[Infowarrior] - NSA Wiretapping: The Fed Who Blew the Whistle
Richard Forno
rforno at infowarrior.org
Mon Dec 15 02:45:02 UTC 2008
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
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