Bipartisan Joint Staff Report

May 29, 2014


The former TSA Director of the Office of Sensitive Security Information ("SSI"), Andrew Colsky, provided some shocking testimony to the U.S. House of Representatives Oversight & Government Reform Committee ("the Oversight Committee"). His testimony is summarized in its May 29, 2014 bipartisan "Joint Staff Report." He gave Congress a complaint he emailed to eight TSA attorneys that he was "very uncomfortable" about sworn testimony he gave in order to support MacLean's termination and that he does not "know what to honestly call SSI anymore." He testified to Congress that his office was under "extreme pressure" to mark "embarrassing information...that was not by any stretch of the imagination at all SSI."


✈ ✈ ✈ BACKGROUND ✈ ✈ ✈


Former SSI Director Colsky was the official who issued the August 31, 2006 "Final Order on SSI" that retroactively designated Robert MacLean's July 2003 disclosure as SSI, a controlled unclassified information label governed by TSA regulations. MacLean was fired for the SINGLE CHARGE of "Unauthorized Disclosure of SSI" approved by Colsky.


Colsky's testimony appears in an extremely rare bipartisan May 29, 2014 "Joint Staff Report" by a UNANIMOUS Oversight Committee of 40 members of Congress. The Oversight Committee is tasked with investigating executive agencies such as the TSA. The Oversight Committee has the authority to issue subpoenas.


At the last second, Colsky was mysteriously forced by TSA headquarters to testify in place of the official who was the SSI Director when MacLean made his July 2003 disclosure, David Graceson. This was in violation of a U.S. Merit Systems Protection ("MSPB") Administrative Judge's subpoena and third final order. The MSPB judge ordered former SSI Director Graceson to testify because he had the best knowledge of SSI regulations and training in effect at the time MacLean made his disclosure. Colsky was an attorney for the U.S. Postal Service when MacLean made his disclosure. Prior to violating the MSPB judge's order by switching out Graceson for Colsky, the MSPB judge DENIED THREE MOTIONS (motion to quash subpoena, motion to reconsider quashing a subpoena, and finally, a motion for "interlocutory appeal" to the full three-member MSPB in Washington DC) by the TSA to prevent MacLean's attorney from questioning David Graceson. After Graceson did not show up for his court-ordered deposition, MacLean complained to the U.S. Court of Appeals for the Ninth Circuit in San Francisco protesting the TSA's contempt of the MSPB judge's final order.


The MSPB judge who replaced the judge who ordered Graceson's testimony and being deceived by TSA lawyers, Franklin M. Kang, denied MacLean's request to have Colsky and Graceson appear at MacLean's November 5, 2009 MSPB hearing.


The TSA was never held accountable for violating the MSPB's order to allow MacLean to depose Graceson. Graceson was in charge of all SSI programs and training when MacLean made his disclosure in July 2003.


The TSA omitted a key piece of evidence canceling out MacLean's "good faith belief the information did not qualify as 'sensitive security information'" defense the U.S. Court of Appeals for the Ninth Circuit afforded him in its September 16, 2014 precedential decision.


 ✈ ✈ ✈ COLSKY'S TESTIMONY IN THE MAY 29, 2014 OVERSIGHT COMMITTEE'S "JOINT STAFF REPORT" ✈ ✈ ✈


On PAGE 17, the Oversight Committee identifies MacLean as a "whistleblower" who stopped a plan the TSA never implemented and admitted to being "a mistake." The Oversight Committee also describes Mr. Colsky's SSI order in MacLean's case as "retroactive." It's extremely rare for an entire congressional committee to identify a federal employee a whistleblower absent an MSPB or federal appeals court decision declaring his actions were protected. The U.S. Court of Appeals for the Federal Circuit only ordered the MSPB to conduct a new hearing to determine whether or not MacLean is a whistleblower.


Right after its narrative identifying MacLean a "whistleblower," the Oversight Committee attached an email (PAGE 18) then-TSA's then-Senior Executive/attorney/SSI Director Colsky sent to eight TSA lawyers one year and nine months AFTER one of MacLean's lawyers deposed him. His email was after former TSA Administrator (the #1 TSA executive) Edmund "Kip" Hawley kept bypassing the Office of SSI in order to PUBLICLY disclose information about specific air marshal deployments. TSA Administrator Hawley was in office when MacLean was investigated and fired.


In a televised October 16, 2007 public hearing, the U.S. House of Representatives Committee on Homeland Security specifically asked Kip Hawley about Robert MacLean. Kip Hawley stated he never heard of MacLean, but immediately protested that whistleblowers cannot publicly release "CLASSIFIED INFORMATION." SSI is a "controlled UN-classified information" marking that any TSA employee can apply. Mr. Hawley promised to get back with the Homeland Security Committee about MacLean, but never did. In an August 4, 2014 Twitter.com "Direct message" from Hawley to MacLean, he stated that he doesn't remember MacLean's case at all:

In his June 20, 2008 email to eight TSA lawyers, former SSI Director Colsky references his deposition by MacLean's attorneys. There were no other air marshals fired between the time MacLean was fired and when Colsky—clearly alarmedsent this email, PAGE 18:


  • "I have received confirmation from [Former TSA Assistant Administrator for Public Affairs] Ellen [Howe] that [TSA Administrator] Kip [Edmund Hawley] did in fact authorize this release [about specific air marshals’ deployment and flight information]. He has the authority to do so and that is his choice. We do, however, have a process problem here in that OPA does not share this information with the SSI Office despite repeated requests.​ I am very uncomfortable in that I have personally given a deposition under oath in a very similar case supporting the fact that this is SSI and [ Robert MacLean ] lost his job over itI am unable to assist [the Office of Chief Counsel lawyers ("OCC")] with any testimony in future cases as I don't know what to honestly call SSI anymore. I also cannot sign my name to court documents confirming SSI decisions because I may find the very same information on the news the same day."


The Associated Press would publish a May 10, 2007 article about MacLean's case citing the reporter's conversation with Mr. Colsky:


  • "The Transportation Security Administration's expert on sensitive materials, Andrew Colsky, who gave a deposition in MacLean's case, could not recall the 'sensitive' designation applied retroactively to previously disclosed information."


Colsky would write his June 20, 2008 email three months before the U.S. Court of Appeals for the Ninth Circuit issued its September 16, 2008 decision stating:


  • "MacLean may still contest his termination before the MSPB, where he may raise the Whistleblower Protection Act and contend that the lack of clarity of the TSA's 2003 'sensitive security information' regulations is evidence MacLean disseminated the text message under a good faith belief the information did not qualify as 'sensitive security information.'"


Some of the oral testimony Mr. Colsky gave the Oversight Committee, PAGE 12:


  • "And now this is being — you know, coming secondhand, but from a significant number of highly reliable sources, and -- I don’t want to say anything to get anybody in trouble -- and things that I personally overheard where there was information in the responsive documents that was not by any stretch of the imagination at all SSI, but was either embarrassing or was something that they just didn’t want the other side to know. And there was extreme pressure from again I’ll use the term ‘front office’ to mark it as SSI."


* * *

PAGE 12:

  • "And one of the first things I was told when I got [to the Office of the Freedom of Information Act ("FOIA")] from both attorneys and FOIA processors was, oh, yeah, don’t worry about it, because if you come across embarrassing information or whatever, [the Chief Counsel] will just hide it and come up with an exemption; because if you cover it with a FOIA exemption, it’s so hard for the other person to challenge it, and it will be costly and difficult for them to challenge it, and they’re probably never going to see it anyway, so you just get away with it. That’s the way it’s done."


* * *


PAGE 18:

  • "TSA is an organization, sadly, that focuses — you know, the term 'security theater' has been used, and unfortunately it’s true. Let’s do whatever we need to do to change the public perception. Let’s not worry about the real issues behind the scenes. And that’s all it was. If we needed — if they felt they needed to do something to get it in the press to change the public perception, that was more important than the security concerns involved. Period."


* * *


PAGE 13:

  • "Congressman Chaffetz had gone through the screening at—I forget which airport it was . . . But I remember that the video of that screening or that incident had been requested by multiple news sources. And so, again, in good old TSA fashion, I see this commotion down in Office of Public Affairs, because my office at the time was right next to them, and, you know, all this scuffling. You’ve got general counsel there, you’ve got all these members of Public Affairs and some people from the front office, I guess. I can’t remember who. There was a whole group of people that are all looking at this video. At first we had been asked to review the video for SSI. We reviewed it, and we said there’s no SSI in it based on all the guidance that we had at the time. And video was something that we spent a lot of time defining."