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Silencing Whistleblowers, 12 Years Later

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As reported by Zoe Tillman, Thomas Tamm, the first whistleblower to go to Eric Lichtblau with reports of Stellar Wind, is being investigated for ethical violations by the DC Bar. The complaint alleges he failed to report that people within DOJ were violating their legal obligations to superiors, up to and including the Attorney General, and that he took confidences of his client (which the complaint defines as DOJ) to the press.

The question, of course, is why the Bar is pursuing this now, years after Tamm’s actions became public. Tillman describes the complaint as having had some kind of virgin birth, from Bar members reading the news accounts rather than someone complaining.

D.C. Disciplinary Counsel Wallace Shipp Jr. declined to comment on the charges against Tamm. The ethics case was opened in 2009, but the charges weren’t filed until late December. The disciplinary counsel’s office has working in recent years to clear a backlog of old cases.

Shipp said the disciplinary counsel’s office launched the investigation after reading about Tamm’s case in news reports. It was opened under the office’s name, which generally means there is no outside complainant.

That’s a funny explanation, given that the complaint doesn’t reference the press reports, most notably Michael Isikoff’s 2008 report on Tamm’s whistleblowing, which describes Tamm going to two of his superiors (though not, admittedly, all the way to Attorney General Ashcroft).

It’s unclear to what extent Tamm’s office was aware of the origins of some of the information it was getting. But Tamm was puzzled by the unusual procedures—which sidestepped the normal FISA process—for requesting wiretaps on cases that involved program intelligence. He began pushing his supervisors to explain what was going on. Tamm says he found the whole thing especially curious since there was nothing in the special “program” wiretap requests that seemed any different from all the others. They looked and read the same. It seemed to Tamm there was a reason for this: the intelligence that came from the program was being disguised. He didn’t understand why. But whenever Tamm would ask questions about this within OIPR, “nobody wanted to talk about it.”

At one point, Tamm says, he approached Lisa Farabee, a senior counsel in OIPR who reviewed his work, and asked her directly, “Do you know what the program is?” According to Tamm, she replied: “Don’t even go there,” and then added, “I assume what they are doing is illegal.” Tamm says his immediate thought was, “I’m a law-enforcement officer and I’m participating in something that is illegal?” A few weeks later Tamm bumped into Mark Bradley, the deputy OIPR counsel, who told him the office had run into trouble with Colleen Kollar-Kotelly, the chief judge on the FISA court. Bradley seemed nervous, Tamm says. Kollar-Kotelly had raised objections to the special program wiretaps, and “the A.G.-only cases are being shut down,” Bradley told Tamm. He then added, “This may be [a time] the attorney general gets indicted,” according to Tamm. (Told of Tamm’s account, Justice spokesman Boyd said that Farabee and Bradley “have no comment for your story.”)

Compare that version with how the complaint describes Tamm doing precisely what the complaint says he failed to do.

Respondent learned that these applications involved special intelligence obtained from something referred to as “the program.” When he inquired about “the program” of other members of the Office of Intelligence Policy and Review, he was told by his colleagues that it was probably illegal.

Isikoff describes Tamm going to two of his superiors, “a senior counsel in OIPR who reviewed his work,” and “the deputy OIPR counsel,” the former of one of whom is the one who told him “I assume what they are doing is illegal.” The complaint rewrites that story — what ostensibly is the source of the complaint — and turns these superiors into “colleagues.”

Mind you, according to this story, there is one superior within OIPR to whom Tamm didn’t go: Counsel James Baker. He was the guy who was laundering applications to the FISC in ways Colleen Kollar-Kotelly found unacceptable.

Baker, of course, is currently the General Counsel of FBI, someone who reviews a slew of applications for larger programs, including those that go to FISC.

So 12 years after Tamm leaked DOJ’s secrets to the NYT, he is being investigated by the Bar because he didn’t go to the right superiors with his complaints, one of who just happens to be the FBI General Counsel.

Thomas Drake: The Unclassified Documents the Government Wants to Claim Were Classified

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Jane Mayer, who did such crucial work showing how the Bush Administration chose torture in preference to a more effective, legal interrogation approach, now does similar work explaining that a similar choice of an illegal and ineffective approach over a legal one lies behind the Thomas Drake leak.

As she describes–relying largely on interviews with Thomas Drake, former Congressional staffer Diane Roark, and others with ties to the issue–that Drake and others were targeted because they championed a program called ThinThread over the expensive and ineffective SAIC version, Trailblazer. Both were data mining programs, but ThinThread automatically encrypted US person data. Trailerblazer did not, probably deliberately so. Between championing the wrong (but probably more effective) program, and submitting an Inspector General’s complaint about Trailblazer in 2002, Drake, Roark, and the others were targeted as potential leakers of the warrantless wiretap program.

Ultimately, in an effort to pressure Drake to testify falsely against they others and using evidence collected ostensibly in search of leads on the warrantless wiretap case, they cobbled together a charge based on five documents of disputed classification.

For four months, Drake continued coöperating. He admitted that he had given Gorman information that he had cut and pasted from secret documents, but stressed that he had not included anything classified. He acknowledged sending Gorman hundreds of e-mails. Then, in April, 2008, the F.B.I. told him that someone important wanted to meet with him, at a secure building in Calverton, Maryland. Drake agreed to the appointment. Soon after he showed up, he says, Steven Tyrrell, the prosecutor, walked in and told him, “You’re screwed, Mr. Drake. We have enough evidence to put you away for most of the rest of your natural life.”

Prosecutors informed Drake that they had found classified documents in the boxes in his basement—the indictment cites three—and discovered two more in his e-mail archive. They also accused him of shredding other documents, and of deleting e-mails in the months before he was raided, in an attempt to obstruct justice. Further, they said that he had lied when he told federal agents that he hadn’t given Gorman classified information.

“They had made me into an enemy of the state just by saying I was,” Drake says. The boxes in his basement contained copies of some of the less sensitive material that he had procured for the Inspector General’s Trailblazer investigation. The Inspector General’s Web site directs complainants to keep copies. Drake says that if the boxes did, in fact, contain classified documents he didn’t realize it. (The indictment emphasizes that he “willfully” retained documents.) The two documents that the government says it extracted from his e-mail archive were even less sensitive, Drake says. Both pertained to a successor to Trailblazer, code-named Turbulence. One document listed a schedule of meetings about Turbulence. It was marked “unclassified/for official use only” and posted on the N.S.A.’s internal Web site. The government has since argued that the schedule should have been classified, and that Drake should have known this. The other document, which touted the success of Turbulence, was officially declassified in July, 2010, three months after Drake was indicted.

In other words, after targeting Drake in the warrantless wiretap leak but not having any evidence to make a case, they charged him with espionage for having followed protocol on submitting an Inspector General complaint and keeping one email marked unclassified and another that has since been declassified. For that they want to send him to prison for 35 years.

As I laid out the other day, the government is claiming it can treat the parts of these five documents that even its expert has determined to be unclassified as they would treat classified information in CIPA.

In other words, it seems the defense planned to (and did not object to the evidence in the binder based on that plan) to cross-examine [the government’s expert] on the substance of her decisions about what was and was not classified in the documents Drake is alleged to have illegally retained and copied. It goes to the heart of the case against Drake. But the government wants to hinder the defense efforts by making sure that even things Murray decided were unclassified can’t be revealed in raw form to the jury.

And of course, as Drake points out in his interview with Mayer, the bigger thing the government is trying to hide is the cheaper, more effective program that preserved privacy rights they ignored in favor of the illegal wiretap program.

There’s lots more in the story–including Michael Hayden explaining to Roark that the government chose not to protect Americans’ privacy in the warrantless program because they “had the power” not to.

She asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.” She asked him directly if the government was getting warrants for domestic surveillance, and he admitted that it was not.

Go read the whole thing.

Illegal Wiretap Leak Probe Dropped

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According to Josh Gerstein, DOJ decided not to charge anyone in the illegal wiretap leak probe.

The Justice Department has dropped its long-running criminal investigation of a lawyer who publicly admitted leaking information about President George W. Bush’s top-secret warrantless wiretapping program to The New York Times – disclosures that Bush vehemently denounced as a breach of national security.

[snip]

The Justice Department would not discuss the current status of the probe, which began in late 2005 after the Times story was published with a formal leak complaint from the National Security Agency. However, [Thomas] Tamm’s attorney, Paul Kemp, told POLITICO he and his client were informed “seven or eight months ago” that the investigation into Tamm was over.

The information was relayed during a meeting with the prosecutor handling the case, William Welch, Kemp said. The Justice Department recently issued Tamm a letter confirming that the probe had concluded, the defense attorney said.

Prosecutors also appear to have lost interest in a former National Security Agency official who also publicly acknowledged being a source for the Times on the warrantless wiretapping story, Russell Tice. An attorney for Tice, Joshua Dratel, said it has been several years since prosecutors contacted him about the investigation.

Gerstein discusses the possibility that the investigation was dropped because it was found to be illegal.

“What leaps out to me is the fact that the program was arguably illegal, so while that does not provide a legal defense or immunity to the leaker, from a practical jury-appeal standpoint, which a seasoned prosecutor should consider, how appealing is the case going to be if they’re prosecuting government attorneys for disclosing the program but … the people who were doing the wiretapping don’t get prosecuted?” asked [Peter] Zeidenberg, who was a prosecutor on the leak-related case against Bush White House aide Lewis Libby. “How would you like to be the prosecutor to get up there and make that argument?”

Note, Vaughn Walker’s decision against the government in the al-Haramain case was just over a year ago, so it may be that his decision provided a big disincentive to the government to pursue the case.

Of course, that raises the possibility that the same might be true for Bradley Manning. Granted, his case will not be judged by a jury of civilians; he will have a military jury. Still, as more and more documents he allegedly leak reveal our government’s knowing cover-up that it was detaining innocent people and abetting Iraqi torture, it may make it a lot less palatable to argue against Manning.

Thomas Tamm to Vaughn Walker: They Knew It Was Illegal

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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. Read more →