No Comment — December 15, 2008, 11:58 pm

Tamm: Punished for Defending the Constitution?

As a child, senior career Justice Department lawyer Thomas M. Tamm, who hails from a family of career federal law enforcement professionals, played under the desk of J. Edgar Hoover. Some time ago Tamm discovered that the Bush Administration was snooping on tens of millions of Americans without a warrant. Under federal law, this is a felony, punishable with a four-year term per instance (and there have been millions of instances). Tamm wasn’t the only one disturbed by the snooping; Deputy Attorney General Comey said that the Justice Department would be “ashamed” when the public finally learned what the Bush Administration was doing. Tamm, evidently upset that his beloved Justice Department had started functioning as a criminal syndicate, decided to key the New York Times to the fact that FISA was being violated. And the Times, after inexplicably sitting on the story for a year, finally ran it. Now he’s the target of a ruthless and abusive federal criminal investigation–at the direction of a former Tennessee prosecutor turned FBI agent named Lawless. Nomen est omen.

Tamm says he confirmed with his career colleagues in the Department that the conduct was criminal. One told him that she expected the attorney general would be indicted when the news became public (a prediction that may well come true). Attorney general-designate Eric Holder has declared that the surveillance program was a violation of the FISA statute. And the far-from-radical American Bar Association also issued an extraordinary conclusion: the administration was violating the FISA statute. So who does believe the program was lawful? Bush Administration political hacks who most likely will be investigated, and possibly prosecuted, when the whole story comes out. After the fashion of totalitarian states, they are usually short on an explanation for how it is lawful, and long on threats to prosecute anyone who talks about it. In their language, “national security” assumes overtones that sociologists attribute to organized crime groups in Naples and Sicily: omertà. And presumably that’s why Tamm is in the crosshairs.

Michael Isikoff has a fine portrait of Tamm at Newsweek:

In the spring of 2004, Tamm had just finished a yearlong stint at a Justice Department unit handling wiretaps of suspected terrorists and spies—a unit so sensitive that employees are required to put their hands through a biometric scanner to check their fingerprints upon entering. While there, Tamm stumbled upon the existence of a highly classified National Security Agency program that seemed to be eavesdropping on U.S. citizens. The unit had special rules that appeared to be hiding the NSA activities from a panel of federal judges who are required to approve such surveillance. When Tamm started asking questions, his supervisors told him to drop the subject. He says one volunteered that “the program” (as it was commonly called within the office) was “probably illegal.”

Tamm agonized over what to do. He tried to raise the issue with a former colleague working for the Senate Judiciary Committee. But the friend, wary of discussing what sounded like government secrets, shut down their conversation. For weeks, Tamm couldn’t sleep. The idea of lawlessness at the Justice Department angered him. Finally, one day during his lunch hour, Tamm ducked into a subway station near the U.S. District Courthouse on Pennsylvania Avenue. He headed for a pair of adjoining pay phones partially concealed by large, illuminated Metro maps. Tamm had been eyeing the phone booths on his way to work in the morning. Now, as he slipped through the parade of midday subway riders, his heart was pounding, his body trembling. Tamm felt like a spy. After looking around to make sure nobody was watching, he picked up a phone and called The New York Times.

Tyrants, Aristotle writes in the Politica, rule by fear and attempt to turn those who would expose them into criminals. One of the tactics for which the Bush years will long be known is its heavy-handed wielding of secrecy. This case demonstrates the technique perfectly. Tamm, exposing their criminal subversion of the FISA process, becomes a threat. It is therefore imperative that he be silenced and discredited. And this they pursue through a criminal investigation for breach of the secrecy rules through which they attempt to shield their crimes. Tamm had a serious fault–he treated his oath to uphold the Constitution and laws seriously. And that’s why for this and future generations, Tamm will be viewed as a hero while those persecuting him will be listed with the perennial dimwits who confuse fidelity to the leader with devotion to the law.

Here’s Tamm’s appearance tonight on MSNBC’s Rachel Maddow Show:

Single Page

More from Scott Horton:

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