At the time, I did not consider myself a whistle-blower. If I thought about the concept at all, it was in the context of corporate malfeasance. I was a member of the law enforcement community: born, bred, nurtured, and taught to obey the law.
When the current intelligence community whistle-blowers approached Congress with their concerns, it was a stark and chilling reminder of my experience in 2004.
As an attorney in the US Department of Justice, I had the privilege of meeting with some of families of 9/11 victims. We were honored to represent our government, thinking of ourselves as patriotic career public servants. We took an oath to preserve and protect the Constitution against all enemies, foreign and domestic.
However, our government — my government — was breaking the law to fight the war on terror, and they were lying to the American people, claiming we only listened to US communications with a court-authorized search warrant.
My father retired as an assistant director after a career at the FBI. He left an indelible impression on me, expressing his anger, his anguish, when he later learned of the illegal wiretapping of civil rights leaders, including Martin Luther King Jr. I appeared as a Department of Justice attorney before the Foreign Intelligence Surveillance Court, which was specifically created to address historical wiretapping abuses.
Imbued with patriotic fervor, eager to legally fight the people who had attacked our country, I joined what was then called the Office of Intelligence Policy and Review. We were tasked with obtaining court-authorized electronic surveillance by presenting warrants containing probable cause that the target was an agent of a foreign power.
After a few months obtaining court-authorized wiretaps, I learned of investigations that seemed to circumvent all of the “normal” procedures and constitutional protections, a separate category of warrant applications that only one judge was authorized to sign, and only the attorney general was authorized to review. When I asked a supervisor what was different about “The Program,” she said she just assumed it was illegal; an attorney in the Justice Department believed we were violating the law.
The knowledge of this special program was incredibly closely held. I guessed that only a handful of officials had any idea of what was happening. The deputy attorney general, a Senate-confirmed official, was not “read into the program.” I was deeply conflicted, not knowing what, if anything, to do.
The fact that the current whistle-blowers have a framework to communicate their concerns does not make their decisions any easier. I have no doubt that they too agonized over what they should do. If we resign, the illegalities continue. If we disclose, have we harmed our country? Have we jeopardized our national security? It is an incredibly lonely and isolating dilemma. Above all else, we cannot reveal sources and methods. In my case, I believed revealing that we listened to people’s calls without a warrant could not possibly endanger anyone’s life or national security.
I approached the US Senate, in theory a coequal branch of government, with my information. Had Congress been briefed that we were subverting the Fourth Amendment? After months without an answer, I was warned to be careful “because you know what happens to whistle-blowers.”
I ultimately decided to tell my story to the fourth estate. I do not believe the press is the enemy of the people. The Founders made a free press part of the First Amendment to the Constitution. The New York Times reporters I contacted had sources from other intelligence agencies corroborating my information, but the paper sat on the story for over a year. The Bush administration said the newspaper would have blood on its hands if they published the piece.
I did not anticipate that my house would be raided by 19 heavily armed FBI agents. It never occurred to me that my children would be awakened in their beds by armed strangers. I never anticipated that agents would tell my wife to show her hands as they surged into our home. Nor did I anticipate an offer to plead guilty to espionage, with a certain sentence of incarceration. I was never charged with a crime after years of investigation because I did not commit any crimes. But our government illegally surveilled untold numbers of Americans who have never been so informed, as required by law.
The current whistle-blowers should probably anticipate that they too may be ostracized by their colleagues. They should be aware they may be ruined financially. Heaven forbid that they put their family through what I did mine. That is truly my biggest regret.
However, they should also know there is an entire community of good government organizations that supports and uplifts whistleblowers, including the Project on Government Oversight, the Government Accountability Project, and the Ridenour prizes.
We are stronger as a country when we live up to our ideals. We are safer when we follow the rule of law.
Some have opined that what I did was heroic. Personally, I believe heroes are those who run into burning buildings even though those buildings may collapse. Without question, the intelligence whistle-blowers are patriots. They deserve our nation’s gratitude, and our support and protection.
Former Department of Justice attorney Thomas Tamm helped expose the Bush administration’s warrantless surveillance program in 2005. He now practices criminal defense in Maryland.