After ruining his career, U.S. DOJ drops charges against whistleblower

April 30, 2011 | By | Reply More

In 2004, Thomas Tamm decided to expose the Bush administration’s domestic warrantless eavesdropping program that intercepted private email messages and phone calls of U.S. residents without a court warrant. He paid a high price for making this illegal program public, and now the federal investigation against him has been quietly dropped. This latest development has been covered by Juan Gonzalez and Amy Goodman of Democracy Now, and includes an interview of Mr. Tamm:

JUAN GONZALEZ: We turn now to an update on the whistleblower who helped expose the Bush administration’s warrantless domestic eavesdropping program. He made what’s been called the biggest leak of the Bush era.

In 2004, Justice Department attorney Thomas Tamm called the New York Times and told them about the National Security Agency’s secret program to intercept private email messages and phone calls of U.S. residents without a court warrant. Based in part on his tip, the Times went on to expose what many believe was a highly illegal program. The Times even won a Pulitzer Prize for its reporting. Meanwhile, Thomas Tamm lost his job. The FBI raided his house and began monitoring his phone calls and email. Up until this week, he faced possible arrest for disclosing classified secrets.

AMY GOODMAN: Well, on Tuesday, Politico broke the news that the Justice Department has dropped its longstanding criminal investigation of Tamm. Asked to comment on the story, Attorney General Eric Holder told reporters, quote, “These matters get reviewed by career lawyers in the department. They look at these matters in an exhaustive fashion and reach what I think are appropriate conclusions.”

The relatively quiet end to the investigation into Tamm’s warrantless wiretapping leak marks a sharp contrast to the controversy his tip generated during the second half of the Bush administration about whether the government had overstepped its legal authority in response to the 9/11 terror attacks.

Thomas Tamm joins us now from Washington, D.C. We welcome you back to the program.

THOMAS TAMM: Thank you for inviting me.

AMY GOODMAN: Well, talk about what this means and what this investigation, your ouster from the Justice Department, what all of this has meant for your life over the past five years.

THOMAS TAMM: Well, I mean, it’s a relief that the long ordeal is over. Unfortunately, I ruined my career. I had loved working at the Justice Department, particularly in the Criminal Division. It was an honor to represent the people of the United States. As a result of that, I incurred significant legal fees, which I still owe. I borrowed money for those legal fees. And, you know, really, probably the biggest impact was on my family. I wasn’t home when the 18 FBI agents rammed through my house, but my wife was, and my kids were. My kids were awakened in their beds by strangers wearing guns. And I don’t think that they will ever get over that. My wife doesn’t feel the same way about our house, doesn’t feel as safe in our house.

AMY GOODMAN: Could you go back, just chronologically take us through this? Your case did not get a tremendous amount of attention, certainly through the years. So talk about what you found out when you were working in the Justice Department, when you made that phone call to the Times, and how this raid took place. But start at the beginning.

THOMAS TAMM: Well, it really kind of started with me after 9/11. In the Criminal Division, we had the opportunity to talk to the families of the 9/11 attack, and I decided that I wanted to try and go after the real bad guys, the people that had attacked our country. And so, I went to this office where you were—where we did legal wiretapping and electronic surveillance, approved by a court, to try and gain intelligence about foreign agents. I was there only a short period of time. It was right at the start of the Iraq war, and fear permeated that office. And it was—I think for the first time I understood what fear, “the only thing we have to fear is fear itself,” actually meant.

And as I participated in that, I realized that there was a separate track of cases, about 10 percent of the cases, that did not go through the normal process, that went to just one particular judge. And only the Attorney General could sign those warrants, which was different from all of the other cases that I handled. And I remember a lawyer that was senior to me saying that she didn’t want to know what this program was. She just assumed it was illegal. And so, I just started—it was kind of an educated guess.

And, you know, it’s interesting to say that I made a phone call to the New York Times. Actually, it was a series of phone calls before I became comfortable even talking to them, and then it was a series of meetings, during which I said, “I think that there’s something illegal going on. I’m not sure what it is.” And they revealed to me that they had other sources that were also saying the same things from the NSA and the CIA. And they told me that I was their only source from the Department of Justice.

[This interview continues at Democracy Now]

Also included in this interview is discussion (at the 33 minute mark of the video) of the fact that the New York Times collaborated with the Bush White House, agreeing  to hold off running this story for more than a year, December, 2005, well after the election, which enabled George W. Bush to completely avoid this issue during his campaign.  The NYT only published it after James Risen told the NYT that he was going to reveal this scheme in his forthcoming book.

Tamm also commented on what was illegal about Bush’s wire-tapping program:

it’s absolutely clear: using strict construction of the law, the law that we worked under said it was a federal felony for anyone to conduct electronic surveillance without going through the FISA court. That’s what it said. It did not have an exception for the president. It didn’t have an exception for time of war. It said anyone who does this without a warrant is guilty of a felony.
And for myself, I think the real story here is that we don’t know the number of Americans whose phones were tapped. We don’t know what happened with that information. And I think those people are entitled to know that their information was seized. And I think people ought to be prosecuted for violating the law. . . I think it’s outrageous that there was retroactive immunity. The telecoms and the Department of Justice worked every day with legally and lawfully getting these wiretaps approved by the FISA court. They knew what the law was. They employed very sharp and expensive lawyers to advise them. And I am heartened that there is a case in the system now where some plaintiffs have shown that they have standing to challenge their belief that they were wiretapped. . .

I don’t think those people have been notified. The FISA statute actually contains language that says if we have gone up on—in an emergency situation, on somebody’s phone, we have 72 hours to present that information to a judge to basically get it approved. If that judge said that we did not have probable cause, we were obligated by the statute to notify the person who was wiretapped and tell them that in fact their communications were seized. And I believe that that should—that should happen to all the people that got wiretapped due to warrantless wiretapping.

And Amy, you’re absolutely right. This is what the law was about, was because of the Nixon abuses, because Martin Luther King was wiretapped by the FBI, you know, peace activists were wiretapped by the FBI. That is why we had that statue. And I believe, again, we have seen an abuse of executive authority.


Consider also, Amy Goodman’s comments regarding circumstances by which immunity has been granted to the telecoms by President Obama:

And I remember well the whole issue of the telecoms, like Verizon and AT&T, being involved with this warrantless wiretapping, and at the time Senator Obama said he would filibuster any attempt to give them retroactive immunity. He not only didn’t filibuster, but ultimately—and it was soon before the Democratic National Convention where he was nominated for—to be the presidential candidate—he not only didn’t filibuster, he supported the retroactive immunity to the telecoms. And as we got into Denver for the Democratic convention, AT&T logos were emblazoned on every delegate’s bag of the DNC.

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Category: Corruption, Heroes, Privacy, Secrecy, Whistle-blowers

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

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