MacLean Deposition by TSA August 2, 2006

UNITED STATES OF
MERIT SYSTEMS PROTECTION BOARD

WESTERN REGIONAL OFFICE
- - - - - - .h
ROBERT J. !1P.CLEAN,
Appellant,
Doc]\et No.
Page 1
v.
DEPARTMENT OF HOMELAND SECURITY
TRAl!SPORTATION SECURITY
ADMINISTRATION,
- - - - - - - - - - - - - - - - x
SF-0752-06-0611-I-l
Irvine, California
Wednesday, August 2, 2006
Deposition of
ROBERT J. MacLEAN
a witness of lawful age, taken on behalf of the
Department of Homeland Security in the above-entitled
action, at 2 Wrigley, First Floor, Irvine, California,
before Paulette Vantan, CSR No. 6962, Certified
shorthand Reporter in and for the State of California,
commencing at 9:34 a.m.
CONFIDENTIAL
APPEARANCES,
On behalf of the U.S. Department of Homeland Security:
EILEEN DIZON CALAGUAS, ESQ.
Transportation Security Administration
1001 Bayhill Drive, 2nd Floor
San Bruno, California 94066
(G50) G16-4113
On behalf of the Witness,
PETER H. NOONE, ESQ.
Law Offices of Avery, Dooley, Post & Avery:
90 Concord Avenue
Belmont, Massachusetts 02478
(G17) 489-5300
Page 2
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WESTERN REGIONAL OFFICE
------x
ROBERT J. MACLEAN,
Appellant,
Page 1
v.
DEPARTMENT OF HOMELAND SECURITY
TRANSPORTATION SECURITY
ADMINISTRATION,
Agency,
- - - - - - - - - - - - - - - - x
Docket No.
SF-0752-06-06l1-I-l
Irvine, California
Wednesday, August 2, 2006
Deposition of
ROBERT J. MacLEAN
a witness of lawful age, taken on behalf of the
Department of Homeland Security in the above-entitled
action, at 2 Wrigley, First Floor, Irvine, California,
before Paulette Vanton, CSR No. 6962, Certified
Shorthand Reporter in and for the State of California,
commencing at 9:34 a.m.
APPEARANCES:
On behalf of the u.S. Department of Homeland Security:
EILEEN DIZON CALAGUAS, ESQ.
Transportation Security Administration
1001 Bayhill Drive, 2nd Floor
San Bruno, California 94066
(650) 616-4113
On behalf of the Witness:
PETER H. NOONE, ESQ.
Law Offices of Avery, Dooley, Post & Avery:
90 Concord Avenue
Belmont, Massachusetts 02478
(617) 489-5300
Page 2
1 Job Announcement 25
2 Condition for Employment 32
3 Excerpt section 1.112 Pages 23 to 25 36
4 11-13-02 Interim SSI 61
5 10-8-03 Interim SSI 62
6 Performance Agreement and Assessment 65
9 Transcript of Interview with ICE/OPR 111
10 Affidavit 113
Page 3
1
2
PRO C E E DIN G S
MS. CALAGUAS: We are on the record at 9:34
Page 4
3 a.m. on August 2, 2006 in Los Angeles, California.
4 Would the witness please raise his right hand
5 to take an oath?
6 Whereupon,
7 ROBERT J. MacLEAN,
8 was called as a witness and, having been first
9 duly sworn, was examined and testified as follows:
10 EXAMINATION
11 BY MS. CALAGUAS:
12 Q Good morning. Is it MacLean? Is that how you
13 pronounce your name?
14
15
A
Q
MacLean.
l'm Eileen Calaguas, 1
1
m the agency
16 representative for TSA.
17 We are here in the MSPB proceeding, Docket No.
18 SF0752060611-I1, and you are the appellant in that
19 proceeding, correct?
20
21
A
Q
Correct.
Have you had your deposition taken before in
22 any type of proceeding?
1
2
A
Q
Yes.
So, just a couple of ground rules before we
Page 5
3 get started on the questioning.
4 It's important that you let me finish my
5 question first and then answer. It makes it very
6 difficult for the court reporter to take down what's
7 being said when we talk over each other. Likewise,
8 I'll do the same and try to not to interrupt you when
9 you answer my questions.
10
11
A
Q
Understood.
Is there anything today that would prevent you
12 from giving honest testimony?
13
14
A
Q
No, unless my attorney objects.
Is there anything today that would prevent you
15 from giving accurate testimony?
16
17
A No.
MR. NOONE: You mean, medication or anything
18 like that? Is that what you're talking about?
19
20
21
MS. CALAGUAS: Yes.
MR. NOONE: That's what she's getting at.
THE WITNESS: I have a problem. I might be
22 running to the bathroom back and forth. I have a
1 little bug in me or something, so 1
1
11 excuse myself
2 when I need to.
3 BY MS. CALAGUAS:
Page 6
4 Q Let me know when you need to take a break and
5 we can make a note of that for the record.
6
7
A
Q
1
1
m under no medication.
Good. If you denlt understand a question that
81
1
m asking you, please let me know that. Otherwise,
9 1
1
m going to assume that you understand my question
10 when you begin your answer.
11 Do you understand that?
12
13
A
Q
Understood.
Also, it may be in this deposition that there
14 may be a need to discuss sensitive security
15 information.
16 If there is a way that you can respond to a
17 question without having to divulge any sensitive
18 security information, I ask that you let me know that
19 to answer a question you may need to divulge sensitive
20 security information, and then lid like you to go ahead
21 and try to answer that question without divulging that
22 sensitive security information.
1
2
3
A
Do you understand that question?
Not really.
Do you want to jump in here, Pete? 1
1
m
Page 7
4 supposed to police myself now?
5 MR. NOONE: Eileen, what you're looking for,
6 if he thinks that one of the questions that you've
7 asked is going to illicit a response that requires him
8 to say something of a sensitive nature, you want him to
9 try to alert you to that?
10
11
MS. CALAGUAS: Yes.
MR. NOONE: Secondly, try to answer the
12 question without releasing the sensitive security
13 information.
14 MS. CALAGUAS: Yes. But alert me first, and
15 maybe we can have the question rephrased or I can give
16 you further instructions at that time.
17 MR. NOONE: Just so I am clear, I will also
18 object to any of those questions, just to preserve the
19 right to object at the time of hearing and just to let
20 it be known that hels answering the questions to
21 cooperate with you in the furtherance of answering the
22 questions.
1 MS. CALAGUAS: That's fine.
Page 8
2 It may be that if that type of discussion is
3 needed to be had on the record, we'll set up a separate
4 procedure where we have two different versions of the
5 transcript, one, that contains the sensitive security
6 information and one that doesn't.
7
8 second?
9
MR. NOONE: Maybe can we go off record for a
MS. CALAGUAS: Sure, let's go off record.
10 Thank you.
11 (Discussion was held off the record.)
12
MS. CALAGUAS: The parties have had some
13 off-record discussions and have reached a stipulation
14 as to the handling of the transcripts in this
15 proceeding.
16 Should the transcripts contain sensitive
17 security information, the parties have agreed -- and
18 please correct me, Mr. Noone, if I get this
19 incorrect -- the parties have agreed to have the
20 transcripts sealed, and the agency will take
21 responsibility in labeling the transcripts as necessary
22 to protect sensitive security information.
1 In sealing the transcripts, the parties have
2 also agreed not to disclose the transcriptls content to
3 anyone outside of this proceeding and it will be used
4 only for the sale purposes of this proceeding.
Page 9
5
6
7 Q
MR. NOONE: I agree to that.
MS. CALAGUAS: Okay. Thank you.
DO you understand the oath that you took prior
8 to the start of this deposition?
9
10
11
A
Q
A
Yes.
Where do you currently live, Mr. MacClean?
11 Knotty Oak Circle, three words, Co to de
12 Caza, the City, that's also three words, spelled
13 C-o-t-o, next word, d-e, third word's C-a-z-a I
14 California, Zip Code 94679.
15 Q At the conclusion of this deposition,
16 transcripts will be prepared and you'll have an
17 opportunity to review those transcripts. It will
18 either be sent to your home or be sent to you through
19 your attorney.
20 In reviewing those transcripts, if you make
21 any changes to your testimony, do you understand that I
22 have the right to comment on any changes you make at
1 hearing?
Page 10
2
3
4
A
Q
A
Yes, I understand.
Are you currently employed, Mr. MacLean?
I am currently receiving a fee for acting as
5 Conservator for the estate of my mother. It's a -- the
6 court of Santa Clara County, California appointed me
7 the legal Conservator for my mother in 1993, and I
8 receive a monthly fee that was directed by the Court.
9 That is the only income that I receive right now.
10 Q
Was that a source of income, then, that you
11 received since 1993?
12
13
A
Q
Yes.
So, this income from the conservatorship was
14 in addition to any salary income that you received
15 while working for TSA?
16
17
A
Q
Yes.
Aside from that, do you have any other sources
18 of income currently?
19
20
A
Q
No.
After leaving TSA, did you secure employment
21 anywhere else?
22 A No.
1 Q What have you done to try to secure
Page 11
2 employment, if anything?
3 A I have not been able to secure employment. I
4 have been working full-time on my Appeals in regards to
5 this MSPB hearing.
6 I have had to relocate my family from Las
7 Vegas, Nevada to my new address due to the actions that
8 are being alleged in this issue.
9 Q
When did you say -- maybe you didn't say, but
10 when did you relocate your family from Las Vegas?
11 A
I relocated approximately November of 2005.
12 That was my whole family.
13 My transfer, my professional transfer from the
14 Las Vegas field office to the Los Angeles field office
15 was approved in November of '04.
16 Until I sold my house in the Las Vegas area, I
17 could not move all my household goods and my family to
18 California.
19
20
Q
A
Sorry, did you say November of '04?
I believe it was either October of '04 or
21 November of '04. I'm not sure when the actual transfer
22 was. It should say in my SF50 when my transfer was
1 made from -- official from Las Vegas to Los Angeles in
2 permanent.
3 I received a temporary authorization to work
4 out of the Los Angeles office temporarily several
5 months prior to that due to my wife's gustation
6 diabetes and pregnancy complications.
Page 12
7 Q But when you relocated your family, that was
8 in November of 105, the following year after you
9 temporarily transferred your assignment from Vegas to
10 Los Angeles; is that correct?
11 A That's when all of my household -- when my
12 house was finally sold and I was able to move my
13 household goods and everything else.
14 In the time between, there was temporary times
15 where they had to stay here in California or they could
16 stay in Las Vegas.
17 But due to the move and trying to sell the
18 house, the family had to move back and forth.
19 1
1
m living right now with my mother, and
20 that's why they would temporarily stay there. It was a
21 back and forth action that happened throughout the
22 time.
1 Q
When you had requested to transfer from Las
Page 13
2 Vegas to Los Angeles, did you already have the intent
3 to relocate your family?
4
5
6
7
A
Q
A
Q
Permanently?
Yes, permanently.
Yes.
So, since the time that you were removed from
8 TSA to the present, you have made no inquires for work?
9
10
11
12
A
Q
A
Q
I've made inquires.
Can you describe those inquires to me?
I submitted a -- I have an on-line resume.
Can you identify for me which perspective
13 employers you submit the inquires to?
14
15
A No, I just have my resume on-line.
I did submit resumes on-line to -- for
16 security employment. One of them called me back for an
17 interview, and that employer was JC Penny's.
18 Q
Did you receive an offer of employment from JC
19 Penny's?
20
21
A
Q
No, I did not.
Do you recall when your interview was with JC
22 Penny's?
1
2
A
Q
On or around December of 2005.
So, that was while you were still employed
Page 14
3 with TSA but on admin leave?
4
5
6
7
A
Q
A
Q
Correct.
Any other job interviews?
No.
When you say that your resume was on-line,
8 does that mean that you had it posted on some sort of
9 job site?
10
11
A
Q
Yeah, it was monster. com.
Okay, I understand. Thank you.
12 Since leaving TSAls employment, did you
13 receive any Disability benefits?
14
15
16
A
Q
A
No.
Any Workers' Compensation benefits?
No. The only time I received a Disability was
17 at the July, August of 2004. I'm sorry, 2005. And
18 that would be Workers' Compensation benefits, correct.
19
20
21
22
Q
A
Q
A
That was for a hip injury of some sort?
Yes.
Do you know the nature of the benefits?
I donlt understand.
1 Q Do you know whether or not the benefits were
Page 15
2 continuation of pay benefits?
3 A I received continuation of pay from the
4 agency, and I received Workers' Compensation from the
5 Department of Labor.
6 Q So, the Department of Labor accepted your
7 claim for the Workers' Compensation injury, correct?
8 A Yes.
g
Q Did you recover from that injury?
10 A Yes.
11 Q When?
12 A It was in September of 2005.
13 MR. NOONE: Eileen, not to interrupt, but I
14 just wanted to bring this up to you. I meant to bring
15 it up before the deposition.
16 We're going to withdraw the Disability
17 discrimination from the defense.
18 So, if that shortcuts any of your questioning,
19 you are more than welcome to ask any questions that you
20 want, but we're formally withdrawing the affirmative
21 defense disability discrimination.
22 MS. CALAGUAS: Thank you for that
1 clarification.
2 Can we go off record for a second?
3 (A break was taken.)
Page 16
4
MS. CALAGUAS: Back on the record.
5 During the break, the parties have had
6 discussion as to the status of Mr. MacLean's pending
7 but separate EEO complaint, and Mr. MacLean has
8 indicated that he wishes to withdraw that EEO complaint
9 at whatever stage it may be.
10
11
Q
A
Is that correct, Mr. MacLean?
That is correct. I will officially withdraw
12 my EED action in regards to my temporary disability,
13 and I will officially withdraw it from this MSPB
14 proceeding.
15
MR. NOONE: The affirmative defense of
16 disability discrimination is withdrawn from this MSPB
17 caSE.
18 BY MS. CALAGUAS:
19 Q
And that would be with prejudice for both
20 withdrawals, correct?
21
MR. NOONE: Yes. What that means is, forever
22 we will be barred from raising that defense on this
1 action, and that's correct?
Page 17
2
3
THE WITNESS: That's correct.
MS. CALAGUAS: Thank you for that
4 clarification.
5 Q Since leaving TSA's employment, did you
6 receive any Unemployment Insurance benefits?
7
8
9
10
11
A
Q
A
Q
A
No.
Did you seek Unemployment Insurance benefits?
No.
Why not?
I was living with my mother and collecting a
12 small fee for the conservatorship, as I have been,
13 since 1993. Therefore, I did not believe that I was
14 eligible for Unemployment benefits.
15 Q In reaching that belief, did you consult with
16 the Unemployment Insurance agency?
17
18
A
Q
No, I did not.
Did you ask any questions of anyone with
19 regard to your eligibility for Unemployment Insurance
20 benefits?
21
22
A Yes.
MR. NOONE: 1
1
m going to instruct you not to
1 answer any questions with respect to any conversations
2 you had with any attorney. Okay.
Page 18
3
THE WITNESS: Okay, yes. Informal
4 conversations live had, and I understood that as long
5 as I was receiving any income, I could not be eligible
6 for unemployment benefits.
7 BY MS. CALAGUAS:
8 Q
So that 1
1
m clear, 1
1
m not asking you about
9 the content of your conversations, but just whether or
10 not you had any conversations, formal or informal, with
11 an attorney about your eligibility for insurance
12 employment benefits.
13
MR. NOONE: I'm going to object simply because
14 I want to preserve the objection.
15 But I also think that his answer that he has
16 already given would divulge any communications that he
17 may have had with an attorney.
18 With the objection noted, you can answer the
19 question.
20
THE WITNESS: I did not collect Unemployment
21 Insurance because I had formal and informal
22 conversations, and L always believed that I could not
1 collect unemployment Insurance because I am currently
2 receiving an income where I am claiming Social Security
3 and income taxes from the conservatorship.
4 BY MS. CALAGUAS:
Page 19
5 Q
My question is, yes or no, whether or not your
6 informal and formal conversations were with an
7 attorney?
8
9
A
Q
No, they were not.
Who did you have these conversations then
10 with?
11 A Other people who have collected Unemployment
12 benefits.
13 Q
You mentioned Social Security benefits. Is
14 that a type of benefit that you received after leaving
15 TSA to the present?
16 A No. What I mean by that was that the income
17 that I receive from my mother's conservatorship is
18 withdrawing Social Security -- 1
1
m the not sure of the
19 exact terminology, but Social Security, payments to
20 SS1, I believe it is, and State Income Tax and Federal
21 Income Tax is withdrawn.
22 That's what I mean by that answer.
1
2
Q
A
Thank you.
I have not received any Social Security
Page 20
3 benefits.
4 Q
Okay, thank you for clarifying that.
5 In handling your mother's conservatorship,
6 does that make you unavailable for employment?
7
B
A
Q
No, it does not.
Since leaving TSA's employment, are you
9 available for full-time employment?
10
11
12
13
14
15
16
17
A
Q
A
Q
A
Q
A
Q
Yes, I am.
Before joining TSA, where did you work?
For the United States Border Patrol.
What was your position there at Border Patrol?
Border Patrol Agent.
How long were you a Border Patrol Agent?
Since May 20, of 1996.
While a Border Patrol Agent, were you
18 responsible for handling confidential information?
19
20
A
Q
Yes.
What type of confidential information did you
21 handle?
22 MR. NOONE: I'm just going to note an
1 objection and then you can answer.
Page 21
2
3
4
5
MS. CALAGUAS: On what basis?
MR. NOONE: It's overbroad.
MS. CALAGUAS: Okay.
MR. NOONE: If you want to try to narrow it
6 down or just make it clear what you're asking. Over
7 his entire career or at any particular time? That's
8 all.
9 BY MS. CALAGUAS:
10 Q
Over your entire career as a Border Patrol
11 Agent.
12
My understanding is, you worked there since
13 1996, correct?
14
15
A
Q
Correct.
So, since you started working as a Border
16 Patrol Agent, what type of confidential information did
17 you handle?
18 A
Personal information of fellow agents that I
19 worked with. Affidavits, reports of investigation,
20 personal data of criminal and administrative suspects.
21
22
Q
A
Anything else?
Pretty much anything that a Border Patrol
1 Agent handles in the course of his duties. At this
2 moment, I can't think of anything else.
3 I believe I discussed most of it in general
4 terms.
5 Most of the information that I handled was
6 personal data. Sometimes there was confidential
7 information if there was a criminal case involved where
8 I had to testify and anything -- I knew information
9 that was to assist in a prosecution of a criminal
10 suspect or a witness, a material witness in that case.
11 That's all I can think of right now.
Page 22
12 Q
What were your responsibilities with respect
13 to handling the type of confidential information that
14 you just described?
15 A
I had a moral and legal obligation to protect
16 that information.
17
18
Q
A
What do you mean by protect?
That it did not get into the wrong hands of a
19 criminal element.
20
MR. NOONE: Eileen, can I just ask you to make
21 sure that we1re on the same page on what you1re asking?
22 You asked about confidential information.
1
2
MS. CALAGUAS: Yes.
MR. NOONE: Are you talking -- I guess I want
Page 23
3 to hear what your definition of confidential
4 information is based on and make sure that he's
5 answering the same questions.
6 Is it legally confidential information, agency
7 designated confidential information, is it classified
8 information?
9 I just want to make sure that his answers are
10 responsive to what you
1
re thinking.
11 BY MS. CALAGUAS:
12 Q Did you understand what I meant when I used
13 the word "confidential,n Mr. MacLean?
14 A My definition of confidential information is
15 personal data, information that if not safeguarded
16 could be detrimental to a criminal prosecution or an
17 administrative prosecution, or an administrative
18 proceeding.
19 Personal names, addresses of material
20 witnesses, criminal suspects, Federal Agents, public
21 material witnesses.
22 Q Using your definition of "confidential
1 information, II how did you make sure that that
2 confidential information while working at Border Patrol
3 didn't get into the wrong hands, as you previously
4 testified?
Page 24
5 A Well, I never took information with me outside
6 of the station, and I never discussed confidential
7 information with anybody who didn't have a
8 need-to-know.
9
10
11
Q
A
So, when did you join TSA?
October 14, 2001. That's not right.
I joined the Federal Aviation Administration
12 in October 14th of 2001. It was turned into the TSA, I
13 believe, several months later. A year later, I
14 belieVE, it went to Immigration and Customs
15 Enforcement, and several months later, it went back to
16 TSA.
17 Q Thank you for clarifying that and making that
18 correction of our history with TSA.
19 Did you apply to any particular vacancy
20 announcement with the FAA in getting your position that
21 eventually came to TSA?
22 A Yes. I responded to an announcement for a
1 Civil Aviation Security Specialist, parenthesis,
2 Federal Air Marshal vacancy, that was put out by the
3 Federal Aviation Administration.
Page 25
4 Q Let me have you take a look at a document, and
5 weill have this marked as Exhibit 1.
6 (Exhibit 1 was marked by the
7 reporter for identification.)
8 BY MS. CALAGUAS:
9 Q Have you had a chance to take a look at
10 Exhibit 1, Mr. MacLean?
11
12
13
14
15
A
Q
A
Q
A
Yes, I have.
DO you recognize the exhibit?
Yes, I do.
What is it?
This appears to be the announcement that I
16 responded to and filed an application for.
17 Q Did you review this announcement at the time
18 that you filed your application for this position?
19
20
A
Q
Yes, I did.
Did you see, then, on the first page of this
21 announcement at the bottom of the page that, liThe
22 release of sensitive or classified information may be
1 basis for removal from the position"?
Page 26
2
3
A Yes, I do.
MR. NOONE: I think the question was, did you
4 see it? I just want to make sure you understood the
5 question.
6
THE WITNESS: Yes, I did read this line when I
7 applied, and I see it right now in front of me.
8 BY MS. CALAGUAS:
9 Q Did you have any questions about that line
10 that you read when applying for this position?
11 A Sensitive information is a new term for me.
12 It was a new term for me at that point.
13 The only type of information -- the only type
14 of information that I believed needed any type of
15 safeguarding was either confidential or classified
16 information. Classified information, such as "Secret
n
17 or IITop Secret. II
18 Sensitive information was a new term for me.
19 Q At some point, did you have an understanding
20 that sensitive information was a type of confidential
21 information?
22 A No, I did not.
1
2
Q
A
At any point?
All the training and definitions that I
Page 27
3 received on what was sensitive information was at most
4 times contradictory, confusing, and it was always, not
5 only with myself but my peers, was a confusing term for
6 the safeguarding of information.
7 Q My questions have to do with your
8 understanding, not your peers understanding. Okay, Mr.
9 MacLean?
10 Let me ask you first about the training that
11 you received when becoming a Civil Aviation Security
12 Specialist, otherwise known as a Federal Air Marshal.
13 What was your initial training into this
14 position? Let me be more specific.
15 Did you have a set number of weeks for
16 training into appointment to this position as FAM,
17 F-A-M?
18 A To my knowledge, I believe I did receive some
19 oral training as to what was sensitive information, and
20 I was also given -- I was also given a pamphlet, I
21 should say a documentation, on what was sensitive
22 information that I was to read.
1
MR. NOONE: 1 ' m just going to instruct you to
Page 28
2 listen to the question, Robert. I think her question
3 was more general.
4 And Eileen, correct me if 1 ' m wrong, I thought
5 you were asking training in general when he was first
6 hired by the FAMS, not just training specifically on
7 any sensitive or classified information.
8
MS. CALAGUAS: Yes, that is my question. I'm
9 sorry if I confused you, Mr. MacLean.
10 Q Let's go back to your initial general training
11 as a FAM.
12
13
A
Q
Yes.
Did you take that IS-week academy, as it's
14 sometimes referred to?
15 A I went to an initial -- I went to a five-week
16 academy from October to mid November. It was four to
17 five weeks. I'm not sure.
18
19
20
Q
A
Q
And that would be October to November of 200l?
Yes.
This was the training out in New Jersey,
21 correct?
22 A
No. It was both in New Jersey and in Artegia,
1 New Mexico. Yes, I believe I spent two weeks in
2 Artegia, New Mexico.
Page 29
3 Q During this training, was there any discussion
4 of sensitive security information?
5
6
A
Q
To my knowledge, I do not remember.
At this training, did you have any discussion
7 about your schedule as a Federal Air Marshal?
8
9
A
Q
Yes.
What did that training consist of with regard
10 to your schedule as a Federal Air Marshal?
11 A That we were to fly frequently, and that we
12 would be away from home frequently.
13 Q During this five-week training course, did you
14 learn of any responsibilities that you had with respect
15 to your schedule as a Federal Air Marshal?
16 A I do not remember being specifically trained
17 on what my responsibilities were as far as scheduling
18 as a Federal Air Marshal.
19 As a Federal Law Enforcement Officer and a
20 military member, I'd always know what needs to be
21 safeguarded and considered confidential or classified
22 information.
1 Q From this training, did you have an
Page 30
2 understanding that your schedule as a Federal Air
3 Marshal needed to remain confidential?
4 A I do not remember any specific training, but I
5 am confident that it was expected to safeguard
6 confidential and classified information.
7 Q At some point, did you have the understanding
8 that your schedule as a Federal Air Marshal was
9 confidential?
10 A I believed a schedule of a Federal Air Marshal
11 is considered classified information.
12
13
Q
A
Why do you think that?
Because if a criminal element, a bad element,
14 ]mows what aircraft I'm going to be OD, or knows where
15 1
1
m sitting, or knows where my partner or partners are
16 sitting on that aircraft, that is considered classified
17 information.
18 Because if a bad individual knows my position
19 or my partner's position on that aircraft, I can be
20 ambushed, overcome, have my weapon or my partner's
21 weapons taken away from them, used against the other
22 Air Marshals or any other law enforcement officer on
1 the aircraft; hence, taking control of that aircraft
2 and using that aircraft as a weapon of mass destruction
3 or killing everybody on the aircraft.
4 Therefore, I believe any knowledge of where my
5 position or my partner's position is and what aircraft
6 we are on is classified information.
Page 31
7 Q Based on your understanding that you just
8 described that schedules in addition to where your seat
9 assignment may be, for example, that that was
10 classified information and should not be shared with
11 anyone that does not have a need-to-know?
12
13
A
Q
Correct.
When would you say that you first had this
14 understanding?
15 A Probably on the first week that I took this
16 position.
17 Q Would that be the first week of training or
18 the first week when you are actually assigned to a
19 field office and doing the job?
20
21
A
Q
Training,
So that lim clear, after you accepted
22 employment as a Federal Air Marshal, you first went to
1 training, correct?
Page 32
2
3
4
5
A
Q
A
Q
No. I first was an orientation.
And then after orientation?
And then in-processing.
After orientation and in-processing, then you
6 had the five-week training that you just described
7 earlier?
8
9
A
Q
Yes.
And then after that point, you were assigned a
10 particular field office, correct?
11
12
A
Q
Correct.
Where was your orientation and in-processing,
13 by the way?
14 A Haig Harbor, New Jersey. And this was at the
15 Federal Aviation Administration Technical Center
16 located there.
17 Q Did that take about a day to do the
18 orientation and in-processing?
19
20
21
22
A
Q
I do not recall.
Let me show you what weill mark as Exhibit 2.
(Exhibit 2 was marked by the
reporter for identification.)
1
2 Q
BY MS. CALAGUAS:
Have you had a chance to take a look at
Page 33
3 Exhibit 2, Mr. MacLean?
4
5
6
A
Q
A
Yes.
Do you recognize the document?
live seen it before. I acknowledge that I
7 read and signed this document.
8 Q So, that's your signature on the bottom of the
9 document?
10
11
A
Q
Yes.
At the time that you signed this document, did
12 you have any questions about what you were signing?
13
14
A
Q
No, I did not.
So, you understood at the time that you signed
15 this document that you may be removed from your
16 position at FAM, for the unauthorized release of
17 security sensitive or classified information, correct?
18 A Still didn't understand the terminology of
19 rrsecurity sensitive, II and I wanted the job.
20 I had just resigned my position, so I had to
21 sign this document. It was a condition of employment.
22 I did not know what security sensitive
1 information was then, and I still do not know to it
2 this day. I have an idea what the agency would like to
3 classify as security sensitive Information, but at this
4 point, I still do not have a definition or an
5 understanding of security sensitive information.
6 If there is a definition, and I think I tve
7 read definitions of it, I still do not understand it.
Page 34
8 Q But at the time that you signed this Condition
9 of Employment form, you didn't ask any questions about
10 anything on the form, correct?
11
12
A
Q
I do not recall asking any questions.
Whatts your understanding of the handling of
13 classified information at --
14
15
16
MR. NOONE: Objection. Relevance.
You can answer.
THE WITNESS: I have been handling classified
17 information since 1989, top secret information.
18 I know that it must be safeguarded by all
19 means necessary.
20 BY MS. CALAGUAS:
21 Q And by safeguarding classified information,
22 would that include not giving this to someone that does
1 not have a need-to-know?
Page 35
2 A Unless there is a law being violated and that
3 there is a danger to the public, or if there is an
4 abuse of authority.
5 Q So, you believe there are exceptions to the
6 safeguarding of classified information, correct?
7
8
9
MR. NOONE: Objection. Relevance.
You can answer.
THE WITNESS: In extreme circumstances to save
10 lives or if there is a violation of law, there could be
11 an exception. An exception must be considered on a
12 case-by-case basis.
13 BY MS. CALAGUAS:
14 Q On what basis do you believe that there is an
15 exception to the disclosure of classified information
16 as you1ve described the exceptions?
17
18
A
Q
Do you want me to give you a scenario?
No, lid like to understand how you reached
19 that understanding.
20 Are you relying, for example, on any
21 particular document, policy, law?
22 A I think itls pretty much moral obligations to
1 an oath that you take to the people that youlre sworn
2 to protect.
Page 36
3 Q Let me have you take a look at what weIll mark
4 as Exhibit 3.
7 BY MS. CALAGUAS:
8 Q Have you had a chance to take a look at
9 Exhibit 3?
10
11
12
A
Q
A
Yes, live glanced over it.
Do you recognize Exhibit 3?
I recognize some of the terminology, but in a
13 verbatim, I do not.
14 If there this was something that I had to read
15 and sign as a condition of employment, thatls a good
16 possibility.
17 Q When you say that you recognize some of the
18 terminology, what terminology do you recognize?
19 A Classified information pertaining to missions,
20 proposed missions, operation orders, team leader,
21 contingency plans, rules of engagement, country
22 clearance messages, joint training plans and lesson
1 plans.
2 I donlt know what Sarah-Lite message is.
Page 37
3
4
Q
A
Any other terminology that you recognize?
I see sensitive information on almost every
5 page.
6 Q
I should clarifY for the record that the
7 document that you1re looking at is an excerpt of a
8 larger document in that this is Section 1.112, Pages 23
9 to 25.
10
MR. NOONE: Can I just get you to clarify,
11 there is nothing in here redacted? This is just a
12 portion from a larger document?
13 Is that fair to say?
14 MS. CALAGUAS: Yes. There are no redactions
15 within this current document that's identified as
16 Exhibit 3.
17 Q
Were there any other terminologies that you
18 recognize in this document?
19 A
Illl tell you what I donlt recognize. Would
20 that be sufficient?
21
22
Q
A
Let me try another question.
Sure. It's pretty long. I'll go through the
1 whole thing, if you'd like.
Page 38
2 Q Well, I would like you to make sure that
3 you1ve reviewed the document before answering my
4 questions.
5 But let me ask you a question first and then
6 give you a chance to review it.
7
8
A
Q
Certainly.
Within this document, do you recognize any
9 description of what we have been talking about as your
10 FAM schedule?
11 MR. NOONE: Can I just get you to clarifY,
12 Eileen, that your question in terms of nrecognize,ll are
13 you saying has he ever seen this particular document
14 before or has he ever seen the portions in this
15 document before?
16 Are you saying has he ever heard these terms
17 before?
18 BY MS. CALAGUAS:
19 Q 1
1
m asking if, within this document, you
20 recognize any description of an FAM schedule?
21
22
A I'll just go down the list for you, then.
I'm not sure what ll rnission approval
ll
means or
1 "proposed mission."
Page 39
2 Q I want to you try to answer my question, and
3 it's going to require you to review the document. So,
4 take your time.
5
6
A
Q
Okay.
But I'm asking to you review the document and
7 let me know if in reviewing this document, you see a
8 description of what we have been talking about as being
9 a FAM schedule.
10 MR. NOONE: Just so it's clear, your question
11 is, does he see it now, not whether he remembers seeing
12 it back at a certain point?
13 MS. CALAGUAS: Yeah. I'm asking if he can
14 spot it for me now.
15
16
MR. NOONE: Okay.
THE WITNESS: Contingency plans, rules of
17 engagement, joint training plans and lesson planes,
18 which concern tactical procedures. Numbers of Federal
19 Air Marshals, FAM tactics. Names of individual FAMS,
20 team size and cell -- sorry, team and cell size.
21 MR. NOONE: I'm going to interrupt then and
22 make sure that you understand the question that's being
1 asked.
2 She asked if you recognize issues dealing with
3 scheduling or schedules.
Page 40
4 THE WITNESS: (Nods head.)
5
6
Specific air carriers flown.
MS. CALAGUAS: I should just reflect for the
7 record, that you nodded in response to your attorney's
8 question.
9 Q I don't think I gave you that instruction, Mr.
10 MacLean, that it's important in this proceeding that
11 your responses are verbal. Otherwise, our deposition
12 reporter can't take down what's being said.
13
14
A
Q
Understood. I did nod to my attorney.
Thank you.
15 So, I interrupted you at specific air carriers
16 flown?
17 A Seating assignments, individual FAM travel
18 itinerary.
19 And that's all I can see as far as to your
20 questions in regards to FAM scheduling.
21 Q So, you testified earlier that you believed
22 FAM scheduling to be classified information, correct?
1
2
A
Q
Yes.
So, everything that you've identified, then,
Page 41
3 as having to do with FAM scheduling, you also consider
4 to be classified information, correct?
5
6
7
A
Q
A
What I just read off of here?
Yes.
Let me be specific on what I consider -- would
8 you like me to be specific on what I consider
9 classified information on this document?
10 Q Is there a difference between what you1ve
11 identified and what you consider to be classified
12 information?
13 A I believe that your question was, is there
14 anything on these three pages that are related to your
15 prior questions of FAM scheduling, correct?
16
17
Q
A
Yes.
I will gladly tell you what I consider is a
18 classified nature on the topics on this page,
19 specifically.
20
21
Q
A
Why don't you go ahead and do that?
Okay. Team leader, Assistant Team Leader,
22 mission itinerary. Numbers of Federal Air Marshals. I
1 want to be specific. Numbers of Air Marshals in
2 relation to how many are operating on a specific
3 flight.
Page 42
4 Q
Is that in addition to the numbers of Federal
5 Air Marshals? In other words, is that a separate item
6 that you believe to be classified information?
7 A I believe the agency considers the
8 overall -- first of all, I have no idea how many
9 Federal Air Marshals are employed, so I do not know how
10 many Air Marshals are in one given office.
11 All I know is how many Air Marshals are on my
12 given flight.
13 Q Let me make sure that you understand what rIm
14 asking you.
15 1
1
m asking you what you believe is classified
16 information.
17 Now, do you believe that the numbers of
18 Federal Air Marshals is classified information?
19 A On a specific aircraft, yes.
20 Q No, I'm not asking if it's on a specific
21 aircraft. But just the numbers of Federal Air
22 Marshals, you believe that to be classified
1 information?
Page 43
2
3
A
Q
You need to be more specific.
So, only if there is a specific number of Air
4 Marshals, do you believe that to be classified
5 information?
6
7
A
Q
Specific number of Air Marshals in where?
Is that a difference to you? Is that what
8 makes it classified information, if it's the number of
9 Air Marshals that's specific to a particular area?
10 A I can't answer that, because I don't know how
11 many -- I don't know what you're specifically asking in
12 as far as number of Federal Air Marshals.
13 I do not know how many Air Marshals are or
14 have been employed throughout the United States, and I
15 do not know how many Air Marshals are in one given
16 office.
17 I only know how many Air Marshals are on the
18 flight that I am designated to protect.
19 Q All right. I'm not asking you, though,
20 whether you know the number of Federal Air Marshals all
21 together or at a particular office.
22 I'm asking you whether you think that the
1 number of Federal Air Marshals is classified
2 information.
3 With that understanding, then, is the number
4 of Federal Air Marshals all together classified
5 information?
Page 44
6
7
8
9
A
Q
A
Q
In my viewpoint?
1
1
m asking about your understanding, yes.
I believe it is confidential information.
It's confidential, but not classified,
10 correct?
11 A I believe that the amount of Air Marshals
12 employed currently is considered confidential
13 information.
14 Q How about the number of Air Marshals at any
15 particular field office? Do you believe that number to
16 be classified information?
17
18
A
Q
No, I do not.
Do you believe it to be confidential
19 information?
20
21
A
Q
Yes.
The number of Air Marshals on a particular
22 flight, do you consider that to be classified
1 information?
Page 45
2
3
A
Q
Yes.
DO you consider it to be confidential
4 information?
5 A Yes. Anything that's classified -- well, no,
6 something that's classified is classified. You canlt
7 consider it confidential in my experience. It's either
8 classified or confidential.
9 Confidential information cannot be considered
10 classified. And I mean by "c l ass ified, II I mean that
11 it's labeled trSecretll or lITop Secret.
tl
12 Q What about the opposite? Is classified
13 information confidential in your mind?
14 A I don't know the exact definition of
15 "classified information, II but I believe that it is
16 a -- it must be safeguarded at a hire level than
17 confidential information.
18 Classified information should be safeguarded
19 at a higher level than confidential information, but I
20 don't think one issue can be labeled both confidential
21 and classified information.
22 It m assuming that t s what you want me to
1 answer.
Page 46
2
3
4
5
6
Q
A
Q
A
Q
No.
It's one or the other.
Well, I asked you if it was both?
No.
By my question, I'm not asking you whether
7 it's ODe or the other. My question is whether it's
8 both at this point.
9 And what we are talking about, then, is the
10 number of Federal Air Marshals on a particular flight.
11 A I believe that to be classified information
12 that must be highly safeguarded.
13 Q In your mind, is classified information only
14 to be considered classified information if it's labeled
15 as II Secret 11 or "Top Secret?
16 A I believe classified information to be
17 information that could result in serious bodily harm or
18 losses of life.
19 But, generally, in my past experiencE,
20 anything that's been classified is considered
21 classified material is either labeled secret or top
22 secret.
1 Q So, in order to identify what's classified
Page 47
2 information, do you need a label on it?
3
4
A
Q
Generally, yes.
Are you saying, then, there are times where
5 you can identify any information is classified if itts
6 not labeled as either secret or top secret?
7 A Correct. There are some times where -- the
8 agency can generally classify everything under one
9 subject.
10 And I mean, the subject of number of Air
11 Marshals on an aircraft and their position is
12 classified information.
13 Q So, you know that even though you didn't see
14 any document that labeled the number of Federal Air
15 Marshals on a particular flight as being classified?
16 A When I accepted this position, it was under
17 the necessity that I had to obtain a top secret
18 clearance. In order to gain a top secret clearancEI I
19 must know what the is the difference between something
20 that is classified and what is not classified.
21 Q And you know the difference between what is
22 classified and not classified even if that information
1 is not labeled as such?
Page 48
2
3
A
Q
Not necessarily.
But I thought you just said that to have a top
4 secret clearance, you should ]mow the difference
5 between whether something is classified or not
6 classified.
7 A Depending on who considers the information
8 classified.
9 If the agency considers something classified
10 and as labeled it so and I have no knowledge that it
11 has been classified such as the agency wants to
12 classify it, then I won't have knowledge of that
13 classification.
14 I only know that if something is going to hurt
15 or kill people or result in major property damage, I
16 consider that to be classified.
17 Q How do you know that the number of Federal Air
18 Marshals on a particular flight is classified
19 information?
20 A Because if that is known by a bad element,
21 every person on that aircraft is subject to death or
22 bodily harm or anybody else on the ground resulting in
1 the aircraft falling on those people. Such as on
2 September 11th, 2001, people died on the aircraft and
3 also died on the surface.
Page 49
4 Q Do you know whether or not the agency has
5 identified the number of Federal Air Marshals on a
6 flight to be classified information?
7
8
9
A
Q
A
I believe they did.
What's the basis of your belief?
Because if the general public knew, if the bad
10 element lmew, those people can be killed, the agents
11 would be killed, the people on the aircraft could be
12 killed, and the people on the surface could be killed.
13 I consider that classified information, and I
14 would hope the agency would consider something that
15 serious to be classified information.
16 Q But today, do you know whether or not the
17 agency has ever considered the number of Federal Air
18 Marshals on a particular flight to be classified
19 information?
20 A I do not specifically know if anybody in the
21 agency has made that utterance or has made any kind of
22 publication, but I hope they have.
1 Q Let me have you take a look at what
1
s listed
Page 50
2 there on the second page of this document as
3 "Individual FAM Travel itineraries. II
4 What's your understanding of what that
5 describes?
6
7
8
9
A
Q
A
Q
Flight numbers, seat positions.
Anything else?
No.
When you say "flight numbers, If what do you
10 mean by that?
11 A The flight number designated for that aircraft
12 or the flight for that -- the mission for that
13 aircraft.
14 Q So, whether or not a Federal Air Marshal will
15 be on a particular flight?
16 A On that given flight number.
17 For instance, you have United Airlines, Flight
18 161 is leaving from Terminal 6, Gate 68, for BostOD.
19 That's what I mean by the flight number designating
20 that aircraft and the mission that it's going to fly.
21 Because, I believe that sometimes the flight
22 numbers change, depending on where the flight is flying
1 to.
2 Q Let me ask you this question first, then.
Page 51
3 FAM travel itineraries , do you consider that
4 to be classified information?
5 A If it lists their flight number and date and
6 time and seat position, yes.
7 If it's very general of just, you know, what
8 day they're flying on -- I consider that information to
9 become classified the more specific information that's
10 involved.
11 Q Okay.
12 A Such as terminal number, security checkpoint
13 area. The closer that you get for being specific to
14 where the Air Marshal is sitting on the aircraft, I
15 believe that to be -- to go to a higher level of
16 classified information.
17 Q Let me go back to my question, then, about
18 what you mean by flight numbers.
19 According to you, flight numbers can be
20 considered classified information, correct?
21
22
A If given with a specific date and time.
Flight numbers change daily, hourly. It has
1 to be specific to a time and date.
Page 52
2 Q
At the airport when you see the monitors that
3 indicate the flight numbers, the gates they're at,
4 whether a flight's on time or not, you donlt consider
5 that to be classified information, do you?
6
7
A
Q
No.
But there are flight numbers listed on that
8 monitor, correct?
9
10
A
Q
Correct.
So, what's the difference between what's
11 contained in that television monitor than what you
12 consider to be classified information with respect to
13 flight numbers?
14 A
If you associate Air Marshals are going to be
15 on that flight.
16 Q
So, that's the difference.
17 If an Air Marshal is going to be on a
18 particular flight and you know the flight number, you
19 consider that to be classified information?
20
21
A Yes.
MR. NOONE: Eileen, can I just insert an
22 objection to all these questions insofar as they deal
1 with classified information rather than what the issue
2 here is, which is sensitive security information.
3 I just want to make that standing objection
4 noted.
Page 53
5
6 Q
MS. CALAGUAS: That's on the record.
So, with respect to flight numbers that's what
7 you consider to be a part of travel itineraries,
8 correct?
9 A If it's specified that the Air Marshal is
10 going to be on that given flight and flight number,
11 yes.
12
13
Q
A
What's an RON mission?
"Remain Qvernight.
l1
That's when an Air
14 Marshal is scheduled to remain overnight because there
15 is not enough -- there are too many flying hours in the
16 day.
17 Therefore, the Air Marshal must get his rest,
18 bed rest before going on a new mission.
19 Q Are RON missions, then, just one type of
20 mission that a Federal Air Marshal flies?
21 A No, an R-O-N can be caused by several case
22 scenarios.
1 Q How does an RON mission effect a FAM's
Page 54
2 schedule?
3 A If 1
1
m on a RON mission, I can predict that I
4 am going to have a two-day or more length of a mission.
5 Therefore, I need to pack a bag with extra overnight
6 toiletries and clothing, at cetera.
7 An Air Marshal also needs to prepare for a RON
8 mission by securing a hotel reservation for a given
9 area that they're scheduled to RON at.
10 Q If an RON mission, does that indicate to you
11 what type of flight that a Federal Air Marshal would be
12 on in terms of the duration of the flight?
13
14
A
Q
No.
Does it give you any information about the
15 type of flight that a Federal Air Marshal would be on
16 if you knew the Federal Air Marshal was on a remain
17 overnight mission?
18 A Specifically, no. I could make a -- I could
19 guess that it's going to be a very long flight or it
20 could be a very long day with several legs.
21 Q So, generally, it will give you information
22 about whether the FAM is on a long flight or has had a
1 long day, meaning that they've flown but on shorter
2 segments?
Page 55
3 MR. NOONE: I'm going to object to a
4 mischaracterization, but go ahead and answer.
5
THE WITNESS: Or -- well, you are correct, the
6 Air Marshal is flying away from his home, his home
7 office.
8 The further an Air Marshal flies away from his
9 horne office will usually end up having that Air Marshal
10 do an RON at a hotel.
11 BY MS. CALAGUAS:
12 Q
So, how far away do you have to be from your
13 home office before you consider yourself to be on an
14 RON mission?
15
16
A I am going to take a wild guess --
MR. NOONE: 1
1
m going to instruct you not to
17 guess.
18
MS. CALAGUAS: I don't want you to guess.
19
20
21
22
Q
A
Q
A
In your experience.
In my experience?
Can you answer that question?
If I fly a minimum of four hours away from my
1 home office, it's probably going to end up in an
2 overnight mission, four hours or more.
Page 56
3 Q When you say fly four hours, that means your
4 flight is four hours long?
5 A Yes, from leaving the ground and landing at
6 its next destination.
7 Q Why would that be a "l-emain overnight II
8 mission?
9 A Air Marshals are generally -- there are
10 exceptions -- but for domestic, and this is going to be
11 a sensitive issue here as far as it might be considered
12 classified or confidential.
13 MR. NOONE: Well, I'm going to wait until
14 Eileen instructs you to go ahead and answer it anyway.
15 Do you want him to answer it anyway?
16 MS. CALAGUAS: Could you read back his answer
17 for me, please?
18 (Whereupon, the pending question was read into
19 the record by the reporter as follows:
20 "Q Air Marshals are generally -- there are
21 exceptions -- but for domestic -- and this is going to
22 be a sensitive issue here as far as it might be
1 considered classified or confidential. II)
Page 57
2
MS. CALAGUAS: Go ahead and answer this.
3 Can you mark this section, please?
4 (Continued immediately in CONFIDENTIAL
5 session. )
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
(THIS SECTION MARKED CONFIDENTIAL)
Page 58
1
2 Q
BY MS. CALAGUAS:
Mr. MacLean, you are under oath.
Page 59
3 During the break, did you talk about your
4 testimony at all with anyone?
5
6
A
Q
With my attorney only.
We've been talking about RON missions. I
7 didn't ask you what your definition of a mission is.
8 Letts just have that for the record, the word
9 "mission" with respect to Federal Air Marshals?
10 A
A mission is a flight -- an Air Marshal
11 mission is a flight that is being protected by Air
12 Marshals.
13 Q
Is the term ItRON mission
ll
used, to your
14 knowledge, in any other agency?
15
16
17 know?
A
Q
Yes.
What other agencies, to the extent that you
18 A When I was in the Air Force, we referred to
19 missions that we had to spend the night out in the
20 field as a llRemain overnight. II That's it.
21 Q What's your understanding of the term
22 11 operations 1I with respect to FAMS?
1 A Operations is a terminology used for an
Page 60
2 actual -- for actual missions that are aircraft or
3 flights that an Air Marshal is pro-actively protecting.
4 Anything else would be administrative issues
5 or training operations.
6 Q
Would you consider it to be a FAM operation if
7 a FA!" was not actually on the flight -- I should say a
8 flight?
9
10
A
Q
Rephrase that.
Did you consider that to be a FAM operation as
11 you1ve just defined it?
12
13
A
Q
No.
So, when you say that a FAM is pro-actively
14 protecting a flight, does that mean that a FAl1 has to
15 be on the flight?
16
17
A
Q
Correct.
What's your understanding of the term
18 "deployment" with respect to FAMs?
19 A
An Air Marshal being designated to protect an
20 aircraft.
21 Q
Again, to protect the aircraft I does the Air
22 Marshal have to be on it?
1
2
A
Q
Yes.
And if an Air Marshal is not on the flight, do
Page 61
3 you consider that to be a deployment?
4
5
A
Q
No.
Let me have you take a look at what we'll mark
6 as Exhibit 4.
9
10
11
12
13
14
15
16
Q
A
Q
A
THE WITNESS: You want me to review this?
MS. CALAGUAS, Please.
THE WITNESS, I reviewed it.
BY MS. CALAGUAS,
DO you recognize Exhibit 4?
No.
Have you ever seen Exhibit 4?
1
1
m sure live been told to read it, understand
17 it, and sign an agreement that I've read and agreed to
18 it, but this is something I don't recognize
19 immediately.
20 Q If you believe that at some point you were
21 asked to review this document, when would that have
22 been?
1
2
3
4
A
Q
A
Sometime after November 13th of 2002.
What's the significance of that date to you?
Thatls when this document was put together.
MR. NOONE: I'm going to instruct you on the
Page 62
5 record not to guess at any of your answers. Okay?
6
7
THE WITNESS: Okay.
I:vIS. CALAGUAS: Let me have you take a look at
8 what we'll mark as Exhibit 5.
9 (Exhibi t 5 was marked by the
11
12
13
14
Q
A
THE WITNESS: I've reviewed it.
BY MS. CALAGUAS:
Do you recognize Exhibit 5?
I believe this was another document that I was
15 told to read and sign as a condition of my employment,
16 and it looks very much like the November 13th, 2002
17 version.
18 Q Did you ever have a copy of what's in front of
19 you that's marked as Exhibit 5?
20 A No, I do not have a copy, but I will -- there
21 is a possibility that there is one in the file that you
22 have provided me or my attorney's provided me.
1 Q Do you recognize this document as a document
Page 63
2 that was produced by you to the agency in response to
3 one of its requests for production of documents?
4 A If that's what I produced, then I don't
5 contest that.
6 Q So, at some point did you have this document
7 in your possession, correct?
8 MR. NOONE: Or his attorneys did. I'm not
9 sure, Eileen, whether it was something we produced
10 without -- independent of Robert giving it to us. It
11 might have been something that we generated. 1 ' m not
12 sure.
13 BY MS. CALAGUAS:
14 Q I'm asking you, Mr. MacLean, if you ever had a
15 document of a copy of this document in your possession
16 at any time?
17 MR. NOONE: I'll just repeat the instruction
18 throughout.
19 Don't guess, if you don't know. I'm not
20 trying to be difficult, but don't guess.
21 BY MS. CALAGUAS:
22 Q Right. If you don't know, say that.
1 A Yes, I have been given a copy of these
Page 64
2 exhibits.
3 Q Exhibit 5 has a different date than Exhibit 4
4 as reflected in the top right-hand corner.
5
6
7
8
A
Q
A
Q
I see.
Do you know the significance of that date?
No, I donlt.
Do you know if you received a copy of this
9 document after that date?
10
11
A
Q
Yes, I received a copy of this document.
You donlt know whether or not you received a
12 copy of that document before that date, though?
13
14
A
Q
I do not know.
At some point, you do recall having read the
15 document, though; is that correct?
16
17
A
Q
Correct.
Did you have any questions about the document
18 that you read?
19
20
A
Q
No.
When you read the document, was it during your
21 employment with TSA?
22 A Yes. 1
1
m not sure it could have been ICE,
1 TSA, I'm not sure.
Page 65
2 Q
Yes, I should clarify my question to include
3 the time when you were with ICE.
4 So, while you don't remember exactly when you
5 read the document, you know it was while you were a
6 Federal Air Marshal, correct?
7
8
A
Q
Correct.
Let's me have you take a look at what we'll
9 mark as Exhibit 6.
12
13
THE WITNESS: Okay, I've reviewed it.
BY MS. CALAGUAS:
14
15
16
Q
A
Q
Do you recognize the document?
Yes, I do.
Is your signature on the last page of that
17 docurnent ?
18
19
A
Q
Yes, it is.
Did you have any questions about this document
20 at the time that you signed it?
21
22
A
Q
No.
Who's the signature of your supervisor on this
1 document?
Page 66
2
3
4
A
Q
A
I'm going to guess -- can I guess on this one?
1
1
11 take a guess at this point.
I think itls Mickey Marsigliano. Ifm pretty
5 sure it was him. That looks like a Mickey.
6 Q Mr. Marsigliano was your supervisor at that
7 time through 1963?
8
9
10 time?
11
A
Q
A
Yes.
Did you have any other supervisors during this
I don't think so. It's a possibility that he
12 took a leave of absence in between and another
13 supervisor was acting in his place.
14 Q Let me have you take a look at what weIll mark
15 as Exhibit 7.
18 THE WITNESS; I have reviewed it. This looks
19 like another from Mickey Marsigliano.
20 BY MS. CALAGUAS:
21 Q And thatls also your signature both under the
22 Performance Agreement Initiation and also the
1 Performance Assessment?
Page 67
2
3
A
Q
Correct.
And during both times that you signed this
4 document, did you understand its content?
5
6
7
8
9
10
11
A
Q
Q
Yes.
Let me have you take a look at Exhibit 8.
{Exhibit 8 was marked by the
reporter for identification.}
THE WITNESS: I have reviewed it.
BY MS. CALAGUAS:
Again, is that your signature there on the
12 last page?
13
14
A
Q
Correct.
Both under the Performance Agreement
15 Initiation and also at the Assessment?
16
17
18
19
A
Q
A
Q
Yes.
And who was your supervisor?
Marsigliano.
At the time that you signed this document, did
20 you have any question about it?
21
22
A
Q
No.
When you first arrived at the Vegas field
1 office, do you remember receiving any training?
Page 68
2
3
A
Q
Yes.
Can you generally describe the training that
4 you received at the time that you arrived in Vegas?
5
6
7
8
A
Q
A
Q
Administrative, operational, firearms.
Who gave you this training?
I do not remember.
Do you remember where you received this
9 training?
10 A
In a building in Las Vegas. It could have
11 been either the one on Valley View or the other on -- I
12 can't remember where the other ODe was. More than
13 likely, it was the one on Valley View.
14 Q
Was there anyone else who received this
15 training with you?
16
17
18
19
A
Q
A
Q
I do not remember.
Do you know for how long this training lasted?
I do not remember.
In terms of the operational aspects of the
20 training that you received, do you remember any
21 discussion about FAM schedules?
22 A I do not remember.
1 Q Do you remember any discussion about sensitive
Page 69
2 security information?
3
4
A
Q
No, I do not.
Do you remember any discussion about
5 classified information?
6
7
A
Q
No, I do not. Specifically, I do not.
Do you remember any training provided to you
8 by Doug Hladky?
9
10
A
Q
H-a-l -- sorry, H-1-a-d-k-y.
Thank you. No problem.
11 The training that you remember receiving from
12 Doug HladkY, when was that?
13 A
Should have been sometime in either late 2001
14 or early 2002.
15 Q
Generally speaking, what do you remember about
16 that training?
17 A
I don't remember. I think it was just mostly
18 a general orientation, common sense issues.
19
20
21
22
Q
A
Q
A
HOW long did that training last?
Probably an hour.
Do you recall where that training took place?
It may have taken place either in the Valley
1 View office or -- Il m trying to think where that first
2 facility was, what street it was on? Warm Springs,
3 another building on Warm Springs Road in Las Vegas.
4 Sorry, I have to go to the bathroom.
Page 70
5
6
7
8 Q
MS. CALAGUAS: Let's go off the record.
(A break was taken.)
MS. CALAGUAS: Back on the record.
Mr. MacLean, you understand you
1
re still under
9 oath, correct?
10
11
A
Q
Yes, I do.
The training that you recall given by Doug
12 Hladky, is this training separate and apart from the
13 training that you received when first arriving in Las
14 Vegas?
15
16
A
Q
I donlt remember.
When you say that you received
17 common -- training about common sense issues from Doug
18 Hladky, can you be more specific about what that would
19 be?
20 A Yes. Transmitting the airport, bypassing
21 checkpoint security lanes, how to board aircraft, hotel
22 check-in procedures, dress codel how to interact with
1 the airline employees. Things of that nature.
Page 71
2
3
4
Q
A
Q
You talked about all of this in oDe hour?
Yes.
Do you remember any discussion about
5 schedules, FAM schedules?
6
7
A
Q
No.
So, now you don't recall any discussion about
8 FAM schedules?
9 A Scheduling was always an issuE, 24 hours a
10 day, seven days a week, because it was very hodgepodge
11 at that time.
12 I was the first, one of the first Air Marshals
13 deployed. So, scheduling was very hectic and very
14 scattered, and so, scheduling was always an issue.
15 Q However hectic and scattered your scheduling
16 may have been, did you have the understanding that your
17 scheduling was to remain confidential at this period of
18 time?
19 A Yes. It was to remain confidential as far as
20 specifics, specific flights, specific seat positions,
21 specific destinations, specific origins.
22 Q If you were not on a particular flight, did
1 you consider that fact to be confidential?
Page 72
2
3
If I wasn't on a flight -- I don't understand.
Please rephrase the question. Could you make
4 it more specific, please?
5 Q Well, this question is specific to you.
6 If you weren't on a particular flight, did you
7 consider that a fact that needed to be confidential?
8 Depending on the situation.
9 If there was a specific threat on an aircraft
10 and I knew that Air Marshals were not to protect that
11 aircraft, that would be considered confidential.
12 Q So that I get this straight, then, if you
13 knew -- if the fact that a Federal Air Marshal wasn't
14 on a particular flight, that fact should be
15 confidential?
16 Did I get that right?
17
18
19
MR. NOONE: Objection.
THE WITNESS: Do I --
MR. NOONE: Are you restating what he said?
20 Because it's not how he said it earlier.
21 MS. CALAGUAS: I'm asking him to correct me if
22 I got it wrong.
1 THE WITNESS: If I know that there is a
Page 73
2 specific threat to a given aircraft and I know that
3 there are no Air Marshals on that aircraft, that is
4 confidential information.
5 BY MS. CALAGUAS:
6 Q If there is no specific threat to a given
7 aircraft and there is no Federal Air Marshal on that
8 flight and that fact is known that there is no Federal
9 Air Marshal on that flight, do you consider that to be
10 confidential information?
11
12
A
Q
Yes, I do.
So, does it matter whether or not there is a
13 specific threat to a particular flight as to whether or
14 not--
15 A I thought if it pertained to me being on that
16 flight or not.
17 If you're speaking in general terms?
18 Q You're right, at one point we were specific to
19 you and then we started speaking in general terms. So,
20 maybe we need to clarifY that.
21
22 A
We're talking in general terms now. Okay?
Yes.
1 Q So, if there is no specific threat to a
Page 74
2 particular flight and there is no Federal Air Marshal
3 on that flight, whether it's you or anyone else, is the
4 fact that there is no Federal Air Marshal on that
5 flight considered confidential information in your
6 mind?
7
8
9
A
Q
A
Absolutely.
Why?
It's important to know that not only should
10 the bad element be guessing whether there is an Air
11 Marshal on the plane, they shouldn't have any knowledge
12 of whether there is no Air Marshal on that plane.
13 If the bad element knows there are no Air
14 Marshals on that plane, the bad element is going to
15 want to be on that plane.
16 Q So, what's your understanding of "sensitive
17 security information
ll
? What is it?
18 A Sensitive security information is a term that
19 was developed by specifically the Transportation
20 Security Administration post-September 11th, 2001. And
21 it's a very loosely used term.
22 I've seen the term labeled on going away
1 parties, coffee get-togethers, specific moral and
2 welfare events.
3 So, that's why I am generally confused as to
4 what the agency considers as sensitive "security
5 information, II quote, unquote, on that.
6 Prior to my employment as a Federal Air
7 Marshal, I never heard of the term II sens itive security
8 information. It
Page 75
9 Q When you say that sensitive security
10 information is used with respect to going away parties
lIar other moral events, I donlt understand that.
12 Are you talking about if there is an
13 invitation to an event like that?
14 A Correct. In an e-mail, it was sent in an
15 e-mail and it was labeled "Sensitive Security
16 Information. 11
17 Q Did you handle sensitive security information
18 while as a Federal Air Marshal?
19 A The agency did provide me documents that were
20 labeled nSensitive Security Information. II
21 Q Do you consider a FAM's schedule to be
22 sensitive security information?
1 A 1
1
m still confused as to what is considered
Page 76
2 sensitive security information and what is not
3 considered sensitive security information.
4 Therefore, 1
1
m not confident in trying to
5 describe to you what I believe is sensitive security
6 information or what is not.
7 I do know what. the agency generally does or
8 does not label sensitive security information.
9 But by their actions, I still do not know what
10 are their guidelines for labeling or classifying
11 sensitive security information.
12
13
14
Q
A
Q
Had you ever seen your schedule printed out?
Yes.
And in that printout of your schedule, was it
15 labeled as a sensitive security information?
16
17
A
Q
Yes.
At any point, had you ever seen a printout of
18 your schedule that didn't contain a label that it was
20 A I do not know.
21 Let me strike that and say, yes, I have
22 received schedules that were not labeled sensitive
1 security information.
Page 77
2 Q But the difference iS
I
these were not your
3 schedules?
4 A The agency generally left our schedules out in
5 the open. General employees in the field office had
6 access to the schedules, including the janitors.
7 So, that was another reason why it was
8 confusing as to what was considered sensitive security
9 information or not.
10 Q So, you recall a time where a FAMS schedule,
11 whether it's your schedule or someone else's, that was
12 printed out and not labeled as sensitive security
13 information, correct?
14
15
A
Q
Correct.
During that time when you saw the schedule and
16 it wasn't labeled as 881, did you still have the
17 understanding that the schedule needed to remain
18 confidential?
19
20
A
Q
Absolutely, and safeguarded.
But did you lmow whether or not that schedule
21 was considered to be sensitive security information
22 even though in the printout of that schedule it wasn't
1 labeled as such?
Page 78
2 A I considered it some type of protected
3 information. Whether I knew it was sensitive security
4 information, I wouldn't know.
5 Q By II protected,lI you testified that it needed
6 to be safeguarded.
7 Would that include, then, not disclosing that
8 schedule to a person without a need-to-know?
9 A Correct. Let me go back to my earlier
10 statement that I made in the deposition, that I
11 consider Air Marshall schedules with specific
12 information as to flight numbers, dates, times and seat
13 positioning, as highly confidential -- I'm sorry,
14 highly classified information whether it was marked
15 secret or not top secret. I considered that
16 information to be highly safeguard had.
17 Q Well, you bring that up. Let me make sure
18 that we are on the same page, then, with respect to my
19 questions about schedules when they l re printed out.
20 The schedules when they're printed out, does
21 it include flight numbers?
22 A Yes.
1
2
Q
A
Does it include seat assignments?
At one time they did, but it -- I believe they
Page 79
3 stopped that practice.
4 Q What else did the schedule, when it's printed
5 out, include?
6 A Your partner's name, origin, destination,
7 times, flight departure times and flight arrival times.
8 Q That would be in addition to the flight
9 number, correct?
10
11
12
13
A
Q
A
Q
Correct.
Anything else?
That's all I can think of right now.
So, the flight schedule that you saw prints
14 had out that didn't have any SSI label on it, contained
15 flight numbers, partners names, origin, destination,
16 times, correct?
17
18
A
Q
Correct.
And at one point you remember the flight
19 schedules containing seat assignments, but with respect
20 to the schedule that you recall not having an 55I
21 label, do you know whether or not that printout
22 included seat assignments?
1
2
A
Q
I don't know.
These schedules would include any missions
Page 80
3 that were remain overnight, correct?
4
5
A
Q
Yes.
In talking about -- let me go back.
6 You gave me your understanding of what is 881.
7 Do you have an understanding as to what
8 responsibilities you had in handling 58I?
9 A Yes
l
I knew the agency did not want me to
10 divulge sensitive security information, and that it
11 must be safeguarded if it was labeled by the agency as
12 being sensitive security information.
13 1
1
11 call it 58I from now OD.
14 Q Sure. So will I.
15 Were you aware of any other responsibilities
16 you had to SSI besides not divulging SSI?
17 A I had a responsibility to protect the public,
18 my partner, property, and the integrity of aviation
19 security overall.
20 Q Do you know whether or not you had any
21 responsibility to label SSI, yourself?
22 A No, I knew I had absolutely no responsibility
1 to label anything myself, any type of classification.
Page 81
2 Q Were you aware of any responsibility if you
3 should have received SSI that didn't have a label on
4 it?
5 A I wouldn't know if it was 55I or not unless it
6 had a label.
7 Q Can you give me examples of what you knew to
8 be SSI?
9
10
11
12
A
Q
A
Q
Anything that the agency marked SSI.
Anything else?
No.
Is it your understanding that 58I is limited
13 only to written information?
14
15
A
Q
I do not know.
Do you believe that 58I can be discussed
16 verbally as opposed to in writing?
17
18
A
Q
Yes. Such as we1re doing now.
How would you mark 88I if you1re discussing it
19 verbally?
20 A Usually the senior individual in the
21 conversation will give a disclaimer, an oral disclaimer
22 that the following information is considered sensitive,
1 SSI.
2 Q You say "usually. 11
Page 82
3 Is that always the case that you get this
4 disclaimer from a senior person that the discussion
5 your about to have includes sensitive security
6 information?
7
8 yes.
A In the initial introduction of the subject,
9 If I am told that a certain issue by ODe
10 individual is considered classifiable information, I
11 will, until told otherwise, will consider that issue as
12 being classified confidential or 881.
13 Q Can you repeat his answer for me? Sorry.
14 (Whereupon, the pending question was read into
15 the record by the reporter as follows:
16 "Q In the initial introduction of the subject,
17 yes. If I am told that a certain issue by one
18 individual is considered classifiable information, I
19 will, until told otherwise, will consider that issue as
20 being classified confidential or 881?1I)
21 THE WITNESS: Is that even a word? I'll feel
22 bad if it is not. Classifiable. I don't know if I
1 just made that up.
Page 83
2 MS. CALAGUAS: That's fine. I think I
3 understand what you mean by it anyways.
4 THE WITNESS: Okay. I'll rephrase it as the
5 potential to being classified.
6 BY MS. CALAGUAS:
7 Q So that 1
1
m clear, then, does the senior
8 official have to say that the information that's about
9 to be discussed may include classified information
10 before you would consider the information to be
11 classified, confidential or SST?
12 A Absolutely, unless I had a prior Imowledge of
13 the topic being classified already.
14 Q The senior official specifically has to use
15 the word "classified" in your mind before you would
16 know?
17 A No, they could say it was confidential,
18 classified, or this information is law enforcement
19 sensitive. Any of those terminologies would have been
20 used.
21 Q And by using any of those terminologies, what
22 was your understanding as your responsibility with
1 respect to the information that's about to be discussed
2 verbally?
Page 84
3
4
A
Q
Please rephrase.
When a senior official uses that type of
5 terminology that you've just described --
6
7
A
Q
Yes.
-- would that indicate to you any
8 responsibility that you may have with respect to the
9 information that's about to be discussed?
10
11
12
A
Q
A
Yes.
And what would that responsibility be?
That I cannot discuss that information with
13 anybody who did not have a need-to-know.
14 Q Your cell phone in 2003, specifically in about
15 July of 2003, was it password protected?
16
17
A
Q
No.
Did it have the capability of being password
18 protected?
19
20
21
A
Q
A
I do not know.
But you did not password protect that phone?
Are you referring to the voice mail, to access
22 voice mail?
1 The only password required on the cell phone
2 was to gain access to voice mail.
Page 85
3 Q
In terms of operating the phone, was a
4 password required?
5
6
A
Q
No.
In terms of -- so, let me make sure 1
1
m clear.
7 So, receiving or sending phone calls?
8
9
A
Q
No.
Was a password required to receive or send
10 text messages?
11 A
No. Let me stop. The phone didn't have the
12 ability to send text messages, only could receive text
13 messages.
14 Q
So, the only password required with respect to
15 your cell phone in 2003, was for checking voice mail?
16
17
A
Q
Yes.
In 2003, what types of information did you
18 receive via text message?
19 A Most of it was to tell about a traffic report,
20 that there was a terminal being closed at the airport,
21 just general knowledge things to give Air Marshals a
22 warning about something.
1 Q In this period of time, did you ever receive a
Page 86
2 text message that changed your schedule?
3
4
A
Q
Yes.
What type of information with respect to your
5 change of schedule would the text message be?
6
7
B
A
Q
A
Are you referring to the RONs being canceled?
Not if specifically. Just generally.
I received all kinds of information all the
9 time in text messages.
10 Q What about the ones with respect to your
11 schedule?
12 A Yes, we would get notifications of a change in
13 our schedule and to give somebody a call.
14 Q Can you give me an example of a text message
15 that you received with regard to a change in your
16 schedule?
17 A Say, there's been a change in your schedule,
18 please call operations to get a new schedule.
19 Q In the text message, would you ever receive
20 more information about the actual change in your
21 schedule?
22 A Nothing specific as in flight numbers or
1 anything like that. That was it. Just a call there
2 was a change in the schedule and to call operations.
3 That's it.
Page 87
4 Q Were any dates reflected in a text message if
5 there was a change in your schedule?
6
7
8
A
Q
A
Yes.
In what context would the dates appear then?
The date of the schedule change. The date
9 where the change was going to be in the schedule.
10
11
Q
A
By knowing the date --
1
1
m sorry, the date of when the missions were
12 supposed to be flown.
13
14
Q
A
Can you give me an example?
llMission for July 3rd changed. Call
15 operations. II
16
17
18
19
20 Q
I have to use the restroom again. 1
1
m sorry.
MS. CALAGUAS: We can go off record.
(A break was taken.)
MS. CALAGUAS: We are back on the record.
I think my last question was for you to give
21 me an example of a change in your schedule and how that
22 would be described in a text message.
1 A "Schedule change July 1st, 2003. Call
Page 88
2 operations for further information. II
3 Q So, by referring to the date July 1st, 2003,
4 in your example, would that be with respect to any
5 particular flights for that day?
6
'7
A
Q
Any flights in that given day.
In 2003, was there ever a time where your
8 schedule would change such that you would not be on a
9 particular flight?
10
11
12
A
Q
A
It's a possibility.
Did it, indeed, happen at some point in 2003?
You want to rephrase that question, please?
13 Or if you could read it back to me?
14 Q In 2003, was there a time where your schedule
15 changed such that you were not on a particular flight?
16
1'7
A
Q
I donlt remember.
Aside from the date, would you have anymore
18 information in the text message about a change in your
19 schedule, generally speaking, in 2003?
20 A Just the date and to call. That's all I can
21 remember.
22 Q The text message in this case, letts talk
1 about that.
2 Do you remember when you received the text
3 message that RON missions would be canceled?
Page 89
4
5
A
Q
It was on or about July 28th of 2003.
You agree that you shared the information in
6 this text message to Brock Meeks on July 29th, 2003?
'7
8
A
Q
Yes.
So, you believe that you waited a day, then,
9 after receiving the text message before sharing it with
10 Brock Meeks?
11 A I don't remember. I made a phone call to the
12 Inspector General Hot Line.
13 Q That would have been after you received the
14 text message?
15
16
A
Q
That's correct.
In the responses that you provided me, that
17 phone call to the Inspector General, you had identified
18 as taking place on January 25th, 2003?
19
20
21
22
A Correct.
MR. NOONE: January or July?
MS. CALAGUAS: Sorry, July 24th.
THE WITNESS: Right. I picked July 28th on or
1 about because that's when I lmew I spoke with Brock
2 Meeks.
3 But I could have gotten the text message any
4 numher of given days prior to that. I do not know
5 specifically.
6 BY MS. CALAGUAS:
Page 90
7 Q If you can recall any specific dates, I mean I
8 understand it was that long ago.
9 What I'm trying to understand, though, is how
10 much time had passed between when you first received
11 the text message and when you shared it with Brock
12 Meeks?
13
14
15
16
17
18
A
Q
A
Q
A
Q
I don't remember.
More than a day?
I don't remember.
Could it have been as long as a week?
I don't remember.
Between the time that you received the text
19 message and shared it with Brock Meeks, is that when
20 you contacted GIG?
21
22
A
Q
Yes.
Did you contact anyone else about the text
1 message in between the time that you received the text
2 message and when you shared it with Brock Meeks?
Page 91
3
4
5
A
Q
A
Yes. I spoke with a supervisor.
Which supervisor did you speak to?
Assistant to the Special Agent in charge,
6 Roger Scoffield.
7
8
9
10
11
12
Q
A
Q
A
Q
A
I thought your supervisor was Mr. Marsigliano.
That's correct.
Mr. Scoffield was another supervisor?
Correct.
But not your direct supervisor?
Correct. I believe he may have been the duty
13 ASAC at the time. Supervisors were usually coming and
14 going, unavailable, so there was a duty supervisor.
15 Q Had you preferred to speak to your supervisor,
16 Mr. Marsig1iano, rather than Mr. Scoffield At the time
17 that you did speak to Mr. Scoffield?
18
19
20
A
Q
A
No, it didn't matter.
What did you talk to Mr. Scoffield About?
I asked him why they l re canceling RON
21 missions.
22 Q Would this have been a face-to-face
1 conversation with Mr. Scoffield?
Page 92
2
3
4
5
6
A
Q
A
Q
A
Yes, it was.
So, it was in the Vegas field office?
Yes.
What did he say?
He said that there was no more -- there was a
7 budget problem and everybody had made their -- there
8 were complaints about it, but there was nothing going
9 to be done because there was apparently no money in the
10 budget to fund overnight missions.
11 He said it was discussed with headquarters and
12 everybody agreed that it was a dangerous decision and
13 that it broke the law, but that his hands were tied and
14 there was nothing that could be done about it.
15 Q You remember him using the words ndangerous
16 decision
ll
?
17
18
A
Q
Yes.
DO you remember him using the words tlbroke the
19 lawn?
20 A Well, I told him the law that they were
21 breaking and he agreed.
22 Q What law did you tell him that was being
1 broken?
Page 93
2 A It was a -- it was a line in the, it was a
3 section in the aviation and transportation security
4 account.
5 Do you got that file?
6
7
8 Q
MR. NOONE: No.
BY MS. CALAGUAS:
As best you can recall it, there was some
9 provision of ASAC that you believed was being broken?
10
11
A
Q
No, I knew was being broken.
You may not remember the specific language,
12 but canyall generally describe to me what about ASAC
13 that you thought was being broken?
14 A Yes, long distance aircraft that flew
15 non-stop, just like the four air crafts that were
16 highjacked and flown into the ground on September 11th.
17 I believe it specifically said September 11th,
18 and it said -- I denlt remember, it was either long
19 haul or long distance flights that were non-stop. I
20 believe that was some of the language in that law.
21 Q In discussing the cancellation of RON missions
22 with Mr. Scoffield, did you know whether or not you
1 were discussing sensitive security information?
Page 94
2
3
4
A
Q
A
It did not matter.
Why didn't it matter?
Because the law was being broken and the
5 public was being endangered, and it was an abuse of
6 authority_ Public lives were at risk.
7 It did not matter to me whether it was
8 confidential, law enforcement sensitivE, SS1, or
9 classified information. It was breaking the law and it
10 was endangering life.
11
12
13
Q
A
Q
What else was discussed with Mr. Scoffield?
That's all I can remember.
How long would you say this conversation
14 lasted?
15
16
A
Q
Probably less than 15 minutes.
And when you said that he agreed with your
17 statement that you believed that the cancellation of
18 RON missions was breaking the law, how did he show his
19 agreement?
20
21
22
A
Q
A
He said, II I agree with you, full heartedly. 11
Those were his words?
No. 1
1
m -- he just was in agreement with me.
1 I don't know exactly what he said. I don't
Page 95
2 want to do an exact quote, but he said that there was
3 nothing that could be done about it. There was no
4 money and, therefore, the missions had to be canceled.
5 Q So, during this conversation, you didn't ask
6 him whether or not the cancellation of RON missions was
8
9
A
Q
I told him it was a violation of Federal law.
My question is, did you ask him whether or not
10 it was 55I?
11
12
A
Q
No.
Were you on duty when you received the text
13 message?
14
15
A
Q
I donlt remember.
When you received the text message, it didn1t
16 contain a label that it was 881, correct?
17
18
A
Q
That's correct.
At the time that you received it, did you
19 wonder whether or not it was 58I?
20
21
A
Q
No.
At any time, did you wonder whether or not it
22 was 55I?
1
2
3
4
5
A
Q
A
Q
A
No. Can I continue?
You're not finished with your response?
No.
Okay, go ahead.
Actually, I didn't believe that the text
Page 96
6 message was actually factual, that it was a mistake.
7 That's why I wanted to speak with Roger
8 Scoffield about it. I wanted to speak to somebody in
9 charge about it.
10 Q At the time that you spoke with Mr. Scoffield,
11 had you already contacted OIG?
12 A I already had known -- I had spoken to
13 somebody else, I don't remember, but I had spoken to a
14 fellow Air Marshal.
15 I called him up and asked him if it was a fact
16 that they were -- that everything was being canceled
17 and they had said they called operations and were told
18 so.
19 Q So, after you checked with another Federal Air
20 Marshal, was it at that point you contacted DIG?
21 A I believe so. TIm almost certain that I spoke
22 with OIG prior to speaking with Roger Scoffield.
1
2
3
4
Q
A
Q
A
Why did you contact DIG?
Because it was a violation of the law.
So, what was your purpose of calling OIG?
TO report a violation of law. And they were
Page 97
5 the only people that I knew that could address such an
6 issue.
7 Q What did OIG say in response to your
8 reporting, if anything?
9 A I spoke to an operator and they said that this
10 had to be something that had to be discussed with my
11 chain of command.
12 They weren't interested. I got the feeling
13 they were very much uninterested in my claim.
14 Q So, did you speak to Mr. 5coffield because DIG
15 said to go to your chain of command?
16
17
A
Q
Yes.
What makes you think that OIG was uninterested
18 in your reporting?
19 A Because I wanted to speak to an investigator.
20 And they told me no investigators were
21 available at the time, and then they told me to
22 contact, to eventually contact a Special Agent in the
1 Oakland field office.
Page 98
2
3
Q
A
Did you do that?
I called there and I spoke to a Special Agent
4 Davidson in the Oakland office, and he pretty much said
5 that it was not an issue that he could deal with. He
6 seemed very uninterested also.
7 Q Did you speak to anyone else about this before
8 talking to Meeks?
9
10 it.
11
12
13
A
Q
A
Q
I think I spoke to several Air Marshals about
Anyone else?
Not that I can think of.
Prior to speaking with Meeks, you had some
14 sort of relationship with him already, right?
15 A I knew that he was reporting on Air Marshal
16 issues. That's all I knew of Meeks.
17 Q How did you know that?
18 A Because I read his articles before and I knew
19 to contact him. He had also be attempting to contact
20 me since I was the Executive Vice President of the
21 Federal Law Enforcement Officers Association, the
22 Federal Air Marshal Chapter.
1 Q So, how many times did you speak to Meeks
Page 99
2 about this text message?
3 A Just once. It could have been maybe I got
4 back with him in a phone call later, but I think pretty
5 much it was all oDe time.
6 Q And was this the first time that you had
7 spoken with Meeks?
8
9
A
Q
Yes.
So, when he tried to get aho1d of you before,
10 you didn't return his phone calls?
11
12
A
Q
No, he usually would send me e-mails.
Did you communicate with Meeks bye-mail,
13 then, before talking to him about this text message?
14 A
I don't understand what you're asking. Could
15 you ask me the question? youtre asking me if live
16 spoken to him on other subjects prior?
17
18
19
20
21 him.
22
Q
A
Q
.l\
Q
Before this, yes.
On a different issue?
At all at this point.
No. This is the only topic I discussed with
I'm asking you, though, whether or not you had
1 any discussions with Meeks, whether by telephone or by
2 e-mail, before the time that you contacted him about
3 this text message?
Page 100
4
5
A
Q
No.
So, how did you know how to get ahold of
6 Meeks?
7 A
He has his -- in his e-mail, he leaves his
8 phone number.
9
10
11
12
Q
A
Q
A
And that's the number that you called?
Yes.
What was your purpose of calling Meeks?
To tell him that the agency was breaking the
13 law and waS endangering the public by canceling RON
14 missions.
15 Q
At this time that you called him, did you
16 still have a copy of the text message saved on your
17 phone?
18
19
A
Q
No.
So, in describing the text message to him,
20 were you going off of your memory?
21
22
A
Q
Yes.
Is there a way to save text messages on the
1 cell phone that you had at the time?
Page 101
2
3
A
Q
I don't know.
Do you know whether or not the text message
4 contained any other information aside from what you
5 relayed to Brock Meeks?
6
7
8
9
A
Q
A
Q
I donlt know.
But you know it didnlt contain an 55I label?
Correct.
In receiving a text message, do you have,
10 like, a reason line?
11
12
13
A
Q
A what?
A reason line, like in the header.
Do you have a header for text messages? Let
14 me ask you that.
15 A No.
16 Q Do you lmow who the sender of the text message
17 was?
18 A No, I don't remember.
19 Q In receiving this text message, could you tell
20 who the sender was?
21
22
A
Q
I do not know.
Do you know who else could send you text
1 messages on this cell phone?
Page 102
2
3
A
Q
Anybody.
Did you tell Mr. Meeks anything about who sent
4 you the text message?
5
6
7
A
Q
A
No. I told him it came from Operations.
How did you know it carne from Operations?
r believe it had a -- usually, there was
8 a -- when they sent out text messages, they came from a
9 general e-mail account that just said tlOperations."
10 Usually they gave -- I'm assuming they gave
11 the people who work in Operations access to the
12 account, and whoever would go on there, there was a
13 preset, everybody's cell phone text address so they
14 could send out broadcasts.
15 So rIm assuming everybody in the Las Vegas
16 field office got that text message.
17 Q So, you do recall that the text message came
18 from Operations?
19
20
A Thatls correct.
When you asked before I thought you meant it
21 was from an individual. It came from the Operations
22 Center. Whether it had a -- it didn't specify an
1 individual.
Page 103
2 Q When you were speaking with other FAMS about
3 this text message, did you verify that they too also
4 received the same text message?
5 A Correct. I also verified that they had
6 received the same information about the fact that the
7 missions were being canceled.
8 Q The FAMS that you did speak to about this text
9 message, were they all from the Las Vegas field office?
10
11
A
Q
Yes.
Did you speak to any other FAMS about this
12 text message that were not out of the Las Vegas field
13 office?
14
15
A
Q
I don't remember.
When you shared this text message with Brock
16 Meeks, did you have an understanding as to what he
17 would do with the information?
18 A Yes, I knew he was going to report it. He was
19 going to write a story about it, immediately, and he
20 was also going to contact senators and other
21 responsible Government employees.
22 Q When speaking with Meeks, did you ask to
1 remain anonymous?
Page 104
2 A Yes. In the article, I asked to remain
3 anonymous.
4 Q Did you know whether or not he would quote you
5 as someone that was anonymous?
6 A He promised that he wouldn't quote me, that he
7 wouldn't use my name.
8 Q He wouldnlt use your name, but you understood
9 that he would be quoting the text message that you
10 shared with him, correct?
11
12
A
Q
I donlt know. I donlt remember that much.
Did you tell him not to quote the text message
13 that you shared with him?
14
15
A
Q
No, I didn't ask him.
HoW did you know that he would contact
16 Senators?
17
18
A
Q
He told me so.
Did you contact any senators about this text
19 message?
20
21
A
Q
No.
Did you contact any other Government officials
22 about this text message?
1 A No, just OIG, and Scoffield, and fellow Air
Page 105
2 Marshals.
3 Q Do you know whether or not Meeks ever
4 contacted any Senators or any other Government
5 officials?
6
7
A
Q
I donlt remember.
Did you have any other follow-up discussions
8 with Meeks aside from this one?
9
10
11
12
A
Q
A
Q
Yes.
About this topic?
I think I did. Ifm in the sure.
Before why talk about that, what else was
13 discussed in -- you said it was a phone call, correct?
14
15
A
Q
Correct.
What else was discussed in this phone call
16 when you first shared with him the content of the text
17 message?
18 A Other than the cancellation of long-haul
19 flights?
20
21
22
Q
A
Yes, anything else discussed?
No. Not to my knowledge.
If I read the article, if there is some more
1 information I possibly gave, but the whole subject was
2 in regards to long-haul flights being canceled.
Page 106
3 Q Did you explain to Meeks what a RON mission
4 was?
5 A
6 Q
7 A
8 Q
9 A
10 Q
Yes.
He didn't already know?
I don't remember.
You remember having that discussion?
Correct.
So, what about RON missions that you discussed
11 with him in this conversation?
12 A I told him that this was going to leave the
13 same type of aircraft that were highjacked on 9/11, was
14 going to leave those aircraft vulnerable, because those
15 were the aircraft that were going to be unprotected.
16
17
18
19
20
Q
A
Q
A
Q
Any other discussions about RON missions?
Would you like me to review the article?
Well, do you believe that --
We can go line-by-line.
Do you believe that the article contained
21 everything that was discussed between you and Meeks?
22 A No, there was some -- I believe there was some
lather issues about cancellation of training, other
2 budget cutbacks that I didn't have any direct knowledge
3 of.
Page 107
4 Q So, if you didn't have any direct knowledge of
5 cancellation of training, would that have been
6 something that you discussed with Mr. Meeks in that
7 phone conversation?
8
9
A
Q
No, because I wouldn't care.
You wouldn't care about the cancellation of
10 training?
11
12
13
A
Q
A
No.
Why not?
Because I didn't want to go. I didn't want to
14 go to another six weeks of training.
15 Q Do you remember anything else about your
16 discussion with Mr. Meeks?
17
18 now.
19
A
Q
That's all. That
1
s all I can remember right
You knew that he would publish that RON
20 missions would be canceled, correct?
21 A I knew that he was going to publish the fact
22 that 9/ll-type aircraft were going to be unprotected by
1 Air Marshals.
Page 108
2 Q Did you know that he would publish any
3 specific references to RON missions at the time that
4 you had this discussion with him?
5
6
A
Q
Please rephrase.
Did you know that he would refer to RON
7 missions in his report?
8 A No, no. It's a possibility because I
9 discussed it with him. I had no idea what he planned
10 to publish other than the fact that the law was being
11 broken and people were being endangered.
12 Q And you didn't ask him specifically to not
13 publish anything about RON missions, correct?
14
15
16
A
Q
A
I donlt remember.
So, what was your purpose in contacting Meeks?
To report that there was a violation of law
17 and a danger to public safety because 9/11-type
18 aircraft were not being protected by Air Marshals due
19 to an abuse of authority decision made by Homeland
20 Security officials.
21
22
Q
A
Do you regret now having contacted Meeks?
No.
1
2
Q
A
Why not?
Because I did the right thing. I saved lives,
Page 109
3 and I reported when the law was being broken. That was
4 reported.
5 And the agency, of courSE, reversed its
6 decision immediately, so, I believe I was correct in
7 making that disclosure.
8 Q
Did you consider that you were risking lives
9 by making this disclosure?
10
11
A
Q
Never. I was saving lives only.
You saw no risk to any lives in making this
12 disclosure to a news reporter?
13
14
A
Q
None.
To this day, you see no risk to any lives in
15 making this disclosure to a reporter?
16 A
If the same hazardous decision is made again,
17 I would not hesitate to report it again.
18
At the time I was rather naive. This time I
19 probably would use more direct channels through
20 attorneys, through Senators, through Congressmen.
21 But at the time, I felt it was an imminent
22 threat to public safety, and getting it publicized was
1 the only way to get the policy reversed and stopped.
Page 110
2 Q
At this time, had you been concerned about any
3 FAM policies?
4
5
A
Q
That policy?
Any policies. At this time in July of '03,
6 did you have any other concerns about FAM policies?
7
8
A
Q
Yes.
Did you make those concerns known to anyone in
9 the agency ever before July of 2003?
10
11
A Yeah. Yes.
MS. CALAGUAS: This might be a good place to
12 take a break.
13
14
15
16
17
18
19
20
21
22
MR. NOONE: Okay.
MS. CALAGUAS: Let's go off the record.
(A lunch break was taken.)
1
2
3
4 Q
AFT ERN 0 0 N S E S S ION
EXAMINATION (RESUMED)
BY MS. CALAGUAS:
Mr. MacLean, you understand that you're still
Page 111
5 under oath?
6
7
A
Q
Correct.
And during the lunch break, did you discuss
8 your testimony with anyone?
9
10
A
Q
Only my Counsel.
During the break, I, you had take a look at
11 what we1re marking as Exhibit 9.
14 BY MS. CALAGUAS:
15
16
17
18
Q
A
Q
A
Do you recognize that document?
Yes.
What is it, first?
It's a transcript of my interview with the
19 ICE/OPR.
20 Q
Why did you request a transcript of your
21 interview with ICE/OPR?
22 A
For my personal records.
1 Q
Prior to requesting a copy of the transcript,
Page 112
2 you had signed an affidavit as part of that ICE/OPR
3 investigation, correct?
4
5
A
Q
Yes.
Was the reason for requesting the transcript
6 was that you believed your affidavit to be inaccurate?
7 A
Yeah, I believe there was something in there
8 that I forgot to add to the affidavit. But on further
9 review, there wasn1t.
10 Q Do you then believe the transcripts that are
11 set out in Exhibit 9 to be accurate?
12
13
A
Q
Yes.
I'd like the record to reflect that the
14 transcript does contain some redactions; is that
15 correct?
16
17
A
Q
Correct.
Do you have a recollection of what those
18 redactions were?
19
20
21
22
A
Q
A
Q
Yes.
What would that have been?
Names.
In reviewing the transcript I do you understand
1 that anything else was redacted aside from these?
Page 113
2
3
A
Q
No, I donlt.
Let me have you look at what weill mark as
4 Exhibit 10.
5 {Exhibit 10 was marked by the
6 reporter for identification.}
7 BY MS. CALAGUAS:
8
9
10
Q
A
Q
Have you reviewed the document?
I have.
Is that your signature on the last page of the
11 document?
12
13
14
A
Q
A
Yes, it is.
What is the document, for the record?
Assigned affidavit that I gave to the office
15 of ICE and OPR.
16 Q During your interview with ICE/OPR, you
17 discussed how you felt that TSA, or I should say in
18 this case, that the FAMS higher level employees made
19 SSI disclosures; is that correct?
20
21
22
A
Q
A
That's correct.
What did you mean by that?
That was in recent Press Releases in the media
1 projects.
Page 114
2 Q Specifically, what type of information did you
3 believe that FAMS employees -- well, let me backtrack
4 for a second.
5 Which FAMS employees did you believe were
6 disclosing SSI?
7 A Thomas Quinn, David Adams, and anybody else
8 who was in the Public Information office or the Office
9 of the Director.
10 Q What did you call Adams' office, by the way,
11 Public--
12
13
A
Q
I think it's the Public Affairs office.
What SSI was being disclosed by any of the
14 individuals that you had identified?
15 A Checkpoints by passing procedures, aircraft
16 boarding procedures, mandatory hotel policy, dressing
17 and grooming codes, FAM tactics, seat assignments,
18 numbers of FAMS on aircraft. Type of weapon used by
19 Air Marshals. Type of training conducted by Air
20 Marshals. How the Air Marshals react to a given
21 situation caused by a bad element or terrorists.
22 I think that covers everything.
1 Q Can you recollect that now without having to
Page 115
2 take a look at any documents?
3
4
A
Q
Yes.
So, that's your understanding, then, as to
5 what you believed that these individuals were
6 disclosing as SSI?
7
8
A
Q
Correct.
HoW do you know that that list of information
9 is SSl?
10 A Because it compromised FAM identity, tactics,
11 operations, procedures on national television.
12 Q Are you relying on any particular document in
13 determining whether or not that list is SSl?
14 A No, 1
1
m relying on the fact that I used to be
15 an Air Marshal, and these were issues that compromised
16 my position on a daily basis. And also people that I
17 worked with.
18 Q Your interview with ICE/OPR took place on or
19 about May 4th, 2005?
20
21
A
Q
Correct.
So, at that time, in may 2005, you believed
22 that the Directors office and the Public Affairs office
1 disclosed SSI?
Page 116
2 A They disclosed sensitive security information
3 by their definition.
4 Q When do you believe "they disclosed SSI by
5 their definition
U
?
6 A Numerous times. They were on CNN, ABC News,
7 FOX News, NBC, Time Magazine, People Magazine. To tell
8 you the exact dates of when those programs aired, I
9 don't recall. I believe the record has all that
10 information. I just donlt know off the top of my head.
11 I just know the networks that they divulged
12 and information.
13 Q Do you think you can place that disclosure as
14 early as 2003?
15 A No, I donlt remember. Prior to that, it
16 probably started -- I believe it started before that,
17 yes.
18
19
20
Q
A
Q
Before 2003?
Correct.
So, at the time that you shared the text
21 message with Brock Meeks in late July of 2003, you were
22 already aware of the Directors office or the Public
1 Affairs office disclosing SSI themselves?
Page 117
2 A Yes. 1
1
m not sure it was at the time the -- I
3 believe that was under TSA.
4 Yes, I believe that the Directors office and
5 the Public Affairs office was divulging sensitive
6 information.
7 Q And you believe that because they identified
8 the information as sensitive security information when
9 they were divulging it; is that correct?
10 A I don't know if -- by the definitions that the
11 agency has given me of their definition of SSl, that1s
12 what I concluded.
13 Q And, again, your conclusion was made before
14 you met with Brock Meeks in July of 2003?
15
16
A
Q
Correct.
Did you believe that the information that was
17 disclosed -- strike that.
18 Do you know who David Grayson is?
19 A I believe he's somebody that handles the
20 classification of material at headquarters.
21
22
Q
A
How did you become aware of that?
It was just, I believe I looked on a roster.
1
2 ever?
3
4
Q
A
Q
Did you have any discussions with Mr. Grayson
No.
You believe that you're a whistle blower,
Page 118
5 correct?
6
7
A
Q
I am a whistle blower, correct.
So, when did you first engage in whistle
8 blowing activity, as you understand it?
9 A When I reported to Brock Meeks that the agency
10 was breaking the law in July of 2003, at the same time
11 that Homeland Security issued a memo on July 6th that
12 terrorists wanted to highjack flights leaving the East
13 Coast, and hiding weapons in cameras.
14 Q Right around the same period of time, do you
15 remember the FAMS Directors office issuing any memos
16 about sensitive security information, whether by way of
17 an e-mail or --
18
19
A
Q
Not specifically, I don't remember.
Do you remember being notified by any
20 supervisor?
21
22
A
Q
I'm sorry?
Right around the same period of time, do you
1 remember any supervisor informing you that -- weIl,
2 saying anything about 55I at this point?
Page 119
3 A I signed a document stating that I understand
4 what 551 is, as you presented to me earlier.
5 Q You specifically remember signing that
6 document in late July of 2003?
7
8
9
A
Q
A
No.
At some point, you did?
I'll concede that I signed the document. I
10 just donlt remember signing it.
11
12
13
Q
A
Q
But you remember some sort of memo from DHS?
Yes.
Sa, that's the period of time that 1
1
m talking
14 about, then. You described that as being like around
15 July 25th or so?
16 A That was what the intelligence information
17 saidI and I got that information from the news
18 articles.
19 When this was passed down as intelligence
20 information to Air Marshals, it could have been any
21 time before July 26th.
22 Q Sa, you believe at some point it was past as
1 intelligence information of Federal Air Marshals?
Page 120
2
3
A
Q
Thatls a possibility.
Do you remember receiving it as intelligence
4 information?
5
6
A
Q
I donlt remember.
Right about the time that you became aware of
7 this information, this intel information, do you
8 remember any further discussion about 881, whether it
9 be through a memo from the director or from your
10 supervisors?
11
12
A
Q
No, I doni t.
80, were there any other actions by you that
13 you considered to be whistle blowing before speaking
14 with Brock Meeks in about July of 2003?
15
16
A
Q
No, not that I remember.
Aside from the ICE/OPR investigation, did you
17 inform anyone within FAMS, that you had discussed the
18 contents of that text message to Brock Meeks?
19
20
21
A
Q
A
Yes. Inside the FAM service?
Yes.
No, I did not discuss it with anybody. Well,
22 the only person I discussed it with was my attorneys.
1 Q I'm saying FAM service, because I'm not sure
Page 121
2 if the FAMS were with ICE or with TSA?
3 A Let's say FAM Service. It's kind of confusing
4 between F-A-M-S and regular FAMS, FAM Service and FAMS.
5 Q So, within the FAM Service, you did not
6 disclose that you had shared the content?
7
8
A
Q
Correct.
You didn't disclose anything about Brock
9 Meeks?
10
11
A
Q
Correct.
So, was it the ICE/OPR investigation that
12 would have been the first time you disclosed that with
13 anyone in the agency?
14 A Yes. I was told by the investigators during
15 the interview to disclose all correspondence with Brock
16 Meeks.
17 Q Did you engage in any other whistle blowing
18 activity?
19
20
21
A
Q
A
Prior to when?
At any time.
I've written -- I've sent reports to the
22 Inspector General's office, to the Office of Internal
1 Affairs, to the TSA, and to the Office of Professional
2 Responsibility of ICE, to my Congressman and to my
3 Senators.
Page 122
4 Q After the Brock Meeks incident, when was the
5 next time you engaged in whistle blowing activities, as
6 you understand it?
7
8
A
Q
I donlt remember.
With the entities that you've described as
9 entities that you've disclosed whistle blowing activity
10 to, what did you talk about? In other words, what were
11 you whistle blowing about, as you understand it?
12 A Checkpoint bypassing procedures, aircraft
13 boarding procedures, dress and grooming codes,
14 mandatory hotel policy, and the FAM Service
15 Management's constant desire to divulge sensitive
16 information--
17 MR. NOONE: Slow down because she has to
18 record your testimony.
19 THE WITNESS: I'm sorry -- to news
20 organizations, such as CNN and NBC
21 BY MS. CALAGUAS:
22 Q That's what you told the ICE/OPR Investigator,
1 correct?
Page 123
2
3
A
Q
Yes.
Again, that investigation or your interview in
4 that investigation was around May of '05?
5
6
A
Q
Correct.
So, did you engage in whistle blowing activity
7 before May of 'OS?
8
9
A
Q
I don't remember when I filed the reports.
Aside from filing those reports -- were they
10 written reports by the way?
11
12
A
Q
Some were written, some were oral.
The written reports, you provided that to me
13 through your attorney, correct?
14 A No. I believe the agency has a file of all of
15 them, but I believe I've given you all my OIG and OPR
16 complaints and OIA.
17 Q Did you make any written complaints that you
18 didn't otherwise keep a copy of for yourself?
19
20
A
Q
No. Sorry, no, not that I can remember.
So, you may have filed a written complaint but
21 you didn't keep a copy of it?
22 A It's a possibility.
1 Q
When you say the agency would have had a copy
Page 124
2 of this, which agency are you talking about?
3 A
The Department of Homeland Security. Unless
4 the reports that I sent to congress, those are filed
5 with Congress.
6 Q
Do you specifically remember sending a report
7 and filing a report to Congress?
8
9
10
A
Q
A
Yes.
Can you describe that to me?
It was the copy that you provided me from
11 Senator Reed.
12 Q
In terms of your reports to Congress, were
13 there any others aside from the ones to Senator Reed?
14 A
It
1
s possible, but I donlt remember. I know
15 of that one because that was a copy you provided for
16 me.
17 Q
Did you ever let Mr. Donzanti know that you
18 had made these complaints -- sorry, that's my word.
19 Your word was reports -- to congress or to OIG or to
20 IA?
21
22
A
Q
I do not recall specifically doing SQ.
Do you believe that Mr. Donzanti was aware of
1 your reports at any time?
Page 125
2
3
4
A
Q
A
Yes.
Why do you have that belief?
Because of my position with FLEOA, the Federal
5 Law Enforcement Officers Association, F-L-E-O-A. It
6 was a public and high visible position.
7 Q Well, were you making it publicly known that
8 you were filing a report with Senator Reed, for
9 example?
10
11
A
Q
No.
Did you let Mr. Donzanti know that you were
12 filing a report with Senator Reed?
13
14
A
Q
No.
Did you let anyone know at the Los Angeles
15 field office that you were filing a report with Senator
16 Reed?
17
18
A
Q
Frank Turerri.
Frank Turerri is not part of the management at
19 the field office in Los Angeles?
20
21
A
Q
Correct.
When lim asking my question, 1
1
m saying that
22 you were going to file.
1 Let me also ask you whether you had informed
2 any management official at the Los Angeles field office
3 that you had filed a report with Senator Reed?
Page 126
4
5
A
Q
No.
When I reviewed the record, the dates of the
6 reports to lA/GIG and Senator Reed were in 105.
7 Do you believe that you had reports filed to
8 any of these entities before 2005?
9
10
A
Q
I don I t know.
Do you believe that any management level
11 official at the Los Angeles field office was aware of
12 your report to IA?
13
14
A
Q
I do not know.
And when you say II lA, II are you referring to
15 TSA's IA?
16
17
A
Q
TSAls lA, correct.
Do you believe that any management level
18 official at the Los Angeles field office was aware of
19 your report to the GIG?
20
21
A
Q
I do not know.
Now, this report to the OIG is different from
22 the report that we were talking about earlier where you
1 had called about RON missions, correct?
Page 127
2
3
4
A
Q
A
Thatls correct.
What was this report to the OIG about?
Checkpoint bypass procedures, aircraft
5 boarding procedures, dress grooming codes, mandatory
6 hotel policy, and the FAM Service management1s constant
7 desire to divulge 58I to news organizations.
8 Q For any of these entities do you believe that
9 you were reporting anything else beyond what you would
10 have put in the written report that you submitted to
11 them?
12
13
14
A
Q
A
I do not know.
You donlt lmow or you donlt recall?
I donlt recall. I donlt remember. Unless I
15 have the documents before me, I cannot make any
16 specific recollections.
17 Q Any other activity that you consider to be
18 whistle blowing that you engaged in?
19
20 know.
A I canlt remember. At this point, I donlt
21 Q Did you consider your appearance on NBC
22 Nightly News in 2004, to be whistle blowing?
1
2
3
A
Q
A
Yes.
How so?
I was reporting checkpoint bypass procedures,
Page 128
4 aircraft boarding procedures, dress and grooming codes,
5 mandatory hotel policy, and the FAM Service
6 Management
1
s desire to constantly divulge sensitive
7 security information.
8 Q You saw that episode of NBC Nightly News when
9 this aired, correct?
10
11
A
Q
Yes.
The part that aired which contained your
12 appearance, did that include everything that you just
13 said?
14 A Yes -- but 1
1
m not sure. I have to read the
15 transcript to know exactly, but those are the general
16 issues.
17 Q Do you know of any management level official
18 at the Los Angeles field office was aware of the nature
19 of your appearance on NBC Nightly News in 2004?
20
21
A They did not know.
MR. NOONE: At what time are you talking
22 about?
1
2
3
4
5
6
7
Q
A
Q
A
Q
A
BY MS. CALAGUAS:
I'm talking about at any time at this point.
I do not know.
You did not make them specifically aware --
No.
-- that you appeared on NBC Nightly News?
No. The only time the agency knew of my
Page 129
8 activities is when I completed this affidavit in May of
9 2005.
10
11 to?
12
13
14
15
Q
A
Q
A
Q
When you say "agency,1I who are you referring
ICE/OPR.
So, let me make sure I understand.
The Department of Homeland Security, ICE/OPR.
So, you're saying that when you provided your
16 affidavit, that's when ICE/OPR became aware of the
17 activity that you considered to be whistle blowing; is
18 that correct?
19
20
A
Q
No, that's when I admitted to my activities.
I understand that that's when you say you
21 admitted to it, but 1 'm trying to understand your
22 belief as to when you think anyone at the agency,
I
1 depending on where the FAMS belonged, who would have
2 been aware of your whistle blowing activity as you
3 understand it?
Page 130
4
5 2004.
6
A
Q
Probably a short time after September 9th of
You believe that individuals within the agency
7 would have been aware?
8 A They did know. They recognized my voice on
9 national television. That's when they knew of my
10 whistle blowing activities.
11 Q The whistle blowing activity that you believed
12 involving your appearance on NBC Nightly News?
13
14
15
16
A
Q
A
Q
Correct.
What's an SPG member?
I believe it's a hotel, a hotel membership.
Just give me a second. We're almost at the
17 home stretch. Okay?
18
19
A
Q
Take your time.
In your affidavit to ICE/OPR, you made a
20 reference to NBC producers Tom Costello and Maria
21 Garcia from New York?
22 A That is correct.
1 Q That NY, I guess New York, New York conducted
Page 131
2 your interview over a phone line.
3 I guess I'm confused by that. Were you
4 being -- you appeared on NBC Nightly News in-person,
5 but you were being interviewed by telephone?
6 A Yeah, it was done by a remote. There was a
7 crew that was, that did the interview on location, and
8 it was done through -- I had an earpiece that was rnic'd
9 into the New York studios.
10 Q Were there parts of your interview that were
11 not aired, as far as you can tell?
12 A That's a very good possibility, due to
13 editing.
14
15
16 long.
17
Q
A
Q
How long did your interview last?
I donlt remember. It was at least an hour
Do you believe that there are other Federal
18 Air Marshals who the agency did not remove for
19 disclosing 55I about remain overnight missions?
20 A According to an Inspector General Report,
21 there were Air Marshals who were asked to resign due to
22 the fact that they had divulged sensitive security
1 information, but they were not removed by the agency.
2 They resigned on their own.
Page 132
3
4
5
Q
A
Q
Anything else?
Nope.
The Brock Meeks article suggests that more
6 than one Federal Air Marshal spoke to Meeks about the
7 cancellation of RON missions.
8 Do you recall that part of the article?
9
10
A
Q
Yes.
Do you believe that the agency is aware of any
11 other Federal Air Marshals, aside from yourself, who
12 shared the contents of the text message regarding RON
13 missions with Brock Meeks?
14
15
A
Q
I do not know.
DO you know of any Federal Air Marshals who
16 shared the contents of that text message, that same
17 text message with Brock Meeks?
18
19
A
Q
No.
Did you engage in any whistle blowing
20 activity, as you understand it, through postings on an
21 Internet bulletin?
22 A No.
1 Q When speaking about congress in your reports
Page 133
2 to congress, we've talked about Senator Reed.
3 Would there have been any other Senators or
4 elected officials?
5
6
A
Q
Yes.
Who would that have been that you would have
7 made a reporting to?
8 A Barbara Boxer, Senator from California.
9 Senator Diane Feinstein of California. John Ingstrom
10 of Nevada. Congressman Jim Givens of Nevada.
11 Congressman Ken Calvert of California.
12 There could be more, but those are the ones
13 that I recall off the top of my head.
14 Q I don't know my elected officials, so is John
15 Ingstrorn from Nevada, is he a Senator?
16
17
A
Q
John Ingstrorn is a Senator for Nevada.
So, each of these elected officials you made a
18 reporting to individually?
19
20
A
Q
Through correspondence, yes.
And what would this correspondence have been
21 about?
22 A Air Marshal checkpoint bypass procedures,
1 aircraft boarding procedures, dressing and grooming
2 codes, mandatory hotel policy, and the service's
3 constant desire to divulge sensitive information to
4 news organizations and the public.
Page 134
5 Q Did you report to any member of Congress,
6 whether a Senator or representative, anything about RON
7 missions?
8
9
A
Q
No, I did not.
In your affidavit to ICE/OPR, on the last
10 page, you make a reference to "Congressmen. II
11 Do you see that reference on Page 4 of Exhibit
12 10?
13 A Yes. Due to the fact that my chain of command
14 of DHS/OIG and my Congressmen all ignored my
15 complaints, it's that I forwarded complaints to my
16 Congressman.
17 I didn't know at the time, as I'm reading
18 this, that I most likely informed the Congressmen.
19 Q Well, when you're referring to complaints
20 within the context of IIthis
ll
?
21 A Oh, I'm referring -- yes, I'm referring not to
22 the long-haul flights. I'm referring only to the -- to
1 the checkpoint bypass procedures, aircraft boarding
2 procedures, dress and grooming codes, mandatory hotel
3 policy, and the FAM Services management's constant
4 desire to divulge sensitive security information.
5 Q So that I --
6 A I was speaking into that in regards to those
7 issues, not the RON missions.
8 Q So that I'm clear, then, those issues, and
9 we're lumping them together for purposes of our
10 discussion, those were complaints that you had before
11 July of 2003?
Page 135
12 A No, they were complaints I had prior to
13 authoring this affidavit.
14 The ICE Investigators told me that in my final
15 statement, I could discuss anything that I so desired
16 outside of the allegations.
17 Q Did you have these complaints, then, after
18 July of 2003, but before your interview in May of 'OS?
19
20
21
A
Q
A
Yes.
But not before July 2003?
lim not sure. I'm sure I did have complaints
22 with my chain of command.
1 Whether I filed reports on it, I don't recall,
2 but it was definitely an issue between me and my chain
3 of command.
4 This is why I went to the media because the
5 chain of command ignored any complaints and only
6 retaliated against those that made any kind of
7 complaints.
Page 136
8 Q
So, before July of '03, you were making all
9 these complaints to your chain of command?
10
11
12
A
Q
A
Yes.
And no one else?
I do not know if I filed complains with OIG,
13 OPR, or OIA, but I do know I vocalized these complaints
14 with the chain of command.
15 Q
Well, in vocalizing your complaints to the
16 chain of command, this would have been at Las Vegas
17 now, correct?
18
19
A
Q
That's correct.
Did you indicate to them that you were also
20 making these complaints outside of the chain of
21 command?
22 A No.
1 Q Because right now you're not sure whether or
Page 137
2 not you went outside of the chain of command?
3
4
A
Q
It's a possibility.
It's a possibility that you may have gone
5 outside of the chain of command?
6
7
A
Q
Yes.
But when you said no, are you saying that you
8 didn't let your chain of command know that?
9 A That's correct. I never informed my chain of
10 command that I was going to any outside entities, ever,
11 ever in my career.
12 Q Ever, whether it's the chain of command in Las
13 Vegas or the chain of command in Los Angeles?
14
15
A That
1
s correct.
MS. CALAGUAS, Let's go off the record for a
16 second.
17 (A break was taken.)
18 BY MS. CALAGUAS,
19
20
21
Q
A
Q
Mr. MacLean, you're still under oath.
Understood.
Did you talk to anyone about your testimony
22 during the break?
1
2
A
Q
No.
In your affidavit to ICE/OPR, you describe
Page 138
3 Brock Meeks as a credible and responsible media
4 representative.
5 Do you understand that?
6
7
8
A
Q
A
Yes.
What did you mean by that?
Just by reading his prior work. He looked
9 like somebody who is genuinely concerned with problems
10 of the Air Marshal Service.
11 He was very well-known among the aviation
12 security community for his reporting, and I felt he was
13 responsible enough to write this article.
14 Q Did you have an expectation of Meeks to sensor
15 himself in terms of the information that you may have
16 given him in how he presented that information in any
17 news article that he was reporting?
18
19
A
Q
Yes.
Did you expect Meeks to identify whether the
20 information that you gave him should remain
21 confidential?
22 A AS far as the RON missions?
1
2
3
4
5
Q
A
Yes.
No, I expected him to publicize it.
MS. CALAGUAS: I have no further questions.
MR. NOONE: Great. I have no questions.
MS. CALAGUAS: Thank you for your time.
Page 139
6 We are off the record at 2: 40 p.m.
7 (Whereupon, at 2:40 p.m., the deposition was
8 concluded.)
9 *****
10
11
12 I have read the foregoing pages, which are a
13 correct transcript of the answers given by me to the
14 questions therein recorded.
15
16
17
18
19
20
21
22
Deponent _
Date _
1 REPORTER'S CERTIFICATE
2 The undersigned Certified Shorthand Reporter
3 licensed in the State of California does hereby
4 certify:
5 That the foregoing deposition was taken before
6 me at the time and place therein set forth, at which
7 time the witness was duly sworn by me;
8 That the testimony of the witness and all
9 objections made at the time of the examination were
10 recorded stenographically by me and were thereafter
11 transcribed, said transcript being a true copy of my
12 shorthand notes thereof.
13 That the dismantling of the original
14 transcript will void the reporter's certificate.
15 I further declare that I have no interest in
16 the outcome of the action.
17 In witness whereof, I have subscribed my name
Page 140
18
19
20
21
22
<:/v-J..
thi s _-"i-=-__
Paulette Vanton
CSR No. 6962

MacLean Deposition by TSA August 2, 2006

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MacLean Deposition by TSA August 2, 2006

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UNITED STATES OF

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