[Infowarrior] - NSA Wiretapping: The Fed Who Blew the Whistle

[Richard Forno]

The Fed Who Blew the Whistle

Is he a hero or a criminal?
Michael Isikoff
NEWSWEEK
 From the magazine issue dated Dec 22, 2008

http://www.newsweek.com/id/174601/output/print

Thomas M. Tamm was entrusted with some of the government's most  
important secrets. He had a Sensitive Compartmented Information  
security clearance, a level above Top Secret. Government agents had  
probed Tamm's background, his friends and associates, and determined  
him trustworthy.

It's easy to see why: he comes from a family of high-ranking FBI  
officials. During his childhood, he played under the desk of J. Edgar  
Hoover, and as an adult, he enjoyed a long and successful career as a  
prosecutor. Now gray-haired, 56 and fighting a paunch, Tamm prides  
himself on his personal rectitude. He has what his 23-year-old son,  
Terry, calls a "passion for justice." For that reason, there was one  
secret he says he felt duty-bound to reveal.

In the spring of 2004, Tamm had just finished a yearlong stint at a  
Justice Department unit handling wiretaps of suspected terrorists and  
spies—a unit so sensitive that employees are required to put their  
hands through a biometric scanner to check their fingerprints upon  
entering. While there, Tamm stumbled upon the existence of a highly  
classified National Security Agency program that seemed to be  
eavesdropping on U.S. citizens. The unit had special rules that  
appeared to be hiding the NSA activities from a panel of federal  
judges who are required to approve such surveillance. When Tamm  
started asking questions, his supervisors told him to drop the  
subject. He says one volunteered that "the program" (as it was  
commonly called within the office) was "probably illegal."

Tamm agonized over what to do. He tried to raise the issue with a  
former colleague working for the Senate Judiciary Committee. But the  
friend, wary of discussing what sounded like government secrets, shut  
down their conversation. For weeks, Tamm couldn't sleep. The idea of  
lawlessness at the Justice Department angered him. Finally, one day  
during his lunch hour, Tamm ducked into a subway station near the U.S.  
District Courthouse on Pennsylvania Avenue. He headed for a pair of  
adjoining pay phones partially concealed by large, illuminated Metro  
maps. Tamm had been eyeing the phone booths on his way to work in the  
morning. Now, as he slipped through the parade of midday subway  
riders, his heart was pounding, his body trembling. Tamm felt like a  
spy. After looking around to make sure nobody was watching, he picked  
up a phone and called The New York Times.

That one call began a series of events that would engulf Washington— 
and upend Tamm's life. Eighteen months after he first disclosed what  
he knew, the Times reported that President George W. Bush had secretly  
authorized the NSA to intercept phone calls and e-mails of individuals  
inside the United States without judicial warrants. The drama followed  
a quiet, separate rebellion within the highest ranks of the Justice  
Department concerning the same program. (James Comey, then the deputy  
attorney general, together with FBI head Robert Mueller and several  
other senior Justice officials, threatened to resign.) President Bush  
condemned the leak to the Times as a "shameful act." Federal agents  
launched a criminal investigation to determine the identity of the  
culprit.

The story of Tamm's phone call is an untold chapter in the history of  
the secret wars inside the Bush administration. The New York Times won  
a Pulitzer Prize for its story. The two reporters who worked on it  
each published books. Congress, after extensive debate, last summer  
passed a major new law to govern the way such surveillance is  
conducted. But Tamm—who was not the Times's only source, but played  
the key role in tipping off the paper—has not fared so well. The FBI  
has pursued him relentlessly for the past two and a half years. Agents  
have raided his house, hauled away personal possessions and grilled  
his wife, a teenage daughter and a grown son. More recently, they've  
been questioning Tamm's friends and associates about nearly every  
aspect of his life. Tamm has resisted pressure to plead to a felony  
for divulging classified information. But he is living under a pall,  
never sure if or when federal agents might arrest him.

Exhausted by the uncertainty clouding his life, Tamm now is telling  
his story publicly for the first time. "I thought this [secret  
program] was something the other branches of the government—and the  
public—ought to know about. So they could decide: do they want this  
massive spying program to be taking place?" Tamm told NEWSWEEK, in one  
of a series of recent interviews that he granted against the advice of  
his lawyers. "If somebody were to say, who am I to do that? I would  
say, 'I had taken an oath to uphold the Constitution.' It's stunning  
that somebody higher up the chain of command didn't speak up."

Tamm concedes he was also motivated in part by his anger at other Bush- 
administration policies at the Justice Department, including its  
aggressive pursuit of death-penalty cases and the legal justifications  
for "enhanced" interrogation techniques that many believe are  
tantamount to torture. But, he insists, he divulged no "sources and  
methods" that might compromise national security when he spoke to the  
Times. He told reporters Eric Lichtblau and James Risen nothing about  
the operational details of the NSA program because he didn't know  
them, he says. He had never been "read into," or briefed, on the  
details of the program. All he knew was that a domestic surveillance  
program existed, and it "didn't smell right."

(Justice spokesman Dean Boyd said the department had no comment on any  
aspect of this story. Lichtblau said, "I don't discuss the identities  
of confidential sources … Nearly a dozen people whom we interviewed  
agreed to speak with us on the condition of anonymity because of  
serious concerns about the legality and oversight of the secret  
program." Risen had no comment.)

Still, Tamm is haunted by the consequences of what he did—and what  
could yet happen to him. He is no longer employed at Justice and has  
been struggling to make a living practicing law. He does occasional  
work for a local public defender's office, handles a few wills and  
estates—and is more than $30,000 in debt. (To cover legal costs, he  
recently set up a defense fund.) He says he has suffered from  
depression. He also realizes he made what he calls "stupid" mistakes  
along the way, including sending out a seemingly innocuous but fateful  
e-mail from his Justice Department computer that may have first put  
the FBI on his scent. Soft-spoken and self-effacing, Tamm has an  
impish smile and a wry sense of humor. "I guess I'm not a very good  
criminal," he jokes.

At times during his interviews with NEWSWEEK, Tamm would stare into  
space for minutes, silently wrestling with how to answer questions.  
One of the most difficult concerned the personal ramifications of his  
choice. "I didn't think through what this could do to my family," he  
says.

Tamm's story is in part a cautionary tale about the perils that can  
face all whistleblowers, especially those involved in national- 
security programs. Some Americans will view him as a hero who (like  
Daniel Ellsberg and perhaps Mark Felt, the FBI official since  
identified as Deep Throat) risked his career and livelihood to expose  
wrongdoing at the highest levels of government. Others—including some  
of his former colleagues—will deride Tamm as a renegade who took the  
law into his own hands and violated solemn obligations to protect the  
nation's secrets. "You can't have runoffs deciding they're going to be  
the white knight and running to the press," says Frances Fragos  
Townsend, who once headed the unit where Tamm worked and later served  
as President Bush's chief counterterrorism adviser. Townsend made  
clear that she had no knowledge of Tamm's particular case, but added:  
"There are legal processes in place [for whistle-blowers' complaints].  
This is one where I'm a hawk. It offends me, and I find it incredibly  
dangerous."

Tamm understands that some will see his conduct as "treasonous." But  
still, he says he has few regrets. If he hadn't made his phone call to  
the Times, he believes, it's possible the public would never have  
learned about the Bush administration's secret wiretapping program. "I  
don't really need anybody to feel sorry for me," he wrote in a recent  
e-mail to NEWSWEEK. "I chose what I did. I believed in what I did."

If the government were drawing up a profile of a national-security  
leaker, Tamm would seem one of the least likely suspects. He grew up  
in the shadow of J. Edgar Hoover's FBI. Tamm's uncle, Edward Tamm, was  
an important figure in the bureau's history. He was once a top aide to  
Hoover and regularly briefed President Franklin Roosevelt on domestic  
intelligence matters. He's credited in some bureau histories with  
inventing (in 1935) not only the bureau's name, but its official  
motto: Fidelity, Bravery, Integrity. Tamm's father, Quinn Tamm, was  
also a high-ranking bureau official. He too was an assistant FBI  
director under Hoover, and at one time he headed up the bureau's crime  
lab. Tamm's mother, Ora Belle Tamm, was a secretary at the FBI's  
identification division.

When Thomas Tamm was a toddler, he crawled around Hoover's desk during  
FBI ceremonies. (He still remembers his mother fretting that his  
father might get in trouble for it.) As an 8-year-old, Tamm and his  
family watched John F. Kennedy's Inaugural parade down Pennsylvania  
Avenue from the balcony of Hoover's office, then located at the  
Justice Department.

Tamm's brother also served for years as an FBI agent and later worked  
as an investigator for the 9/11 Commission. (He now works for a  
private consulting firm.) Tamm himself, after graduating from Brown  
University in 1974 and Georgetown Law three years later, chose a  
different path in law enforcement. He joined the state's attorney's  
office in Montgomery County, Md. (He was also, for a while, the  
chairman of the county chapter of the Young Republicans.) Tamm  
eventually became a senior trial attorney responsible for prosecuting  
murder, kidnapping and sexual-assault cases. Andrew Sonner, the  
Democratic state's attorney at the time, says that Tamm was an  
unusually gifted prosecutor who knew how to connect with juries, in  
part by "telling tales" that explained his case in a way that ordinary  
people could understand. "He was about as good before a jury as  
anybody that ever worked for me," says Sonner, who later served as an  
appellate judge in Maryland.

In 1998, Tamm landed a job at the Justice Department's Capital Case  
Unit, a new outfit within the criminal division that handled  
prosecutions that could bring the federal death penalty. A big part of  
his job was to review cases forwarded by local U.S. Attorneys' Offices  
and make recommendations about whether the government should seek  
execution. Tamm would regularly attend meetings with Attorney General  
Janet Reno, who was known for asking tough questions about the  
evidence in such cases—a rigorous approach that Tamm admired. In July  
2000, at a gala Justice Department ceremony, Reno awarded Tamm and  
seven colleagues in his unit the John Marshall Award, one of the  
department's highest honors.

After John Ashcroft took over as President Bush's attorney general the  
next year, Tamm became disaffected. The Justice Department began to  
encourage U.S. attorneys to seek the death penalty in as many cases as  
possible. Instead of Reno's skepticism about recommendations to seek  
death, the capital-case committee under Ashcroft approved them with  
little, if any, challenge. "It became a rubber stamp," Tamm says. This  
bothered him, though there was nothing underhanded about it. Bush had  
campaigned as a champion of the death penalty. Ashcroft and the new  
Republican leadership of the Justice Department advocated its use as a  
matter of policy.

Tamm's alienation grew in 2002 when he was assigned to assist on one  
especially high-profile capital case—the prosecution of Zacarias  
Moussaoui, a Qaeda terrorist arrested in Minnesota who officials  
initially (and wrongly) believed might have been the "20th hijacker"  
in the September 11 plot. Tamm's role was to review classified CIA  
cables about the 9/11 plot to see if there was any exculpatory  
information that needed to be relinquished to Moussaoui's lawyers.  
While reviewing the cables, Tamm says, he first spotted reports that  
referred to the rendition of terror suspects to countries like Egypt  
and Morocco, where aggressive interrogation practices banned by  
American law were used. It appeared to Tamm that CIA officers knew  
"what was going to happen to [the suspects]"—that the government was  
indirectly participating in abusive interrogations that would be  
banned under U.S. law.

But still, Tamm says he was fully committed to the prosecution of the  
war on terror and wanted to play a bigger role in it. So in early  
2003, he applied and was accepted for transfer to the Office of  
Intelligence Policy and Review (OIPR), probably the most sensitive  
unit within the Justice Department. It is the job of OIPR lawyers to  
request permission for national-security wiretaps. These requests are  
made at secret hearings of the Foreign Intelligence Surveillance  
Court, a body composed of 11 rotating federal judges.

Congress created the FISA court in 1978 because of well-publicized  
abuses by the intelligence community. It was designed to protect the  
civil liberties of Americans who might come under suspicion. The  
court's role was to review domestic national-security wiretaps to make  
sure there was "probable cause" that the targets were "agents of a  
foreign power"—either spies or operatives of a foreign terrorist  
organization. The law creating the court, called the Foreign  
Intelligence Surveillance Act, made it a federal crime—punishable by  
up to five years in prison—for any official to engage in such  
surveillance without following strict rules, including court approval.

But after arriving at OIPR, Tamm learned about an unusual arrangement  
by which some wiretap requests were handled under special procedures.  
These requests, which could be signed only by the attorney general,  
went directly to the chief judge and none other. It was unclear to  
Tamm what was being hidden from the other 10 judges on the court (as  
well as the deputy attorney general, who could sign all other FISA  
warrants). All that Tamm knew was that the "A.G.-only" wiretap  
requests involved intelligence gleaned from something that was  
obliquely referred to within OIPR as "the program."

The program was in fact a wide range of covert surveillance activities  
authorized by President Bush in the aftermath of 9/11. At that time,  
White House officials, led by Vice President Dick Cheney, had become  
convinced that FISA court procedures were too cumbersome and time- 
consuming to permit U.S. intelligence and law-enforcement agencies to  
quickly identify possible Qaeda terrorists inside the country.  
(Cheney's chief counsel, David Addington, referred to the FISA court  
in one meeting as that "obnoxious court," according to former  
assistant attorney general Jack Goldsmith.) Under a series of secret  
orders, Bush authorized the NSA for the first time to eavesdrop on  
phone calls and e-mails between the United States and a foreign  
country without any court review. The code name for the NSA collection  
activities—unknown to all but a tiny number of officials at the White  
House and in the U.S. intelligence community—was "Stellar Wind."

The NSA identified domestic targets based on leads that were often  
derived from the seizure of Qaeda computers and cell phones overseas.  
If, for example, a Qaeda cell phone seized in Pakistan had dialed a  
phone number in the United States, the NSA would target the U.S. phone  
number—which would then lead agents to look at other numbers in the  
United States and abroad called by the targeted phone. Other parts of  
the program were far more sweeping. The NSA, with the secret  
cooperation of U.S. telecommunications companies, had begun collecting  
vast amounts of information about the phone and e-mail records of  
American citizens. Separately, the NSA was also able to access, for  
the first time, massive volumes of personal financial records—such as  
credit-card transactions, wire transfers and bank withdrawals—that  
were being reported to the Treasury Department by financial  
institutions. These included millions of "suspicious-activity  
reports," or SARS, according to two former Treasury officials who  
declined to be identified talking about sensitive programs. (It was  
one such report that tipped FBI agents to former New York governor  
Eliot Spitzer's use of prostitutes.) These records were fed into NSA  
supercomputers for the purpose of "data mining"—looking for links or  
patterns that might (or might not) suggest terrorist activity.

But all this created a huge legal quandary. Intelligence gathered by  
the extralegal phone eavesdropping could never be used in a criminal  
court. So after the NSA would identify potential targets inside the  
United States, counterterrorism officials would in some instances try  
to figure out ways to use that information to get legitimate FISA  
warrants—giving the cases a judicial stamp of approval.

It's unclear to what extent Tamm's office was aware of the origins of  
some of the information it was getting. But Tamm was puzzled by the  
unusual procedures—which sidestepped the normal FISA process—for  
requesting wiretaps on cases that involved program intelligence. He  
began pushing his supervisors to explain what was going on. Tamm says  
he found the whole thing especially curious since there was nothing in  
the special "program" wiretap requests that seemed any different from  
all the others. They looked and read the same. It seemed to Tamm there  
was a reason for this: the intelligence that came from the program was  
being disguised. He didn't understand why. But whenever Tamm would ask  
questions about this within OIPR, "nobody wanted to talk about it."

At one point, Tamm says, he approached Lisa Farabee, a senior counsel  
in OIPR who reviewed his work, and asked her directly, "Do you know  
what the program is?" According to Tamm, she replied: "Don't even go  
there," and then added, "I assume what they are doing is illegal."  
Tamm says his immediate thought was, "I'm a law-enforcement officer  
and I'm participating in something that is illegal?" A few weeks later  
Tamm bumped into Mark Bradley, the deputy OIPR counsel, who told him  
the office had run into trouble with Colleen Kollar-Kotelly, the chief  
judge on the FISA court. Bradley seemed nervous, Tamm says. Kollar- 
Kotelly had raised objections to the special program wiretaps, and  
"the A.G.-only cases are being shut down," Bradley told Tamm. He then  
added, "This may be [a time] the attorney general gets indicted,"  
according to Tamm. (Told of Tamm's account, Justice spokesman Boyd  
said that Farabee and Bradley "have no comment for your story.")

One official who was aware of Kollar-Kotelly's objections was U.S.  
Judge Royce C. Lamberth, a former chief of the FISA court. Lamberth  
tells NEWSWEEK that when the NSA program began in October 2001, he was  
not informed. But the then chief of OIPR, James Baker, discovered  
later that year that program intelligence was being used in FISA  
warrants—and he raised concerns. At that point, Lamberth was called in  
for a briefing by Ashcroft and Gen. Michael Hayden, the NSA chief at  
the time. Lamberth made clear to Ashcroft that NSA program  
intelligence should no longer be allowed in any FISA warrant  
applications without his knowledge. If it did appear, Lamberth warned,  
he would be forced to rule on the legality of what the administration  
was doing, potentially setting off a constitutional clash about the  
secret program.

Lamberth stepped down as chief FISA judge when his term ended in May  
2002, but Kollar-Kotelly asked him to continue as an adviser about  
matters relating to the program. In early 2004, Kollar-Kotelly thought  
something was amiss. According to Lamberth, she had concerns that the  
intelligence community, after collecting information on U.S. citizens  
without warrants, was again attempting to launder that intelligence  
through her court—without her knowledge. She "had begun to suspect  
that they were back-dooring information from the program into" FISA  
applications, Lamberth tells NEWSWEEK. Kollar-Kotelly drew the line  
and wouldn't permit it. "She was as tough as I was," says Lamberth,  
who had once barred a top FBI agent from his court when he concluded  
the bureau hadn't been honest about FISA applications. "She was going  
to know what she was signing off on before she signed off … I was  
proud of her." (Kollar-Kotelly declined to speak with NEWSWEEK.)

Unbeknownst to Tamm, something else was going on at the Justice  
Department during this period. A new assistant attorney general, a law  
professor named Jack Goldsmith, had challenged secret legal opinions  
justifying the NSA surveillance program. (The controversial opinions,  
written by a young and very conservative legal scholar named John Yoo,  
had concluded that President Bush had broad executive authority during  
wartime to override laws passed by Congress and order the surveillance  
of U.S. citizens.) James Comey, the deputy attorney general, had  
agreed with Goldsmith and refused to sign off on a renewal of the  
domestic NSA program in March 2004. Attorney General Ashcroft was in  
the hospital at the time. The White House first tried to get an  
extremely ill Ashcroft, drugged and woozy, to overrule Comey, and  
then, after he refused, President Bush ordered the program to continue  
anyway. Comey, in turn, drafted a resignation letter. He described the  
situation he was confronting as "apocalyptic" and then added, "I and  
the Justice Department have been asked to be part of something that is  
fundamentally wrong," according to a copy of the letter quoted in  
"Angler," a book by Washington Post reporter Barton Gellman.

Tamm—who had no knowledge of the separate rebellion within the ranks  
of the Justice Department—decided independently to get in touch with  
Sandra Wilkinson, a former colleague of his on the Capital Case Unit  
who had been detailed to work on the Senate Judiciary Committee. He  
met with Wilkinson for coffee in the Senate cafeteria, where he laid  
out his concerns about the program and the unusual procedures within  
OIPR. "Look, the government is doing something weird here," he recalls  
saying. "Can you talk to somebody on the intelligence committee and  
see if they know about this?"

Some weeks passed, and Tamm didn't hear back. So he e-mailed Wilkinson  
from his OIPR computer (not a smart move, he would later concede) and  
asked if they could get together again for coffee. This time, when  
they got together, Wilkinson was cool, Tamm says. What had she learned  
about the program? "I can't say," she replied and urged him to drop  
the subject. "Well, you know, then," he says he replied, "I think my  
only option is to go to the press." (Wilkinson would not respond to  
phone calls from NEWSWEEK, and her lawyer says she has nothing to say  
about the matter.)

The next few weeks were excruciating. Tamm says he consulted with an  
old law-school friend, Gene Karpinski, then the executive director of  
a public-interest lobbying group. He asked about reporters who might  
be willing to pursue a story that involved wrongdoing in a national- 
security program, but didn't tell him any details. (Karpinski, who has  
been questioned by the FBI and has hired a lawyer, declined to  
comment.) Tamm says he initially considered contacting Seymour Hersh,  
the investigative reporter for The New Yorker, but didn't know where  
to reach him. He'd also noticed some strong stories by Eric Lichtblau,  
the New York Times reporter who covered the Justice Department—and  
with a few Google searches tracked down his phone number.

Tamm at this point had transferred out of OIPR at his own initiative,  
and moved into a new job at the U.S. Attorney's Office. He says he  
"hated" the desk work at OIPR and was eager to get back into the  
courtroom prosecuting cases. His new offices were just above  
Washington's Judiciary Square Metro stop. When he went to make the  
call to the Times, Tamm said, "My whole body was shaking." Tamm  
described himself to Lichtblau as a "former" Justice employee and  
called himself "Mark," his middle name. He said he had some  
information that was best discussed in person. He and Lichtblau  
arranged to meet for coffee at Olsson's, a now shuttered bookstore  
near the Justice Department. After Tamm hung up the phone, he was  
struck by the consequences of what he had just done. "Oh, my God," he  
thought. "I can't talk to anybody about this." An even more terrifying  
question ran through his mind. He thought back to his days at the  
capital-case squad and wondered if disclosing information about a  
classified program could earn him the death penalty.

In his book, "Bush's Law: The Remaking of American Justice," Lichtblau  
writes that he first got a whiff of the NSA surveillance program  
during the spring of 2004 when he got a cold call from a "walk-in"  
source who was "agitated about something going on in the intelligence  
community." Lichtblau wrote that his source was wary at first. The  
source did not know precisely what was going on—he was, in fact,  
maddeningly vague, the reporter wrote. But after they got together for  
a few meetings ("usually at a bookstore or coffee shops in the shadows  
of Washington's power corridors") his source's "credibility and his  
bona fides became clear and his angst appeared sincere." The source  
told him of turmoil within the Justice Department concerning  
counterterrorism operations and the FISA court. "Whatever is going on,  
there's even talk Ashcroft could be indicted," the source told  
Lichtblau, according to his book.

Tamm grew frustrated when the story did not immediately appear. He was  
hoping, he says, that Lichtblau and his partner Risen (with whom he  
also met) would figure out on their own what the program was really  
all about and break it before the 2004 election. He was, by this time,  
"pissed off" at the Bush administration, he says. He contributed $300  
to the Democratic National Committee in September 2004, according to  
campaign finance records.

It wasn't until more than a year later that the paper's executive  
editor, Bill Keller, rejecting a personal appeal and warning by  
President Bush, gave the story a green light. (Bush had warned  
"there'll be blood on your hands" if another attack were to occur.)  
BUSH LETS U.S. SPY ON CALLERS WITHOUT COURTS, read the headline in the  
paper's Dec. 16, 2005, edition. The story—which the Times said relied  
on "nearly a dozen current and former officials"—had immediate  
repercussions. Democrats, including the then Sen. Barack Obama,  
denounced the Bush administration for violating the FISA law and  
demanded hearings. James Robertson, one of the judges on the FISA  
court, resigned. And on Dec. 30, the Justice Department announced that  
it was launching a criminal investigation to determine who had leaked  
to the Times.

Not long afterward, Tamm says, he started getting phone calls at his  
office from Jason Lawless, the hard-charging FBI agent in charge of  
the case. The calls at first seemed routine. Lawless was simply  
calling everybody who had worked at OIPR to find out what they knew.  
But Tamm ducked the calls; he knew that the surest way to get in  
trouble in such situations was to lie to an FBI agent. Still, he grew  
increasingly nervous. The calls continued. Finally, one day, Lawless  
got him on the phone. "This will just take a few minutes," Lawless  
said, according to Tamm's account. But Tamm told the agent that he  
didn't want to be interviewed—and he later hired a lawyer. (The FBI  
said that Lawless would have no comment.)

In the months that followed, Tamm learned he was in even more trouble.  
He suspected the FBI had accessed his former computer at OIPR and  
recovered the e-mail he had sent to Wilkinson. The agents tracked her  
down and questioned her about her conversations with Tamm. By this  
time, Tamm was in the depths of depression. He says he had trouble  
concentrating on his work at the U.S. Attorney's Office and ignored  
some e-mails from one of his supervisors. He was accused of botching a  
drug case. By mutual agreement, he resigned in late 2006. He was out  
of a job and squarely in the sights of the FBI. Nevertheless, he began  
blogging about the Justice Department for liberal Web sites.

Early on the morning of Aug. 1, 2007, 18 FBI agents—some of them  
wearing black flak jackets and carrying guns—showed up unannounced at  
Tamm's redbrick colonial home in Potomac, Md., with a search warrant.  
While his wife, wearing her pajamas, watched in horror, the agents  
marched into the house, seized Tamm's desktop computer, his children's  
laptops, his private papers, some of his books (including one about  
Deep Throat) and his family Christmas-card list. Terry Tamm, the  
lawyer's college-age son, was asleep at the time and awoke to find FBI  
agents entering his bedroom. He was escorted downstairs, where, he  
says, the agents arranged him, his younger sister and his mother  
around the kitchen table and questioned them about their father.  
(Thomas Tamm had left earlier that morning to drive his younger son to  
summer school and to see a doctor about a shoulder problem.) "They  
asked me questions like 'Are there any secret rooms or compartments in  
the house'?" recalls Terry. "Or did we have a safe? They asked us if  
any New York Times reporters had been to the house. We had no idea why  
any of this was happening." Tamm says he had never told his wife and  
family about what he had done.

After the raid, Justice Department prosecutors encouraged Tamm to  
plead guilty to a felony for disclosing classified information—an  
offer he refused. More recently, Agent Lawless, a former prosecutor  
from Tennessee, has been methodically tracking down Tamm's friends and  
former colleagues. The agent and a partner have asked questions about  
Tamm's associates and political meetings he might have attended,  
apparently looking for clues about his motivations for going to the  
press, according to three of those interviewed.

In the meantime, Tamm lives in a perpetual state of limbo, uncertain  
whether he's going to be arrested at any moment. He could be charged  
with violating two laws, one concerning the disclosure of information  
harmful to "the national defense," the other involving "communications  
intelligence." Both carry penalties of up to 10 years in prison. "This  
has been devastating to him," says Jeffrey Taylor, an old law-school  
friend of Tamm's. "It's just been hanging over his head for such a  
long time … Sometimes Tom will just zone out. It's like he goes off in  
a special place. He's sort of consumed with this because he doesn't  
know where it's going."

Taylor got a few clues into what the case was about last September  
when Agent Lawless and a partner visited him. The FBI agents sat in  
his office for more than an hour, asking what he knew about Tamm. The  
agents even asked about Tamm's participation in a political lunch  
group headed by his former boss, Andrew Sonner, that takes place once  
a month at a Rockville, Md., restaurant. "What does that have to do  
with anything?" Taylor asked.

Agent Lawless explained. "This kind of activity"—leaking to the news  
media—"can be motivated by somebody who is a do-gooder who thinks that  
something wrong occurred," Lawless said, according to Taylor. "Or it  
could be politically motivated by somebody who wants to cause harm."  
If it was the former—if Tamm was a "do-gooder"—the government could  
face a problem if it tried to bring a case to trial. The jurors might  
sympathize with Tamm and "you'd face jury nullification," said  
Lawless, according to Taylor, referring to a situation in which a jury  
refuses to convict a defendant regardless of the law.

Just this month, Lawless and another agent questioned Sonner, the  
retired judge who had served as a mentor to Tamm. The agents wanted to  
know if Tamm had ever confided in Sonner about leaking to the Times.  
Sonner said he hadn't, but he told the agents what he thought of their  
probe. "I told them I thought operating outside of the FISA law was  
one of the biggest injustices of the Bush administration," says  
Sonner. If Tamm helped blow the whistle, "I'd be proud of him for  
doing that."

Paul Kemp, one of Tamm's lawyers, says he was recently told by the  
Justice Department prosecutor in charge of Tamm's case that there will  
be no decision about whether to prosecute until next year—after the  
Obama administration takes office. The case could present a dilemma  
for the new leadership at Justice. During the presidential campaign,  
Obama condemned the warrantless-wiretapping program. So did Eric  
Holder, Obama's choice to become attorney general. In a tough speech  
last June, Holder said that Bush had acted "in direct defiance of  
federal law" by authorizing the NSA program.

Tamm's lawyers say his case should be judged in that light. "When I  
looked at this, I was convinced that the action he took was based on  
his view of a higher responsibility," says Asa Hutchinson, the former  
U.S. attorney in Little Rock and under secretary of the Department of  
Homeland Security who is assisting in Tamm's defense. "It reflected a  
lawyer's responsibility to protect the rule of law." Hutchinson also  
challenged the idea—argued forcefully by other Bush administration  
officials at the time—that The New York Times story undermined the war  
on terror by tipping off Qaeda terrorists to surveillance. "Anybody  
who looks at the overall result of what happened wouldn't conclude  
there was any harm to the United States," he says. After reviewing all  
the circumstances, Hutchinson says he hopes the Justice Department  
would use its "discretion" and drop the investigation. In judging  
Tamm's actions—his decision to reveal what little he knew about a  
secret domestic spying program that still isn't completely known—it  
can be hard to decipher right from wrong. Sometimes the thinnest of  
lines separates the criminal from the hero.
URL: http://www.newsweek.com/id/174601