Leadership for Intelligence Professionals   

The Story of an Intelligence Professional Speaking Out

Career Background

Thomas M. Tamm was a lawyer and a career employee of the Department of Justice. 

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. Attorney’s Offices and make recommendations about whether the government should seek execution.  Tamm would regularly attended meetings with Attorney General Janet Reno, who was known for asking tough questions-a rigorous approach that Tamm admired….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…Tamm became disaffected.  The Justice Department began to encourage U.S. attorneys to seek the death penalty in as many cases as possible….Ashcroft approved them with little, if any, challenge.  “It became a rubber stamp.” Tamm says.  This bothered him….

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…who officials initially (and wrongly) believed to be the 20 th 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 Tam 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 unity 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….

The Suspicion of Something Illegal or Unethical

He had a Sensitive Compartmented Information security clearance, a level above Top Secret….

In the Spring of 2004, Tamm had just finished a yearlong stint…at a unit handling wiretaps of suspected terrorists and spies….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….

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.”

 When Tamm started asking questions, his supervisors told him to drop the subject.

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 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….

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….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….after he refused, President Bush ordered the program to continue anyway.  Comey, in turn, drafted a resignation letter….(James Comey…together with FBI head Robert Mueller and several other senior Justice officials threatened to resign.) 

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 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….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.”

Speaking Out

For weeks, Tamm couldn’t sleep….Tamm at this point transferred out of OIPR at his own initiative, and moved into a new job at the U.S. Attorney’s Office…..  The idea of lawlessness at the Justice Department angered him.  Finally one day during his lunch hour….he picked up the phone and called The New York Times….“My whole body was shaking.”  Tamm described himself…as a “former” justice employee and called himself “Mark”, his middle name.  He said he had some information best discussed in person…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.”

That one call began a series of events that would engulf Washington---and upend Tamm’s life….Tamm grew frustrated when the story did not immediately appear….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….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….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 Consequences

….The New York Times won a Pulitzer Prize for its story.  The two reporters who worked on it each published books….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….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….But Tamm ducked the calls….Still he grew increasingly nervous.  The calls continued.  Finally, one day Lawless got him on the phone….But Tamm told the agent he didn’t want to be interviewed—and he later hired a lawyer.

In the months that followed, Tamm learned he was in even in more trouble.  He suspected the FBI had accessed his former computer at OIPR and recovered the e-mail he 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…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.

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…home…with a search warrant….the agents marched into the house, seized Tamm’s desktop computer, his children’s laptops, his private papers, some of his books….

After the raid, Justice Department prosecutors encouraged Tamm to plead guilty to a felony for discussing classified information—an offer he refused. More recently, Agent Lawless…has been metodically tracking down Tamm’s friends and former colleagues.

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 security”, the other involving “communications intelligence”.  Both carry up to 10 years in prison.  

The Rationale

Exhausted by the uncertainty clouding his life, Tamm is now telling his story….  “ I though this [secret program] was something the other branches of government—and the public—ought to know about.  So they could decide: do they want this massive spying program to be taking place?”…. “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 … 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 details of the program.  All he knew was that a domestic surveillance program existed, and I didn’t smell right.”….

….He also realizes that 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…. “I guess I’m not a very good criminal,” he jokes.

….”I didn’t think through what this could do to my family he says.

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 chose what I did.  I believed in what I did.” 

Right or Wrong?

Some Americans will view him as a hero….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 counter terrorism advisor. 

…the Justice Department prosecutor in charge of Tamm’s case [said] that there will be no decision about whether to prosecute until next year [2009]-after the Obama administration takes office….During the presidential campaign, Obama condemned the warrantless wiretapping program.  So did Eric Holder, Obama’s choice to become attorney general.

Caution is Warranted

Tamm’s story is in part a cautionary tale about the perils that can face all whistleblowers, especially those involved in national-security programs….

…Sometimes the thinnest of lines separates the criminal from the hero.

Extracted and reorganized for content, brevity and continuity from “The Fed Who Blew the Whistle” by Michael Isikoff in Newsweek December 22, 2008.  For more information see the books  Bush’s Law: The Remaking of American Justice  by Eric Lichtblau and  The Shadow Factory: The Ultra Secret NSA from 9/11 to the Eavesdropping on America by James Banford.