Secrets in the sky: A tale of two air marshals

Introduction

The elements are all there for another thrilling episode of the TV program “24.” The backdrop: A U.S. agency of armed government agents who fly anonymously as passengers on airlines to stop terrorist hijackings. In the summer of 2006, British authorities subvert a plot to blow up transatlantic flights to the U.S. and Canada. But then, eight days later, sensitive information about a cutback on agent deployments on flights over the United Kingdom spills onto the public pages of an online forum. The U.S. agency, while monitoring websites where its employees post, rapidly mounts an inquiry into who posted the information.

But this wasn’t on TV, it’s a true story and until now, the details of this incident have been secret to the public. They’ve also been kept from a fired government employee, even though the information could have helped during his litigation with the government. The fired federal air marshal is Robert MacLean. Another federal air marshal, Anthony Rine, who was responsible for the same type of violation, described in the above paragraph, was not fired. The offense in both cases: disclosure of ‘sensitive security information.’ But whereas Rine was spared serious discipline, MacLean suffered termination despite his role in reversing a policy that potentially put airline passengers at risk.

According to a Department of Homeland Security investigation report obtained by PaperTrail and labeled “sensitive security information,” the minute-by-minute intrigue began at a Palm Beach Hilton Hotel on the morning of August 18, 2006…

10:17 a.m. – Under a screenname inspired by his boss’ name, ‘ArnieCole,’ federal air marshal Anthony Rine posts a message to the public website Uncensored Air Marshal Forum, “Atlanta has decided there are too many 3-leggers [flights with multiple stops] being left uncovered, so there will be no more UK flights from there. I’m sure one of the other offices will get to pick up the slack.” Arnold Cole is the special-agent-in-charge of the Atlanta field office of the Federal Air Marshal Service.

10:31 a.m. – Kevin F. O’Hare, a deputy chief of staff at the Federal Air Marshal Service, e-mails fellow employees Robert G. Bond and Michael R. Novak a link to the message on the Uncensored Air Marshal Forum.

10:53 a.m. – Bond, a special agent-in-charge of the Federal Air Marshal Service policy compliance unit, e-mails O’Hare, Novak, Arnie Cole and others with the subject line “Clear SSI violation.” SSI stands for “sensitive security information.” Bond suggests the removal of the message from the website “ASAP” and a Transportation Security Administration investigation into the posting.

11:28 a.m. – Someone with the screenname “New_Director” deletes the message “for OPSEC,” or operational security.

12:00 p.m. – The TSA’s computer forensic unit is asked to locate the person who posted the message.

1:07 p.m. – David Cayam of Prospero Technologie, the company that hosts the Forum, is “contacted and asked to provide the subscriber information for the person who posted SSI.”

2:22 p.m. – Cayam gives TSA the IP address of where the message originated.

From there, the TSA tracked the posting to the Palm Beach Hilton Hotel, obtained the names of the four air marshals scheduled to be there and determined only two were staying there at the time of the posting. In interviews a week and a half later, TSA special agents John Berent and Sandra Gross identified Rine as the person behind the post. He signed a sworn affidavit admitting he posted the message.

But the implications of the incident do not end there: They raise questions about the treatment of another air marshal who publicly released agency information.

In 2003, federal air marshal Robert MacLean blew the whistle to the press about an attempt by his agency to cut air marshal coverage of flights during a period of heightened threat warnings. His disclosure led to a congressional outcry that the Federal Air Marshal Service was putting security at risk, leading the decision to be reversed. Though the information was not marked “sensitive security information” when MacLean received it, it was retroactively determined to be sensitive after he was fired on the basis of disclosing SSI.

MacLean’s case illustrates the complex dynamic between secrecy and security. TSA argues that his disclosures weakened security, were in violation of agency regulations, and that MacLean should have known the information was SSI whether it was marked or not. MacLean, several members of Congress, and others say he prevented a policy that would have left airlines more vulnerable to attacks, improving security. And the way the TSA utilized the “sensitive security information” label retroactively to fire him could create a chilling effect, preventing future potential whistleblowers, they say.

Thomas D. Quinn, the director of the Federal Air Marshal Service while MacLean and Rine were air marshals, took a particular interest in the websites where his employees posted messages. In a February 2005 letter to another Homeland Security Department official requesting an investigation into MacLean, Quinn wrote that another website, the Air Marshal Forum, which had criticized Quinn, “serves as a kind of anonymous shouting gallery for disgruntled FAMs. Many of the posts are abusive, and many directly attack FAMS management and leadership.” Quinn wrote that the website was “a safe means of leaking confidential information to the press,” citing MSNBC’s Brock Meeks and the Associated Press’ Leslie Miller as utilizing it. He also wrote that it “encourages breaches of SSI,” “is a potential source for terrorists,” and “undermines morale and discipline among” federal air marshals.

Rine, unlike MacLean, only received light administrative discipline, such as losing his gun and his air marshal credentials for less than two months. Cole, Rine’s boss, wrote a letter that says “the harsh removal penalty proposed” for Rine “be mitigated to a much lesser penalty which would be more in keeping with the efficiency of the” Federal Air Marshal Service.

For MacLean, Rine’s case is troubling, not only for the disparate treatment MacLean received for the same violation. In litigation with the government over his termination, MacLean was never provided with information about Rine, despite requests for information about other disciplinary actions taken against air marshals for release of SSI.

MacLean’s lawyers requested “a complete list of employees whom the Agency has charged with and/or investigated for Unauthorized Disclosure of Sensitive Security Information.” In July 2006 — before the Rine investigation — the Transportation Security Administration wrote, it “objects to this request on the grounds of irrelevancy, overbroadness, and privacy.” It did add the following detail, except for MacLean, “TSA has not removed a Federal Air Marshal for the unauthorized disclosure of Sensitive Security Information.” MacLean argues that he should have been informed about the investigation into Rine by TSA as soon as that information became available. MacLean’s court battle continues to this day.

“Agencies should impose consistent penalties for analogous misconduct,” Tom Devine, legislative director at the Government Accountability Project, a whistleblower advocacy group, told PaperTrail. “That’s the law of the government’s employment system independent of whistleblower rights.” He said what happened to Rine is mitigating evidence for MacLean because it shows his agency could have imposed a lesser penalty on him than termination.

Nelson Minerly, spokesman for the Federal Air Marshal Service, said “[I] cannot comment because the MacLean case is still in litigation” and he “cannot comment” on Rine’s case “because of the anonymity of the air marshal workforce.”

“We do take allegations of misconduct seriously,” Minerly said, and the “Federal Air Marshal service does adhere to the Whistleblower Protection Act.” Good faith disclosures to management by air marshals will not lead to retributions, he said.