Message to federal employees: Keep your mouth shut 

What do federal law enforcement officers do when they know that certain misguided policies within their agencies directly endanger the safety and security of their fellow Americans?

If they have any sense, they keep their mouths shut.

That’s the only conclusion to be drawn from a May 12 ruling by Merit Systems Protection Board administrative judge Franklin M. Kang, who dismissed an appeal filed by former U.S. air marshal Robert MacLean.

MacLean was fired in 2006 for publicly disclosing unclassified information that he had received in 2003 over a non-secure cell phone. His firing came after the Transportation Security Administration retroactively marked the information as “Sensitive Security Information,” three years after disseminating it through non-secure channels.

MacLean had disclosed that TSA planned to remove air marshals from non-stop, long distance flights to save money. MacLean also publicly complained that the TSA’s military-style dress code needlessly compromised the identity of federal air marshals.

Widespread public outrage forced TSA to rescind both policies and vindicate MacLean. “After the Christmas Day incident, I was 100 percent satisfied that I helped save lives by forcing the TSA to put air marshals on long-distance flights,” he told The Washington Examiner.

But MacLean, a former executive vice president of the air marshal chapter of the Federal Law Enforcement Officers Association, paid a high personal price for his candor. He has been financially ruined, forced to move in with his parents and unable to find another job in law enforcement, despite a sterling decade-long career. MacLean argued before the MPSB that his firing was unfair since TSA had retroactively marked the information he disclosed as “Sensitive Security Information” three years after the fact.

That didn’t faze the MPSB judge one bit. “Kang told me that as a law enforcement officer, I had a duty to mark it myself,” MacLean said, in effect putting a total gag order on the entire U.S. Federal Air Marshals Service.

TSA’s preposterous ex post-facto SSI marking and Kang’s absurd ruling had the desired effect: MacLean became the poster boy for federal law enforcement whistleblowers everywhere. The take-home message: “Speak up and we’ll get you.”

This was hardly the first time. According to MSPB statistics obtained under the Freedom of Information Act, blogger Charlotte Yee of the Project on Government Oversight found that Kang’s record against appellants was 139 -0, or about the same odds MacLean would have gotten in a Stalinist-era show trial.

“Judge Kang’s track record is only slightly more hopeless than the norm,” pointed out Tom Devine, legal director of the Government Accountability Project, who represented MacLean during his appeal. Devine, who vows to keep fighting until “there are no doors left to pound on in the legal system,” plans to appeal to the full MSPB.

Meanwhile, former colleagues privately tell MacLean that they’re afraid to speak up even when they know public safety is in jeopardy. “I’m just keeping my mouth shut and let the bodies burn,” is the all-too-common refrain.

“I don’t regret what I did, but if somebody came to me and said they needed to come forward, I would definitely tell them that there’s going to be a lot a pain ahead,” he added. “The federal government’s senior executives will view you as a rat. Loyalty is more important to them than public safety or their country.”

And that does not bode well for the rest of us.

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