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—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."
If you're a reader of this blog, you are almost certainly familiar with the article the NY Times published based on Tamm's leaks, the gist of which was that the NSA was conducting warrantless domestic surveillance on the communications of Americans, in defiance of FISA provisions that require a court order to conduct such surveillance. This program was later largely ratified by the Protect American Act of 2007, but for a time the program operated in contravention to FISA requirements, which provide for criminal penalties for violations of its provisions.
The wiretapping is not the only program to come to light over the last few years. Though it has received exhaustive attention thanks largely to NY Times bombshell and accompanying media attention, there has long been suspicion surrounding an even more secret NSA program that is alleged to have collected massive amounts of data about the communications of ordinary Americans in a "data mining" operation, whose purpose was to discover a pattern of activities that could reveal planning of terrorist attacks. Another Newsweek story confirms and provides some limited detail about the existence of this program:
...These sources, who asked not to be named discussing intelligence matters, describe a system in which the National Security Agency, with cooperation from some of the country's largest telecommunications companies, was able to vacuum up the records of calls and e-mails of tens of millions of average Americans between September 2001 and March 2004. The program's classified code name was "Stellar Wind," though when officials needed to refer to it on the phone, they called it "SW." (The NSA says it has "no information or comment"; a Justice Department spokesman also declined to comment.)
The NSA's powerful computers became vast storehouses of "metadata." They collected the telephone numbers of callers and recipients in the United States, and the time and duration of the calls. They also collected and stored the subject lines of e-mails, the times they were sent, and the addresses of both senders and recipients. By one estimate, the amount of data the NSA could suck up in close to real time was equivalent to one quarter of the entire Encyclopaedia Britannica per second. (The actual content of calls and e-mails was not being monitored as part of this aspect of the program, the sources say.) All this metadata was then sifted by the NSA, using complex algorithms to detect patterns and links that might indicate terrorist activity.
This was the program that resulted in the dramatic standoff in John Ashcroft's hospital room in early 2004, when Ashcroft refused to recertify the program given its blatantly illegal nature. This is the story detailed in Barton Gellman's book "Angler", excerpts of which provide the basis for these Washington Post articles which describe in more detail the "rebellion" in the DOJ, FBI and intelligence agencies over the program. The program was shuttered by President Bush as a result, but not before operating for 2 1/2 years illegally. To this day we are not aware of the details or extent of the program, the fate of the data the NSA collected, or what that data was used for (more "laundered" wiretap requests perhaps, as described in the article on Tamm?)
Tamm exposed himself to criminal charges by leaking information about the warrantless wiretapping program to the NY Times. Despite the fact that to some this makes him a traitor to our country, it is unlikely that he'll face charges under the incoming Obama administration. Unfortunately, it is also unlikely that those who worked on or authorized this program will face criminal charges, despite the fact that FISA provides for them. Like some I consider it important to finally understand the totality of the NSA's programs, and am (very reluctantly) willing to let members of the Bush administration off of the hook if it permits the Obama administration to focus on things we should be doing right now. This is a concessions to pragmatism that certainly does not change the fact that I believe some members of the Bush administration should be tried for crimes against our nation.
And though I've said this at least a hundred times here and elsewhere, I do not believe it is an excuse that members of the Bush administration from the President on down were simply doing their best to protect the American public from terrorism. I give them a lot of leeway for erring on the side of caution in some respects, but it is quite clear at this point that the Bush administration broke the law because it was inconvenient to expend the political capital necessary to have the law changed, and this changes nothing about the fact that power utilized in secret will inevitably be abused and so should be avoided whenever possible.