLean refused to quit, when ordinary mortals would have thrown in the towel. Now, with a recent semi-victory, he may not only have given himself a shot at getting his old job back, but also create a precedent for future federal whistleblowers. In the post-9/11 world, people like Robert MacLean show us how deep the Washington rabbit hole really goes.”
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