Three years after the New York Times first revealed the Bush administration's program of illegal domestic surveillance by the NSA, whistleblower Tho
December 14, 2008


Three years after the New York Times first revealed the Bush administration's program of illegal domestic surveillance by the NSA, whistleblower Thomas Tamm has acknowledged his role in making public the President's lawbreaking. In its expose Sunday, Newsweek details how the former Justice Department official came to discover the White House's violations of the FISA law and reluctantly decided to turn to the Times. Whether or not Tamm is ultimately arrested for his revelations, the same voices in President Bush's amen corner that rallied to the defense of Scooter Libby will renew their call for the prosecution of both Tamm and the New York Times.

Tamm's public admission comes 18 months after the FBI first raided his home, confiscating personal files and computers. At the very moment the Democratic Congress in August 2007 was voting to codify President Bush's years-long criminal surveillance of American citizens, the net was closing around the man who helped bring it to the nation's attention.

While at the Office of Intelligence Policy and Review (OIPR), Tamm stumbled upon the existence of Bush's program of warrantless eavesdropping on the international phone calls and emails of Americans which began just after the 9/11 attacks. The administration was not merely circumventing the legal requirement for approval by the Foreign Intelligence Surveillance Act (FISA) courts, but subsequently laundering the intelligence gathered to "get legitimate FISA warrants - giving the cases a judicial stamp of approval."

In the spring of 2004, a frustrated Tamm finally took action:

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.

For its part, the New York Times did not publish the story until December 2005. The authors, James Risen and Eric Lichtblau (who claimed to have over a dozen confidential sources for his reporting) finally saw their investigation appear in print despite warnings from President Bush to editor Bill Keller that "there'll be blood on your hands" if another terrorist attack were to occur.

As for Tamm, he is no longer with the Justice Department and remains under a cloud of suspicion and possible indictment. One FBI agent involved in the investigation told one of Tamm's colleagues that a prosecution may hinge on whether the one-time college Young Republican turned 2004 Democratic campaign contributor was "a do-gooder who thinks that something wrong occurred" or "politically motivated by somebody who wants to cause harm." Either way, that decision will ironically fall to the new Obama administration. As Newsweek noted:

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.

As for Obama's opponents, there can be little doubt where they stand. On December 19th, 2005, President Bush raged about what he deemed "a shameful act" that is "helping the enemy". Ever since, the same mouthpieces on the right who vigorously defended Scooter Libby over the outing of covert CIA operative Valerie Plame as payback for husband Joe Wilson's criticism of Bush's bogus Iraq claims have called for the prosecution of not just Tamm, but the New York Times itself. Over at Commentary, the Weekly Standard (here and here) and today at Powerline, the drumbeat continues.

Asa Hutchison, the former U.S. attorney in Little Rock and under secretary of the Department of Homeland Security who is assisting in Tamm's defense said of him:

"When I looked at this, I was convinced that the action he took was based on his view of a higher responsibility."

Ironically, Hutchison's words about Thomas Tamm appeared the same week President Bush awarded the Presidential Citizens Medal to Chuck Colson. That would be the same convicted Watergate felon and the "evil genius" behind defaming Daniel Ellsberg and the plot to firebomb the Brookings Institution. Learning the identity of the legendary Watergate whistleblower "Deep Throat" three years ago, the medal-winning Colson scoffed that "Mark Felt could have stopped Watergate," adding, "Instead, he goes out and basically undermines the administration."

(This piece is also crossposted at Perrspectives.)

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