Heavy Interview With NSA/Justice Dept. Intercept Whistleblower

[Peter Lemkin]

AMY GOODMAN: The New York Times is reporting the National Security Agency has been intercepting private email messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year.

The Times is also reporting the NSA attempted to wiretap a member of Congress, without court approval, on an overseas trip in 2005 or 2006. But the plan was ultimately blocked because of concerns from some intelligence officials about using the NSA to spy on a member of Congress.

The article in today’s Times was written by Eric Lichtblau and James Risen, the same reporters who first revealed in 2005 that President Bush had secretly authorized the NSA to intercept the phone calls and emails of Americans without a court warrant.

Out first guest today is the whistleblower who originally tipped the Times off about the surveillance operation. His name is Thomas Tamm. In 2004, he called the New York Times from a subway payphone and told Eric Lichtblau about the existence of a secret domestic surveillance program. At the time, he was a Justice Department attorney in the Office of Intelligence Policy and Review.

The decision to become a whistleblower has permanently altered Thomas Tamm’s life. In 2007, the FBI raided his home, seized three computers and personal files. He’s suffered from depression and is in $30,000 debt. Late last year, Thomas Tamm risked arrest and admitted to Newsweek magazine that he was the one who tipped off the New York Times. Tamm still faces possible arrest for disclosing classified secrets.

This afternoon, the Nation Institute and the Fertel Foundation are recognizing Thomas Tamm by awarding him the 2009 Ridenhour Prize for Truth-Telling. The prize is named after Vietnam veteran Ron Ridenhour, who helped expose the My Lai massacre. Thomas Tamm joins us now in Washington, D.C.

Welcome to Democracy Now! It’s good to have you with us. Start off by explaining why you talked, why you went to that payphone in the subway system in Washington, D.C., and made a call to the New York Times.

THOMAS TAMM: Well, it actually was a fairly long process. In the criminal division, I had been over at the CIA, and I read cables that talked about extraordinary rendition and implicitly understood that people were being sent there for torture. And then I realized that the government was saying that we didn’t do that, and so I knew that my government was lying.

When I started working at—in front of the FISA court, there was this separate track of cases that—it just didn’t make any sense why they were treated differently than a normal FISA application. And I also started thinking about, well, how come the deputy attorney general, the second in command, was not able to hear those FISA applications or sign those FISA applications?

And finally, I talked to a senior person and asked if they knew what this separate track was, and she said, “I just assume it’s illegal.” And I have been in law enforcement my entire life. My family was in law enforcement. And I didn’t want to be participating in something that might be illegal. So I actually went up to the Hill to see if Congress—to try and find out whether Congress knew about what was going on. And when I was told and warned that it’s very dangerous to be a whistleblower and they would not confirm that Congress had been briefed is when I decided to call the New York Times.

AMY GOODMAN: Explain your job at the Justice Department and how high your security clearance went, Thomas Tamm.

THOMAS TAMM: Well, I had a top-secret security clearance, and then it’s followed by SCI, which means secret compartmentalized information—I can’t say that word. I, along with a lot of attorneys, who are dedicated public servants and very bright, would review essentially applications for warrants to wiretap US citizens—US persons, as the statute defines it—who might be aligned with a foreign country or a foreign terrorist organization or any terrorist organization. And so, it’s the most highly secret part of the Department of Justice. You have to go through scanning and a fingerprint examination to get into the suite of offices.

The FISA court in the Department of Justice was literally held in what looks like a bank vault. And it’s a very unusual process in that there’s only one side that is presented to the court. It is the government’s side. There’s no corresponding defense attorney. So I didn’t have the absolute highest top-secret security clearance, but it was very high.

AMY GOODMAN: And you come from a long line of public servants. Describe your growing up.

THOMAS TAMM: Well, I do. My father was an assistant director in the FBI. He was very proud of that organization, although after he retired I think he started to question some of the things that the Bureau started doing towards the later stages of J. Edgar Hoover’s career. But I remember going to the Department of Justice and being in J. Edgar Hoover’s office and watching the inaugural parade of JFK. And so, I grew up thinking that I wanted to be in law enforcement. And my brother, in fact, eventually joined the FBI and, towards the end of his career, worked on the 9/11 Commission. And my uncle, my father’s brother, was also in the FBI, and then he was a US federal circuit court judge here in the District of Columbia.

AMY GOODMAN: Your uncle briefed FDR and is credited with giving the FBI its name and motto?

THOMAS TAMM: Actually, you know, that’s something I learned from Michael Isikoff. Apparently that is in a book, and I’ll accept that as being true. I mean, he and my father started in that organization when it was much smaller, a fairly young organization. And they were able to rise fairly quickly through the ranks, and I do understand that my uncle, Judge Tamm, was the number three person in the FBI when he was appointed to the bench by President Truman.

AMY GOODMAN: The motto: “Fidelity, Bravery, Integrity”—FBI.

Well, we’re talking to Thomas Tamm. And he went into a subway, made a phone call to the New York Times, and exposed government spying.

Thomas Tamm, I wanted to ask about this latest piece in the New York Times actually today saying that the NSA went way beyond intercepting private emails and phone calls of Americans in recent months that went beyond the limits of Congress, the standards they set last year, and get your reaction to this, as well as saying that possibly a Congress member they were attempting to wiretap a couple years ago.

THOMAS TAMM: You know, I haven’t had an opportunity to read the story. I saw the headline last night on the internet and then glanced at the headline today in the paper.

It’s stunning to me, I mean, that we’re still—our government is still violating the law. And, you know, we have a legal procedure in place through the FISA court to permit legalized wiretapping of US persons that go overseas. You have to be able to show probable cause that they maybe are tied with terrorism, but that is not a very heavy burden for the government to make. And I’m convinced, and I think that this article just reaffirms my conviction, is that a lot of more Americans have been illegally wiretapped than we know. We don’t know what has been done with that information. And just as we’re slowly learning about how many people have been tortured in our name, we are also slowly learning perhaps more about the extent of the wiretapping. Unfortunately, I must say I’m not surprised, because the administration was not following the law that was on the books when I talked to the New York Times, and apparently they still were not following it.

AMY GOODMAN: Explain exactly what you leaked.

THOMAS TAMM: Well, you know, that’s a very interesting question. And I did not actually leak any methods or sources of collecting intelligence. I didn’t turn over any documents. I didn’t take any documents out of the secure skiff. All I leaked was—in fact, when I went to the New York Times reporter, I kind of said to him, “I’m going to tell you what’s going on. You tell me what they’re doing, because I don’t understand it.” And so, what essentially—after getting feedback from them, and they went to sources that they had in the NSA, basically I just leaked the fact that we were wiretapping people illegally. It was public knowledge that we legally wiretapped. The fact that the FISA court exists is public knowledge. So the only thing I revealed was that we were doing it without going through the court.

AMY GOODMAN: Presumably, you had conversations about this before you did this, conversations within your department. How did others feel who had the same security clearance and knew exactly what was going on?

THOMAS TAMM: Well, I mean, that was something that is the reason I ultimately came forward. As I mentioned, a senior attorney, who would review my work, said that she assumed that what was being done was illegal, and therefore she didn’t want to know anything about it. A deputy in that OIPR learned at some point that some information from one of these illegal wiretaps had gotten into a normal FISA application, and they had shut down this separate track, and he told me that he thought the attorney general was going to be indicted. And, you know, since then, I think that this is probably right around the time that Jim Comey and Bob Mueller were in General Ashcroft’s hospital room and when he was in bed, and they were saying that this—part of this aspect of the program was illegal. I didn’t know about that going on, but I did know that everybody where I worked who were willing to talk about it—and not everybody was willing to talk about it—just assumed that we were doing something illegal.

AMY GOODMAN: Thomas Tamm, we’re going to break, but we’re going to come back to you, former Justice Department attorney who helped expose the Bush administration’s illegal domestic surveillance program. He is paying a very serious price right now. This is Democracy Now!, democracynow.org, the War and Peace Report. We’ll be back in a minute.

[break]

AMY GOODMAN: Our guest in Washington, D.C., is Thomas Tamm. He’ll be receiving the Ridenhour Prize for Truth-Telling today at noon. The awards ceremony will be streamed live at ridenhour.org. Awards are also being given to Bob Herbert, Jane Mayer and Nick Turse.

Thomas Tamm, talk about the repercussions of that moment you slipped into the subway to the phone booth and made that call to the New York Times. Tell us what happened to your family and at your home after that.

THOMAS TAMM: Well, I mean, it’s interesting. There’s kind of two different periods in my existence during that time. The time before August 1st in 2007, I was basically the only person besides the two reporters who knew what I had done. And I was always kind of waiting for the other shoe to drop. And I would occasionally get calls from the FBI agent asking to interview me, and I would try to postpone him. And really because I had this just—you know, disillusioned, I guess, with my government, and I was not really able to focus terribly well, I eventually kind of left the Department of Justice. In fact, I got out of OIPR because—largely because of what I believe was going on.

But I never anticipated that the FBI would execute a search warrant on my house. There wasn’t anything in my house. I don’t think they had any probable cause to believe that there was anything in my house that might reveal a crime of some sort. And, you know, my wife Claire, I don’t think will ever quite feel the same in our house. She feels less secure. I mean, eighteen FBI agents came barging through her front door and stormed up steps and awakened my kids in their beds and took Christmas card lists and computers and cell phones. And, you know, I remember my wife asking if we were going to be alright. And I said yes, but I really wasn’t sure about that.

And so, now, after the raid, I just figured at kind of any minute that I’m going to be indicted. I started—I was out of work for quite awhile after I left the Department of Justice, and I got to the point where I would see someone that looked like an undercover detective or FBI agent and think that, well, here it is, I’m going to be arrested, and I wonder what my bond is going to be set. And, you know, I don’t know that I handled it as well as maybe I wish I had been able to, but it’s been very difficult. And as you have mentioned, I still incur legal bills, because we have not been told whether they’re going to go forward or not. And I must say I think that’s a little bit surprising in light of the election and in light of the new administration.

AMY GOODMAN: What about that? I mean, there is a new administration. Have they been in touch with you?

THOMAS TAMM: They have not. My attorney has contacted the Department of Justice lead attorney in the investigation into my acts, and he basically has said that it will be a matter that’s on the attorney general’s desk, but it won’t be one of his first concerns. And that’s basically all we know. We haven’t pushed it any further. I mean, they are still staffing the Department of Justice. Dawn Johnsen, who has written some great articles and opinion pieces, law review articles about the wiretapping, has not been approved by the Senate to join the Department of Justice, so perhaps that’s one of the reasons for delay. But it’s just—you know, I don’t feel like I can really commit myself to anything if there’s a chance that I’m going to be indicted.

AMY GOODMAN: Are you sorry at all that you did what you did?

THOMAS TAMM: No. I regret what happened to my family. But I—you know, to coin a phrase from the last election, I think I put my country first. And in light of the article today, that apparently they’re still—I mean, even though Congress gave them even more extensive powers, they are still exceeding the powers that they’ve been legally given. And I would say, no, I don’t regret it.

AMY GOODMAN: Thomas Tamm, I’d like to ask you to stay on for one moment, as we turn to another guest, concern growing, as you’re talking about, by many legal observers over the Obama administration’s attempt to keep secret key aspects of the Bush administration’s counterterrorism policies.

Earlier this month, in a closely watched case challenging the legality of the government’s domestic surveillance program, the Obama administration invoked a state secrets privilege and a claim of “sovereign immunity” in an attempt to get rid of the lawsuit.

Meanwhile, the Obama administration faces a deadline today to act on whether it will release three classified Bush administration memos that authorized the use of torture. The Wall Street Journal is reporting Obama is wavering on a pledge to fully release the memos.

To talk more about this, we’re joined by Glenn Greenwald, constitutional law attorney, political and legal blogger for Salon.com. He’s the author of three books. His latest, Great American Hypocrites: Toppling the Big Myths of Republican Politics. Glenn joins us from Brazil.

Glenn, what about the latest news?

GLENN GREENWALD: Well, I think it’s one of the—two interesting aspects of it is that, number one, the article suggests, in the Times, that these abuses are not Bush-era abuses but are abuses that are, according to the article, ones that took place in, quote, “recent months” and that the abuses were enabled by, caused by, the 2008 FISA law that the Democratic Congress, with the support of George Bush and Barack Obama, passed. And at the time, the opponents of that bill, across the board, were warning that what this bill does is it guts all the core safeguards that have been in place since the enactment of FISA in 1978 and that the exact kind of abuses that this article reports would be essentially inevitable.

And the other aspect that’s worth noting is, as you just said, ever since he was inaugurated, Barack Obama has been running around shunning his Justice Department, running around the country blocking all lawsuits that are ones that are brought against the National Security Agency and the Bush administration alleging that the NSA was illegally spying on the emails and telephone communications of Americans. He has been arguing that those programs are too secret to allow courts to look into, let alone adjudicate the legality of them. And so, he’s been protecting from disclosure the very abuses that the Times this morning reported.

AMY GOODMAN: Glenn, can you talk about the significance of the Jewel v. NSA case?

GLENN GREENWALD: Yeah, that was—that is an amazing case, because what happened was, in 2008, when the Democrats voted for that FISA bill, part of what the FISA bill did was it immunized the telecoms from the lawsuits that were pending based on this illegal spying. And what the Democrats said at the time was, “Well, don’t worry about the fact that we’re immunizing the telecoms, because we’re not immunizing government officials, the Bush officials who ordered the illegal spying. You can still impose accountability on them.” And so, the organizations that have brought the lawsuits against the telecoms took the Democrats at their word, like EFF, Electronic Frontier Foundation, and they commenced lawsuits against the Bush officials who ordered the illegal spying. And that was a lawsuit commenced in October of 2008 called—that’s the Jewel case that you just referenced.

And in October 2008, the Bush administration said to the lawyers who brought the lawsuit, “Well, we don’t really have time to answer the lawsuit, because we’re going to be on our way out the door in January, so we’d like to extend the time to answer into April of 2009, so the new administration can be the ones who handle this lawsuit.” And, of course, the plaintiffs’ lawyers were ecstatic. They thought, well, of course we’d rather have Obama answer the lawsuit than Bush.

And yet, last Friday, the Obama administration, the Justice Department, filed the first response to this lawsuit, one claiming that the Bush administration illegally spied on Americans, and what Obama said was, number one, that the program that the lawsuit is alleging occurred. The activities that it’s alleging are too secret, and grave national security harm would result if the court looked at this program and ruled on whether it was illegal, and thus demanded its dismissal.

And then the Obama administration invented a brand new radical argument that not even the Bush administration had espoused that says that the government is completely immune from any lawsuits for illegal spying, unless they deliberately or willfully disclose to the public what it is that they learned. So they basically said government officials are immune, when they break the law, from lawsuits, except in the narrowest of cases. And so, the Obama administration sought to bar any lawsuits against Bush officials for illegal spying, after they spent the last eight months assuring the public that Bush officials would still be held accountable even though telecoms were immune.

AMY GOODMAN: Explain more, Glenn Greenwald, about this issue of sovereign immunity.

GLENN GREENWALD: Well, the idea of sovereign immunity actually is one that comes from the British king. The idea was that the king is too important and too elevated, he’s the sovereign, and therefore is immune from being sued by his subjects. And when the Constitution was written, essentially the idea of sovereign immunity became the government can’t be dragged into court by citizens, unless it agrees in advance to waive its sovereign immunity.

And what the Congress has done in many, many cases was pass laws that essentially say that if government officials do certain things, the immunity is waived, and they can be sued. And in the wake of the eavesdropping abuses that were discovered and documented in the mid-1970s as a result of the Church Commission, the Congress passed numerous laws, that the president signed into law, that said exactly that. They passed FISA and the Wiretap Act and amendments to the Stored Communications Act, which explicitly said that if the government illegally engages in surveillance on Americans, they can be sued, that causes of action exist on the part of the victims of the illegal eavesdropping to sue the government officials who are responsible. And the laws say that as explicitly as possible.

And what the Obama administration is claiming is that there are provisions of the PATRIOT Act which secretly or implicitly repeal those laws and that the intent of the PATRIOT Act was to immunize government officials, to expand the sovereign immunity so that government officials can no longer be sued for illegal eavesdropping, notwithstanding these explicit laws that say that they can, in the absence of claims that they willfully disclose to the public what they learned. In other words, government officials, according to the Obama administration, can sit there and read your emails and listen in on your phone calls, even when doing so is illegal and even when they know that what they’re doing is illegal, and you can’t sue them unless they willfully disclose to the public what it is that they learn.

It is an extraordinarily extremist claim of government immunity that, as I said, not even the Bush administration espoused. And it’s designed to protect government officials, including Bush officials, from any consequences for having spied illegally on Americans.

AMY GOODMAN: Glenn, I want to ask Thomas Tamm, do you think government officials, the telecoms, should be held accountable?

THOMAS TAMM: Absolutely. You know, when I was in OIPR, we worked every day with the telecommunications companies. They knew what was legal. They knew what they were authorized to do. They employed the best law firms in the country to advise them. And I really think that the only way we’re ultimately going to really learn what happened is through litigation, such as what Glenn was talking about and with regard to the immunity. I mean, to me, why don’t we find out what was done, and then you can make a discretionary decision as to whether you want to go forward in any other fashion or whether good faith is a valid defense? Personally, I think that the Bush administration officials should be held accountable. I’m actually learning something as I have in the past, from hearing Glenn talk or reading his blog, about this sovereign immunity. I was unaware of that. And that’s truly disappointing.

AMY GOODMAN: And Glenn Greenwald, very briefly, the significance of what Thomas Tamm did back in 2004, when he slipped into the D.C. metro and made that phone call to the Times?

GLENN GREENWALD: Yeah, it’s one of the most heroic acts of the Bush era. It’s exactly what we’ve been lacking in our government, are brave whistleblowers. And Thomas Tamm is one of the few who was patriotic enough to do it.

AMY GOODMAN: And lastly, Glenn Greenwald, thirty seconds on the torture memos, what they said.

GLENN GREENWALD: Well, these torture memos are the most graphic of the documents that exist, where they not only generally redefine torture but explicitly authorize the tactics that are clearly war crimes. They said it’s perfectly permissible to wrap people’s heads in towels and bang them against the wall. These are not intelligence documents; these are laws that our government operated under. And the idea of keeping these concealed, secret laws, is as tyrannical as it gets. And this is a huge test for the Obama administration today.

AMY GOODMAN: I want to thank you both for being with us. Glenn Greenwald, constitutional law attorney and political and legal blogger for Salon.com. And Thomas Tamm, congratulations on receiving the Ridenhour Prize today—it’s going to be streamed at ridenhour.org—for whistleblowers who speak out in these critical times. Thanks so much for being with us.
http://www.democracynow.org/2009/4/16/ju..._to_latest