The government supports its dismissal of MacLean by declaring he endangered the nonstop, long distance flights that the TSA planned to remove air marshals from for two months in order to save costs associated with hotel rooms required for air marshals. The TSA then retroactively (four months after firing him) labeled his July 28, 2003 disclosure with its unclassified information marking regulation: Sensitive Security Information (SSI). MacLean argues that it is naive to believe that air marshal's significant others, pilots, flight attendants, airline gate agents, and frequent fliers already used to watching mandated suit and tie air marshals overtly pre-board aircraft—would have eventually raised their own concern to the media long after the plan was already operational.
- Robert MacLean was trained in the safeguarding of SSI and that the information he disclosed did not require any markings despite Code of Federal Regulations (CFRs) that mandate the contrary.
- MacLean brought embarrassment and caused the TSA to disrupt their operations in order to cancel their plan to remove FAMs from nonstop, long distance flights.
- Had TSA decided to continue with their plan, despite public and congressional outrage, MacLean's disclosure would have alerted all terrorists that nonstop, long distance flight would not be staffed with FAMs.
- That front-line law enforcement officers and other low-level field employees do not have the authority, education, or experience to determine if dangerous executive plans are gross mismanagement, violate law, or endanger public safety and national security; and that such determinations can only be made by the executive agency's senior executives.
- Senior executives can at anytime retroactively mark or label documents or mobile telephone text messages with UNCLASSIFIED information categories such as "Sensitive Security Information" (SSI) no matter how dated the information is.
- That a violation of an unclassified information marking regulation is equal to a "violation of law," therefore the Whistleblower Protection Act of 1989 (WPA) does not protect Robert MacLean's disclosure due to the TSA retroactively marking it as UNCLASSIFIED SSI.
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