'A Ton More People Were Wiretapped Than We've Been Led to Believe': FBI Whistleblower Thomas Tamm
This week the New York Times revealed that the National Security Agency has continued spying on Americans well into the Obama era, with government officials listening in on phone conversations and monitoring e-mails on a massive scale.
Times reporters James Risen and Eric Lichtblau -- who broke the story of the Bush administration's domestic spying program in December 2004 -- reported that "in recent months," the NSA has engaged in an "overcollection" of domestic communication, far exceeding the already broad legal limits Congress established when it passed legislation to legalize the Bush administration's warrantless surveillance program and granting immunity for the telecoms that enabled it.
The same article reveals that in 2005 or 2006, the NSA attempted to wiretap an unidentified member of Congress, lending further credence to speculation earlier this year by Sen. Jay Rockefeller, D-W.V., that he might have been spied on.
For many who have followed the long political saga that saw warrantless wiretapping revealed, debated and ultimately legalized at the hands of Congress, this report comes as no surprise.
"Everyone knew that the FISA bill, which congressional Democrats passed -- and which George Bush and Dick Cheney celebrated -- would enable these surveillance abuses," Glenn Greenwald wrote after the story broke.
Nevertheless, for many people it may come as a shock that nearly 4 1/2 years after the illegal program was uncovered, not only has the government continued to spy on Americans with total impunity, most of the details of Bush's warrantless wiretapping scheme remain a mystery.
"What really concerns me is that we still don't know the truth," Thomas Tamm, a former FBI official told me. "We do not know what they did."
Tamm should know. He is the person who blew the whistle on the NSA spying program, a former employee of the Office of Intelligence Policy and Review, a highly sensitive unit of the Justice Department. He remained anonymous for years, until his identity was revealed in a front-page story by Newsweek reporter Michael Isikoff late last year.
The article described how Tamm, a veteran employee of the FBI, came across proof that the U.S. government had been unlawfully eavesdropping on Americans by intercepting domestic communications.
"The idea of lawlessness at the Justice Department angered him," Isikoff wrote. After many sleepless nights and frustrating conversations with his superiors -- "supervisors told him to drop the subject" -- he decided he could no longer keep the abuse to himself.
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.
What Tamm revealed would not be reported for a year-and-a-half, when Risen and Litchblau published their now-famous front page story. They went on to win the Pulitzer Prize. Meanwhile, Tamm "has not fared as well."
"The FBI has pursued him relentlessly for the past 2 1/2 years," Isikoff wrote. "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."
Tamm remains in a sort of legal limbo, with the Department of Justice informing him that no decision on whether to prosecute him would be made until Barack Obama took office. Four months into Obama's term, however, Tamm has not heard anything.
Meanwhile, the Obama administration has blocked efforts by civil-liberties organizations to hold accountable those who unlawfully spied on Americans, even as more details have emerged revealing the broad targets of the NSA program, which included journalists and even members of Congress.
Earlier this month, Obama administration lawyers invoked the "state secrets" privilege to block a lawsuit on behalf of five AT&T customers "to stop the illegal, unconstitutional and ongoing dragnet surveillance of their communications and communications records," according to Electronic Frontier Foundation, the civil-liberties organization that brought forth the suit.
Cindy Cohn, legal director of EFF, called the legal filing by Obama's DOJ "very significant."
"This is the sort of disdain for the rule of law and the role of the courts that he campaigned against," she said via e-mail. "In our case, we have no reason to believe that the warrantless wiretapping has ended, so at some point we have to call it Obama's warrantless wiretapping."
I spoke to Tamm over the phone last week, only hours before the New York Times broke its story and the same week that he was awarded the Ridenhour Prize for Truth-Telling, an award that honors whistle-blowers whose work has helped to "protect the public interest, promote social justice or illuminate a more just vision of society."
Liliana Segura: You come from a long line of FBI officials and grew up with the bureau as a familiar entity -- and the Newsweek article describes you as being sort of disaffected before you discovered the NSA wiretapping program. What was it about the Bush administration that represented the most egregious violation? Was there a particular moment where you felt that you had to break your silence?
Thomas Tamm: Yes. I was disillusioned with the way that the death penalty was being administered, the change from the Reno administration to the Ashcroft administration. [Editor’s Note: Under Attorney General John Ashcroft, the Justice Department encouraged U.S. attorneys to seek the death penalty as often as possible, reducing Tamm's office, the Justice Department's Capital Case Unit, which reviewed and made recommendations regarding capital cases at the federal level to "a rubber stamp," as he told Isikoff.]
When I was assigned to that unit, I had the privilege of meeting with some of the 9/11 families, and I just felt like I wanted to go after the person who had done that to 3,000 of our fellow citizens.
I was reviewing classified CIA cables [about the 9/11 plot], and I was reading cables about rendition -- people going off to Saudi Arabia or Egypt or wherever -- and the implicit understanding was that they were being sent there to be tortured.
And then I heard our government and the president saying that we don't send people to be tortured. Well, I knew that to be a bald-faced lie.
When I [transferred to the Office of Intelligence Policy and Review] and started doing the wiretapping, where I thought I was going to be contributing to going after al-Qaida, there were just so many tangential, inconsequential people who were tapped, and -- I kind of sniffed out the fact that there was this illegal program going on.
And I said, "Well, they're lying about the rendition; they're lying about the torture. Are they lying about the FISA?" And that's pretty much what pushed me over the tipping point.
LS: What did you make of the fact that the New York Times held the story until after the  election?
TT: I really was conflicted, questioning my own motives, as to whether I wanted this information released because it might impact the election.
I mean, I hope its not the case; on the other hand, I think people should know what's going on when they go to vote. … It was very disconcerting that the Times did not appear as though they were going to publish it.
I met with Litchblau and Risen again, and they said, "Well, every time we talk about it, the White House says it's critical, people are going to die," And I said, "How is that possible? You guys have lawyers."
The fact that we wiretapped people without a warrant, and we wiretap people with a warrant, how does that implicate anybody's national security? They agreed and basically what happened is: Risen had been working on his book, and he told his editors, "I'm going to publish this book, and you guys can either write this story before my book comes out, or you can write it after it comes out."
LS: The original NSA wiretapping story broke a few years ago now, and the reporters who exposed it -- Eric Litchblau and James Risen -- have published books [about it]. Yet, when the Newsweek story broke, it revealed a whole new chapter in the saga. Why did you ultimately decide to "out" yourself when you did?
TT: Well that's a very good question. In retrospect, I actually wish I had done it sooner.
But because of the fact that I was under a criminal investigation -- [the FBI] had searched my house, and I knew that they were interviewing close friends and neighbors and former colleagues -- the conventional legal advice is that you shouldn't talk to the media.
You don't want to admit anything in the media that may help [prosecutors] put their case together. You know, there are a lot of valid legal reasons not to do so. So, for a very long period of time I followed my attorney's advice -- and I think it probably was sound, although I remain convinced that I did not actually break any of the national security laws.
But I guess it's a legal question, ultimately.
Isikoff actually called me right after my house was searched by the FBI -- it was searched on a Friday, and he called on a Monday, out of the blue -- and he knew what had been taken out of my house, he know that I had had philosophical disagreements with the Ashcroft administration on death-penalty issues … so he put a little blurb on the Newsweek Internet site, and it got picked up by the [Washington] Post and some other media. … Then every few months he would call me and ask if I was ready to talk -- and finally I decided I was.
And quite frankly, it was against legal advice, but I just thought it was in my best interest.
I had hired private counsel and was getting really behind in being able to pay them -- although they were very generous in saying that they weren't concerned about that -- so part of the reason [I spoke out when I did] was to let people know that I had a defense fund.
My family, neighbors and friends had contributed to it, but I needed to cast a wider net. And it's been very gratifying, the response nationwide -- total strangers contributing small amounts, and occasionally some very large amounts.
Also, with all of the information coming out about the torture and the extraordinary renditions, I thought it was important for people to know that there were people in the government that felt that what was being done in our name was illegal.
LS: What exactly are the accusations against you?
TT: The day after the [FBI] search -- or the following week, Monday or Tuesday -- I was in my attorney's office; he had spoken with the lead prosecutor, and they offered me a plea of a felony of disclosing classified documents, essentially.
Which meant that I would be exposed to jail -- probably would go to jail. And they wanted my cooperation. I said, "Cooperation? Who am I going to testify against?" I said, "You guys know what the New York Times reporters published."
It seemed weird to me to think that they wanted a former Department of Justice employee to testify against people who have First Amendment privileges.
Now [it turns out] that there were leaks from the NSA, so perhaps that's what they were looking for. But during the course of the ongoing investigation, we informed them I had no idea who else had talked about anything.
I couldn't have helped them in any way -- and I wouldn't have wanted to help them in any way. But the statute that they wanted me to plead guilty to -- part of the statute says there was actual damage to national security -- and I just didn't think that they could prove that.
LS: It's interesting, the point you make about the fact that it's public knowledge. It's one thing that's a little confounding about the Obama administration's recent use of the state secrets privilege to block recent lawsuits against the NSA. Like with rendition and torture, are these things really secret anymore? How can the Department of Justice say that on national-security grounds we can't allow these lawsuits to go forward?
TT: Well, it is a reason for concern I think. I mean -- as a matter of policy -- if you are actually in litigation for the Department of Justice, you can't take one position before a judge one week and then because the administration changes, come in and take the opposite position.
So I think, and I hope, kind of with fingers crossed, that that's part of what is influencing the Obama administration, that they are not going to change those policies that are already in the pipeline, but that maybe they will examine them and announce new policies.
I think there's also the possibility that Obama doesn't have all of his staff. You know, they haven't been approved by the Senate -- Dawn Johnsen, who has been nominated to be the head of the Office of Legal Counsel, still is being held up by the Senate -- so I think that may be part of it.
But what really concerns me is that we still don't know the truth. We do not know what they did. We don't need to know how they did it, but I think we need to know what was done and what their legal justification was.
That's something I intend to say at the Ridenhour prize ceremony -- that we still really need to find out what was done.
You get into the question of whether you're gong prosecute somebody or hold them accountable for breaking the law. It seems to me that, first of all, you investigate something and find out what was done -- and then you make a decision as to whether they acted in good faith or whether, from a policy standpoint, you don't want to go forward.
But I think it's very troubling that we really don't know the total scope of how many people were wiretapped. And I think we're going to find that, like in Watergate, there were enemies lists that were compiled. And I think we're going to find that a ton more people were wiretapped than we've been led to believe.
LS: Even in the past few months we've discovered that the scope of the wiretapping was even broader than what we'd already learned and that journalists were targeted. Do you have any particular reasons to believe that we're going to discover these things?
TT: It's just an opinion, really, it's kind of my gut feeling, kind of like when I figured out that they were doing something illegally -- it was based on a lot of years of experience.
But when you read about Karl Rove saying that he had lists of Republicans who were not that supportive, and when you read about John Bolton, who was the ambassador to the United Nations -- there were reports that he was kind of listening in on, or had amazing knowledge, let's say, of what some of the envoys who were going around the world were thinking …
[The Bush administration] had this mentality that what they were doing, no matter whether it was against the law -- that the ends justified the means. They were saving the world, they were the only ones that were capable of doing that.
And I think when you have that mentality, you can justify doing almost anything. And you know, with data mining, if we collect everything, really it means we analyze nothing. They really have to focus on people that may harm the country, as opposed to journalists and people they don't like.
LS: FBI Director Robert Mueller recently testified before members of Congress, and he was asked about the Patriot Act's provisions on eavesdropping, which are scheduled to sunset at the end of the year.
Mueller basically said that these have been very valuable for national security, keeping us safe, etc. Do you have the sense that they are going to reauthorize these provisions, given what you are describing about the ends justifying the means?
TT: You know, I haven't really given much consideration of that, because I still have this cloud kind of hanging over me. I wish the Obama administration would make a decision one way or another [on whether to indict].
But listen: There is an absolute critical need to be able to legally, under the Fourth Amendment, listen to people -- particularly overseas, which you don't need a warrant for -- who may well be doing harm to our country.
I just think that the provisions of the Patriot Act and the provisions of the FISA law have been too broadly drawn. We are a stronger country and a safer country if we work within the rule of law and the Constitution.
So to me, for example, on the telecom-immunity issue, the case that's going on in California [which the Obama administration is trying to block], I think it's really important to find out what these huge corporations did. Because when I was doing it -- legally with the DOJ -- they had lawyers from all the fancy law firms giving them advice -- and they knew how to do it legally.
So if it were me, I would let that civil litigation go on; then when you found out what was done, then you can make a decision as to whether you want to give them immunity or not. Maybe that's the right thing to do. But we're granting immunity, and we're trying to re-up the Patriot Act really not knowing what went on. And I just think it's important to get out as much as we possibly can.
LS: Do you think the idea of a truth commission is the appropriate way to do that with the possibility of an independent prosecutor?
TT: Yes. Ultimately, I think there will probably need to be an independent prosecutor … someone who really knows what the prosecutor's duty is. If you feel that someone has a valid defense, you should not prosecute them. (Like in the Ted Stevens case. They had information that went in his favor, and yet they hid it from the defense. The ethical prosecutors reveal the bad, plus the good.)
I met with Congressman Chris Van Hollen, D-Md., yesterday, who sponsored some whistle-blower legislation, and I emphasized with him that I thought it was very important for the country to know what was done and then we can decide what, if anything, to do about it.
LS: When, and under what circumstances, did you ultimately leave the FBI?
TT: I think there's very important work done by the FISA unit, but … it really bothered me that I might be participating in something that wasn't really above board, so I left there in March of 2004 and I went over to the U.S. Attorney's office -- which is the federal prosecutor for the District of Columbia -- and started doing court cases like I'd done earlier in my career. …
But in the back of my mind, I was thinking, "When are they going to figure out that I'm the one who did this?"
LS: The Newsweek story painted a pretty dark picture of the consequences of coming forward as a whistle-blower. Do you have any regrets? What would you tell someone in this position?
TT: I think part of it is on me, maybe I haven't handled the pressure as well as I could have. … I think I put my country first with what I did, and I probably put family second. I kind of do regret that.
It never occurred to me that they would search my house. There wasn't anything in my house that would benefit them. And we had the example of Judy Miller of the Times being put in front of a grand jury, refusing to answer who her sources were.
I thought that was the way it would go, that Lichtblau and Risen would eventually be summoned to a grand jury, and I would … give them permission to reveal their source … all of those things.
To be awakened in bed by total strangers that are wearing guns was really unsettling for my family. I do regret that. On the other hand, I am hopeful that I did something somewhat important.
I would support more protection for whistle-blowers, certainly, and I wouldn't say anything to discourage them from coming forward.
LS: It sounds like things have changed for the better since the story broke. You were in a really tough position, with the Newsweek headline posing the question: Is this man "a hero or a criminal?" From what you're describing, it sounds like a lot of Americans would say hero.
TT: I am grateful for that, and it also is humbling.
In the final analysis, I thought it would put pressure on the Bush administration to decide one way or the other [whether to indict] and, by that time -- it was after the election that I decided to permit [Isikoff] to publish it -- there was not much [time] left in the administration's term.
We were hearing that Cheney was running this investigation, and I was concerned that I was going to get indicted, maybe between the election and the inauguration. So, I wanted to bring some public pressure to bear, so that if they did indict me, it would look like a political act. And if they didn't do it, then I was hoping I would get some support. And I did.
Go here for more information on Thomas Tamm and the Ridenhour Prize.