Court rejects argument of air marshal

By Cy Ryan

Thursday, Sept. 18, 2008 | 10:07 a.m.

CARSON CITY – A federal air marshal, who disclosed “sensitive security information” to the news media while based in Las Vegas, has lost a round in a legal battle to regain his job.

The 9th U.S. Circuit Court of Appeals rejected the suit by Robert J. MacLean, fired by the U.S. Department of Homeland Security two years after the incident.

In July 2003, MacLean received a text message on his government-issued cell phone that air marshals would not be assigned to provide security on all overnight flights until August 9. This was less than two years after the 9/11 attacks.

MacLean believed this would diminish public safety and he raised the issue with his supervisor who did not take any action. His supervisor said it was because of a budget shortfall. MacLean then tried unsuccessfully to alert the Office of Inspector General.

Finally, he disclosed the information to an MSNBC reporter, Brock Meeks, who released the story without identifying MacLean. The government then decided not to cancel the placement of the air marshal on these flights.

But the Transportation Safety Agency ruled this was “sensitive security information” and MacLean was fired two years after he disclosed the information.

MacLean, in his suit, raised a number of issues including that the information was not sensitive. The appeals court ruled the federal regulations apply to aviation security measures, including the specific number of air marshals and their deployment or missions.

The court said the information “contained specific details of aviation security measures” on the deployment of federal air marshals and was sensitive security information.

The court also said the “Whistleblower Protection Act” does not apply. But he may argue that in an appeal to the Merit Systems Protection Board, which dismissed MacLean’s case without prejudice pending the outcome of this appeal.

MacLean had worked for the border patrol in San Diego for five years and became an air marshal in October 2001 as part of the first graduating class of marshals after the 9/11 attack.