Whistleblower: FBI lawyers knew warrantless wiretaps were 'probably illegal'
Nick Juliano
Published: Monday December 15, 2008

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The former FBI agent who blew the whistle on the Bush administration's decision to circumvent the law in order to warrantlessly eavesdrop on Americans decided to go to the press after a senior government lawyer tried to steer him away from questioning the "probably illegal" surveillance program.

Newsweek investigative reporter Michael Isikoff profiled Thomas M. Tamm this weekend, revealing the circumstances surrounding the decorated agent's decision to become a secret source for the New York Times reporters who would reveal the story of the warrantless wiretapping activities.

Tamm uncovered evidence of the extra legal surveillance while working with the Justice Department's Office of Intelligence Policy and Review, which handled sensitive wiretaps of suspected terrorists, when he discovered that some surveillance seemed to be happening outside the boundaries of the Foreign Intelligence Surveillance Act.

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.")
Tamm became one of a dozen anonymous sources for Times reporters Eric Lichtblau and James Risen with a phone call to the paper's newsroom from a payphone in a Washington, DC, subway station in the spring of 2004. It was more than a year until their story appeared in the paper.

The whistleblower "grew frustrated" at the delay in publication, Isikoff reports. Tamm had hoped the story would appear before the 2004 election, but the Times delayed its publication more than a year based on the Bush administration's arguments that publishing details of the surveillance program would harm national security.

Since the program's existence has been revealed, the administration has fought every attempt to narrow its scope, although Congress did amend FISA earlier this year with what critics said was a weak law that essentially legalized parts of the program. Bush's Justice Department has, however, vigorously pursued Tamm and other suspected leakers. In August of 2007, FBI agents raided his home, confiscated his family's computers and questioned his wife and children, Isikoff reports, and Tamm fears he could be arrested any day.

Isikoff reported on the raid at the time, and there was some contemporaneous speculation that Tamm had been posting Deepthroat-esque comments on liberal blogs like TPMMuckraker, leading to the raid.

In the Tamm profile, which appeared online over the weekend, Isikoff reports that the former agent "began blogging about the Justice Department for liberal Web sites." He offered no more specifics.

The Justice Department's investigation into Tamm and other whistleblowers is expected to continue past Bush's exit from the White House. Isikoff notes that President-elect Obama, who was harshly critical of the warrantless surveillance program, could quietly drop the investigation into those who helped bring it to light.