Part 6 - Government Accountability Project

Transcription

I
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jt Front page Wall Street Journal article on FAMS pr...
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V l V"':t'OI11 \.v V'ICI.n::'ll,Jo lJ'7 V.,J.
cdrri",rs; numbers grow to 400 I>y 1987
1992-1997: Number of marshals drops as
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http://mail.google.com/maill?ui=2&ik=cf1 be3ffc8&view=p...
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2007: haS an estllnate<:l
2,500 to 4,000 marshals
S,ur<e: FodorJII\ir MJr,hJI $''f·,ic";
Riqoberto Alpizar WSJ r<'5@(h
.
----------.------------------------------.-----------------
Mr. Quinn. a retired Secret Service agent who took over the service a few months after 9/11. told the committee that
the problems were exaggerated and that complainers were "disgruntled amateurs" who were bringing the whole
organization down.
In February 2006, Mr. Quinn retired from the federal government. Three months later, the Judiciary Committee
issued its findings, saying that Mr. Quinn included "factual inaccuracies" in his responses to the committee. The
committee also concluded that the check-in and boarding procedures were "unacceptable to ensuring the
anonymity of Federal Air Marshals" and criticized the formal dress code and hotel policy.
Now a private security consultant. Mr. Quinn dismissed the report. In an interview. he called those who voiced
complaints "insurgents" and "organizational terrorists."
So far, few marshals or security experts believe that the tensions inside the agency have affected the performance
of the agents' flights or their judgment in the most critical question they face: when to blow cover and intervene in a
situation on board. The decision is more art than science. One air marshal says that officers get drawn into onboard
conflicts so often they seem more like in-flight security guards. Says another: "You have to wait until it seems bad
before you do anything. You're not a bouncer."
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False alarms are sometimes inevitable. Marshals must quickly judge if suspicious behavior is criminal or just odd.
They also have to weigh the need to remain undercover as long as possible against the needs of passengers who
might be under distress.
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"We don't want to ... be drawn out only to find out there was a situation designed specifically for that purpose and
now our presence, our positions have been compromised," says Mr. Brown. But even if a situation is not necessarily
life-threatening, "We're not going to let anyone get hurt on that aircraft."
In the first of the two incidents when marshals drew their weapons, in August 2002, an agent held the entire coach
section of a Delta flight to Philadelphia at gunpoint while his partner restrained an unruly passenger. Once the plane
landed, the disruptive passenger and a second flier were detained by authorities but later released and not charged.
The second came in December 2005, when Rigoberto Alpizar, a 44-year-old paint salesman from Maitland, Fla.,
frantically ran off an American Airlines flight about to leave Miami, with his backpack strapped to his chest. "I'm
going to blow up this bomb," he said as he reached into the pack, according to two air marshals who were on board.
When the man, later determined to have been mentally ill, advanced toward the marshals, they shot him nine times,
killing him. State prosecutors later concluded that the shooting was legally justified. Calls to Mr. Alpizar's widow,
Anne Buechner, weren't returned.
After Flight 42 from Amsterdam, the air marshal service's investigative and training divisions reviewed the incident,
according to standard policy, and determined that it had been properly handled, according to a federal official
familiar with the process. "It was textbook, that was really the bottom line," the official said.
Mr. Brown, a 25-year veteran of the U.S. Secret Service, took over after Mr. Quinn's retirement. He initially saw the
complaints from marshals much as his former boss had. But soon after taking office, he began inviting marshals to
small dinners in Washington, and soon came to a different understanding. In July, he sent an email to all air
marshals. "Candidly, the morale was much worse than I thought," he wrote.
Mr. Brown has begun taking steps to deal with some of the discord. In August, he loosened the dress code,
instructing marshals to "dress at your discretion." A new pilot program allows them to check in for flights at airports
using kiosks, rather than ticket counters. The marshals are also free to choose their own hotels. Mr. Brown has set
up 29 working groups to address such matters as scheduling and promotions. He's also opened up a dialogue with
the officers' association, meeting with its leaders to hear their complaints.
Still, he said he hasn't found a way to change the boarding procedures. In a December memo, he noted that the
7/301096:33 AM
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A175
http://mail.google.com/maill?ui=2&ik=cf1 be3ffc8&view=p...
Gmail - Front page Wall Street Journal article on FAMS pr...
agency was able to reach its hiring goal for the year, but didn't specify how many new marshals were recruited.
Meanwhile, some marshals who had been highly critical of management "are more optimistic that things are going
to get better," says Mr. Terreri.
--- Daniel Michaels and Binny Sabharwal contributed to this article.
7
Write to Laura Meckler at [email protected] and Susan Carey at [email protected]
8
URL for this article:
http://online.wsi·com/article/5B117096584805802687.html
Hyperlinks in this Article:
(1) http://judiciary.house.gov/media/pdfs/FAMSRpt060606.pdf
(2) http://www.miamisao.com/publications/press/2006/airmarshalshooting.pdf
(3) http://online.wsj.com/documents/marshal-health-02092007.pdf
(4) http://online.wsj.com/documents/marshal-morale-02092007.pdf
(5) http://online.wsj.com/documents/marshal-dress-02092007.pdf
(6) http://online.wsj.com/documents/marshal-yearend-02092007.pdf
(7) mailto:[email protected]
(8) mailto:[email protected]
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A176
MAY 2 5 2005
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
FEDERAL AIR MARSHAL SERVICE
CONDUCT .-'
/
(j
REPORT
EMPLOYEES INVOLVED
TITLE
STATIONED AT
Robert 1. Maclean
Federal Air Marshal (FAM)
lAXFO
INFORMATION FURNISHED BY
MANAGEMENT (NAME AND TITLE)
DATE INFIORMATION RECEIVED
DATE OF INCIDENT
2/04/05
Unknown at this time
HQ
INFORMATION RECEIVED I
HEADQUARTERS (NAME AND TITLE)
ASAC Mike Mika
DATE OPENED BY HQ· FIELD ors
======
CATEGORY OF ALLEGATION
# 4 Conduct Unbecoming.
#7 Disclosure-SSI
# 8 Hostile Work Enviromnent
# 19 Failure to Follow
Procedures
#26 Misuse of Government
Equipment
2/11105
DETAILS
FAM Robert MacLean has been identified as a frequent participant in Delphi ForumslAir Marshal
Forum, an unofficial internet website concerning FAMS. Some of the most offensive postings have
been attributed to FAM MacLean.
_-Infonnation that was forwarded by FAMS Director, Thomas Quinn, to Michael Garcia, Assistant
Secretary for Immigration and Customs Enforcement (ICE), is included along with this report.
Previous CIR # 969
INITIAL ACTION
ICE/OPR Notilied via Memorandum from FAMS Director, Thomas Quinn, to Michael Garcia, Ass't Secy for
ICE
DATE 2/1l/05
o INVESTIGATION DECLINED 0
INVESTIGATION OPENED CASE NUMBER
PENDlNG:
o WAITING FOR ADDITIONAL DOCUMENTATION 1ACTION REQUIRED BY REPORTING OFFICE.
FILE IN PENDING FOLDER.
....L.
A177
I
al .4 ir Marshal Service
U.S. Department of Homeland Security
425 r Street, NW
Washington, DC 20536
u.s. Immigration
and Customs
Enforcement
February 11, 2005
ACTION
MEMORANDUM FOR:
Michael J. Garcia
Assistant Secretary for Immigration and Customs Enforcement
FROM:
Thomas D. Quinn
Director, Federal Air Marshal Service
SUBJECT:
Request for Investigation ofFAM Robert J. MacLean
Purpose
The purpose of this Memorandum is to request an immediate internal investigation ofFAM Robert J.
MacLean of the Los Angeles F.O.
Background
FAM MacLean has been identified as a frequent participant in the Air Marshal Forum (AMF), an
unofficial, publicly accessible internet bulletin board concerning the Federal Air Marshals Service
(FAMS). Since its inception in August 2002 there have been thousands of individual postings to the
AMP by registered members, mostly FAMs. The AMF serves as one of the principal venues used
by FAMS and other ICE employees to maliciously and publicly discredit and undermine FAMS
management and the FAMS organization. FAMs who participate in the AMF do so in violation of a
number ofFAMS policies, as detailed in our Action Memorandum re: Request for Investigation of
Certain Federal Air Marshal Service Employees, to Mr. Clark Kent Ervin, Inspector General of
DRS, dated August 11,2004.
FAM MacLean serves as Executive Vice President of the Federal Law Enforcement Officers
Association Federal Air Marshal Organization (FLEOA FAM) Executive Board. Ris identification
as one of the most strident and irresponsible anti-management voices on the AMF directly links the
AMF with FLEOA's concerted public campaign to undermine FAMS management.
Discussion
As discussed in the August 11 Memorandum, as well as subsequent Memoranda, the AMF serves as
a icind of anonymous shouting gallery for disgruntled FAMs. Many of the posts are abusive, and
many directly attack FAMS management and leadership, including, most persistently, Director
Quinn and SAC David Adams, with malicious, .obscene, irresponsible, defamatory, disparaging and
2
A178
Request for Investigation ofFAM Robert J. MacLean
February 11, 2005
Page 2
disrespectful comments. Some of the most vociferous and offensive postings on the AMF have been
made by a member using, at various times, the web handles ''bye_bye_TQ'', "ANGRY_ADAMS",
and "PIN_HEAD", all frequent posters on the site. Despite careful measures to protect his
anonymity, we have been able to identify FAM MacLean as the author of these posts. A detailed
step-by-step explanation of the analysis identifying MacLean is attached as Exhibit 1.
FAM MacLean has been one of the most abusive participants in the AMF. A small sample ofhis
posts is attached as Exhibit 2. He is active in FLEOA and serves as Executive Vice President of the
FLEOA FAM Board. He is currently under investigation in connection with his
unauthorized appearance on a segment of NBC Nightly News where he criticized FAMS policies.
Participation by FAM MacLean in the AMF is a flargant violation ofFAMS policies. Many ofms
pos.ts on the AMF constitute activities that criticize or ridicule FAMS policy and management by
speech and writing that is defamatory and that impairs the operation ofFAMS, in violation ofFAMS
Employee Responsibilities and Conduct Directive ADM 3700 guidance regarding public statements
and appearances, and TSA Human Resources Management Letter No. 735-1 regarding defamatory
or irresponsible statements. A complete list of his violations is attached as Exhibit 3.
Link between the AMF and FLEOA
FAMS employees, acting under the umbrella ofFLEOA, have waged a public campaign in the press,
in Congress, and, especially, on the AMF, attacking FAMS executives and Director Quinn
personally. It has been clear for some time that the AMF has functioned as both a FLEOA
megaphone and, because of its anonymous nature, as a safe means of leaking confidential
information to the press. The AMF has been one of the principal venues for FLEOA-inspired public
criticism ofFAMS policies, management and leadership. FLEOA press releases routinely appear on
the ANIF and FLEOA members and representatives regularly post FLEOA party-line information on
the AMF. Competing organizations, such as the Federal Air Marshal Association, are frequently
disparaged and messages critical ofFLEOA have apparently been removed from the AMF by the
host or by others.
In our August 11 Memorandum we stated that, although we could establish no direct link between
the AMF and FLEOA leadership, the postings of FLEOA press releases and other materials,
including by AMF member "bye_bye_TQ", strongly suggested that such a link existed and that
FLEOA has used the AMF to foment discontent and recruit members among FAMs. The unmasking
of "bye_bye_TQ", as well as of "ANGRY_ADAMS", and "PIN_HEAD" as a high-ranking FLEOA
officer now shows a clear and direct connection between the AMF and FLEOA. We can now state
definitively that the potential harm to aviation security caused by AMF is directly attributable to the
actions ofFLEOA officers.
While, in the short run, such irresponsible activities may help FLEOA to garner publicity and
advance its narrow agenda of gaining standing as a de facto labor organization, they do great damage
to the security of the civil aviation system, the personal safety of FAMs and of the flying public. We
have expressed
concerns about this potential harm in previous Memoranda. The following is a
recapitulation of these concerns.
our
·1·· '.
A179
'.
Request for Investigation of FAM Robert J. MacLean
February 11, 2005
Page 3
1.
The AMF encourages breaches ofSSI
In addition to serving as a way for disgruntled FAMs to publicly discredit and undermine LAMS
management, the AMF creates the potential for gross mishandling of non-public infonnation
regarding the FAMS. The AMF serves as an invitation for breaches of Sensitive Security
Infonnation (SSI) procedures, and such breaches occasionally occur.
2.
The AMF serves as a way for FAMs to leak to the press in violation ofstanding FA;i;fSpolicy
The AMP is routinely used by journalists, including MSNBC's Brock Meeks and Associated Press'
Leslie Miller, to collect and solicit non-public infOlmation about FAMS. Journalists openly
encourage disgruntled FAMs to contact them with specific infonnation which is routinely used in
stories highlighting alleged lapses in aviation security. Because the FAMS actively participating in
the AMF constitute a small, but highly vocal group, the picture ofFAMS presented by these leaks is
a highly distorted one.
3.
AMF is a potential intelligence source for terrorists
While the general picture ofFAMS as a dysfunctional and ineffective organization painted on the
AMF is highly inaccurate, it is possible to glean a considerable amount of particular infonnation
about FAMS operations, procedures and capabilities by regularly reading the posts. The A.1'vfF
provides our terrorist adversaries with an up-to-date one-stop-shopping library of information about
the FAMS and aviation security which is posted in bits and pieces by participating FAMs ir:
violation of policy. It would be easy for terrorists, who have proved highly internet-savvy in the past
to use the AMF as a rich source of information about potential weaknesses in aviation security and
even that they may use various ruses to solicit infonnation directly from unwitting FAMs.
4.
AMF increases the likelihood ofhostile acts against aviation
A terrorist who is a regular reader of ANIF could reasonably conclude that Fi\MS is an organization
in disarray with poor leadership, rnisallocated resources and misdirected priorities. Such a
misleading portrayal ofFAMS not only damages public confidence in the FAMS, but actually
undennines the ability ofthe FAMS to deter hostile acts by presenting the organization as a soft
target for terrorists. The AMF therefore endangers passengers and aviation safety and makes a
terrorist attack more likely.
5.
The AMF undermines morale and discipline among FAMs
The AMF degrades the efficient functioning ofFAMS by constantly churning a brew ofunfjunded
rumors, allegations and grievances that undermine the morale ofF.t.\.Ms. Its very existence
encourages FAMs to violate existing policies, leading to a breakdown of discipline and stress on relations between FAMS and their managers. Thus the ability of F )oMS to deter defeat
hostile acts targeting U.S. air carriers, airports, passengers and crews is degrcded.
A180
Exhibit 3
Specific Violations
FAM MacLean has violated numerous policies and regulations in connection with his participation
in the AMF. Specifically, he has:
A. Disclosed in FLEOA's official publication, "The Eighteen Eleven" (l811), Sensitive
Security Information (SSI) in violation of 49 C.F.R. Part 1520 - "Protection of Sensitive
Security Information";
B. May have inappropriately used FAMS facilities, supplies, equipment, personnel andlor
duty time to contact or lobby members of Congress, or to encourage third parties to do so,
or did so in their official capacity as Federal Air Marshals, in violation ofTSA Human
Resources Management Letter No. 735-1, Para. 10, and FAMS Personal Use of
Government Equipment Directive OMS 4401;
C. Engaged in activities that tended to criticize or ridicule FAMS policy and management by
speech and writing that is defamatory and that impairs the operation ofFAMS, in
violation ofFAMS Employee Responsibilities and Conduct Directive ADM 3700, Para.
17;
D. May have made unauthorized public statements or external publications concerning
FAMS in violation ofFAMS Employee Responsibilities and Conduct Directive ADM
3700 guidance regarding public statements and appearances, and DHS Management
Directive MD Number: 2260.1;
E. Caused embarrassment to FAMS through off-duty activities designed to cause their coworkers and the public to lose trust in FAMS and question its management's reliability or
judgment, in violation ofFAMS Employee Responsibilities and Conduct Directive ADM
3700, Para. 11;
F. Made defamatory, irresponsible, disparaging and disrespectful statements attacking the
integrity of FAMS management and encouraged others to do the same, in a manner that
tends to adversely affect the efficiency ofthe service, in violation ofTSA Human
Resources Management Letter No. Para. 12;
G. Palticipated in unofficial internet websites concerning the FAMS and divulged
information related to the FAMS in violation ofFAMS Employee Responsibilities and
Conduct Directive ADM 3700, Para. 17(b), regarding unofficial Intemet websites;
H. May have participated in unauthorized and undisclosed outside employment and used
their government position, title and authority to endorse or promote FLEOA as an
enterprise in violation ofFAMS Ethics/Standards of Conduct Directive OMS 2110, Para.
6(A)(l0) and FAMS Employee Responsibilities and Conduct Directive ADM 3700,
Paras. 14(b), 14(e) and 15;
r{1
A181
Request for Investigation ofFAM Robert J.
February 11, 2005
Page 4
Conclusion
FAM MacLean has been a central figure in the activities of a small group ofFAMs, encouraged or
directed by FLEOA, to undermine FAMS management. His participation in the AMF is a flagrant
and unacceptable violation of policy that has done considerable damage to FAMS as an organization
and that warrants stem disciplinary measures.
A182
':0 S-7.()4 .1
Bye eye TO
message 776.15 sialing. "My iather was
In
Vielf'iam- and -I am a Wi
2.) On 9-26-04 at 3:43 am Bye Bye TO posts message 811.16 slaling, ••.••• 10 see my kids' and'l wiD now go and collecl my 70 k
wnore money . ......
3.) On 9·26-04 al 2:Q.; :)m Angry Adams posls message 811.19 slaling. '1 have yello enjoy an FOD and I have missed severallraining
days since my SAC dedded to use the MRF policy.'
4.) On 10·9-04 al 4:12 om Bye Bye TO posls message 842.14 slating•••. .1 have been placed on MRFs 4 of the Iasl601 my training days....·, in
anolher place in the oost 8ye Bye TO slates. 'My SAC doesn't allow us to fife our weapon on our own time'.
5.) On 10·9·04 at 4:12 pm Bye Bye TO posts message 924.2 stating, ...·Those must be the 3 OPS and 6 training posillons he's referring 10
in my 400+ FAM offi'.:e.6.) On 10·13·04 at 12:46 pm Pin Head poslsmessage 842.43 stating....·My FO forces us lowearil during training. Remember thewhote
muscle memory' thing? III am fOfced 10 wear il i11llaining, I belter wear it on missions. I don'l want 10 go to an imaginary chest holster
while AHM066's '14 terrOrists' come aner me.·
7.) On 11-7-04 at 12:34 pm Pin Head posts message 855.53 staling, 'Good thing I am stuck in a dump in Queens fot Thanksgiving and
don't have 10 face "'y family and all the dumb PJr Marshallopics.·
8.} On l·f5-o5all1:14 am Angty Adams posts message 1035.1 slaling. '/ j<lSl QO/this from lhe "HQleak·room.· In the message he
stales that he has a HQ sour.ce and in one place in the message refers 10 the source as· she· and in another place in the message refers
10 the source as ·her". Angry Adams noles thal: "we would be lost wilhoul her".
evmENCE:
9.) A review of aU messages posled by Angry Adams. Pin Head and Bye Bye TO resulled In the determinalion that there is a high that one person uses all three web tags. This determination is based on Slfoog similarity in writing style, subject maller, lone. word and
acronym usage, punctuation. grammar, slang terms and unique speKing forwards sucl1 as ·ru d(' or·a ss· etc., commoo
to aU three web lags
lags in significant amounts.
10.) A review of all messages posted by Angry Adams, Pin Head and Bye Bye TO reveals the following: Angty Adams has posled 44 messages
With the first 00 7·9-04 and the Ialest on 2-7-05; Pin Head has posted 39 messages with the firsl 00 4-25-04 and !he lates! on 11-9-04;
Bye Bye TQ has posted 111 messages with the firsl on 7·5-04 and the latest 00 2·8-04.
11.) Inquiry revealed that Ihe aa-onym MRF means 'Missioo recovery FAM· and Is only used in the las Vegas Field Office where ills
commonly known. It is noted lhalthe Los Angles F.0. had no knowledge of the acronym MRF (reference /13 and 114 above).
12.) Based on the las Vegas Origin for the lerm MRF, Mission Assignment Records and T&A's were oblained for all FANs assigned
to the
las Vegas F.O. and were thoroughly reviewed. A tolal of 146 current LAS FANs were e1ininaled- as suspects based on their having
been sitting in a plane seat 00 alleasl one or more occasions when messages were posled by Angry Adams. "excluding supe,.,.;sors
and 10 FAMs personally vouched for by SAC Knowlton as aboVe reproach.
13.) FAN Robert J. MaClean was develped as a suspect because he was a LAS FAN who received a hardship transfer to
LAX in October 04 where he cUlTenUy serves as the FLEOA F.O. representative.
Maclean is also
Exealtive VP of FAN FLEOA and the
subjecl of a pending ICE OPR invesligaijon for having appeared 00 NBC NighUy News wearing a hood 10 mask his identity.
MacLean
is a former USBPA from the San Diego Seclorwhich is the home of local 1619. the same union local that FAN Frank TerreO was
formeriy president or. Maclean claims to have served as the USBP San Diego Sedor PuWc Relations Officer. In writings located on
MacLean's FAN computer MacLean lauds Terreri as a good friend from his Border Palfol yeatS where they occasionally worked together.
He slates lhat Terreri appointed him the FAM Los Angles F.O. FLEOA represenlative. Upon his reassignmenllrom the FAM Las Vegas F.O.
MacLean wrole to his new FAM los Angles F.O. ATSAC requesting 10 be partnered with Terreri on mission asslgnments.
14.} A review of MacLeans FAN ernail reveats thai 00 5-5-04 Maclean sent an emaitmessage to FAN Salazar with a of: 515 MRF. The
message asks Salazar If his duly hours lied been SWitched 10 1000 Ivs (referenee is made 10 /13 and 114 above).
15.) A review of all of MacLean's mission assignments and T&A's revealed thaI Maclean had no miSSion assignments lhal placed him in
a plane seat on any dales or times when Angry Adams.
Pin head or Bye Bye TO messages were posted.
16.} A review of MacLean's T&A's, missioo assignments and Voucl1ers reveals lhat he spenl the Thanksgiving period of 11-24 thru 11·27
on RON mission aSSignments oul of the JFK airport. During lhis period Madean Slayed at lhe JFK airport Doublelree Club located
in Oueens NY (refer.nee #7 above).
17.) A review of Maclean's 00214 filed althe lime of his FAN application reveals Ihat he served in support 01 OperaUoo Desert
srueld
tfetween 812190 and 9/14/92. MacLean has a 5-po;nt veterans preference (reference #1 above).
18.) A re,iewof MacLean's currenl SF 50 reveals that in 2004 his base pay plus localily and LEAP Iotaled 576,577 (reference #2 above).
19.) A review of MacLean's SF 86 reveals that he is married Wilh ao children. However, emailllalfic reveals thaI and his wife have lwo young
daughters born since his FAM EOO. Per Maclean's SF 86 Maclean's father is a former Air Force Officer born in 1945 (reference #1 and 112 above),
MacLean's falher's
age would indicate that he served in the AK Force dUring lhe height of the Vietnam War.
2O.j A review of Los An<;ies and Washington F.O. staffing reveals that L()S Angles is stalled with J.Ops and 6-Trainers. Washingtoo F.O.
is slaffed with 8 OP5 and 13-Trainers (reference tIS above). Maclean is assigned 10 the Los Angles F.O. with numerous long haut missions
into Duties and BWI :rom LAX and other west Coast 21.) SAC KnowUoo has .dllised that he prohibils FAMs assigned 10 his Office Irom wearing anything other than Ihe issued hip holster dUring
FO training and has an unwriUen policy prohibiting assigned FAMs Irom firing Iheir issued r..earm olI-duly (reference 114 above).
In writings lcealed Or. MacLean's FAM compuler MacLean writes 10 ACY lraining 00 12·25-04 requesting pelTllission to wear
Q
SUM,al Sheath brand chest holster instead of the issued hip holsler during his upcoming Phase 2 training. Maclean noles that he
'would feel very ur.comfor1able re-ieaChing myself into a new holsler system for lhree weeks' (rererence I/O abOvel.
CONC'.JSION: FAM Robert J.
Mao·... n is the indiVIdual posling oolhe Delphi Ajr Marshal Forum as Angry Adams. Pin Head and Bye Bye TQ.
A183
J.
Page 20
1
Q
Thank you.
2
A
I have not 'received any Social Security
3
4
benefits.
Q
5
6
Okay,
thank you for clarifying that.
In handling your mother's conservatorship,
does that make you unavailable ,for employment?
7
A
No, it does not.
8
Q
Since leaving TSA's employment, are you
9
available for full-time employment?
10
A
Yes, I am.
11
Q
Before joining TSA, where did you work?
12
A
For the United States Border Patrol.
Q
What was your position there at Border Patrol?
14
A
Border Patrol Agent.
15
Q
How long were you a Border Patrol Agent?
16
A
Since May 20, of 1996.
17
Q
While a Border Patrol Agent, were you
18
responsible for handling confidential information?
19
A
Yes.
20
Q
What type of confidential information did you
21
22
handle?
MR. NOONE:
I'm just going to note an
A184
69
MacLean v. Dept. ofHomeland Security
1
first duly sworn by Administrative Judge Kang, and was
2
examined and testified as follows:
3
THE WITNESS:
4
JUDGE KANG:
5
Yes, Your Honor.
Okay.
Please state your and, spelling
your last name for the record.
6
THE WITNESS:
7
JUDGE KANG:
Robert James "MacLean, M-a-c-L-e-a-n.
All right.
Did you wish to allow Mr.
8
Berger to question him first, Agency, or did you want to start
9
with the questioning?
10
I have the discretion to when "either of you starts.
11
12
He is a mutually-approved witness, and
MS. CALAGUAS:
Yes.
I have no objections to the
Appellant's representative qUestioning him first.
13
JUDGE KANG:
Okay.
14
MR. BERGER:
All right.
15
Mr. Berger, the witness is yours.
Thank you very much, Your
Honor.
16
DIRECT EXAMINATION
17
BY MR. BERGER:
18
Q.
19
to the position of a Federal Air Marshal?
20.
A.
Mr. MacLean, did there come a time when you were appointed
Yes.
It was October 14th of 2001.
21
"Q.
And is that a position that you had applied for?
22
A.
Yes, sir.
23
Q.
And why did you apply to become a Federal Air Marshal?
24
A.
It was immediately after the 9/11 attacks.
25
I wanted to serve.
I wanted to
I was definitely moved by what happened
PALMER REPORTING SERVICES
1948 Diamond Oak Way Manteca, California A185
(800) 665-6251
70
1
after the attacks.
2
wanted to put me in their first class of Federal Air Marshals
3
to graduate after the 9/11 attacks.
4
Q.
5
after the 9/11 attacks?
6
A.
Yes, sir, to graduate after the attacks.
7
Q.
And when did you commence this training?
8
A.
It began October 14th of 2001.
9
Q.
And when did the training end?
10
A.
The middle of November of 200l.
11
the - the first part of the second week of November of '01.
12
Q.
The training was for approximately a month?
13
A.
Yes, sir.
14
Q.
And can you just tell us, to the best of your
15
recollection, what the training consisted of?
16
A.
17
get - they wanted us - they wanted to get the most experienced
18
applicants in this class because we were going to develop a
19
syllabus for all future classes.
20
SO you were a trainee in the first class of Air Marshals
It was a lot of firearms.
/
I believe it was perhaps
It was - we were supposed to
So most of the time - we were already very firearms
21
22
And I immediately applied and the FAA
proficient.
We were - we were - I was an instructor with the
with the INS, formerly the INS as a Border Patrol Agent.
So
23
our job was - we did a lot of sitting around and brainstorming
24
of how we could develop
25
a
training syllabus for the Agency.
So then there was some - there was - there wasn't
1948 Diamond Oak Way Mapteca, California 95336-9124 (800) 665-6251
A186
(
. MacLean v. Dept. ofHomeland Security
80
1
concerning this disciosure?
2
A.
3
deterrent.
4
terrorists, potential terrorists, knew we were going to be on
5
a flight, they would remove themselves from the flight and not
6
Well, the Agency said they believed that we were a high
If everybody - if people knew that - if the
and not carry out their operation.
7
So in July - sometime between July 26th and - of '03
8
and July 28th, we received a message that we had to come into
9
the office irrunediately.
10
was.
11
to get ..
It didn't matter what our duty status
There was an emergency
briefing that we had
12
And we could not - they could not transmit the
13
briefing to us via email or discuss it with - with us over our
14
- over the phone.
15
So we had to physically walk into the field office
16
and receive a - this one-on-one mandatory suicide hijacking
17
briefing.
18
the name of Nathan Salazar.
19
several people that were assigned to the office.
20
And I remember I received mine from a gentleman by
He was the - he was one of the
And there was a master - there was another master
2l
folder where you - you reviewed what the threat was . . Then you
22
signed off on the
23
And we.brought the exhibit today.
24
Q.
I understand that.
25
meeting?
It's-
But what - what was the purpose of the
1948 Diamond Oak Way' Manteca, California 95336-9124· (800) 665-6251
!
If?
A187
81
1
A.
They told us that there was a serious potential of a plot
2
for hijackers to:avoid immigration visa screening, fly into
3
the United States from a foreign country into an airport that
4
didn't require them to be screened.
5
going to smuggle weapons in camera equipment or children's
6
toys through foreign security and get it into
7
airport where you didn't have security.
into an
For instance, you have -you have Dulles Airport,
8
9
And that way they were
which just has one giant central
If you - at one
;
10
point, if you flew in from a.foreign countrY and you had been
11
screened already, you did . not go through U.S. screen.
12
that was something they were going to exploit.
\
' That wouldn't be the case, for -
13
And
for instance, at an
14
airport such as Dallas-Fort Worth where there is zillions of
15
checkpoints
16
each terminal.
17
not zillions - but dozens of checkpoints between
So, you know,
- but for the ones that. had one
18
central screening area, they were going to bypass that.
19
were going to get the weapons -on the plane and overpower the
20
crew or the Air Marshals and fly, fly the - fly the planes
21
into East Coast targets -
22
Q.
Okay.
23
A.
- and then there were otper European targets.
24
Q.
And you understand that was some sort of an alert to
25
heighten the vigilance of the Air Marshals or ... ?
-
1948 Diamond Oak Way Manteca, California 95336-9124 (800) 665-6251
Ilf
A188
They
82
1
A.
2
happened afterwards.
3
security briefing.
4
Q.
5
no - none of the content of this briefing was provided to you
6
on your cell phone, right?
7
A.
8
sensitive security information.
9
several years.
10
It was an emergency.
Okay.
No.
It was unprecedented, and it never
We never-were mandated a one-on-one
And, by the way, this briefing was not -
The - the -
there was
the written warning was marked as
I attempted to FOIA it for
And the old administration had it completely-
blank.
11
And then recently the - I reFOIAed -
12
a term.
13
entirety.
if there's such
They gave me the -the threat briefing in its
14
- Q.
SO what happened after you received this threat brief?
15
A.
That - about - within sometime between when we-got the
16
briefing, which was the 26th and·the 28th, everybody in the
17
country had received a text message to the Nokia phones, not
18
to the - not to the - and the brand was -
19
Palm Tungsten W PDA.
20
I'm sorry -.it was a
We got this message on our Nokia phones.
And the message simply stated that all overnight
21
missions were going to be canceled - no - and you needed to
22
can- - you needed to cancel your hotel reservations and call
23
the office to get new schedules.
24
Q.' Okay.
25
text had any associated markings labeling the information as
Now do you have any recollection as to whether the
1948 Diamond Oak Way Manteca, California 95336 c 9124 (800) 665-6251
A189
123
1
that it did not matter to you whether it was confidential, law
2
enforcement sensitive, SSI, or classified information; isn't
3
that right?
4
A.
Yes, ma'am.
5
MS. CALAGUAS:
6
JUDGE KANG:
MS. CALAGUAS:
8
I
no further questions at this
time.
10
11
Okay.
(Pause in the proceedings.)
7
9
Just one second, Your Honor.
JUDGE KANG:
Okay.
Mr. Berger, the witness passes
back to you.
12
MR. BERGER:
Yes, Your Honor.
14
JUDGE KANG:
Okay.
15
MR. BERGER:
Thank you.
13
Yes, I'm going to go
forward.
16 .
Please go ahead.
REDIRECT EXAMINATION
17
BY MR. BERGER:
18
Q.
Did you ever tell Mr. Meeks any flight numbers?
19
A.
No.
20
Q.
Did you ever tell Mr. Meeks any seat assignments?
21
A.
No.
22
Q.
Is it your understanding of the concept of regret that
23
regret means to demonstrate contrition for doing something
24
wrong?
25
A.Yes, sir.
A190
124
1
Q.
And did you understand at the time when you disclosed this
2
information to Meeks tnat you
3
A.
No.
4
Q.
When you saw the text message on your cell phone and not
5
the PDA, did you think the Agency was concerned with
6
protecting the information in that text message?
7
A.
No.
8
Q.
If the Agency takes the position now that they believed
9
that that information should have been protected, do you
doing something wrong?
10
consider what the Agency did to have been reckless in the way
11
they communicated that information to you on that cell phone?
12
A.
If they -
13
Q.
Now -
14
was protected, do you believe that it was reckless of them to
15
send you that message on that cell phone?
16
A.
Yes, I do.
17
Q.
With no labels, right?
18
A.
And -and sent to nonencrypted Nokia phones.
19
Q..
In your mind was that any less a "broadcast" that Ms.
20
Calaguas uses in her questions than speaking in a public
21
space, broadcasting on a cell phone like that?
22
A.
23
that - where that could have gotten into a cell phone
24
reception, not like if you were in a closed room in a field
25
office.
Yeah.
if they're saying that my actions were
if they're saying now they believe that information
It was
No encryption, correct?
it went out anywhere in the world where
1948 Diamond Oak Way Manteca, California 95336-9124 (800)
A191
1
MR. BERGER:
I don't have any further questions.
2
JUDGE KANG:
Ms. Calaguas?
3
125
RECROSS/REDIRECT EXAMINATION
4
BY MS. CALAGUAS:
5
Q.
6
information to him, you told him that RON missions out of
7
Vegas were being canceled; isn't that right?
8
A.
No, I did not.
9
Q.
You were specific to identify that the text messaging went
When you spoke to Brock Meeks and disclosed the
10
to the Vegas Field - Federal Air Marshals; isn't that right?
11
A.
No, ma'am.
12
Q.
You identified yourself as being from the Las Vegas Field
13
Office; isn't that right?
14
A.
Not at all.
Can I see the exhibit?
I don't remember if I was identified as a Las Vegas
15
16
Federal Air Marshal.
17
Q.
18,
Vegas when you were talking about these -
19
A.
20
article.
21
Q.
I'm referring to your discussions with Mr. Meeks.
22
A.
I - I don't remember if I told him I was - I was based in
23
Las Vegas or not.
24
Q.
25
from Las Vegas Field Office; isn't that right?
You don't remember identifying yourself as coming from Las
I don't remember.
I thought you were 'referring to the
But you told him that the text messaging went to officers
A193
126.
1
A.
I don't remember saying specifically Las Vegas, because I
2
knew there were Air Marshals across the country that were
3
getting the same message.
4
Q..
5
time that the Office of Professional Responsibility was
6
looking into it; isn't that right?
7
A.
8
the - if that's what the affidavit states, I - I need to read
9
it.
In fact, that's what you also told the investigator at the
Can I - can I re- - I don't know that verbatim.
If that's
I don't know specific - I do not know from memory if I
10
told anybody - if I stated that I - I identified to Brock
11
Meeks that it was Las Vegas Air Marshals.
12
MS. CALAGUAS:
13
can speaks for itself.
14
15
That's fine.
I think your affidavit
Give me one second, Your Honor.
(Agency counsel in San Francisco confer off the record.)
16
MS. CALAGUAS:
17
JUDGE KANG:
I have no further questions.
Ms. Calaguas, since this was the final
18
witness approved for the Agency, does the Agency have anything
19
else with respect to the evidentiary portion of this appeal?
20
21
MS. CALAGUAS:
Just to clarify, Your Honor, that all
exhibits from the Agency have been moved into evidence.
22
JUDGE KANG:
Yes.
Those issues were addressed in the
23
Prehearing Conference Summary.
There were a number of
24
exhibits that were specifically excluded through specific
25
orders.
And I believe at the - and that was based on your
r9cj
A194
127
1
objection.
2
the remaining exhibits.
3
that's given to them are as I detailed in that Prehearing
4
Conference Summary.
MS. CALAGUAS:
5
6
And the Prehearing Conference Summary addressed
They are in the record and the weight
Yes, Your Honor.
I recall that order.
Thank you for clarifying it.
7
At this point the Agency rests.
8
JUDGE KANG:
Okay.
9
MR. BERGER:
Do I have the privilege of asking a
10
question or two off of Agency counsel's questions?
11
JUDGE KANG:
Yes, but -
12
MR. BERGER:
I know this can't go on infinitely,
JUDGE KANG:
My oversight, Mr.
13
but.....:
14
Mr. Berger.
I
15
should have asked you if you had any further questions.
16
on that - based on those few questions asked by the Agency, -
17
MR. BERGER:
Yes.
18
JUDGE KANG:
- Mr. Berger, obviously you do.
19
Based
The
witness passes back to you.
MR. BERGER:
20
21
'Okay.
Thank you.
FURTHER REDIRECT EXAMINATION
22
BY MR. BERGER:
23
Q.
24
information to Mr. Meeks in pis various articles other than
25
yourself?
Are you aware whether there are any other sources of
A195
41
1
August 2nd, 2006.
If you can turn to page 94 of the
2
deposition, line 10, lines 10 through 16, and review them.
MS.· CALAGUAS:
3
Objection,in terms of referring to
4
his deposition transcript.
It hasn't been established that he
5
needs to be impeached for any particular reason at this point.
6
JUDGE KANG:
The objection is sustained.
7
Mr. Devine, go ahead and ask your question.
Andif
8
you wish to use the deposition transcripts to impeach the
9
witness, I will permit you to read the pertinent portions into
10
the record.
11
MR. DEVINE:
Thank you, Your Honor.
12
BY MR. DEVINE:
13
Q.
14
needs more training on what constitutes sensitive security
15
information, Mr. Donzanti?
16
A.
Yes, I did.
17
Q.
Okay.
When you were deposed didn't you state that the Agency
Thank you.
Now hasn't- the SSI policy always been that the
18
19
information needs to be marked?
20
A.
Yes.
21
Q.
Okay.
22
only be sent electronically on a password-protected, encoded
23
transmission?
24
A... I m not sure at the time both
25
talking about?
And isn't the SSI policy that SSI information can
I
what timeframe are we
We're back to -
1948 Diamond Oak Way Manteca, Californi'! 95336-9124 (800) 665-6251
J
3 '-'
A196
42
The timeframe between - the timeframe when Mr. MacLean
1
Q.
2
made his disclosure.
3
A.
4
the top and bottom of the - of the document.
5
about whether it has to be password-protected.
6
time it does.
7
Q.
8
marked "881," sir?
9
A.
I believe that 88- - the letters "881" need to appear on
But I'm not sure
I know at this
I'm not sure it was in effect at that time.
Was the document
was the information that he disclosed
I've never seen a document.
I've only read about
references to the document.
11
clear there that it was not marked.
12
Q.
13
coverage in 2003?
14
A.
No, I did not.
15
Q.
Okay.
16
the information that was in the message Mr. MacLean disclosed
17
was sent in a secure manner with password and encoding
18
protection?
19
A.
To the best of my knowledge, it wasn't.
20
Q.
Okay.
21
information must be kept in a secure, restricted-access area
22
and - is that your understanding of the rules?
23
And it
I think it's - it was
10
You didn't receive the message yourself about canceling
And has anyone - is it your understanding whether
And isn't it your understanding also that any 881
M8. CALAGUA8:
Your Honor, at this point I'm going to
24
raise an objection as to relevancy.
We're going into
25
relitigating the issue of whether or not it's been - the
. PALMER REPORTING SERVICES
A197
74
1
A.
-airlines and their flight numbers.
2
Q.
Anything else?
3
A.
.There was ':"-there was also the exact seating assignments
4
on an aircraft.
5
could to try to not expose' your identity so that -
6
Q.
Okay.
7
A.
- passengers didn't know where you were exactly sitting.
8
Q.
And was there any discussion as to the mode of
9
communicating SSI information?
you didn't - you did everything you
We
10
A.
Yes.
11
Q.
Tell us what you understood the mode of communicating was.
12
A.
It had to be in some form of secure manner.
13
was done electronically, it had to be -
14
government email.
15
about they didn't want people sending - receiving their
16
schedules on their personal email accounts.
17
was an issue.
18
government email system or your encrypted, password-protected
19
PDAs, personal data assistant.
20
Q.
21
devices were you given for the purpose of communicating with
22
management?
23
A.
24
were sort of like a -
25
trying to thipk of the brand it was, but it' was a - it had an
If it - if it
it had to be done' on
They were very- they were very adamant
That was
that
It had to be through the government -
Sorry.
SO when you were sent out into the field, what kind of
Early
early in the program we were given these - they
they were these little PDAs.
And I'm
" /qf
!
A198
l
77
MacLean v.Dept. ofHomeland Security
1
Q.
Oh, okay.
2
A.
It was just a very common, because - it was just a sleek,
3
plain old cell phone.
4
- after the - the first one the FAA gave us.
5
Q.
6
PDA, you also had an Agency-issued cell phone?
7
A.
Yes.
8
Q.
Now was the more complex PDA also encrypted, to your
9
knowledge, for sensitive information?
Okay.
And that's what they gave us after the
So at the time that you received the more complex
10
A.
Yes.
11
it or read messages on it,. there was sort of like the home
12
screen.
13
was a blank screen with a - with a line where you had to type
14
in an alphanumeric password.
15
It had not - only did - you had to
in order to 'use
If you pushed any button, what you would get was -
And they - and the Agency assigned us those
16
passwords.
17
- of our first name and our- I'm sorry
18
different letters, and numbers from our Social Security
19
number.
20
could use it, but the encryption software that it had in the -
21
it .had encryption software inside the -
22
Q.
23
information, to your knowledge were there any markings
24
associated with sensitive information, any
25
labels or ... ?
Okay.
And I believe it was - it was a combination of our
And you - you punched it in.
of our full name,
It opened it up so you
the PDA.
And in opening up a PDA like that and looking at
at all, or
A199
75
1
- it had an alphanumeric keyboard on it.
2
folded into kind of like a small shell.
3
It was black, and it
And all it did - it wasn't a phone, but it was
4
cellular.
5
you could send - it was a two-way pager with an alphanumeric
6
keyboard.
7
Q.
8
issued that to you?
9
A.
It was - it was a pager that had an alphanumeric
And that was issued to us by the -
the FAA.
And what is your understanding of the reason why the FAA
So they can communicate to us information that was
10
sensitive.
11
Q.
12
allowed it to be used for sensitive information?
13
A.
14
characterize it as a PDA.
15
two-way pager.
16
receive the message and then type out a message.
Okay.
And what was it about the PDA that, in your mind,
Let me correct you.
17
I probably confused you.
It was
I wouldn't
it was - it was simply a
You couldn't interact.
All you could do was
We got a more complex PDA later in the program.
18
Q.
When did you get the more complex PDA?
19
A.
I believe it happened in early -
20
2002 or early 2003.
21
Q. . Okay.
22
PDA.
23
A.
Yes.
24
Q.
What was it about that PDA that -
25
did you conclude that that was for sensitive information?
it happened either late
However, let's start with the initial, less-complex
that - why did you - why
A200
On
83
1
sensitive, or anything like that?
2
A.
3
sent to the Nokias.
4
Q.
5
you understand the information to be SSI information?
6
A.
No.
7
Q.
Why not?
8
A.
It - not only - it was - not only it. didn't have any
markings, SSI markings, not even a warning that this - don't
No.
There was no SSI markings on the
on the message
And when you received this message on the cell phone, did
10
disseminate this or - it had - it had nothing on there.
11
was just a - it. was just a plain message.
12
that it was sent to the Nokias and not to the - to the Palm
13
PDAs..
14
Q.
15
and not to Palm PDA?
16
A.
17
password to - to open up to operate it.
18
Q.. SO what happened next, after you got this text message?
19
A.
20
and asked them,
21
It
That and the fact
Why was it significant to you that it's sent to the Nokias
PDA had- had encryption software and a - and a
I called some Air Marshals around the country that I knew
"Did you get - did you get some message?"
And pretty much got something that I did:
Cancel
22
your hotel reservations to avoid cancellation fees and - and
23
call the office for new schedules.
24
25
And I - after that I had made -
I made a phone call
to the office and 'spoke with a supervisor and asked him what
!
A201
88
MacLean v; Dept. ofHomelimd Security
1
marking to the Nokia instead of the - the Palm PDA.
2
you know, when I. spoke to the supervisor, he said this was a
3
he just said this thing was kind of crazy, nuts.
4
even - the supervisor, he - he seemed kind of like a
5
that the Agency was just kind of running things into the
6
ground, too.
7
And the
He
he was
he knew
So he kind of saw it as a joke.
It seemed like :everybody - we had - it seemed like
8
nobody was - the guys who were- were most concerned with
9
with what was going on with Air Marshal operations were the
10
guys that were flying the· flights.
11
But the officials, the supervisors that were inside
12
the field offices and not flying missions, such as my
13
supervisor and the OIG agent, they just kind of thought it was
14
funny.
15
in the paper.
16
to anybody who traveled who the Air Marshals were.
17
think it was that funny.
18
serious.
19
You know, it was just - because it was - it was always
And it was just - it - and it was just obvious
And one
I didn't
I thought - I thought it was very
they did teach us in the - in the
20
Academy:
21
for Air Marshals to be on these - these flights such as were
22
targeted on
23
Q.
24
Nokia cell phone, whether by voice or by text, to be protected
25
information?
Okay.
This was a law.
Well, this law - the law was passed
Now did you understand the communications on your
1948 Diamond Oak Way Manteca. California 95336-9124 (800) 665-6251
A202
89
1
A.
Well, it - I -
I know the system that they used.
I
2
remember operations, when they ,sent these text messages.
3
what it was, was it was the phone number, it was the nine-
4
digit phone number, then the server.
5
collected everybody's phone humber and blasted it out.
6
Q.
Blasted out there to the world
7
A.
Yeah.
8
and taking a bullhorn and blasting it out.
9
the recipient, you couldn't even guarantee -
And
So what they. did was
So
It was sort of like somebody running into a plaza
And even
even
let's sayan Air
10
Marshal had changed his phone number, or he had left and that
11
phone number was reassigned to somebody in the AT&T network
12
who wasn't an Air Marshal.
13
too.
14
They were getting that message,
So anybody could have gotten this message, glven the
15
-
16
text messages and everything else, you just can't email a text
17
message like the Agency did with
18
or the server.
19
number in Nevada was 702-212-5555, it would be
20
[email protected]&T.net."
21Q.
the system.
I believe now because of - you get charged for
I think it was -
with the nine-digit number
for instance, if my phone
So anybody who happened to be in possession or in custody
22
of that Nokia phone would have been able to consume or read
23
the message?
,24
25
A.
Yes.
MR. BERGER:
Now, Your Honor, can we hold for just
A203

Part 6 - Government Accountability Project

Transcription

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