Thomas Tamm to Vaughn Walker: They Knew It Was Illegal

I’ll have a lot more to say about Isikoff’s excellent story on Thomas Tamm, the guy who tipped Eric Lichtblau off to the domestic surveillance program.

But for the moment, I’d like to elaborate on yesterday’s comments about timing. Tamm’s lawyer reveals that DOJ just recently told him that they were delaying a decision on whether or not to charge Tamm.

Paul Kemp, one of Tamm’s lawyers, says he was recently told by the Justice Department prosecutor in charge of Tamm’s case that there will be no decision about whether to prosecute until next year—after the Obama administration takes office.

Delaying the decision until the Obama administration takes office would do more than dump the problem into Obama’s lap (just like the Gitmo detainees, of course). It would also delay the time when Tamm testified publicly about what he knows of the domestic surveillance program until after Vaughn Walker issues a ruling on immunity for the telecoms.

By coming forward now, Tamm has told Walker something–in no uncertain terms–that the government won’t tell him. 

DOJ recognized that this program was illegal. 

Tamm provides the names of several people whom Walker might want to consult before he rules on the immunity law. There’s Lisa Farabee, who told Tamm that,

"Don’t even go there," and then added, "I assume what they are doing is illegal."

And there’s Mark Bradley, who told Tamm,

"This may be [a time] the attorney general gets indicted,"

If these two lawyers in the Office of Intelligence Policy and Review–the office that provides legal review of wiretaps on a logistical level–believed that this program was illegal, then how can Michael Mukasey now represent to Walker that it wasn’t?

And just for good measure, Tamm also reveals the code name for the program–Stellar Wind–which will help the Electronic Frontier Foundation and others argue that the existence of this program is publicly known.

I’m guessing that Vaughn Walker is reading this article very closely this morning.

One more point about timing: I don’t think Tamm coming forward now is due exclusively to noble motives. Consider how it might affect any potential trial. If Tamm can force two lawyers (plus the FISA judges who balked at the program) to go on the record that they, too, believed this was an illegal program, then it’s going to make it easier for him to argue that he came forward solely to expose illegal activities. Furthermore, by postponing his charging decision until after the telecoms got immunity, DOJ may have been trying to ensure that any testimony he made in court would not affect Administration efforts to sweep all their law-breaking under the rug. Now, Tamm has ruined their attempts to do that. 

Add in the way Isikoff has made this a compelling narrative, complete with all the remarkable ties members of Tamm’s family have to national security, and it’ll make it a lot harder to charge Tamm for his leaks. 

121 replies
  1. LS says:

    EW..thought you might be interested in this:

    One of the big losers in the Madoff ponzi scheme is the Chairman of GMAC Financials.


  2. radiofreewill says:

    This all goes back, imvho, to the Still Secret empowering documents of the UE – which, apparently Gonzo passed to Mukasey, who is now Hiding Them for Bush.

    Bush, Cheney, Addington, Gonzo, et al, have managed to keep them out of Court for eight years – nobody has been able to legally challenge Bush’s claim that his word – which he used to end-around FISA/Court – was Above the Law.

    And, since Ashcroft the AG was in his Cabinet – and a True Believer in the War on Moslems Terra – it was a mere formality for him to Loyally ’sign-off’ of on Bush’s (”probably illegal”) Program-generated Spy-on-Citizens Applications.

    Just like it was also apparently a mere formality that Ashcroft routinely signed-off on the 45-day Re-certifications that declared the Program itself, and its ‘work products’, Legal.

    So, Tamm just happened to be in the right spot at the right time to actually ’see’ BushCo sending out – Secret from the Courts – the Program-generated Taps, that the FISC later caught BushCo disengenuously ’splicing’ back in to Prosecutions.

    Clearly, Bush claimed, acted-on and sought the benefit of de-facto extra-Constitutional Power, while cleverly and cynically making certain the basis for his claim was never overseen by Congress, nor was his claim ever challenged in Court.

  3. pajarito says:

    To restore this country to the rule of law, we must know all about this program. Otherwise it will be a cancer; eroding the constitution and our shambles of a justice system even further.

    Tamm is a hero. I know the whistleblower’s fate is a hard one.

  4. emptywheel says:

    One more point about this.

    Michael Mukasey has represented to Vaughn Walker that this program was legal.

    Now, if they want to try Tamm, he will argue that the program was illegal. The judge will be hard-pressed to exclude information as to the program’s legality, particularly things like the testimony of Farabee and Bradely which has now been published.

    But if that–and potentially worse stuff–is introduced into the trial, it may well prove that the program was illegal.

    If it does, what situation does that put Mukasey into, having already represented to a court it was legal?

  5. Mary says:

    Pretty darn interesting article. Isikoff, though, to be fair should have included some additional info to accompany this quote:

    “You can’t have runoffs deciding they’re going to be the white knight and running to the press,” says Frances Fragos Townsend, who once headed the unit where Tamm worked

    He should have mentioned why it is that FFT doesn’t head that unit anymore. Like, oh, maybe a HUGE freakin scandal that she did keep quiet about – until the FISA court beat her butt over it.

    Tamm’s defense fund sounds like a good xmas contribution – can you get info on how to donate?

    Of course, with my own peculiar perspective, I like the fact that someone is finally recognizing that there was a huge confrontation going on with the FISC Chief judge with OIPR prinicpals talking about a possible indictment of the AG that was coinciding with OLC and the AG/DAG getting religion. It seems like it’s taken forever for that to get any linkage in msm, but Isikoff finally notes, in connection with Tamm hearing a vague reference to the possibility of the AG being indicted, that Kollar-Kotelly was pretty pissed that the Exec Branch lawyers and FBI and other intel agencies were fibbing to her and laundering illegal surveillance:

    [Kollar-Kotelly] had concerns that the intelligence community, after collecting information on U.S. citizens without warrants, was again attempting to launder that intelligence through her court—without her knowledge. She “had begun to suspect that they were back-dooring information from the program into” FISA applications

    And while I buy that Tamm didn’t know that Goldmsith and Comey and even Ashcroft were getting religion contemporaneously with the FISC Chief Judge making noises about holding someone responsible,

    Unbeknownst to Tamm, something else was going on at the Justice Department during this period.

    I don’t buy the vice versa – that Comey and Goldsmith had no idea that the Chief Judge might be looking at taking action against the AG (and possibly the FBI Dir if you go back to procedure and the original WaPo story – which would certainly explain Mueller’s willingness to resign over having the FISC come after him) when they just so happened to “also” get concerned. I really still think the “showdown” was that Gonzales et al were saying that DOJ lawyers and FBI agents were allowed to defy Court Orders and lie to the Court, without penalty and that they could just blow off Kollar-Kotelly and I think that the reason Ashcroft could be so “brave” and lucid was that he knew his own butt was on the line, criminally and civilly – esp in an election year.

    And I really do think that the only “fixes” Comey and Goldsmith came up with were to make sure that the FISC directives to not launder the illegal program had better oversight.

    Oh well, the other piece that I think they need to work in, on the “knowledge of illegality”front, is that Thompson quit signing off on FISA applications. If that doesn’t show guilty knowledge, I’m not sure what does.

    I’m sure you’ll get a lot of post out of the piece EW and you’ll add a lot more omissions than the gloss over of Townsend and the then-DAG refusing to sign applications, but those two really leap in my field of vision.

  6. Mary says:

    5 – Someone needs to ask Obama & Co if they even bothered to think about or give a damn to the concept that by attempting to retroactively grant “legality” to the program, they were also attempting to consign to the damned whistleblowers who were protected in their revelations by the illegality of the programs.

    I don’t know why I read political blogs anymore, I hate them all, big & small, and there’s not a hairsbreadth of difference between Dem and Republicans – between McCain and Obama, between Holder and Mukasey. Creepy and depressing – happy holidays.

    • njr83 says:


      FFT was going to be next post on this.

      I was scorched some time ago by a well known contributor here when I shared my reservations about FFT, wonder if the next post should be preceded by a trial post???

      I’m glad my reservations were on, but she has her defenders.

        • MadDog says:

          Ditto what EW said!

          njr83, if you can remember, please name those offending souls and many including myself will be more than happy to jump them with both feet.

          FFT typifies everything we know about these Bush/Cheney Kool-Aid guzzling criminals.

      • MadDog says:

        This is the very same Frances Fragos Townsend who has been recently trailing her coat all over TradMed to let Team Obama know that she wouldn’t mind getting a job in the new Administration.

        I’m guessing I need not alert the residents of this neck of the woods about “moles” and their insidious propensity for betraying their hosts.

        Fook FFT and the fetid burrow she lives in!

      • bmaz says:

        I was scorched some time ago by a well known contributor here when I shared my reservations about FFT, wonder if the next post should be preceded by a trial post???

        Um, there are only two of us, and I can guarantee that neither one would be caught dead slurping up Franny Frag. You must be confused with some other blog…..

  7. Mary says:

    Fast note – I’m not necessarily trying to evangelize here, but go figure on the odds of part of the Sup Ct edifice falling off around the Alito nomination process, the AG being stricken dumb while giving a speech talking up torture, AND the FBI agent protecting Bush’s unconstitutional surveillance program being named Lawless.

  8. Mary says:

    8 – expose the roots EW (and whichever newschannel it is who is using her as their nat sec commenter now — and maybe we can revisit the lovely letter to Bush, the flame of her immortal desire – and just how tf someone pens crap like that and still pretends that there’s a valid whistleblower process.


  9. JohnLopresti says:

    Pretty impressive Isikoff remained with the story since the abbreviated bulletin he filed the week after the Gpersons took T’s childrens’ laptops. The more expansive current version by Isikoff called a few things to mind, one the depicted quandary about searches, stuff that forensics likely could restore, once the laptops and other machines were back in the lab. Somehow I keep seeing leadership setting the orders in this, though am appreciative of the vaguely dark humor of AGJA rising in a furze to speechify against just signing the documents in the hospitalroom since some of his parts at that juncture could be exposed to more than the PAA ultimately would shield. Though by the time of the home search and hustled PAA passage prior to autumn 2007 congress was showing amazing alacrity in hearings. Since the original Isikoff blurb cited CDT’s Dempsey, I thought reading d’s statements at the time would be germane, turns out he framed it pretty clearly, without all the dept politics Isikoff now chronicles more thoroughly, at two hearings fifteen months ago. But I see the telco perspectives as likely separable, as they have continued to be, given the technology to wiretap has been around as long as the capability to propagate signals (technical verb there). Dempsey materials, September 2007.

  10. tryggth says:

    From page 3 of the online Newsweek article:

    Separately, the NSA was also able to access, for the first time, massive volumes of personal financial records—such as credit-card transactions, wire transfers and bank withdrawals—that were being reported to the Treasury Department by financial institutions. These included millions of “suspicious-activity reports,” or SARS, according to two former Treasury officials who declined to be identified talking about sensitive programs. (It was one such report that tipped FBI agents to former New York governor Eliot Spitzer’s use of prostitutes.) These records were fed into NSA supercomputers for the purpose of “data mining”—looking for links or patterns that might (or might not) suggest terrorist activity.

    I still think this is one of the great untold stories of this whole sorry incident.

  11. skdadl says:

    As a student of EW, one of the first things I notice about that story is the near-total absence of dates. If Tamm’s knowledge of teh program was not very deep or detailed, maybe that doesn’t matter so much. But I kept dialling away in my head to try to locate connections with other people.

  12. scribe says:

    As to Lawyer Tamm, wow.

    As a lawyer, I can fully grasp the deep dilemma he was caught in. Not just “the AG might get indicted and there’s illegality running amok in the DoJ” but also “if I get involved in Stellar Wind, I could be indicted, and if I don’t say anything about the illegality that is Stellar Wind, I could be indicted for misprison of felony.” One of the burdens of a legal education is an ability to see all the angles.

    Not for nothing there’s a provision in the codes of ethics governing lawyers which allow them to reveal confidences to prevent a crime, and to protect themselves. But those codes of ethics don’t hold up against the criminal law.

    On to another part of the problem – laundering the intelligence into ordinary criminal cases. There was a post recently (either here or at TalkLeft) about a criminal defendant represented by Jonathan Turley who was heading into sentencing where, it appears, the government sought to introduce (Among other things) the allegation that he’d rejoiced on the phone at the destruction of the space shuttle Columbia, to support a claim for a terrorist enhancement to his sentence. The problem being, that information had not been a part of the case and, apparently, could only have come from NSA wiretapping….

    Also, as to the Moussaoui case, don’t you all recall that they had had all sorts of problems with the government sitting on information which should have been disclosed to the defense and wasn’t? And this guy was in the unit which decided what to disclose and what not to. Hmmm. One is compelled to wonder what stories he could tell about that.

  13. perris says:

    I am hoping obama is keeping his feelings about proscuting torturers close to the vest so as not to tip his hand and I am hoping he comes through for our constitution days after he takes office

    of course I am a dreamer

    • freepatriot says:

      don’t forget the “Insta-declassification”

      I got a hundred bucks that says dick and george regret the insta-declassification within Obama’s first 100 days in office

      that pixie dust works a little different when Democrats sprinkle it

  14. MartyDidier says:

    There are MANY Whistleblowers and most of the important ones are being blocked from telling their stories. Once the blocks are removed there will be a tidal wave of truth that will overcome all the lies we’ve been told all this time. The current situation isn’t expected to continue for much longer. Obama isn’t someone who is expected to help it either as he is more expected to keep the blocks on. Other means are expected to remove the blocks and they appear already to be in motion. Also, the Internet helps us all with supporting Transparency.

    Marty Didier
    Northbrook, IL

  15. FrankProbst says:

    I can’t for the life of me see how this man can be successfully prosecuted. There’s a lot of confidential information involved here, so he’s got an obvious graymail defense. Is there any chance that parts of his case will end up in FISA courts? The irony there might be too much for me to handle.

  16. Arbusto says:

    I’m struck again on the how little the rule of law is followed at Justice and lack ethics and spine that permeates the not only the DoJ, but Judicial branch as well. Why didn’t the FISA Courts concern with the depth and breadth of wiretap result in mandating an investigation by back channel if nothing else? Is our system of government so wreaked that no department can be trusted to fairly and fully investigate another, let alone an internal investigation?

  17. freepatriot says:

    can I break out the “What if” gun, and start firing randomly into the crowd ???

    mcstain is attacking the repuglitards for attacking Obama

    and on the other hand, you got Obama, with dead eye dick’s magic wand

    does anybody else see the narrative building here ???

    kkkarl rove is shitting himself over blago and holder, and the repuglitards are smearing that shit all over America

    and then we got the investigations into the bush administration

    kinda highlights the repuglitards selective defense of the rule of law

    the repuglitards have a hissy fit over a Democratic scandal involving MONEY

    murder, torture, crimes against humanity, that don’t bother the repuglitards

    and when is somebody gonna mention the $9 billion in cash that was sent to Iraq in semi trailers ???

    kinda makes the hissy fit over the bailout look like a fucking JOKE, don’t it

    Obama’s a fighter, wanna bet on it ???

    • Petrocelli says:

      Freep: “Obama’s a fighter, wanna bet on it ???”

      He is an analytical fighter. like Ali, not a bruiser like Tyson and he will KO these guys … it’s a matter of priorities and this economic and political mess overseas will keep him busy for 1-2 years.

      As his campaigning shows, his organizing skills is phenomenal.

  18. FrankProbst says:

    Yet another question–if they were specifically funneling requests to the chief FISA judge and none of the other judges, and the judge was aware that they were doing so, is the judge in any legal trouble? In other words, it looks like the goal was to do an end-run around the FISA law. If the judge was aware of this, can the judge be prosecuted for helping to violate the law?

    • LabDancer says:

      Not at all – – and if anything the converse.

      The FISA court tracks applications and orders. Judge-shopping would be noted fairly quickly, and it would professional insanity for the chief of a court to hide it. It’s actually possible the perception of an effort at judge-shopping on this front led to applications involving this Ill Wind being funneled to the chief through the initiative of the court.

      However – we all know this White House has reflexively introduced itself to institutional leaders with a process that resembles nothing so much as date rape: at first, certainly to the public, it shows up with all the obsequiousness of a snake oil salesman working a crowd of hicks, all faux deference and so far past courtesy its blatantly awkward, overly formal, and yet at the same time in some creepy way also overly familiar; but beyond the public’s view, very soon after their new BFFs get muscled, and any incidental sense of collegiality is replaced by bully-boy domination.

      So on form it seems at least as likely this came from a Bush White House strategy gone awry [which is by now “the” classic oxymoron].

      But however this came about, traditionally the idea of going to the chief carries with it the implication that it will be conferenced through the entire court – such that the decision, whether arrived at by consensus or by vote or by some other means, holds more significance than that of a single judge – and in essence is “the court’s decision”.

      Now, one kinda gets the impression from Isikoff’s piece [about which I’m not nearly as enthusiastic as Fearless Leader] of hushed tones in sequestered meetings exclusively between the current chief & putative successor/current chief & immediate predecessor, like the participants are concerned they might be breaking an understanding, or a promise, or even a law[!].

      That sense certainly works to Isikoff’s advantage in maintaining consistency with the overall breathless quality to the protagonist’s tale.

      I’m even prepared to accept this doofus bullyboy White House might have sought or hoped for that effect [particularly given how they worked the members of the various intersecting Gangs of 4 and 8].

      But considering that tradition, and all the stakes involved, the White House would have been presumptuous in pressing for it in the first place.

      And considering increasing reporting of sordid stories about the administration from top drawer reporters like Hersh, Priest, Risen, Lichtblau, Savage, and beyond – into the blogosphere with the likes of Murray Waas – the White House would have been naive to expect it be maintained.

      Finally, I would think that one very big difference between the members of the various intersecting Gangs of 4 and 8 on the one hand, and the members of the FISA court on the other, would be that when the latter find they’ve been lied to, or when the latter get blatant law-breaking dropped in their laps, they don’t need to be concerned with answering to an electorate on trumped-up R-thoritarian issues of having circumscribed some non-existent privilege, having betrayed the places Secret Squirrel uses to hide all the nuts, bein’ all soft and squishy and lovey dovey on mooslim ter’rists, and secretly hatin’ ‘mericans.

  19. freepatriot says:

    the Iraqis finally got a chance to throw something at bush

    and it wasn’t flowers …

    I got vision, and the rest of the world wears bi-focals

    • MadDog says:

      It tis, tisn’t it?

      And btw EW, did you see Laura Rozen’s link over at War and Piece to a Newsweek companion piece?

      Now We Know What the Battle Was About
      Justice Department lawyers defied President Bush over secret surveillance—but not for the reasons you might think.

      …But a mystery remains: What did the Justice Department rebels object to, and what concessions did Bush make to appease them? What, precisely, was canceled?

      Two knowledgeable sources tell NEWSWEEK that the clash erupted over a part of Bush’s espionage program that had nothing to do with the wiretapping of individual suspects. Rather, Comey and others threatened to resign because of the vast and indiscriminate collection of communications data…

      • emptywheel says:

        I saw the article.

        It doesn’t tell us much that we don’t already know–that wasn’t apparent even once we learned that Jello Jay was accusing Cheney of TIA again.

        Except for the name, Stellar Wind. Which may actually come in handy.

        • MadDog says:

          Yeah, I agree there isn’t much new there other than the fact that of sources confirming the massive dragnet that Hayden insisted wasn’t taking place (liar, liar!).

          Except for the name, Stellar Wind. Which may actually come in handy.

          I started googling that term last night, but to no avail as of yet. Merely repeats on other blogs about the Newsweek piece. Hopefully this will change in the next few weeks as more sources break cover.

          And I will make the prediction that in spite of the Obama Team’s desire to govern in a “let’s all be friends” bi-partisanship, there will be more than a couple Democratic Congresscritters who will take some scalps in the 111st Congress.

          Even from baldfaced liars like Mikey Hayden.

            • pdaly says:

              My first thoughts ran to the Christopher Guest mockumentary: A Might Wind

              Is ’stellar’ in reference to stars? or satellite communications?
              Maybe fiberoptics when spliced (my bold) look like stars…

  20. earlofhuntingdon says:

    Isikoff or his editors still can’t bring themselves to use the T word. His article continues to use passive constructions, like ”some believe X is tantamount to torture”. After all the disclosures, the double negative is more cowardly than accurate.

    One, the behavior described is torture. The ”some” who believe so includes everyone outside of the MSM and the Bushites. Two, ”tantamount to torture” means it’s almost, but not quite torture and, impliedly, such behavior should not carry the legal consequences of having committed torture. But see item one: it is torture.

    Like Maxwell House coffee, the MSM’s commitment to protecting villagers is good to the last drop.

  21. earlofhuntingdon says:

    Isikoff still does a valuable service in personalizing the stories of those who have borne the brunt of the Bush administration’s brutal retaliation at those who challenge it. Arguably, Mr. Tamm deserves the Medal of Freedom Mr. Bush mistakenly gave George Tenet.

    I am saddened that the Isikoff article devotes so much print to the Fran Townsends of the world. The issue is not protecting “national security”. The recent Senate report debunks that argument. The issue is whether the Bush administration is subject to the law of the land, or whether it can brutalize with impunity the lives and careers of anyone who draws its ire.

  22. kspena says:

    I’m wondering if there is some protection to a whistleblower by having their ’stories’ published in a foreign country? It seems bush couldn’t do much about what was in the British, French, or German press…

  23. skdadl says:

    Stellar Wind makes me giggle, but maybe that’s just me. All these Orwellian labels they dream up make me laugh, sort of, although sometimes not in a good way.

  24. lukery says:

    This seems notable from Newsweek’s companion piece:

    “(The actual content of calls and e-mails was not being monitored as part of this aspect of the program, the sources say.) “

  25. MadDog says:

    And a question for EW:

    Have you checked out the stuff referenced in the piece by Michael Calderone of Politico regarding the a KOS posting linking to a TPMMuckraker commenter who seems far too knowledgable about the TSP, DOJ, FBI Director Mueller, and much, much more?

    The comments by “Anonymous” over at that TPMMuckraker link are tantalizing to say the least. For example:

    Anonymous wrote on July 27, 2007 4:45 PM:

    I would encourage a “fresh look” at not just the transcript, but the _audio_:

    [”Mueller: The discussion was on a National — uh, NSA program that has been much discussed, yes.”]

    It appears he _almost_ mentioned “national security council” program. . . NSC is not the same as NSA. Another way to read between the lines . . .”National security program”: Something that is _outside_ FISA; and _outside_ what the FISA current covers. . .although it was intended to cover _all_ things.

    Listen closely to the pauses, spacing, and hemming and hawing. Mueller is dancing around something that — it appears — President and AG have said falls “outside” the FISA-coverage: This might be a Canadian-Australian-NZ-UK data transfer program: Whereby non-US interception methods are used, but the data is forwarded to the NSA through non-direct US means.

    . . . .

    Also, if the Senate’s Leahy/Specter do not trust Gonzalez, why would they trust him on this AG-certifications under FISA? If he’s been lying to the Senate, then his AG-certifications on “OK to do this without a warrant” are also in doubt. He could define anything — rightly or wrongly — as being under that umbrella.
    Question becomes: What certification has the AG made on things that not even the Gang of 8 was told about; and how was the NSC (not NSA) involved with the oversight of this, outside FISA-Gang of 8 review?
    “National security” could mean: “Maintaining morale” or “maintaining confidence”: That could mean providing false information to the public; or, based on data mining, issuing public news releases to justify public support for illegal activity; or maintain confidence in something that was an illegal contract. This would involve capture through NSA of meta-language; then stripping out identifying information;; then transferring that data to a firm like Flieshman Hilliard which would examine it, and issue public news releases on various government “public oversight” and “media messaging issues”: Smith Act issues in re domestic propaganda: Possibly a “public service” announcement to maintain loyalty in non-sense. Something for AT&T to discuss.

    And according to that KOS link, there is another 12 or so comments more from that “Anonymous”commenter which I’m going to chase down in that TPMMuckraker post.

    • bmaz says:

      I assume you are linking this to the portion of Iski’s article that said Tamm had taken to liberal blogs? Have you checked your email?

    • drational says:

      Mad Dog-
      I am pretty convinced that anonymonus tpmmuckraker poster was Tamm, and wonder whether that flurry of posts is what prompted the FBI raid to pick him up on Aug 1, 2007.
      He dropped in out of the blue on July 27, posted like hell with all sorts of cryptic comments, then disappeared.

      here is a catalog of his posts:

      • Leen says:

        I still do not get why Tamm would not first use the means available to blow the whistle on what he believed to be an illegal wiretapping program, especially if he did not know much about the program.
        Isikoff’s article
        “You can’t have runoffs deciding they’re going to be the white knight and running to the press,” says Frances Fragos Townsend, who once headed the unit where Tamm worked and later served as President Bush’s chief counterterrorism adviser. Townsend made clear that she had no knowledge of Tamm’s particular case, but added: “There are legal processes in place [for whistle-blowers’ complaints]. This is one where I’m a hawk. It offends me, and I find it incredibly dangerous.”

        Tamm seems like an honorable person with the best of intentions…BUT Why not exhaust all means possible to a person of his rank to blow the whistle before you call the NYT’s?

        • JThomason says:

          Mr. Blanks says July 29, 2007 11:56 pm:

          The FISA violations aren’t about the law, they’re about _transferring_ data for illegal objectives, including the support of illegal war crimes, prisoner abuse, and other breaches of Geneva. AG Gonzalez doesn’t care about FISA violations because his _real_ concern are the war crimes which the CIA has confirmed to the EU.

          Keep in mind who you’re dealing with: Legal counsel who believe they are generals, but have failed in military campaigns. Their idea of “winning” is to block enforcement of the law and hiding evidence of _their complicity_ with war crimes. The think they are above the law. They’re not. The holes tell us something else.

        • drational says:

          Well I don’t know, but here are some thoughts:
          We don’t really know his intentions. But the isakoff article alludes to his depression and paranoia. And if the TPM postings were him, I’d say he was quite paranoid and loose in his associations in 2007….
          Plus the article makes it seem he did not have deep knowledge of the mechanism of the illegality, but was poking around at the fringe. A reporter could poke up the chain of command much easier….

          • drational says:

            We know that he met with Lichtblau in early 2004. And in the vein of Mary, It’s likely that pokes up the chain of command to vet the story were happening right about when Goldsmith and Comey were deciding to get religion.

            • Leen says:

              Comey’s testimony having to do with the program had me believing that there are some honorable folks in our government

              • drational says:

                I still haven’t given up on him. But coincidences like this and posts by Mary, who cites his dishonorable role in Padilla, etc, make it harder to believe.

  26. MadDog says:

    EW, and all the other residents of this place, I’d like to offer a suggestion.

    I’ve been thinking about Thomas Tamm and the travails he is undergoing. As Isikoff’s article makes clear:

    …But 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…

    My suggestion is that we, the blogosphere, stand up for Thomas Tamm!

    We stand up for politicians even though we know at best, they’ll bend with the political winds.

    Here is a man that stood up for us, the American people! And at great cost to him.

    Will the Villagers stand up for Thomas Tamm? Not so you’d notice! As a matter of fact, Isikoff’s own sub-title says it all:

    The Fed Who Blew the Whistle
    Is he a hero or a criminal?

    (My bold)

    EW, would I be presuming on your goodwill to ask for your assistance in taking this suggestion to your blogosphere back room and championing Thomas Tamm as a righteous cause with your compadres? Jane, Christy, Markos, Glenn, Digby and all the other blogosphere heavys?

    Ask them these questions: Should we take Thomas Tamm’s back?

    If we don’t, who will?

    I, for one, am willing to stand up for this Hero, and I’ll put my money where my mouth is!

    What say the rest of you?

      • MadDog says:

        According to that Isikoff article, yes:

        …Still, Tamm is haunted by the consequences of what he did—and what could yet happen to him. He is no longer employed at Justice and has been struggling to make a living practicing law. He does occasional work for a local public defender’s office, handles a few wills and estates—and is more than $30,000 in debt. (To cover legal costs, he recently set up a defense fund.)

        (My bold)

        No info yet on how to contribute but the folks over at KOS are ready to contribute too!

  27. Petrocelli says:

    Marcy, it is such a treat to read the many great posts like you have been doing all this week, including this one.

    Sorry that I can’t add anything besides comic relief from time to time, but how does one improve on perfection ?

  28. Mary says:

    33 – I find it all kind of interesting. From the description, Stellar Wind is absolutely nothing but a data mining program. So how, then, does that tie with the Hayden press conf (no, not where he forgot the warrant clause and probable cause in the 4th amendment) where he certified unequivocally that *teh program* the “terrorist surveillance program” absolutely had nothing to do with dragnets and data mining.

    How were they parsing those programs? How many members of Congress and their families has calls and emails intercepted in Stellar Wind? How many of those calls and emails might have had legislative aspects? Was AGAGs “teh program” the Stellar Wind program (in which case he knew Hayden had lied) or was it something else?

    For Rozen, I stick with my old, unexciting, take on what was being done. SPEC (mixed with some reported facts): Baker stumbles across the program in some way/shape/form. He demands that the FISC Chief Judge be briefed. FISC (through its Chief Judge) had said they didn’t want the illegal program filth laundered by the FISC. He (later she)not only barred it, but also required that if a FISA application was made covering anyone who had been subjected to the illegal program, it had to be signed off on by Mueller, AG or DAG.

    For whatever reasons (deliberate misreps to the court, laziness and incompetence, or the daunting aspect of trying to figure out just who was included in the many millions of intercepts) DOJ begins to just use the backdrafts from Stellar Wind (and probably “other” programs too – com’on, we know Diggs Taylor severed out two aspects and while she didn’t go to town on the data mining, she DID order a close down of *another* program as unconsitutional) to make doctored up FISA applications on people illegally surveilled as well and foist them on the court.

    Thompson figures it out and is worried about the court doing what it does to lawyers who deliberately and knowingly violate not only its orders but its interpreetation of a criminal statute on top of that – – – so to cover himself he quits signing applications. Comey comes on and gets some kind of info (perhaps directly from Thompson, Comey covered for Thompson on the Arar suit by filing the state secrets affidavit to protect Thompson and Ashcroft; Comey and Thompson and Philbin and Goldsmith tried to 3 musketeer plus D’art Haynes onto the 4h Circuit; Thompson could well have given Comey a heads up that illegal applications were being processed in disregard of the Chief Judge’s orders and someone might, esp if the election didn’t go *right* lose their scalp) that FISC orders are being violated with probably some kind of argument that the way the datamining is being done, there is just not a good way to police who is being illegally surveilled and flag them when they are included in a facially legal FISA app.

    This is the procedural aspect to the review Comey said was taking place. Comey, Goldsmith and Ashcroft find out that KollarKotelly has discovered the illegalities and is out for blood (the old wapo report indicated that she contacted Ashcroft directly). Now keep in mind that there have been some reference to the fact that the renewals were being issued, not as FISA certifications under the statute, but rather as “military orders.” So likely Addington et al were saying a couple of things. A) Screw the FISA court bc these are military programs (even their domestic aspects) and the FISA court has no authority to tell us anything about “our” military programs, and B) Screw the FISA court bc WE have ALL the enforcement mechanisms and they can’t do one damn thing and not only that, but if they try to do something we can go after the FISC Chief Judge for state secrets violations .

    So the showdown really had to do with the nuts and bolts of the Nixon Subpoena – would DOJ be subject to court orders or not? Was the Executive Branch not required to adhere to court orders and the court’s determination of law? Especially in an election year, the lawyers were lining up a little nervously on that one, bc the FISC Judges hadn’t been able to be faced down before and on this front, the lawyers did have the possiblity of direct liability if the Judges held tough and esp if they held tough and the program came out and Bush got booted from office.

    So the lawyers had a couple of competing interests. They wanted Bush re-elected to save them for what they had been involved in so far. They knew that the FISC might not be able to be controlled by them and that as lawyers, they could lose their licenses AND be looking at liabilty This wasn’t just a matter of legal opinions – it was a matter of who was lying to the court or violating the courts orders, probably the bulk of the lawyers who were willing to resign with Comey had been involved in FISA applications or illegal programs and were at least as worried about exposure and consequences as they were about the law

    So they began to desparately push to have the illegal program changed so that it would still be just as illegal, but would be able to be able to be tracked better so that the FISC requirements as to applications could be met. Addington et al weren’t interested and were pushing the screw you points above. Ashcroft refused to sign on off bc he knew that the FISC might not be kidding about pursuing charges against him.

    And in the end, all Comey and Goldsmith did was to make the program more trackable so that they could give more truthful assurances to the FISC that the filth wasn’t being laundered in the court.

    I think it is very very likely that was all they did and that the reason they did that much was only bc of worry about the court. But then again, my fan quotient is pretty low on the Bushlawyer front, so I could very well be wrong and just refusing to give credit to the caped defenders of justice.

    Kollar-Kotelly figures it out

    • bmaz says:

      Um, yeah. But then you knew that. Let me boil down Mary’s ever cogent analysis for those that have not before seen my handy Reader’s Digest version.

      Comey, Goldsmith and their cohorts were not heros so much as self servingly covering their own asses and protecting their own bar tickets. If they had been heros, much more than just the bare minimum to get through the election and stave off disbarment would have resulted. The facts are complex, but the gist is really quite simple.

      Mary @54 – Yeah, my vote is solidly “both” on that. Further, I think both Lamberth and CKK “funneled” because any enforcement orders would need to come from them anyway, so they wanted to streamline and keep a vigilant eye on the process. The threat to malfeasants was also greater if they had to appear and swear in front of the chief jurist all the time. It was a funnel and a hammer.

  29. Mary says:

    30 – no, I don’t think so. The funneling was at the Judge’s demand I believe, and I think that was bc the Chief Judge was requiring extra certifications on those applications – certifications that although the person covered in the FISA application is someone who was being surveilled in the unconstitutional programs, that no part of any info from those programs was being used in the probable cause assertions for the FISA order.

    It appears that what happened is that either or both of a) the AG and FBI Dir certifications were false and they were using illegally obtained info for the probable cause assertions adn b) the AG and FBI Dir were not actually pulling out the FISA applications for people who were the subject of illegal surveillance and those people were having FISA applications made that were using omfp from the illegal programs.

    Which would be, if spec is rigth, why Thompson quit signing off on applications – he knew, probably about b in particular would be my guess. I tend to wonder if Robertson resigned as an “in general” reaction (he really deserves a Circuit Court appointment) or if it might be more specifically bc of at least one of the laudering applications being handled by him, with his issuance of a surveillance order and later discovery of the related fraud on the court. Who knows.

    In any event, I think that making order trying to bar the illegal program and put a procedure in place to try to prevent the illegal program from leaking into the court was probably the best the Chief Judges could do at the time, esp with Pelosi and Rockefeller sitting in Bush’s pocket.

  30. Mary says:

    Here is the old WaPo Leonig story about the Judges – a story that long preceded the “Palace Revolt” pr piece.…..02511.html

    So early in 2002, the wary court and government lawyers developed a compromise. Any case in which the government listened to someone’s calls without a warrant, and later developed information to seek a FISA warrant for that same suspect, was to be carefully “tagged” as having involved some NSA information. Generally, there were fewer than 10 cases each year, the sources said.

    According to government officials familiar with the program, the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant and that, instead, independently gathered information provide the justification for FISA monitoring in such cases. They also insisted that these cases be presented only to the presiding judge.

    Baker also had privately expressed hesitation to his bosses about whether the domestic spying program conflicted with the FISA law

    In 2004, Baker warned Kollar-Kotelly he had a problem with the tagging system. He had concluded that the NSA was not providing him with a complete and updated list of the people it had monitored, so Justice could not definitively know — and could not alert the court — if it was seeking FISA warrants for people already spied on, government officials said.

    And here’s a link to an old kos diary I did when Waas was exploring the shut down of the OPR investigation and where I was speculating about this possiblity that the Palace Revolt was really nothing more than a revamp of the targeting system.

    Everything about this story makes all the references to Yoo having a memo out about the President being ability to violate the bill of rights willy nilly, as long as he used he military for the violations and did them under the guise of his CIC status a bit more interesting still. Love to see how that memo dealt with Milligan.

  31. sunshine says:

    OT: CNBC has a program abt GM & the Volt electric car. My hubby says maybe the Volt is going to be too good and the oil companies don’t want it on the market. And it’s future rests in Bush’s hands.

      • bmaz says:

        Why do you say that? Lutz has a history of bringing game changing products to fruition. He is a driven sort of guy and is totally invested in the Volt and the lean and green transformation of GM. He is doing a superb job, and from everything I have heard, the Volt is everything he says it is. Lutz is not the problem at GM; to the extent there is a problem, he is the solution right now.

  32. sunshine says:

    Bob Lutz: Volt Is U.S. Car Industry’s Moon Shot

    WN: What would that mean for the U.S. auto industry? Lutz: I don’t think it would be a vast overstatement to say the Volt is in many ways symbolic of a renaissance in the American auto industry. If we pull it off successfully, it can really put us back at the top of the heap of automotive technology instead of being called laggards that are being left behind by the Germans and the Japanese.

    WN: You say it could be a renaissance if the Volt succeeds. What if it doesn’t?

    Lutz: What if Kennedy hadn’t pulled off the moon shot? The company is so focused on it; we have more than 300 people working on this, and we’re hiring more and entering into some interesting collaborative research opportunities with several universities.

    WN: Is this GM’s moon shot?

    Lutz: Yes. That’s a good analogy. If it doesn’t work, it’s not fatal. But if it does work, it will be sensational and it will have the same sort of symbolism.…..tz_volt_qa

  33. sunshine says:

    The Volt can go 40 miles on battery and a potential of 640 miles on 1 tank of gas and Bush is in Iraq and Cheney is left to decide the fate of GM.

    Unlike current hybrids, the Volt is designed to operate its propulsion system entirely on electric power. With fully charged batteries, this electric power will initially be sourced exclusively from its on-board

    Lithium Ion batteries for up to 40 miles

    (64 km), a distance capable of satisfying the daily commute of 75% of Americans,[10] which averages around 33 miles (53 km).[11]

    After 40 miles (64 km), the range of the Volt will need to be extended through the use of a small 4-cyl internal combustion engine which drives a 53 kW generator. This arrangement creates a sustaining charge current to the HV batteries and permits them to continue powering the 111 kW electric drive motor.

    This effectively extends the Volt’s potential range to as much as 640 miles (1,030 km) on a single tank of fuel.[

    9](and which could be potentially extended for longer trips through conventional refueling).[12][13]

    The Volt’s 16 kWh Lithium-Ion battery pack can also be fully charged (technically ~85% SOC) by plugging the car into a 120-240VAC residential electrical outlet using the provided SAE J1772[14] compliant charging cord. No external charging station will be required.[15]

  34. radiofreewill says:

    “And, Mrs. Ashcroft, when they entered your husband’s hospital room, did they say ‘why’ the President had sent them?”

    “Well, yes, they did. They said it was urgent and couldn’t wait. They called it Stellar Wind.”

  35. joeyess says:

    From the article:

    Separately, the NSA was also able to access, for the first time, massive volumes of personal financial records—such as credit-card transactions, wire transfers and bank withdrawals—that were being reported to the Treasury Department by financial institutions. These included millions of “suspicious-activity reports,” or SARS, according to two former Treasury officials who declined to be identified talking about sensitive programs. (It was one such report that tipped FBI agents to former New York governor Eliot Spitzer’s use of prostitutes.) These records were fed into NSA supercomputers for the purpose of “data mining”—looking for links or patterns that might (or might not) suggest terrorist activity

    Spitzer, a Democrat, who just happened to be known for his dogged devotion to sniffing out and fighting Wall Street corruption was swept up.

    Completely by accident, of course.

    • bmaz says:

      No, a careful reading of that passage yields the conclusion that Spitzer was referenced definitively only as to the fact that a SARS report was involved in his case; it is unclear, at best, if said SARS report was collected up in Stellar Wind as opposed to the original story that authorities were alerted by the bank. I am not making a judgment either way, just saying we do not know for sure at this point.

  36. JThomason says:

    Why does the FBI’s treatment of Tamm remind me of Bruce Ivins? Add black hoods placed over the heads of suspects and you’ve got a domestic surge.

    • radiofreewill says:

      I think Tamm is more like Winston Smith, the main character of ‘1984′ – except this time his act of Rebellion, his thought-crime against the Ideology, didn’t cause him to write furiously in his hidden, renegade notebook – this time Winston called the New York Times.

      And this time, instead of the Rebellion of Free-Thinking getting crushed before it starts by the All-Seeing Machinery of Big Brother, it’s more like Frodo Tamm picked up the phone and hurled the One Ring That Would Rule US All – Stellar Wind – into the fires of the Forge for Public Good.

      Tamm threw the ‘above the law shadow government’ into the light, in time for it to be folded back into the Constitution and the Rule of Law – but only maybe just barely – we’ll have to see…

      So, imvho, there is room for optimism in the way this is turning out.

      • JThomason says:

        That was my initial instinct (oh the light is the best disinfectant) in reading this story but as I considered the FBI tactics described and was reminded of the pattern it seemed to me that the die is cast. “18 FBI agents—some of them wearing black flak jackets and carrying guns’, really. How far is Potomoc, MD from Falluja. Think about that display of force to protect an illegal secret program.

        I would love to be proved wrongs by the way. But who is going to hold Yoo’s feet to the fire. He is the lynch pin isn’t he in his self assumed jurirsprudence which found Milligan and Youngstown trivial? I am afraid banal administrative fiat has long sense been the rule.

  37. Mauimom says:

    “Isikoff” and “excellent story” in the same sentence??

    I’ve always thought Isikoff was a self-serving shit.

  38. JThomason says:

    Maybe for the sake of my emotional regularity I should just go back to following Kiffin on the recruiting trail. Fulmer’s firing on the day before Obama’s electionm, I regret to say, has heightened my sense of cataclysmic change.

    I guess a little chat concerning political philosophy is par for the course in DC when dealing with an investigating agent. I am suprised there is no report of anyone witnessing their faith to agent Lawless in an expression of their bona fides.

    Finally if one of the big three could put together a vehicle that ran on my late night blogging BS I think I would be ok. The rest of you will have to fend for yourselves.

    Long live the American Civil Religion!!

    • MrWhy says:

      I really like that movie. Can’t imagine it was in the conscious mind of anyone in Bush’s government though.

  39. pdaly says:

    Just finished Isikoff’s article.

    I wish Isikoff could have tried even just a little to bluntly answer his own question. Yes, Tamm is acting nobly. Tamm is a hero for the rule of law and for defending the Constitution. The US Constitution trumps secrecy law and unitary executive pixie dust, so the ‘line’ is not that thin, okay Mr. Isikoff?

    Wondering why Tamm approached Isikoff and didn’t just go back to Lichtblau or Risen and permit them to tell his story?

    Maybe Tamm did approach Lichtblau and Risen, and they couldn’t or wouldn’t publish?

    Or did Tamm not approach them, because, time being of the essence right now, the prior story took 18 months to be printed and he couldn’t take the chance of a similar delay in getting the story out?

  40. LabDancer says:

    This post – the essence of Mann’s tale I mean – just keeps bugging me, and on evolving fronts.

    I thought to post a response to Mary’s construction of an animated body on the skeletal facts that have emerged so far, to capture the sense of the evolution of this mess among the FISA court and the DOJ and the NSA and the NSC; because I can think several alternate scenarios I think may be just as plausible.

    But Mary’s itself being plausible, what’s the point?

    Whether Mary’s interpretation best captures the essence of it – – or one I might come up with; or someone else here, or elsewhere, comes up with one that proves to outdo us both – – is far less important than the fact that: every conceivable plausible expiation on this skeleton must factor in years of concerted, continuous law-breaking on the part of a multiplicity of government actors.

    That much being simply unavoidable, some important questions arise, no matter what the facts are, or further revelations make them appear to be. And some of them are already answerable. Here’s one:

    Why was it that the product of illegally obtained information, wiretap, email or otherwise, kept being inserted into applications to the FISA court for orders authorizing wiretaps?

    It’s clear the FISA court, or at least the two chiefs, decided they were powerless to stop all the warrantless wiretapping; it even appears they settled on an accommodation with the DOJ to tolerate such insertions, so long as they were clearly marked to enable them to discern them [presumably, but not necessarily, to discount them entirely].

    How about this answer: Stats.

    More acutely, statistics to bulk up humongous budget requests, otherwise only supported by over-generalizations, such as: We know they’re working to safeguard America from attacks and to save American lives.


    Assume you determine it would be useul [for budgetary purposes] to be able to point to: X number of arrests – and Y number of charges – and Z number of charges “cleared” or “disposed of” – – regardless the percentage of convictions represented in those numbers.

    [Conviction ratios are easy enough to finesse, often with quite spectacularly misleading and even humorous implications, depending on whether your humor inclines to the morbidly absurd; and they’ve been successfully sold as such on the Hill for decades, to the point of it being notorious, and a given really.]

    The problem is that your product, being illegally produced, cannot be used directly for the purposes of certain kinds of search warrants [including any that hold a strong promise of producing reliably useful information that judges are likely allow into evidence at trials] – or of arrests – or of filed charges, whether or not in indictments – and thus not at all in relattion to clearing charges – at least not unless you feel the urge to end your career in a state of infamy and cement your legacy in a state of ignominy.

    But suppose somehow you are able to have some of your product inserted, either innocuously or, ideally, insinuated in or near to one of the sexier parts of a likely looking wiretap order – – well, then a sliding scale of weights comes into play, as to whether your product was ‘included in, or ‘contributed to’, or ‘led to’, or was ‘integral to’, or was ‘material to’, or was ‘vital to’, X arrests, and Y charges, and Z dispositions.

    And with orders that run for months, and apply to hundreds, even thousands of individuals, involved in hundreds of thousands, even millions, of individual oral and written interactions, and with you being able to characterize every one of the consequent X arrests, Y charges and Z dispositions as being “in connection to terrorism” – because that’s what your job description says you do, regardless the actual nature of the charges – the stats will pile up nicely enough.

    But then – suppose the system gets ‘on to’ your game, and all your product thereafter gets marked down, with a big “N” [for NSwhatever], and the judge starts granting any orders from applications based on affidavit evidence which includes your marked down product, with an explicit statement showing utter disregard for and lack of any reliance on it.

    Well then: what choice will you have but to start pushing for your product to be inserted in ways that avoid it being marked down?

    I mean, you could still make the same kinds of claims to congress critters: but now there would seem to be a risk of your getting caught: and in any event you’d be having to dramatically elevate your risk to exposure to lies by the simple fact of having to dramatically increase their number.

    But you could also just keep returning to those stats from the early, heady days BC [before caught], and tell ‘em: well, once the Dems took Congress the accounting changed; but here’s the most recent RELIABLE track we have on the effectiveness of our program.

  41. WilliamOckham says:

    I just have time for a few quick hits here. Everybody needs to remember that the metadata referred to in the Isikoff article (phone numbers, To/From/Subject for email) was considered content by FISA. Also, there’s a Siobhan Gorman article from back when that describes how the program worked in practice. I’ll have to dig up the link. This was a lot more than just data mining.

    The picture that Tamm paints is interesting because he’s making the case that the government knew the program was illegal, not just because of what the OIPR folks said, but also because they were laundering the info for FISA applications. Finally, it never ceases to amaze me that the Bushies were able to escape from the first 4 months of 2004 when their criminal enterprise was springing leaks (this, torture, Fitzgerald’s investigation, etc.).

    • tryggth says:

      This article?…..00030.html

      Note that here the claim is:

      According to current and former intelligence officials, the spy agency
      now monitors huge volumes of records of domestic emails and Internet
      searches as well as bank transfers, credit-card transactions, travel
      and telephone records. The NSA receives this so-called “transactional”
      data from other agencies or private companies, and its sophisticated
      software programs analyze the various transactions for suspicious
      patterns. Then they spit out leads to be explored by counterterrorism
      programs across the U.S. government, such as the NSA’s own Terrorist
      Surveillance Program, formed to intercept phone calls and emails
      between the U.S. and overseas without a judge’s approval when a link
      to al Qaeda is suspected.

      • radiofreewill says:

        So, Stellar Wind is actually an Umbrella Program – set-up as a Military Operation under the UE – that includes (the current version of) TIA (DoD), various Counter-Terrorism Organizations (DoJ and/or DHS) and it’s ‘up-link’ into the FISA Court System, aka the Terrorist Surveillance Program (NSA)?

        No wonder the speculation that the Actual Controlling Authority for Stellar Wind is Bush and the National Security Council, and not the NSA.

        Tamm blew the whistle on the larvae of Big Brother.

        The possibility of Bush Mis-Using Un-Restrained Power for Corrupt Personal Reasons is Exactly the Same as the possibility of Wall Street Mis-Using Un-Restrained Greed for Corrupt Personal Reasons, which exactly the Same as the possibility of the Plantation Caucus Mis-Using Un-Restrained Hate for Corrupt Personal Reasons.

        There’s nothing Honorable about Bush. There’s nothing Honorable about Wall Street. There’s nothing Honorable about the Plantation Caucus.

        Without Legislative Oversight and Judicial Review, they would Collude to Fuck US, and there’s every reason to think that the only reason they won’t succeed is thanks to Heroes like Tamm, who can discern right from wrong, and then act morally – choosing to do the greatest good for the most people involved.

        The Great Flaw in the Design of Stellar Wind appears to be that it is a Contrived Way to Import Suspicion of Foreign Ideological Activity (the War on Terror) into a Database of Citizens who have the Right to Think and Act Freely within the Rule of Law, effectively nullifying the 4th Amendment – probable cause for a Warrant – in favor of Suspicion of “Un-Patriotic” Thoughts, Words and Deeds.

        That Flaw – unchecked by oversight and review – would be Ripe for Mis-Use in the name of Social Control by the Power that defines the ‘Ideological Enemy.’

        Bush’s backers want him to have unlimited power, so he can back them with favorable unlimited policies:

        – Wall Street wants US to pay them up-front, so they can launder the risk back to US; wash, rinse, repeat.

        – The Plantation Caucus wants US to let them keep the working class down economically; wash, rinse, repeat.

        Does Anyone doubt that the Spectacularly Immoral Bush would have Pushed America in the direction favoring an Oligarchy of Greedy and Hateful Owners over the Right-less Workers, at the insistence of his backers?

        If not Tamm, then who was going to stop him?

          • radiofreewill says:

            Well, of course, that’s the beauty of it. He gets great credit, though, for knowing what he saw was wrong – that it was cheating the fundamental basis of the Rule of Law – Equal Justice for All.

            Tamm had his eyes open when he saw a fissure – an end-around – of the 4th Amendment Vetting Process for Wire-Taps of Citizens.

            He didn’t need to know any more than the security guard at the Watergate did when he saw tape across the latch of an office door.

              • radiofreewill says:

                Let’s put ourselves in his shoes.

                He’s inside the office that orders physical wire-taps of US Citizens, which has US ‘Rule-of-Law’-based Standard Operating Procedures for handling and vetting Wire-Tap Applications before turning them ‘on’ – things like: Item A – Court-Ordered Warrant Number?

                Tamm witnesses, firsthand, Wire-Tap Applications by-passing the Entire SOP; coming-in from Outside the Court (Warrant) System, getting fed into the que, and turned ‘on’.

                Then, he finds out that this by-passing of the ‘Rule-of-Law’-based SOP – this Warrantless Wire-Tapping – Keeping it Secret from the Courts – is all happening on the Signature of the Chief Law Enforcement Agent for the Nation – the Director of the Department of Justice – Mr. Rule of Law himself – the Attorney General of the United States of America.

                So, AG Secretly by-passing the Courts and the Rule of Law to Wire-Tap Citizens.

                In that situation, imvho, blowing the whistle to the Press is the correct action.

              • nextstopchicago says:

                I don’t see your point. As someone who has done this sort of thing in a bureaucracy, though not on issues of national security, one can easily recognize that tentative attempts to push points are dangerous to one’s career, and in this case, possibly dangerous to one’s freedom and even one’s life. If I were him, I would certainly not have pursued the point vigorously up the chain of command and then gone to the NY Times, so that it would immediately be associated with me. Apparently, he eventually tripped up, and they figured out who he was. That’s too bad in some ways, though I think he’ll eventually be vindicated and allowed to be publically proud of what he’s done. But I don’t see the point of foolishness about why didn’t he just keep telling his boss he didn’t like a policy his boss had clearly become resigned to.

            • skdadl says:

              He didn’t need to know any more than the security guard at the Watergate did when he saw tape across the latch of an office door.

              That is very well put. If I can grasp that, anyone can grasp it, and it would really help non-wonks to see what is involved here.

  42. Rayne says:

    Very OT: Fiorina on CNBC again this morning, pontificating about the auto bailout. Said towards the end of her interview that “business had lost a lot of credibility.”

    Jeebus. Complete unconscious, she is.

    However she was also asked if she was looking to run for office; she said so many people had asked her that she was thinking about it. When pressed about what office, that the CA gov seat might be an option, she gave a non-denial denial.

    Can you imagine her in charge of the fifth largest economy in the world?

    • MrWhy says:

      Can you imagine her in charge of the fifth largest economy in the world?

      No. Can’t imagine a Republican voting for her, let alone a Democrat.

  43. Leen says:

    Frances Frago Townsend
    “there are legal processes in place (for whistle blower complaints. This is one where I’m a hawk. It offends me, and I find it incredibly dangerous.”

    Tamm is described as knowing little about this program. So why not use the methods available to whistle blowers first before calling the NYT’s

    Sure makes you wonder who in the hell the Bush administration was wiretapping in the states? Was it Powell and others in the UN?

    Still have that John Bolton UN nomination Senate hearings when Biden, Dodd, Lincoln Chaffee, Boxer, Kerry, Kennedy were demanding those NSA intercepts. I have never seen these folks so pissed.

  44. JThomason says:

    Mr. Blank says this July 27, 2007 5:37:

    Recall DoJ met with the intelligence personnel at various sports facilitates in DC. Keep thinking Plame and Cheney were about sending a message to Cheney’ private intelligence network — likely linked through Halliburton — to send a message: “Plame outing” is what will happen if you crosss the VP. Seems to simplistic to say this is only about oil, and retaliating against others who spill the beans. Libby’s name was mentioned in the context of “basketball,” another program — that came up during the Grand Jury reviews; his counsel was worried Fitzgerald had access to NSA-GCHQ-intercepted information of legal counsel.

  45. bmaz says:


    Hi [bmaz]. Thanks for your inquiry. The address of the defense fund

    Thomas Tamm Legal Defense Fund
    Bank of Georgetown
    5236 44th Street
    Washington, DC 20015.

    Tom appreciates your support and that of your readers. [Some
    unrelated chit chat on another matter redacted]

    Paul F. Kemp

  46. Mary says:

    Leen – I put this for you in Christy’s post as well, but the apparent reason would be the status of the law at the time and what became apparent to him immediately as to the highest levels of authorization.

    His internal process would have been to go to the IG. In a national security/intell community setting, the IG would have been required to then go to the agency head with details (under the assumption that the agency head isn’t knee deep in the fiasco) and if the IG felt there were criminal issues, he would go to the AG (also under the assumption that they were not knee deep in the fiasco) From the get go, though, the little Tamm knew about indicated that both the agency head(s) and AG were likely involved. Not only did this leave the IG with no one much to go to, but there were carveouts of IG powers in “national security” settings, so that the IG had to notify the agency head of what the IG wanted to investigate, but the agency head could, at that time, tell the IG to piss off bc the matter involved national security – they could shut the IG down. And that action by the agency head was set up to be not reviewable by any court.

    So you go through channels if you have rogue underlings, but in a nat sec setting, we have no appropriate mechanism if the criminals are at the top of the food chain and in particular, if they are thick as thieves with the AG. fwiw

    OT – Horton has a piece up on the torture presidency,
    where he makes an interesting observation about the torture report released.

    The report has some more bombshells in it waiting to emerge on declassification. … deep in its classified hold, the report looks into the use of psychotropic drugs which were, with Donald Rumsfeld’s approval, routinely administered to prisoners in order to facilitate their interrogation—in violation of international agreements and American criminal law.

    IIRC, this was a specific issue that Padilla’s lawyers claimed and they wanted discovery on it and to go into it at trial, but the judge shut them down. So it looks pretty likely that once they figured out they were torturing people with no information, they deliberately set out to destroy them mentally to the point where they could never be competent witnesses as to what had happened to them. And then they collected their medals of honor and pensions.

  47. Mary says:

    Also OT – here is the link to Judge Diggs-Taylor’s opinion…..pinion.pdf

    The Stellar Wind assertions notwithstanding, she certainly seemed to indicate that the “TSP” (teh program) involved direct surveillance of calls by US citizens on US soil without any warrant and that’s what she shut down, while she dismissed the datamining element of the claim

    For all of the reasons outlined above, this court is constrained to grant to Plaintiffs the Partial Summary Judgment requested, and holds that the TSP violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law.

    Defendants’ Motion to Dismiss the final claim of data-mining is granted, because litigation of that claim would require violation of Defendants’ state secrets privilege.

    Either the DOJ fibbed to her in those closed hearings, or Stellar Wind was NOT “teh program” that Gonzales presumably testified about (and which Hayden vehemently claimed was not a dragnet or data mining program) And Stellar Wind was the program against which she dismissed claims but only bc of the invocation of state secrets.

  48. bmaz says:

    Either the DOJ fibbed to her in those closed hearings, or Stellar Wind was NOT “teh program” that Gonzales presumably testified about (and which Hayden vehemently claimed was not a dragnet or data mining program) And Stellar Wind was the program against which she dismissed claims but only bc of the invocation of state secrets

    Well, now you probably remember my theory that they were all playing a fraudulent and dishonest shell game with “the program”, “the program the President discussed”, and “other programs” etc. This is BS, it is all one concerted plan to violate atatute and Constitution to spy on Americans. The Bushies’ semantical gymnastics aside, it was all of a whole cloth.

  49. Mary says:

    114 – yep, I just like to patch in some of the facts as they get reported with the theories that are holding up pretty well.

    I’m still thinking that after the FISA court chief judge said the program(s) was so dirty, they would not allow any trickle of it into even FISA court (which doesn’t require criminal probable cause) it must be “interesting” to see how anyone continued to claim good faith re: the program(s).

  50. Mary says:

    OT – but along the lines of why Tamm couldn’t go through the internal procedures when the AG and Heads of the NSA and CIA (and probably FBI) were directly involved in the program, Horton has a piece up about the DOJ as the *scene of the crime* and has a really pithy summary

    The actors involved in these dealings have repeatedly “lost” documents and evidence relating to their dealings. For instance, a department ethics attorney who was fired for improper reasons sued the department and documents relating to her case mysteriously disappeared after they had been accessed by a person who went on to head the Criminal Division. In litigation in the Eastern District of Virginia, evidence related to two counterterrorism prosecutions similarly “disappeared.” In other counterterrorism cases, evidence connected with the treatment of detainees, including videotapes, regularly and completely improbably “disappeared.” And now, as the transition date draws near, the department refuses on the most preposterous grounds to share a full set of its secret torture opinions with the new president’s Justice transition team.

  51. radiofreewill says:

    What Tamm is saying here is not different, in essence, from what Joe Wilson said: I saw subversion of ‘Rule of Law’-based Government.

    Twisted Intelligence to Lie US to War and Warrantless Wire-Taps on Citizens – they just ‘go together’ – when Ideology Without Honor Subverts the Rule of Law to Advance it’s Agenda.

    What Bush did was a Trust-breaker: In the name of ‘defending’ US, he pursued his Neo-Conservative-Subscribed goals – while Treating US, the Citizens of Our Country, as Worthy of Wire-Tapping based on the Suspicion of Ideological Differences – all on the signature of a Lackey AG – done in Secret from the Courts and Congress.

    Iow, from a logic point of view – In ‘defending’ US against an ‘Ideological Monster’, Bush became an ‘Ideological Monster’ to US: To ‘defend’ the Rule of Law, he ‘broke’ the Rule of Law by Warrantlessly Surveilling US as Potential Enemies First and Citizens Second. In the name of Protecting US from a Tyrant, he acted like a Tyrant to US.

    Turning the Apparatus of Ideology on US once before distinguished the Tories, the Loyalists to the Tyrant King, from the Freedom-seekers who sought protection from Civil Invasion and fought taxation without representation.

    Our forebears fought over that Principle of Inalienable Human Rights for US. To protect Ourselves from this Disease of Human Ambition going forward, We said We needed to keep an Executive ‘honest’ with co-equal Courts and Legislators – so We don’t end up Ruled by a Despotic Man instead of Laws Applied Equally to All.

    So, Bush, who says his ‘inherent power’ derives from the Constitution – the document embodying Our understanding of the Public Trust as the balance of three co-equal branches of government – Secretly Operates Above the Law and Without Regard for the Courts or Oversight.

    That’s a Banana Republic. And, that’s a Trust-breaker.

    We’ve had this argument before – We’d rather Die Free than Live with a Prisoner’s Security.

    One for which the Founders gave US a Remedy, based on hard-won Truths about Tyrants using Ideology to Subvert the Rule of Law…

    You know what I’m talking about.

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