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Project on Government Oversight




Why Is the TSA Keeping Air Marshal Employment Disputes Under a Veil of Secrecy?

November 2, 2010 


The Transportation Security Administration (TSA) wants a federal air marshal's employment case to be kept under a veil of secrecy. In an October 13 court filing, the TSA claims that fired federal air marshal Manuel V. Alcaraz’s case involves Sensitive Security Information (SSI) and thus the whole case should be sealed because the court filings refer to the names of federal air marshal managers who ordered his removal. The TSA filing with the Merit Systems Protection Board (MSPB)—a government panel that reviews employment disputes, including whistleblower retaliation claims—states “the record is replete with SSI” and “the identity of the Federal Air Marshals (FAMs) who acted with respect to Appellant's conduct and progressive discipline are considered SSI.”

Alcaraz’s attorney in opposition to TSA’s motion, vigorously rebutted the TSA argument in a court filing. In addition, “there are less intrusive ways to restrict any potential disclosure of the information by utilizing the employee’s initials or some other unique identifier,” wrote Alcaraz’s attorney Michael Baranic, “rather than closing the hearing in its entirety and sealing the record in this matter, particularly when there is no information at issue that could compromise aviation security.”

This isn’t the first attempt by TSA to seal an air marshal's case by citing SSI. In a New York air marshal’s case in December 2008, TSA was successful in sealing the proceedings before the MSPB, according to a fax from a TSA attorney obtained by POGO.

Over in the U.S. District Court for the Eastern District of Kentucky, “federal prosecutors have been largely successful in arguing national security in sealing – and closing the courtroom for hearings and trials – in a half-dozen civil rights lawsuits filed by Erlanger-based air marshals,” according to a Kentucky Enquirer article dated December 13, 2009. Steven Aftergood, who runs Secrecy News for the Federation of American Scientists, told the Enquirer, “sealing the records places the air marshals at a disadvantage by removing one of the few tools available to them – the power of publicity.”

Questions have long swirled around federal government use, and some say abuse, of so-called Controlled Unclassified Information, of which SSI is one type. “The SSI classification should only be used to protect our homeland,” said Sen. Jay Rockefeller (D-WV) in a statement last year. “It should never be used to hide wrongdoing, avoid public embarrassment, or delay the release of information to communities that need it most.”

The TSA’s reasoning in the Alcaraz case is dubious because only his management officials are identified in the case, not flying air marshals whose identities should be kept under wraps as much as possible. In other air marshal cases before the MSPB, names of flying air marshals and even some operational details have made it into the court record without the record getting sealed. For example, in the recently decided Joshua Good case before the MSPB, the unsealed decision gives FAMs' name and flight patterns between London, New York, and Boston.

The TSA’s argument is also hypocritical: the TSA and the Federal Air Marshal Service (FAMS) have themselves advertised names and pictures of their individual managers and flying air marshals on television and on the Internet on numerous occasions.

For instance, the TSA has had a press release and photo of Federal Air Marshal Michael Godwin and Arnold Cole, the Special Agent in Charge of the Atlanta FAMS Field Office, posted on its website for over two years. The press release praises Godwin’s off-duty actions in apprehending a man wanted on multiple felony charges.

TSA weekly newsletters posted online sometimes include the names of various FAMS employees, such as those of Michael Rigney, Assistant Special Agent in Charge of the Reston, VA Field Office; Ted Hresko, Special Agent in Charge of the Pittsburg FAMS Field Office; and Maria Perez, Special Agent in Charge of the Reston, VA Field Office.

Also, Simon “J.J.” Racaza, a “Department of Homeland Security Special Agent” from New Milford, NJ (outside of New York City), is featured on The History Channel show Top Shot, with his photo appearing on the show's website.   The History Channel website describes him as: “Fiercely competitive, J.J. hates to lose. This world record holder in the Steel Challenge is consistently ranked in the USPSA top five.” Over at the TSA website, they featured him in a July 2008 press release, referring to him as “a New York federal air marshal, considered one of the fastest shooters in the world.” The TSA doesn't mention his name and blurred his face out on their website, saying “he is not being identified because he is one of the thousands of federal air marshals who blend in with the traveling public to provide security on commercial aircraft.”  However, they allowed him to be on a cable television channel, which reaches millions of viewers.

The TSA’s request to seal Alcaraz’s case by claiming it involves SSI has to be seen in light of the TSA’s flagrant violation of its own standards. Why would TSA be so careful with the identity of management officials in the Alcaraz case when it so freely advertises the names of flying air marshals on TSA’s website?

“The TSA is using SSI to cover up an extremely flawed investigation that cost a good officer his career,” former air marshal Robert MacLean told POGO. MacLean was fired after TSA retroactively determined information he gave the media was SSI.

Alcaraz was an air marshal with the Los Angeles Field Office of the Federal Air Marshal Service, which is within TSA (and the Department of Homeland Security). Alcaraz allegedly “pushed on” a victim’s arm in a mall parking garage dispute in Brea, CA, on December 22, 2007. The Orange County District Attorney’s Office declined to prosecute Alcaraz due to “insufficient evidence” of an alleged assault; however, Alcaraz still lost his badge after his security clearance was stripped from him in February 2009 officially for “Inability to Maintain a Top Secret Security Clearance.” Relying heavily on polygraph examination results conducted by a TSA Office of Inspection (TSA/OI) agent, Alcaraz was eventually fired last August because he no longer has a clearance.

MacLean, who has been assisting Alcaraz, also questioned the TSA Office of Inspection and the Brea Police Department’s handling of the case. For example, MacLean said the Brea detective who handled Alcaraz’s case omitted the sole third-party witness’s reaction to a photographic lineup that included Alcaraz from the entire Brea PD report of investigation. According to the witness’s statement to the TSA/OI, he viewed a photographic lineup. The two other witnesses shown the photographic lineup were: (1) the woman who claimed Alcaraz pushed on her arm, and (2) the woman's adult son. According to the record, the woman could not identify him, but her son did.

Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO's investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.

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