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DOJ Drops Probe of Whistleblower Who Exposed Bush-Era Domestic Spying, Thomas Tamm: “The Bottom Line Is I Don’t Think I Ever Broke the Law”

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In a national broadcast exclusive, we speak with Thomas Tamm, the former U.S. Justice Department attorney who helped 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. On Tuesday, news broke that the Justice Department dropped its long-running criminal investigation of Tamm. The relatively quiet end to the investigation into Tamm’s warrantless wiretapping leak marks a sharp contrast to the controversy his information 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. [includes rush transcript]

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StoryApr 16, 2009Justice Dept. Whistleblower Defends Decision to Leak Bush Domestic Surveillance Program & Calls for Prosecution of Gov’t Officials and Telecoms
This is a rush transcript. Copy may not be in its final form.

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.

JUAN GONZALEZ: Now, when this happened, the government was able to get the New York Times to withhold publishing those articles for quite some time. So, did they, during that period, know that you were a source already to the Times?

THOMAS TAMM: No, I don’t believe so. You know, the Times, as I understood it, was ready to run the story in the fall of 2004, and the story didn’t run for over a year. And I remember being really frustrated with that. I felt I had put a lot on the line. I thought it was really important for the American people to know that — what I viewed as an abuse of executive authority — in fact, I believe it was illegal, and clearly illegal — and eventually met with the New York Times reporters again. And one of the reporters said to me that they were frustrated, as well, that the White House said that the New York Times would have blood on their hands if they ran the story. And it’s my understanding that James Risen basically told the publisher of the Times that he was going to publish his book, which would reveal the story, if they did not publish the articles. And so, eventually, I guess, in December of 2005, they ran the story.

AMY GOODMAN: And what’s significant there, that date, December of 2005, after holding on to this for almost a year, that’s the month after the election that elected George W. Bush.

THOMAS TAMM: That’s correct.

AMY GOODMAN: So, when did the raid take place? And if you didn’t hand over documents, what is it that they were looking for?

THOMAS TAMM: Well, Amy, that’s a really good question. In retrospect, you know, if they had come to my door and knocked, I would have allowed them in, because I didn’t have any documents — secret documents, classified documents — in my house, on my computer, anywhere. I didn’t hand over anything to the New York Times. I didn’t reveal any sources or methods.

It happened in August, on August 1st of 2007. And as I said, some neighbors saw agents had drawn guns as they were approaching my house. I think, personally, that it was designed to intimidate me, to maybe — maybe the thinking was that I would realize that the whole weight of the federal government was coming down on me and that I should do, quote, “the right thing.” And indeed, within a couple of days, they spoke to my lawyer and offered me a plea, which would have involved going to jail. And I told my lawyer I didn’t think I had done anything wrong.

JUAN GONZALEZ: Now, they then, subsequently, began to tap your own phone and follow your own emails. Have you ever been able to figure out how the government knew that you were the whistleblower?

THOMAS TAMM: Well, yes. You know what? Honestly, I thought all along that I would eventually be revealed. I thought what would happen was similar to what happened in Judy Miller’s case, for the — another reporter for the Times, that they would subpoena the reporters to the grand jury and that they would not — you know, they would exercise their First Amendment rights and try and protect their sources. But I had told Eric Lichtblau that he would not have to go to jail for me, that he could reveal his source if in fact he was subpoenaed to the grand jury.

And that’s why I think that — you know, I never expected that they would raid my house. And I communicated with a person up on the Hill who — when I determined that I thought something was going on that was illegal, and I went up and talked to that person on the Hill and said, “I want to know if Congress knows what is happening. If Congress has approved this, a co-equal branch of the government, then I’ll just walk away.” And that email to the person on the Hill was on my governemnt — I used my government email. And, you know, that’s not my property; that’s the property of the government. And the FBI looked at that email and went and talked to that person that I talked to, and I believe that’s how they determined that I was the person who had spoken to the Times.

AMY GOODMAN: And why, Thomas Tamm, was this so important to you? Why was it so critical that you would risk your career in doing this?

THOMAS TAMM: Well, the oath that I took was to preserve and protect the Constitution of the United States against enemies foreign and domestic. And, you know, it’s my belief that we are a stronger country because of our Constitution and because of our democratic institutions, like the courts and the Congress, as well as the presidency. And I honestly thought I had an ethical obligation to talk to somebody about what I thought was an illegal abuse of executive authority. In fact, when I was working at the Department of Justice in OIPR, my boss said that if you don’t want to sign one of these affidavits, if you’re afraid to put your name on these affidavits, then he would sign his name. And that just sent up a red flag. I said I would look at these documents and say, what is in here that might be suspicious? And there wasn’t anything. And so, I really thought it was my duty.

JUAN GONZALEZ: And since the raid on your house, what happened afterwards, your leaving the Justice Department, and what you’ve been subjected to since?

THOMAS TAMM: Well, as you asked earlier, I was in contact with one of the — a colleague at a former office, and they informed me that the FBI had been there, and they knew where I had gone to lunch and with whom I had gone to lunch the week before. They knew that I had sent an email saying that I wasn’t going to attend an office function. And, you know, obviously, I had to hire a lawyer. I tried to set up a defense fund and was really pleased that a lot of people did help in that area and made some contributions so I could pay the lawyer. And as I said, it ruined my career. I’m in financial dire straits. And it really — it shook up my family. But, you know, as I said, it’s a big relief that I’m no longer under that cloud.

AMY GOODMAN: And why do you think that the Justice Department has dropped this investigation now? I just want to clarify, you made the call in the spring of 2004 to the Times. They didn’t publish the story for about a year and a half, so it was actually well after the 2004 election. It was like a year after the election that they finally published the story.


AMY GOODMAN: Though they had the story well before the election.

THOMAS TAMM: Right. I’m sorry, so what was your question? I didn’t —

AMY GOODMAN: The question is, why do you think the Justice Department has now dropped —- in fact, you were alerted many months before. It’s just that you happened to mention this at a party that Politico picked it up now, is that right? That you are not going to be -—

THOMAS TAMM: Right. That is right. I think the reason is because the lawyers at the Department of Justice realize that what was being done was in fact illegal. I mean, it’s very difficult to prosecute someone such as myself, recognizing that what I did was reveal something that was against the law. And I also believe that it would have been a problem proving the case against me, because President Bush, the day after that article was published, basically acknowledged that the program existed. In fact, he almost seemed like he was proud of the fact that there was warrantless wiretapping, you know, to supposedly protect the country. In my opinion, he revealed more classified information than I ever did. And the bottom line is, as we mentioned earlier, I didn’t turn over any documents, I didn’t reveal any sources. And really, the bottom line is, I don’t think I ever broke the law.

JUAN GONZALEZ: I want to play an excerpt from a June 2009 Senate Judiciary Committee meeting, when U.S. Senator Russ Feingold questioned Attorney General Eric Holder about warrantless wiretapping.

SEN. RUSS FEINGOLD: In a speech to the American Constitution Society in June 2008, you, sir, said the following: “I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens.” And the President himself also, several times as a senator and during the campaign, said the program was illegal. Now that you’re the Attorney General, is there any doubt in your mind that the warrantless wiretapping program was illegal?

ATTORNEY GENERAL ERIC HOLDER: Well, I think that the warrantless wiretapping program, as it existed at that point, was certainly unwise, in that it was put together without the approval of Congress, and as a result, did not have all the protections, all the strength, that it might have had behind it, as I think it now exists with regard to having had congressional approval of it.

JUAN GONZALEZ: That was Eric Holder. Your response, unwise or illegal?

THOMAS TAMM: I admire Eric Holder. I actually had the honor and privilege of working with him when I was in the Criminal Division of the Department of Justice. That is — that is not a very apt description of what was being done. You know, I understand there’s some argument about this, but 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.

AMY GOODMAN: It reminds me of Nixon, when he said, “If the president does it, it’s not illegal.” But, Thomas Tamm, let me ask you two questions. Have people ever been notified who were illegally wiretapped? 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. What about this extended culpability?

THOMAS TAMM: Well, I think that’s really troublesome, and it’s disappointing to me that — I guess we know politicians say things to get elected and then sometimes change their campaign promises or didn’t live up to their campaign promises. 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. And the court of appeals — and I believe it’s in the Second Circuit — has just recently made a ruling that they can go forward with that suit. And I think then we will learn, hopefully, how many people were illegally wiretapped, and then maybe we will learn what was done with that information.

To answer your first question, 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.

AMY GOODMAN: Well, Thomas Tamm, I want to thank you very much. And just to clarify, when you say FISA, stands for the Foreign Intelligence Surveillance Act. Thomas Tamm, former Justice Department attorney who helped expose the Bush administration’s warrantless domestic surveillance program. It is now clear that the case against him, as he has been surveilled and wiretapped and harassed by the government, has now been dropped. Thank you so much for joining us for this broadcast exclusive.

This is Democracy Now!,, The War and Peace Report. When we come back, another whistleblower of sorts, Ray McGovern will be with us. Stay with us.

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