October 5, 2009

Will Obama Keep His Promise to Federal Whistleblowers?

Former Federal Employees Encouraged by Recent Signs but Still Wary

By MEGAN CHUCHMACH and RHONDA SCHWARTZ

August 4, 2009—



Will Barack Obama, a champion of whistleblower protection when he was a state senator, act as strongly to protect them when they blow the whistle on his administration?

Whistleblowers tell ABC News they are encouraged by recent signs from the White House about possible efforts to protect them from retaliation. But, they say, they are still wary after years of brutal confrontations that left many of them jobless, financially drained and emotionally spent.

Late last week, President Obama appointed two individuals to the Merit Systems Protection Board, an administrative panel that hears employment appeals from federal employees, including cases that fall under the recently-passed Whistleblowers Protection Enhancement Act of 2009.

The picks - Susan Grundmann, general counsel for the National Federation of Federal Employees, and Anne Wagner, general counsel for the Personal Appeals Board of the U.S. Government Accountability Office  were hailed bywhistleblowers and watchdog groups as a first step in overhauling federal whistleblower protection laws.

"Unlike Bush administration appointees who compiled a 1-44 track record against whistleblowers, these leaders are seasoned veterans with a proven track record of commitment to the merit system throughout their careers," said Tom Devine, legal director of the nonprofit public interest group Government Accountability Project.

Devine called the appointments "a weathervane that the Obama Administration is serious about its good government rhetoric."

As an Illinois senator, Obama was responsible for passing legislation to protect government employees who come forward and risk their jobs to expose waste, corruption and national security lapses. And during his 2008 election campaign, Obama promised to protect whistleblowers, saying their "acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled."

Last week, a Senate committee unanimously approved a bill to expand protections for federal workers, which would allow them to bring claims of retaliation for whistle-blowing to a federal court before a jury. Under the current system, federal whistleblowers sometimes wait years to have their cases heard by an appointed board.

Case of Robert MacLean

An even more significant test for clues to the new administrations intention's will be the handling this week of an appeal in the case of Robert MacLean, who is appealing his dismissal from the Federal Air Marshal Service. MacLean's attorneys plan to file a motion to dismiss "without prejudice" a case against MacLean, who was fired in 2006 for coming forward with TSA plans to eliminate air marshal protection on coast-to-coast flights to save money, in the hopes this administration will break the ranks and declare the firing unlawful.

Robert Bray, director of the Federal Air Marshal Service, recently told the Washington Post that MacLean is "still twisting in the wind," which he characterized as "very unfair."

These are some of the headline-making men and women who put their federal jobs on the line, some of whose cases may be impacted by strengthened whistleblower protection laws:



Robert MacLean





Former federal air marshal Robert MacLean says he was fired in 2006 for going public with the agency's plans to eliminate air marshal protection on coast-to-coast flights to save money. MacLean has been waiting more than three years for a hearing before the MSPB. The Whistleblower Protection Enhancement Act of 2009 stipulates that cases like MacLean's must be heard within 270 days.



Spencer Pickard





Former federal air marshal Spencer Pickard says he was forced to resign from his job as a federal air marshal after he helped warn the public in 2006 of dangerous flaws in aviation security procedures. "I'm here because the people need to know if the terrorists do their job right and prepare like they did before 9/11, they will figure out a way to win because we are not undercover," Pickard said in a 2006 ABC News 20/20 broadcast. ABC spoke to dozens of current and former air marshals as part of a three-month investigation which found they all had to stay in the same hotels, abide by a dress code banning jeans and sneakers and follow boarding procedures forcing them to identify themselves while passengers look on. The Federal Air Marshal Service subsequently dropped the dress code and hotel requirements.

Whistleblowers




Russell Tice





Russell Tice, a former National Security Agency intelligence analyst, came forward to reveal details about the NSA's controversial warrantless surveillance program. Tice told ABC News that he saw unlawful and unconstitutional acts done at the NSA while working there, which he called "black world programs and operations." After the program was reported by the New York Times, the U.S. government launched an investigation to identify who released the information to the media. In 2005, Tice  who spoke to both ABC News and the NYT  lost his job at the NSA after the agency revoked his security clearances, citing psychological concerns.



Gary Aguirre





Gary Aguirre, a former U.S. Securities and Exchange Commission investigator, says he was fired after blowing the whistle on what he described as "preferred treatment" towards John Mack during an insider trading investigation. Mack was set to become the Chief Executive Officer of Morgan Stanley, and Aguirre said his colleagues at the SEC were unwilling to question Mack. "I was told that it would be very difficult to get approval to take his testimony because of his powerful political connections," Aguirre told ABC News. Aguirre's accounts were the catalyst of several hearings on Capitol Hill about the SEC's enforcement of Wall Street regulation, but "Wall Street has long tentacles," said Aguirre, "and those tentacles reached into the SEC and cost me my job.



Bunnatine "Bunny" Greenhouse





Bunnatine "Bunny" Greenhouse, a U.S. Army Corps of Engineers employee, alleged the Halliburton contracting firm illegally obtained billions in government contracts related to its operations in Iraq during the Iraq War. Greenhouse told members of Congress the Halliburton contracts were "the most blatant and improper contract abuse I have witnessed during the course of my professional career." She was later demoted and had her security clearance revoked. Greenhouse refused to resign and is now focused on a stronger federal protection for whistleblowers.



Coleen Rowley





Coleen Rowley, a former FBI agent turned whistleblower, went public about the bureau's alleged mishandling of the suspected terrorist Zacarias Moussaoui's case. She shed light on FBI and intelligence community issues in 2002 before the Senate Judiciary Committee, charging that the FBI's incompetence may have made the U.S. vulnerable to the 9/11 attacks. After unsuccessful attempts to warn the officials about the dangers of launching the Iraq War, Rowley stepped down from her position as a Chief Division Counsel and went back to being an FBI special agent. She retired from the agency in 2004 after 24 years of service.

Whistleblowers




Joe Darby





Joe Darby is the Army reservist who sounded the alarm about the infamous Abu Ghraib prison photos that highlighted prisoner abuse at the hands of U.S. soldiers. The photos became a worldwide scandal that prompted the investigation and conviction of several soldiers involved in the photo sessions, while Darby was hailed as hero by some and as a traitor by others. He received death threats and had to move his family to a military protection residence after his house was vandalized. In his statement, Darby said he made the disclosure because "it violated everything I personally believed in and all I'd been taught about the rules of war."



Sibel Edmonds





Sibel Edmonds, a former FBI translator, said she was fired from the bureau's Washington field office after accusing a co-worker of illicit activities and security breaches. Edmonds, who worked as a Turkish translator for the FBI, alleged that sensitive national security information  including nuclear weapon secrets  were compromised by corrupt officials who were paid off by foreign intelligence agents. Her lawsuit was thrown out of court after the Bush Administration invoked the state secrets privilege, which allows the government to withhold information to safeguard national security.

Justin Grant and Yuliya Talinova contributed to this report.

October 4, 2009

Where's Pete?

This blog has been dying on the vine, and very little information has been posted here lately.  This simple fact is that I'm tired of the "whistleblower" moniker and the occasional debate as to whether I did the right thing or not in Memphis. I know what I did... why I did it... and that it was the right thing.

I have made an effort to move-on with my life since moving to Austin, TX this year. My girlfriend and I purchased road bikes and embraced cycling as a way of life. We have met many wonderful people, and we are now volunteering our time, effort, and energy with the Lance Armstrong Foundation.

Instead of fighting the FAA and the safety lapses that seem to be uncovered on an almost daily basis throughout the National Airspace System, I have dedicated myself to raising money for the Austin LIVESTRONG Challenge -- a fundraising event which will take place on October 24 - 25, 2009.

Participants in this event may run a 5K or cycle any distance from 10 - 90 miles. Other supporters ride "virtually", and some will ride stationary bikes -- all in an effort to raise money for the LAF which helps cancer survivors, victims, and their families.

Many of you have called or written to thank me for making the Memphis safety disclosures -- and I thank you for the kind words of support and encouragement. I would like to take a moment to ask you to do something for me:  Click on this link and make a small donation to the Lance Armstrong Foundation.

October 2nd was the anniversary of Lance's diagnosis with testicular cancer.  Since that diagnosis many years ago, Lance has fought and won his battle against cancer; he won seven Tour de France cycling events; he created the Lance Armstrong Foundation in an effort to help others struggling with cancer; and he most recently launched a cycling comeback in an effort to win the 2009 Tour de France and help bring about a global awareness regarding cancer.

He's not a quitter, and I'm proud to be working with the Foundation in an effort to help others in their battle with cancer.

Click here to donate.

Thanks,

Peter

September 19, 2009

The State of Air Travel

So far this year, there have been 12 major plane crashes, according to airsafe.com, and there have been a number of small plane accidents in the New York area. We’ll take a look at the safety of air travel, air traffic control problems, and what the FAA is doing to make flying safer. We're joined byBill Waldock, Professor of Safety Science at Embry-Riddle Aeronautical University, and Linda Marsa, contributing editor of Discover Magazine, who wrote about the state of air traffic control in the article "A Wing and a Prayer," in the September issue of Discover magazine.

Click play to hear this program



September 14, 2009

FAA Whistleblower Calls it Quits

Click here to watch the video.

August 23, 2009

Discover Magazine: A Wing and a Prayer

The unnerving state of air travel: Rookie controllers, antiquated equipment, and too many near misses.

By Linda Marsa
Discover Magazine
September 2009

It was a chilly winter evening when disaster nearly struck. A little after 6 p.m. on February 18, 2007, a Northwest Airlink commuter plane was making a routine descent into Memphis International Airport when a cockpit warning light flashed. Something was wrong with the landing gear, and the pilot decided to abort. He radioed the tower to let controllers with the landing gear, and the pilot decided to abort. He radioed the tower to let controllers know he would be executing a "go-around," ascending and then, if the equipment check out, attempting to land again. There was only one problem: Another plane, a Northwest Airlines DC-9 nearly twice the size of the commuter plane, was heading into the same airspace.

"stay low, stay low!" a frantic air traffic controller ordered the commuter pilot while instructing the DC-9 to reach for the sky. The smaller aircraft flew down the length of the runway while the pilot of the larger one pulled back the stick and climbed. Horrified controllers watched helplessly as the planes raced along converging paths. They missed colliding by a scant 500 feet.

"I had never seen two airplanes fly that close to each other," says Peter Nesbitt, a controller with more than 20 years of experience who was on duty that night.

The increase of air traffic into the Memphis hub made this a disaster waiting to happen, Nesbitt says. The real problem was the layout of the runways: Three run parallel to one another like neat rows of corn, but a fourth is perpendicular. If everything goes perfectly, an aircraft landing on the fourth runway is already taxiing on the ground as other planes pass overhead. If there is any kind of hitch, though, a flight landing on that last runway could get dangerously close to another plane.

In the two years that he worked in the Memphis control tower, Nesbitt - who had transferred from Austin, Texas - repeatedly complained to his superiors about the dangerous approach pattern. But they assured him they had a special waiver from the Federal Aviation Administration (FAA). When he and other controllers asked to see it, they were told it was kept in Atlanta and that they need not worry. "They would never give us a copy and would never let us see it," he recalls. "If you're insubordinate and question it, then you'll lose your job."

The near crash in February 2007 hardened Nesbitt's resolve to take action. "After witnessing that event, I felt compelled to get to the bottom of this, and if the procedure was illegal, to put an end to it," he recalls. The minute he got a break later that night, he filled out a NASA aviation safety report. And three days later, he fired off a blistering e-mail to the National Transportation Safety Board (NTSB) about the controversial landing procedure. Many controllers "have recounted horror stories of these aircraft flying through the flight paths of [other] aircraft," he wrote in his report. But his air traffic manager insisted on using the procedure, he continued, "because it helps the users make money. We are placing profit over safety against he objections of many controllers who are forced to deal with this unsafe situation on a daily basis."

Nesbitt was not prepared for what happened next. He was branded a troublemaker, his every move was closely monitored, and he was eventually decertified from all but one position in the tower, a job he characterizes as "essentially a secretary," issuing route clearances to aircraft before they take off. His career was almost derailed because he blew the whistle.

The terrifying incident on the tarmac in Memphis is not a single cautionary event but a snapshot of a disturbing trend. About 30 times a year, on average, aircraft in the United States narrowly miss each other during landing or takeoff. (Overall, runway incidents increase d13 percent from 2007 to 2008.) "When you look at some of the close calls - and in a couple of cases they were literally seconds away from having two planes collide - accidents were avoided only by pilot decision," says William Waldock, associate director of the Center for Aerospace Safety Education at Embry-Riddle Aeronautical University in Prescott, Arizona. "Eventually, someone will slip up and we will have a catastrophic crash."

These so-called runway incursions are symptoms of a larger problem: the deterioration of the nation's air traffic infrastructure. Air traffic guidance systems are antiquated. Some have not been upgraded since Jimmy Carter was president, and others are glued together with technology developed for use in World War II.

Dangerous outages may cut off communication between the tower and the plane. Moreover, like Memphis International, many American airports are old and congested, lacking enough runways to handle current air traffic loads. The system is also burdened by an acute shortage of experienced air traffic controllers, who have been locked in a bitter contract dispute with the FAA and retiring in record numbers, leaving those who remain exhausted and overworked. Despite its many problems, the system still functions remarkably well, but with the FAA predicting that airline passenger traffic could jump from about 757 million in 2008 to 1 billion by 2021, close calls and alarming accidents may soon become the norm.

"The navigation system hasn't gotten to the point where we have to worry about getting on an airplane," says John Goglia, an aviation industry analyst and former member of the NTSB. "But there is definitely increased
risk."

In the face of all this, fresh blood in Washington has strategized a technological overhaul of the nation's airspace system, under the catchall rubric of NextGen, to be phased in over the next decade. The question is this: Will the new technology ramp up and take over before the current infrastructure erodes so far that statistical risk translates into lives lost?

Crumbling Infrastructure in the Skies

At any given moment, some 5,000 planes are cruising in the busy U.S. airspace. Shepherding an aircraft form departure to destination involves an intricately choreographed series of handoffs, starting with local controllers who direct taxiing, takeoff, and initial climb. When planes reach 1,000 feet, another set of eyes takes over in the darkened rooms of Terminal Radar Approach Control (TRACON), which is in charge of air traffic within a 40-mile radius of an airport. Once an aircraft hits an altitude of 10,000 feet or more, it is switched to one of 21 regional air traffic control stations across the country, at which point it is slotted into a series of fixed flight lanes in the sky and passed along from station to station until it is on approach to its arrival airport. There, another local crew orchestrates descent and landing.

Unfortunately, the system that controllers use to talk to pilots is essentially a turbocharged Smokey and the Bandit-type CB radio. As a consequence, transmissions can become muddled or even incomprehensible if another pilot gets on the same frequency by mistake. "They're using a voice communications system that should have been replaced years ago," Goglia says.

Even worse, the aircraft tracking system is based not on satellite surveillance but on crude, 1950s-style radar technology that gives controllers only an approximate idea of where a plane is at certain times. (For planes within 40 miles of a tower, radar tracking is precise, but when planes head out to sea things get fuzz.) That means huge safety buffer zones are needed between aircraft. The FAA mandates at least 1,00 feet vertically and three to five miles horizontally in good weather, and up to four times that spacing when conditions are bad. If planes wander outside their assigned airspace, midair collisions could result.

As if that were not enough, radar and radio outages occur with alarming frequency. In at least eight instances last year, malfunctions at several major airports brought operations to a standstill, triggering a cascade of delays and flight cancellations across the country. The most notable of these occurred at an FAA center near Atlanta in August 2008, when the computer system that processes flight plans went down. Elsewhere, in one 24-hour period last summer, equipment failures crippled two of the country's busiest air traffic control facilities - Southern California TRACON and Miami Air Route Traffic Control Center, the latter responsible for 400,000 square miles of airspace and much of the air traffic between the United States, the Caribbean, and Central and South America. In the California facility, part of the FAA's telecommunications infrastructure went down and the backup lines did not kick in, leaving controllers without radar or radio for nearly an hour during the afternoon.

"You lose your eyes and ears," says veteran controller Melvin Davis, a National Air Traffic Controllers Association facility representative for Southern California TRACON, which serves a dozen major airports and 32 smaller ones. "If the outage had occurred during peak flying hours, the damage to the public would have been incalculable," he adds, citing delayed flights at the very least, airport gridlock throughout the region, and heightened risk of crashes.

Finally, nearly 60 percent of the FAA's control towers have surpassed their expected useful lives of 30 years. They are plagued by water leaks, mold, and foggy windows that can make it difficult to see aircraft, according to a December 2008 audit conducted by the Department of Transportation's Office of Inspector General. Outdated heating, ventilation, and air-conditioning systems in some major airports - such as Chicago's O'Hare and Midway, and even Andrews Air Force Base in Maryland, the home of Air Force One - cause condensation to form on windows, hampering controllers' ability to look out at planes on the field. Yet plumbing and electrical repairs often go undone, resulting in a deferred maintenance backlog of $240 million, a tab that is expected to climb to more than $380 million by 2020. Creaky physical conditions at U.S. airports are reminiscent of those in developing nations. Controllers in Atlanta have had to hold umbrellas over radarscopes to see the planes.

Collision warning devices installed aboard aircraft create a cushion of safety against all these insults. But the growth in air traffic, coupled with slipups by pilots and controllers, has sparked a spike in anti-collision warnings aboard the planes, especially in dense traffic areas such as Southern California, where the number of potentially serious controller errors rose 77 percent from 2007 to 2008. In March 2008, for instance, an American Airlines Boeing 757 en route from Mexico to Southern California was mistakenly put on a collision course over the Pacific Ocean with a Southwest Airlines Boeing 737 taking off from john Wayne International Airport in Orange County. In another incident just three months later, an Air Tahiti wide-body jetliner flying out of Los Angeles nearly crashed into a small private plane flying two miles above the ocean.

When aircraft are traveling at 600 miles an hour, every second counts. "It can take 15 seconds to recognize there's a problem, 15 seconds to radio instructions to the pilot, and an additional 15 seconds for them to respond," says Don Brown, who was an air traffic controller in Atlanta for 25 years. "Near midair collisions are like rolling the dice. Once you get within a certain distance, it's in the hands of God - how well you can see and how fact you can act - as to whether the planes will collide."

A series of events leading to catastrophe can easily snowball, with the greatest danger occurring during takeoff and landing, the most hazardous stages of flying. In fact, the world's worst airline disaster happened on a runway in Tenerife, in the Canary Islands, in 1977, when a KLM pilot at the helm of a Boeing 747 mistakenly thought the controller had cleared him for takeoff and his plane slammed into a Pan American 747 taxiing on the same runway. The accident killed 583 people.

Risk during the transition between ground and air is compounded by the sheer volume of traffic: Under optimum conditions, roughly 60 airliners operating one after another can take off or land on a runway in one hour. This kind of pace increases the danger posed by wake turbulence, the violently disturbed air that large aircraft leave behind. Every extra second an aircraft remains on the runway (because of bad weather, waiting for a plane to pass on a crossing runway, or slowing to make a sharp turn) reduces runway capacity. In high-traffic places like New York's three main airports, schedules are relentless, and even minor glitches can trigger maddening delays. "People in aviation - the pilots, the air traffic controllers, and even the CEOs - are under constant pressure to make the airplanes fly and to make sure they fly on time," Brown says. "The pressure to fly in poor weather, to tighten up the spacing between aircraft, and to wring every last drop of efficiency out of the system is incredible."

Pressure and congestion can set in motion what Waldock of Embry-Riddle, who studies how accidents happen, calls a cascade of failures. "They're innocuous by themselves, but they make a couple of other things fail, and then all of a sudden it sets off a chain reaction that cascades to the point where it becomes catastrophic," he says. "Most of the time, the safety system catches them, and something will happen that interrupts the sequence. The pilot intervenes, a controller diverts the plane, or the automated system sounds the alarms. But eventually, subtle failures will sneak through and the statistics will catch up - for every accident we have, there are probably at least 99 very close incidents - and we'll have a disaster."

Stressed-Out Rookies on the Ground

Averting accidents has become increasingly difficult as veteran air traffic controllers move on in greater numbers, leaving more rookies at the helm. In 2006 the FAA imposed a new labor contract on controllers, slashing pay for new hires, freezing earnings for most veterans, and clamping down on job perks. Since then, record numbers of controllers have retired or resigned. More than 1,200 of them did so last year alone in what Brown called a "slow motion strike." Just over 11,000 fully trained professionals - the smallest number in 16 years - serve the entire country today. (The FAA points out that 4,000 additional controllers are trained for the specific job they perform, even if not trained in full.) in a resignation letter to the FAA, one Albuquerque-based controller summed up the sentiments of many: "I do not feel I can continue to work in an environment that is so vindictive, or for an employer who is more worried about the bottom line rather than safety."

With fewer experienced controllers in place, those remaining are forced to work overtime with fewer and shorter breaks and less time between shifts in order to handle the volume of air traffic. A recent NTSB report revealed that sleep-deprived air traffic controllers played a role in at least four near-fatal incidents on the nation's runways since 2001, and the controller on duty in one of the worst U.S. accidents in five years - the 2006 crash of a Comair flight that killed 49 people in Lexington, Kentucky - was working on only two hours of sleep. "About 60 to 80 percent of controllers report they've caught themselves about to doze off during early-morning or midnight shifts," says the NTSB's Deborah Hersman.

These days, green recruits are going directly from the training academy to high-traffic facilities rather than gaining experience at smaller airports. In the past, open positions at bigger airports, such as Los Angeles's LAX or Atlanta's Hartsfield-Jackson International, were filled with seasoned controllers moving up from smaller operations. But the FAA's imposed work rules removed financial incentives for veterans to move up to more hectic airports; in fact, many would actually take a pay cut upon transfer.

Consequently, scores of newbies are being assigned to some of the most demanding and difficult operations (such as Southern California TRACON, Potomac TRACON, and the towers in Atlanta, Miami, and Orlando) right after completing their classroom training in Oklahoma City. At major facilities like O'Hare, Kennedy, LaGuardia, and the international airports in Tampa, Dallas/Fort Worth, and Orlando, less than 70 percent of the controllers are now fully certified.

As newer, less skilled controllers step up, veterans like Nesbitt find themselves in a bitter fight with higher-ups, who say the skies are safer than ever while downplaying the errors that are mounting nationwide. Controller Davis of Southern California TRACON is not buying it. "The FAA knows there are serious problems and has been suppressing the information," he says. Still, both sides could be seen as correct; it depends on how you define safety. According to Waldock, the number of catastrophic accidents has actually gone down considerably since 2001, but the number of errors and near misses has increased. Potential accidents continue to be prevented at the last minute as crack pilots and controllers intervene.

In April 2008, in response to allegations that air traffic control violations were being covered up, the FAA launched audits of error-tracking practices at radar facilities nationwide. Whistle-blowers charged that air traffic managers at a Dallas/Fort Worth facility routinely and intentionally falsified reporters involving planes that flew too close together, often blaming controller errors on pilots. It was the second time in three years that these charges had surfaced at the facility, and the Department of Transportation found that lax FAA oversight had allowed the abuses to flourish undetected for years.

Waiting for NextGen

Fortunately, things are starting to change. In the waning days of the Bush administration, Henry Krakowski, a former United Airlines pilot with a reputation as a reformer, was appointed chief operation officer of the FAA's Air Traffic Organization. This year he has started moving to deploy new technologies, new procedures, and updated airport logistics and design. A new runway safety tool called ASDE-X uses radar and remote sensors embedded in runways and taxiways to track the whereabouts of vehicles and aircraft on the ground, providing controllers with an exact and continuously updated map of airport movement. By 2011, 35 of the nations' busiest airports should have this tool up and running.

A new traffic-light system, currently being tested in San Diego, Los Angeles, and Dallas/Fort Worth, should add another layer of protection on the ground once it is widely deployed. Developed at the Lincoln Laboratory at MIT, the system warns pilots of potential runway conflicts. Much like traffic signals at a railroad crossing, red lights embedded in the pavement will warn aircraft to stay clear of occupied lanes; so far the system has reduced runway incursions where it has been deployed. For instance, Dallas has had only three incursions during the two and a half years the system has been up and running, compared with 10 such incidents over the same time span in years past.

But the real safety centerpiece of the future is the next-generation air transportation system, or NextGen. It uses a global positioning system (called Automatic Dependent Surveillance-Broadcast, or ADS-B) to track the movement of planes. Right now, pilots must navigate through fixed flight lanes set by stationary radar on the ground. Under such restrictions, flight routes are often indirect. Moreover, it takes up to 12 seconds to refresh information on radarscopes, so planes shunted into these unnecessarily constricted lanes cannot fly too close together. Indeed, since pilots cannot see other craft, and since controllers are not certain of the exact position of any given plane, aircraft are forced to make stepped landings: They descend to a given altitude, then level off, and then descend again.

Global positioning technology will get rid of these limitations. Rather than relying on a radar sweep every 6 or 12 seconds, it updates information every second, which will allow for closer spacing between planes. And instead of hitching planes to an umbilical cord of radar-based navigation aids, the satellite system will open routes around the globe, enabling planes to take more direct paths. "by 2013 we'll have all the ground stations in place and have the whole system completed by 2020," says Paul Takemoto, a spokesman for the FAA.

Nesbitt and others claim these advances will fix only some of the problems and cannot address the confounding human factors that continue to play a role in runway and flight risk. Indeed, shortly after Nesbitt filed his aviation safety report in the wake of the Memphis near miss in early 2007, a team of FAA investigators arrived in his city. Eventually they uncovered some troubling information: There was no waiver on the use of the perpendicular runways, and there never had been. The dangerous simultaneous-approach procedure was illegal. In April 2007 the FAA demanded that the practice be halted immediately. "This ongoing lack of compliance with FAA regulations...is unacceptable," safety investigators wrote in a sternly worded memo. But the agency was battling fierce institutional headwinds. For another two weeks, Memphis managers ignored the order, but Nesbitt continued sending letters to the FAA and NTSB. He will never know for sure whether his intervention or something else finally caused managers to stop using the fourth runway.

In any event, Nesbitt was hardly hailed as a hero. Instead, retaliation was fierce. After missing work due to persistent eye allergies, he says he was accused of abusing sick leave. In late April he was forced to bring his sick dog to work because his boss refused to give him time off to go to the vet. He kept the dog in a kennel in the back of his pickup truck with plenty of food and water and checked on him every hour. Nesbitt says that one of the managers then made an anonymous call to the local Humane Society, which dispatched an animal cruelty investigator. The investigator quickly determined that the animal was well cared for and insisted that Nesbitt be given time off.

In 2007 Nesbitt was ordered to a basement radar replay room where an FAA manager chewed him out about his performance. Nesbitt reports that he left the office because of the supervisor's threatening tone and was then accused of insubordination. After more than two decades of guiding aircraft safely, the then 43-year old Tennessee native was decertified as a controller, ordered to take remedial training classes, and relegated to low-level work in the clearance delivery division.

Exasperated, Nesbitt finally filed for protecting as a federal whistle-blower with the Office of Special Counsel (OSC). "They accepted my case the very next day," he recalls. "They took one look at it and said, 'We're on it.'" He recalls. After almost a year and a half of haggling, the OSC hammered out an agreement with the FAA in December 2008: Nesbitt would transfer back to Austin and return to air traffic control duties at the same
salary.

Nesbitt is relieved to be back in his adopted home state of Texas and encouraged that problems are being addressed - not just his personal ones but the systemic failings of the air traffic infrastructure. Still, the experience has left him disillusioned. "it is very stressful to work in an environment that discourages disclosure of safety concerns," he says. "I've talked to controllers in Memphis who know what I've been through. Not a single one of them would come forward to make safety-related disclosures and jeopardize their career by going head-to-head with the FAA."

July 22, 2009

FAA Changes Policy, NATCA Responds

July 22, 2009

By Mary Grady, Contributing editor
www.AVweb.com

The FAA said this week it is ready to change the way it deals with air traffic controllers, but the controllers union is skeptical. On Monday the agency took what it calls "another step toward a new safety culture," by reducing the emphasis on blame in the reporting of operational errors. "We're moving away from a culture of blame and punishment," said FAA Administrator Randy Babbitt. "It's important to note that controllers remain accountable for their actions, but we're moving toward a new era that focuses on why these events occur and what can be done to prevent them." Effective immediately, the names of controllers will not be included in reports sent to FAA headquarters about operational errors, which occur when the proper distance between aircraft is not maintained.

Necessary training will be conducted and disciplinary action taken, if appropriate, the FAA said. Both will be recorded in the controller's record. Patrick Forrey, president of the National Air Traffic Controllers Association, told AVweb the FAA change doesn't go far enough. "We are puzzled by the press release in which the Administrator claims to be moving towards a safety culture absent blame, yet at the same time, states that controllers could still be disciplined for their actions," he wrote in an e-mail. "This philosophy is exactly the opposite of a safety culture. A safety culture doesn't look to 'blame'; rather it looks to be proactive in finding problems before they happen."

Forrey said there is already a program in place, the Air Traffic Safety Action Program, to do that. "A key component of a safety culture is to make controllers feel comfortable in reporting problems so that we can learn and develop procedures to avoid these problems in the future," he said.

TRANSPARENCY: Secrets in the Sky: A Tale of Two Air Marshals

By Nick Schwellenbach
The Center for Public Integrity

Robert S. Bray, the current director of the Federal Air Marshal Service, is testifying before Congress on Federal Air Marshal Service personnel issues on Thursday. The elements are all there for another thrilling episode of the TV program “24.” The backdrop: A U.S. agency of armed government agents who fly anonymously as passengers on airlines to stop terrorist hijackings. In the summer of 2006, British authorities subvert a plot to blow up transatlantic flights to the U.S. and Canada. But then, eight days later, sensitive information about a cutback on agent deployments on flights over the United Kingdom spills onto the public pages of an online forum. The U.S. agency, while monitoring websites where its employees post, rapidly mounts an inquiry into who posted the information.

But this wasn’t on TV, it’s a true story and until now, the details of this incident have been secret to the public. They’ve also been kept from a fired government employee, even though the information could have helped during his litigation with the government. The fired federal air marshal is Robert MacLean. Another federal air marshal, Anthony Rine, who was responsible for the same type of violation, described in the above paragraph, was not fired. The offense in both cases: disclosure of ‘sensitive security information.’ But whereas Rine was spared serious discipline, MacLean suffered termination despite his role in reversing a policy that potentially put airline passengers at risk.

According to a Department of Homeland Security investigation report obtained by PaperTrail and labeled “sensitive security information,” the minute-by-minute intrigue began at a Palm Beach Hilton Hotel on the morning of August 18, 2006…

10:17 a.m. – Under a screenname inspired by his boss’ name, ‘ArnieCole,’ federal air marshal Anthony Rine posts a message to the public website Uncensored Air Marshal Forum, “Atlanta has decided there are too many 3-leggers [flights with multiple stops] being left uncovered, so there will be no more UK flights from there. I’m sure one of the other offices will get to pick up the slack.” Arnold Cole is the special-agent-in-charge of the Atlanta field office of the Federal Air Marshal Service.

10:31 a.m. – Kevin F. O’Hare, a deputy chief of staff at the Federal Air Marshal Service, e-mails fellow employees Robert G. Bond and Michael R. Novak a link to the message on the Uncensored Air Marshal Forum.

10:53 a.m. – Bond, a special agent-in-charge of the Federal Air Marshal Service policy compliance unit, e-mails O’Hare, Novak, Arnie Cole and others with the subject line “Clear SSI violation.” SSI stands for “sensitive security information.” Bond suggests the removal of the message from the website “ASAP” and a Transportation Security Administration investigation into the posting.

11:28 a.m. – Someone with the screenname “New_Director” deletes the message “for OPSEC,” or operational security.

12:00 p.m. – The TSA’s computer forensic unit is asked to locate the person who posted the message.

1:07 p.m. – David Cayam of Prospero Technologie, the company that hosts the Forum, is “contacted and asked to provide the subscriber information for the person who posted SSI.”

2:22 p.m. – Cayam gives TSA the IP address of where the message originated.

From there, the TSA tracked the posting to the Palm Beach Hilton Hotel, obtained the names of the four air marshals scheduled to be there and determined only two were staying there at the time of the posting. In interviews a week and a half later, TSA special agents John Berent and Sandra Gross identified Rine as the person behind the post. He signed a sworn affidavit admitting he posted the message.

But the implications of the incident do not end there: They raise questions about the treatment of another air marshal who publicly released agency information.

In 2003, federal air marshal Robert MacLean blew the whistle to the press about an attempt by his agency to cut air marshal coverage of flights during a period of heightened threat warnings. His disclosure led to a congressional outcry that the Federal Air Marshal Service was putting security at risk, leading the decision to be reversed. Though the information was not marked “sensitive security information” when MacLean received it, it was retroactively determined to be sensitive after he was fired on the basis of disclosing SSI.

MacLean’s case illustrates the complex dynamic between secrecy and security. TSA argues that his disclosures weakened security, were in violation of agency regulations, and that MacLean should have known the information was SSI whether it was marked or not. MacLean, several members of Congress, and others say he prevented a policy that would have left airlines more vulnerable to attacks, improving security. And the way the TSA utilized the “sensitive security information” label retroactively to fire him could create a chilling effect, preventing future potential whistleblowers, they say.

Thomas D. Quinn, the director of the Federal Air Marshal Service while MacLean and Rine were air marshals, took a particular interest in the websites where his employees posted messages. In a February 2005 letter to another Homeland Security Department official requesting an investigation into MacLean, Quinn wrote that another website, the Air Marshal Forum, which had criticized Quinn, “serves as a kind of anonymous shouting gallery for disgruntled FAMs. Many of the posts are abusive, and many directly attack FAMS management and leadership.” Quinn wrote that the website was “a safe means of leaking confidential information to the press,” citing MSNBC’s Brock Meeks and the Associated Press’ Leslie Miller as utilizing it. He also wrote that it “encourages breaches of SSI,” “is a potential source for terrorists,” and “undermines morale and discipline among” federal air marshals.

Rine, unlike MacLean, only received light administrative discipline, such as losing his gun and his air marshal credentials for less than two months. Cole, Rine’s boss, wrote a letter that says “the harsh removal penalty proposed” for Rine “be mitigated to a much lesser penalty which would be more in keeping with the efficiency of the” Federal Air Marshal Service.

For MacLean, Rine’s case is troubling, not only for the disparate treatment MacLean received for the same violation. In litigation with the government over his termination, MacLean was never provided with information about Rine, despite requests for information about other disciplinary actions taken against air marshals for release of SSI.

MacLean’s lawyers requested “a complete list of employees whom the Agency has charged with and/or investigated for Unauthorized Disclosure of Sensitive Security Information.” In July 2006 — before the Rine investigation — the Transportation Security Administration wrote, it “objects to this request on the grounds of irrelevancy, overbroadness, and privacy.” It did add the following detail, except for MacLean, “TSA has not removed a Federal Air Marshal for the unauthorized disclosure of Sensitive Security Information.” MacLean argues that he should have been informed about the investigation into Rine by TSA as soon as that information became available. MacLean’s court battle continues to this day.

“Agencies should impose consistent penalties for analogous misconduct,” Tom Devine, legislative director at the Government Accountability Project, a whistleblower advocacy group, told PaperTrail. “That’s the law of the government’s employment system independent of whistleblower rights.” He said what happened to Rine is mitigating evidence for MacLean because it shows his agency could have imposed a lesser penalty on him than termination.

Nelson Minerly, spokesman for the Federal Air Marshal Service, said “[I] cannot comment because the MacLean case is still in litigation” and he “cannot comment” on Rine’s case “because of the anonymity of the air marshal workforce.”

“We do take allegations of misconduct seriously,” Minerly said, and the “Federal Air Marshal service does adhere to the Whistleblower Protection Act.” Good faith disclosures to management by air marshals will not lead to retributions, he said.

July 20, 2009

FAA Press Release -- New FAA Safety Culture Reflected in Operational Error Reporting

For Immediate Release
July 20, 2009
Contact: Paul Takemoto
Phone: (202) 267-3883

WASHINGTON, D.C. — The Federal Aviation Administration (FAA) today took another step toward a new safety culture by reducing the emphasis on blame in the reporting of operational errors by air traffic controllers.

"We're moving away from a culture of blame and punishment," said FAA Administrator Randy Babbitt. "It's important to note that controllers remain accountable for their actions, but we're moving toward a new era that focuses on why these events occur and what can be done to prevent them."

Effective immediately, the names of controllers will not be included in reports sent to FAA headquarters on operational errors, which occur when the proper distance between aircraft is not maintained. The controller's identity will be known at the facility where the event took place. Necessary training will be conducted and disciplinary action taken, if appropriate. Both will be recorded in the controller's record. Removing names on the official report will allow investigators to focus on what happened rather than who was at fault.

"We need quality information in order to identify problems and learn from incidents before they become accidents," Babbitt said. "The best sources of that information are our front-line employees. Our success depends on their willingness to identify safety concerns."

In order to avoid disrupting operations, controllers will not be automatically removed from their position following an operational error unless it is deemed necessary to remove them. Another change designed to avoid disruptions allows reports to be filed by the close of the next business day unless the operational error is significant. Reports previously had to be filed within four hours.

This action is part of the transition to the FAA's new non-punitive reporting system for controllers. The Air Traffic Safety Action Program (ATSAP), which now covers one-third of the country, allows controllers and other employees to report safety problems without fear of punishment unless the incident is deliberate or criminal in nature. Today's change in the reporting requirements for operational errors provides for a more seamless transition as ATSAP is rolled out to the entire country.

The reporting changes do not alter the investigation and analysis of operational errors. They also do not change the requirements for addressing the causal and contributing factors to those events.

###

July 3, 2009

Audit: FAA should address air controller fatigue

By SOPHIA TAREEN
Associated Press

CHICAGO (AP) — Air traffic controllers who direct planes in and out of Chicago's O'Hare International Airport have too little time off between shifts, a factor that contributes to fatigue and could be a safety threat, according to a federal audit released Thursday.

The 21-page report by the U.S. Department of Transportation criticized the Federal Aviation Administration for not acting sooner to alleviate air controller fatigue at three of the country's busiest air traffic facilities and recommended immediate changes.

The audit showed most controllers at the three facilities located in the Chicago area have had fewer than 10 hours rest between some shifts, progressively earlier start times on consecutive shifts and increased overtime hours.

"This type of work schedule offers minimal opportunity for sleep when the time required for commuting, eating and other necessary daily activities is taken into account," the report said.

The report said the FAA has not acted on earlier National Transportation Safety Board recommendations on controller fatigue and that the agency "does not consistently address human factors issues, such as fatigue and situational awareness" when it investigates operational errors.

O'Hare has had a series of near misses in recent years that were blamed on air traffic controller error. In June, the FAA said two American Airlines planes came close to each other while landing at O'Hare, though both planes landed safely and no injuries were reported.

The transportation department's report laid out recommendations, including increasing rest periods, rotating controllers through less demanding positions during each shift and providing fatigue awareness training.

FAA spokeswoman Elizabeth Isham Cory said the agency disputes some of the audit, but has already made changes in the past year. For example, the FAA added training on fatigue awareness in May 2008. In light of the audit, the FAA said it would re-evaluate staffing and look at increasing rest periods between shifts.

"Certainly, fatigue is a concern of ours. This is something that we're watching very, very closely," Cory said Thursday. "We have made changes already and we continue to make changes."

The audit, which was sent to FAA earlier this week, was conducted between January 2008 and February at a tower at O'Hare and facilities in the Chicago suburbs of Elgin and Aurora. A spokeswoman for U.S. Sen. Dick Durbin, D-Ill., said he requested the audit after hearing controllers' concerns.

Air traffic controllers said they felt "vindicated" by the audit's findings.

"We have expressed our concerns about controller fatigue for several years, only to have them fall on deaf ears at the FAA, which has ignored NTSB requests to meet with us and work on fatigue issues in a spirit of collaboration," said Patrick Forrey, president of the National Air Traffic Controllers Association, a union which represents about 15,000 air traffic controllers.

July 2, 2009

FAA whistle-blower safety warnings found to have merit

American Morning - amFIX
By Allan Chernoff
CNN Sr. Correspondent

A federal investigation into Federal Aviation Administration employee whistle-blower safety complaints has found more than two dozen to be on the mark, CNN has learned, potentially putting the public’s safety at risk.

The federal Office of Special Counsel, which investigates allegations of reprisal against whistle-blowers, tells CNN it has made a “positive determination” that the FAA improperly responded to 27 current cases of FAA employee whistle-blowers warning of safety violations ranging from airline maintenance concerns to runway and air traffic control issues.



“It means that FAA is a very sick agency,” said Tom Devine, legal director of the non-profit Government Accountability Project. “There’s never been an agency that’s had that large of a surge of whistle-blowers whose concerns were vindicated by the government’s official whistle-blower protection office.”

The Department of Transportation told CNN, “We acknowledge it’s a large number of cases.”

“We take whistle-blower complaints very seriously and we fully cooperate with all of the investigations,” said FAA spokesperson Laura J. Brown.

Among the warnings found to have merit are those of FAA inspector Christopher Monteleon, who flagged safety problems at Colgan Air for several years before a Colgan plane crashed near Buffalo in February killing 50 people. He told CNN he’s faced retaliation at the FAA for pointing out issues including faulty aircraft manuals and poor cockpit procedures he observed during in-flight aircraft testing.


“My supervisor called me into his office and said, ‘Stop your investigation.’ He said that these violations never occurred,” said Monteleon.

But Monteleon continued raising safety concerns about the airline. Eventually he was demoted and put on leave of absence.

“I had my aviation inspector credentials taken from me,” Monteleon told CNN. “It has just been humiliating. It’s been awful.”

The FAA says it does not believe any of Monteleon’s reassignments were retaliatory, and cannot comment further because this is a personnel issue covered by privacy laws.

While the Office of Special Counsel has found merit in Monteleon’s charges of safety violations, the Special Counsel continues to investigate his claim that he was the victim of retaliation for pressing his safety concerns.

Though passenger safety is at stake, the Office of Special Counsel found the FAA has repeatedly deferred to the airlines it regulates.

“That’s shocking, and it’s really unconscionable for a government agency that’s supposed to be about safety, not about witch hunts for those who find safety lacking,” said Mary Schiavo, inspector general of the Department of Transportation from 1990-1996, who is now an attorney representing families of accident victims.

What’s going on at FAA? Critics say it’s the culture.

In 2003, former FAA administrator Marion Blakey established a “Customer Service Initiative” that defined airlines as customers, rather than the flying public. The current Transportation Department inspector general Calvin Scovel, found, “FAA’s definition of its customer has had a pervasively negative, although unintended, impact on its oversight program.”

While there’s no evidence of illegal dealings, the FAA has an active revolving door. Agency managers regularly go on to work in the aviation industry while industry executives take top spots at FAA.

-Former FAA administrator Marion Blakey is now president and CEO of the Aerospace Industries Association.

-Former FAA chief operating officer Russell Chew moved on to become president of Jet Blue Airways, where he just stepped down and took on the role of Senior Adviser for the company.

-FAA’s chief operating officer of air traffic, Hank Krakowski, came from United Airlines where he held a number of senior management positions, including vice president of flight operations.

-Linda Daschle, wife of the former Senate Democratic leader, was the FAA’s acting administrator, and then became a lobbyist representing the airline industry.

“There’s a very cozy relationship between the lobbyists for the industry and the Department of Transportation and the FAA,” said Schiavo.

As in all federal agencies, senior executives leaving the FAA are subject to a one-year “cooling off” period that forbids them from representing a client before the FAA.

The new transportation secretary Ray LaHood and FAA administrator Randy BabbitT, who took office June 1, say they will make sure whistle-blowers are heard.

“We will pay attention to any kind of complaint or accusation or any concern expressed by an employee of FAA. It’s a new day at the FAA and at DOT,” LaHood told CNN.

FAA last year established a Safety Issues Reporting System for employees to raise safety concerns. FAA also tracks employee hotline complaints in its General Counsel Office.

But, the agency has resisted calls to establish an independent office to investigate whistle-blower safety claims. The pending House bill to reauthorize FAA would require the agency to establish such an office. The Senate still has to write its version of the bill.

The Office of Special Counsel has referred all 27 cases to the transportation secretary who is investigating and must tell the Special Counsel what steps will be taken to fix the safety problems.