Current and former federal air marshals allege that the Transportation Security Administration intentionally hid embarrassing information about supervisors’ misconduct and targeted employees who sought to expose the truth.
The allegations revolve around TSA management’s overuse of an agency-specific designation called Sensitive Security Information (SSI). Though it is not classified, information deemed SSI is supposed to be kept from the public because it would harm transportation security. The marshals claim that the TSA has repeatedly abused the SSI classification, even going so far as to use it on fictitious information, in an effort to keep the public in the dark.
One current federal air marshal, whose name has been withheld for fear of retaliation, asserts that the TSA has repeatedly sought to silence its employees.
“When it comes to the Air Marshal Service and TSA, when they are determined to f*** you, they are going to f***ing do everything in their power to make you out to be the bad guy, and they will twist every single word that they can to reflect their position [rather] than the truth,” says the marshal. “They want you to shut up, get on the plane, and sit down. They don’t want to fix any of the problems that exist.”
The marshal is not alone in making such allegations. In 2011, the TSA fired former federal air marshal Jose Job Lacson, who goes by the name “Jay.” Officially, Lacson was terminated for releasing SSI material online, despite his assertion that he made up the material in question. But he believes the TSA actually sought to punish him for blowing the whistle on his bosses.
In December 2009, Lacson claims, he exposed his superiors in the Miami field office for violating federal travel regulations. Lacson spoke up after noticing that higher-ups in the Miami office were using an internal policy dictating how much mileage federal employees were allowed to expense while traveling on official business, in clear violation of federal rules. Lacson says the TSA changed its unwritten policy in light of his inquiries, but management officials proceeded to retaliate against him anyway.
A few months after the policy was changed, the TSA began investigating Lacson because of posts he made on Officer.com, a website for law-enforcement officials. Some of his posts referenced the attrition rate and the number of marshals that the TSA planned to hire, but Lacson says he made up the figures and did not know the actual numbers. He says he provided an estimate in response to a question someone had posted online. The TSA deemed that information SSI, and he was placed on paid leave multiple times while he was investigated for releasing the information, for misusing government computers and a government cellphone, and for bringing discredit on the TSA.
Lacson’s clash with the TSA cost him his career, which included nearly a decade as an air marshal and approximately 18 years as an employee of the federal government. He was fired in May 2011, and he has fought the action ever since. In 2013 he petitioned the U.S. Court of Appeals to review whether the information he disclosed actually qualified as SSI. The court ruled that some of his disclosures were SSI, but castigated the TSA for providing “barely enough” evidence in support of its case. The TSA did not answer questions and requests for comment on this story, and instead referred NRO to the U.S. Court of Appeals’ decision. Lacson also attempted to fight his termination through the U.S. Merit Systems Protection Board, which ruled against both his initial petition and his appeal, according to decisions obtained by NRO that are themselves designated SSI.
The current air marshal says Lacson put a target on his back by asking questions about his superiors’ malfeasance.
“They [management] didn’t want anybody knowing the stupid s*** that they were doing, the illegal s*** that they were doing, so they would silence them [whistleblowers] by getting rid of them, and that’s what Jay [Lacson] ended up becoming,” the marshal says. “The way they beat the little guy, whether it’s a flying air marshal or it’s a staff member, is by depleting you emotionally and/or financially because they’re Big Government. They got all the time in the world. They got all the resources in the world.”
A May 2014 House Oversight Committee report found that the TSA had been designating material SSI without even consulting its own SSI office, or getting the necessary approval of the TSA administrator. Former SSI office director Andrew Colsky told the committee that there was “extreme pressure” from the TSA’s front office to mark information as SSI, keeping it hidden. Colsky said the agency wanted the designation used on information it found embarrassing or potentially damaging to its public image.
The TSA has even attempted to expand the SSI classification to include information that has already been made public. Just last week, former federal air marshal Robert Maclean, who refused to stay silent and was fired by the TSA in 2003, emerged victorious against the Department of Homeland Security in the Supreme Court. The Court ruled 7 to 2 in favor of Maclean, agreeing that he did not violate federal law by disclosing that the TSA was reducing security amid a hijacking alert sent out by the agency. The TSA had attempted to retroactively label this information SSI.
Maclean tells NRO that his victory means agencies can no longer fire or discipline whistleblowers with an agency rule, such as the violation of the SSI regulation. But he warns that the decision could easily be undercut. “A lot of rank-and-file air marshals are spiking the football in their field offices; it’s pretty funny,” Maclean says. “But if the president issues an executive order, then that changes everything.” Congressional legislation could also easily defang the Court’s decision and nullify the impact of the ruling on agents who run afoul of the agency in the future.
Overuse of the SSI designation appears to be a growing problem. Late last week, Department of Homeland Security inspector general John Roth released a statement saying that the TSA’s decision to redact information in an audit was an abuse of the SSI classification. He nonetheless chose to release only the redacted version of the audit to the public, reserving the unedited version for members of Congress.
In addition to trying to silence employees by classifying information as SSI, the TSA has gone after a congressman and a consumer advocate. DHS accused House Oversight Committee chairman Jason Chaffetz (R., Utah) of releasing SSI information when, during a hearing in 2011, he revealed that there had been 25,000 security breaches at the nation’s airports in the preceding decade. At the time, then–committee chairman Darrell Issa (R., Calif.) pointed out that the designation applies only to the department’s employees, not Congress, journalists, or the public.
But that did not stop the TSA from pursuing consumer advocate Christopher Elliott for releasing SSI information online. In 2009, Elliott posted a memo labeled SSI on his website, and he was subsequently served with a subpoena by DHS. Elliott tells NRO he quashed the subpoena with the help of an attorney.
After battling with DHS, Elliott began to see the SSI classification everywhere he looked. “The fact is, pretty much anything that isn’t nailed down at the airport is considered SSI these days,” Elliott observed following his dustup with DHS. “SSI is now applied to a sweeping range of subjects, from descriptions of scanners to screener test scores to unsolicited business proposals.”
TSA management’s pattern of overusing the SSI designation suggests a larger unwillingness to confront the agency’s problems, which has taken a toll on rank-and-file employees. Morale in the TSA is among the lowest of all agencies of the federal government — 305th out of 314 ranked in a 2014 report from the Partnership for Public Service — and DHS’s negative culture has led its employees to leave nearly twice as fast as employees in the rest of the federal government, according to the Washington Post.
But not all TSA employees are giving up. The current federal air marshal, for one, is fed up with TSA management’s working against the agency’s employees, and ready to go on the offensive.
“When you constantly deny me the due process that I’m due, then gloves come off, knives come out, and we’re going to fight,” the marshal says. “I don’t believe that anybody feels comfortable with anything that’s going on in this agency from a due-process perspective.”
— Ryan Lovelace is a William F. Buckley Fellow at the National Review Institute.
EDITOR’S NOTE: This article has been amended since its initial posting.