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Peter Eliasberg and Allan Ides

ACLU/SC Sues Homeland Security Secretary Chertoff For Infringing on Whistleblower Rights

Thursday, April 21, 2005

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LOS ANGELES - In a case dubbed Air Marshal X, the ACLU of Southern California is challenging the overly restrictive policies of the Federal Air Marshal Service that may decrease public safety.

In the lawsuit filed today against Department of Homeland Security Secretary Michael Chertoff and other security officials, Air Marshal Frank Terreri is seeking to enjoin Federal Air Marshal Service rules that prohibit him from speaking publicly about his job or saying anything to do with the Air Marshal Service, a clear violation of his First Amendment rights.

"The Department of Homeland Security is not only infringing on Frank Terreri's right to free expression, they are actually jeopardizing the public's safety by limiting the speech of whistleblowers," said Eliasberg, managing attorney of the ACLU of Southern California. "Terreri is prohibited from participating in informative debate about the safety of our airline industry, which makes all of us less secure."

The lawsuit was filed in U.S. District Court in the Central District of California. It seeks to declare portions of the Federal Air Marshal Service rules that say marshals may not "release or divulge investigative information or any other matters pertaining to the FAMS" unconstitutional and seeks a permanent injunction forbidding the defendants from enforcing those provisions.

Terreri, who has 15 years of law enforcement experience including three years as a federal air marshal and is also a president of a professional membership organization that represents more than 23,000 federal agents including 1,400 air marshals, is restricted from discussing details related to his job that could enhance the security marshals provide. "Currently there is no protection for agents in the Federal Air Marshal Service who see ways to improve their service," said Paul Hoffman, co-counsel in the case. "The federal government cannot decide who has a right to free expression and who doesn't, especially not when the public's safety is at risk."

Terreri has tried to work within the system to address his concerns about aviation security, detailing security lapses within the agency in two letters to the director. After he sent a private e-mail to another air marshal raising concerns about an air marshal profile in People magazine, Terreri was taken off active flight duty and placed on administrative duty.

"Everyone's heard that you can pick out a federal air marshal from a mile away because they look like a 1950s FBI agent. Frank stuck his neck out to try to improve the way his agency works and those in charge found any excuse to punish him. This lawsuit will shed light on Homeland Security policies that don't contribute to safety, but rather violate constitutional rights," Eliasberg said.

Coleen Rowley, an FBI whistleblower who was named one of Time magazine's persons of the year in 2002, said in a taped statement that it's unfortunate Terreri is forced to file a lawsuit because the Federal Air Marshal's policies leave him no other choice.

"Federal employees who want to expose the truth should not have to risk their careers," Rowley said. "Employees who need to report fraud, abuse or mismanagement to uphold their constitutional oaths and to try to improve our safety and security should be encouraged and not prevented from doing so. Mr. Terreri is a defender of both the public's safety and our civil liberties."

The ACLU of Southern California, Professor Allan Ides of Loyola Law School and Paul Hoffman of Schonbrun, DeSimone, Seplow, Harris and Hoffman are representing Terreri.

Michael Chertoff, the Secretary of the Department of Homeland Security; Randy Beardsworth, the acting under secretary for Border Transportation and Security; Michael J. Garcia, the assistant secretary of the Department of Homeland Security for Immigration and Customs Enforcement; and Thomas Quinn, the director of the Federal Air Marshal Service, are named as defendants.

Image: Peter Eliasberg and Allan Ides

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