That’s my answer to Wired’s question:
Should NSA Whistleblower Be Prosecuted?
By Kim Zetter
December 15, 2008 | 9:43:42 PMOpinions are divided on whether Thomas Tamm, the original source for The New York Times 2005 story on the NSA’s warrantless wiretapping, should be prosecuted for revealing classified information. Tamm is a former justice department prosecutor.
Seems like a rather clear situation to this former holder of a high level security clearance. The laws on the matter are explained on a regular basis to all who carry such clearances, as are the penalties for compromising such information.
I say charge him with every pertinent and lesser included charge and try him in the FIS court before a jury of his peers: persons currently carrying clearances of the level he held.
Hat Tip: Glenn Reynolds
Yes he should be prosecuted. He wasn’t a whistleblower. He was a leak. There are channels to go thru and he chose not to. Now he gets to pay the consequences.
The problem with having a jury of his peers i.e. other federal prosecutors, is that there are so many like-minded people in the justice department. It would be like trying a democrat in Washington, DC. He would get off no matter what the evidence is. A republican would be convicted no matter if their was no real evidence (Scooter Libby). Isn’t it sad that there is no real justice in this world? That justice is according what letter is behind your name. But, yes, he should be prosecuted. Some way should be found to do this fairly to all. If he gets off with no punishment traitors will take that as carte blanche to do whatever treason they want.
To Barbara S:
You misread what Rodney wrote about a jury of his peers. The jury would be made up of people who have similar security clearances – people who really understand the value of such clearances and who hold them sacrosanct. Besides, you could never sit a jury of lawyers…neither the prosecution nor the defense would go along with it, much less a judge. No, you want non-lawyers on the jury.
And in general: I have been screaming for the head of the person(s) who leaked the NSA story, the SWIFT program, the rendition program and all the other stories that hurt the anti-terror effort and undermined our military and our president. I want Murtha’s head on a stick (virtually, not litterally) for his traitorous remarks about my Marine brothers in Haditha. At last count, all but one have been exonerated and Murtha still won’t admit he was wrong. And the idiots in his district re-elected him…something stinks in PA and it isn’t the factories.
you said
Seems like a rather clear situation to this former holder of a high level security clearance.
i hold a Nato Secret and always will unless the government decides i broke my part of the bargain. unless you have had it taken away you still have your security clearance.
This guy didn’t even know what the program was about, he leaked it because he hated the President. The Times reporters ran with it knowing Tamms had no idea what it was, he just suspected something was wrong. I think he should be prosecuted, put under glaring lights so everyone knows what a traitor he is.
Patterico has a lot of information on this if anyone is interested.
native,
TS and above only remain active while in government service (including as a contractor). It’s much easier to be cleared back in at that level, but it does not remain active for live.
guy needs to be held accountable
I say, “Slam the book on him.” Just like Martha Stewart held a broker’s license when she engaged in insider trading, this jerk wad has a law license, actually was a former prosecuter, knew full well what the law was and used it against people before, and fully should reap ALL the penalties afforded by the law for revealing national secrets, especially since there was no law broken by those who were his target. I believe he should be tossed in a deep hole in Leavenworth, and forgot about.
leave it to right wing facists to want to send a hero to prison. Well, when Obama is spying on your phone calls, you’ll know who to thank…
Given that Tamm’s reasons for leaking had nothing to do with “The Public Good” and more to do with screwing the administration, I say send him to Gitmo.
Why waste the taxpayer dollars in the transport to Gitmo, Neo… Obama’s bringin’ ’em all here…
Tamm, instead of deserved jail time, will probably run (and no doubt win) for public office. And make beaucoup bucks on a book deal inbetween.
Other than that, I’m with Jarhead. Trying this guy (and the NYTs IMHO) is long overdue.
“It would be like trying a democrat in Washington, DC. He would get off no matter what the evidence is. A republican would be convicted no matter if their was no real evidence (Scooter Libby).” (Barbara S)
Yeap! You are right. And why would that be? I have been thinking about this for a while. I came to the conclusion that the word “Democrat” and “liberal” are misleading. Word matters.
“Democrats” comes from the word “democratic”. So people think that Democrats have to be democratic, which supposes: almost perfect. “Liberals” comes from the word “liberty”. So Liberals thinks they are for freedom. These two words are very confusing and misleading. Hell, everyone wants to be for freedom and democracy, so they think that being a liberal Democrat is COOL. WRONG, because these two words are far away from what they are supposed to mean.
THE SOLUTION? Change these two words. Instead of saying “liberal”, just say LEFTIST. And change the name of the Democratic Party who is everything but democratic. Find another name for it. Like the “Corrupted Party” for instance would be more representative.
As for the word “conservative”, it doesn’t sounds good… it looks like people with old mentalities who are to stubborn to change their views. I would just call them “people with values”. The name of the “Republican Party” is OK, since you are a Republic, that means that this Party is really for your country. Just don’t juxtapose it with the word conservative, that doesn’t sound good to the idiots.
“Warpublican Review”
Hero? How is violating one’s oath and one’s legal obligations “heroic”?
In what way is fascism, a child of the leftist “progressive” and “socialist” movements, a “right wing” phenomenon?
Do you really believe the NSA has the resources or interest in listening in to every domestic call in the United States?
Wow wardouche, you need anti-psychotic meds something fierce.
A traitor is a traitor no matter what he think his self appointed status in life is. A traitor who endangers the American public through a traitorous act should be tried with the death penalty on the table.
I don’t want ANY President to have the ability to decide what “the law” “is” as it pertains to their actions. Just covering some things with a security clearance does negate the 4th Amendment.
Security clearances are generally made inactive (suspended or canceled,) when the personnel’s career ends, (whether due to retirement, discharge, criminal charges, etc..) What classified information they know, however is STILL to be considered classified, and SOP on being placed inactive is that they are made aware of the fact that they are still subject to criminal charges should they release said classified information.
Unless of course it is later declassified, but ONLY the declassified portions may then be repeated. Any portions of said information that were not expressively declassified, are STILL to be considered as Classified and their previous oath to protect the information they were exposed to is STILL in effect.
You can not hint, infer, make suggestive references, innuendo, play 20-questions, mime, illustrate or in anyway divulge said classified information to any unauthorized individuals. There are accepted processes and practices for review of classified information, the classification of the information, or to use to bring examination of illegal and/or unconstitutional use of classified information (or abuses of the classification process in order to hide illegal activity).
As the individual has also taken a higher oath to protect and serve the Constitution, if there is a constitutional violation, and because of this a need to go beyond the organization, you take the issue to a higher authority (still protecting the classified information itself from release to lower, unclassified individuals). Never, ever, is it acceptable to take it to the press. That is always a violation of your oath (to protect classified information).
This was Warrantless wiretapping. ILLEGAL!!! He is a HERO for bringing it to the public eye. Anytime our government officials see themselves as above the law (as the bush administration did in this case) It needs to be revealed by someone! I applaud this man for having the courage to stand up and do what was right!
“This was Warrantless wiretapping. ILLEGAL!!! “
No, it was not.
It was monitoring of known terrorist communications whose calls, emails, faxes, texts happened to pass through the communications infrastructure of the United States.
If it was the horrible thing you suggest then name one American citizen whose rights were WRONGFULLY infringed….
I’ll be waiting for your answer.
Well, let’s see:
What, precisely, is unreasonable about monitoring the communications between foreign terrorists (who are waging war against these United States) and their accomplices?
Rodney G. Graves
did you stop reading at reasonable?
What about suspected terrorists calling into the US do you believe is *not* apt probably cause. The regulations give the affirmation, and the description of phone communications.
So why, blast, did you *stop* reading at “reasonable”?
MataHarley, I am all for a lawful approach to monitoring phone and other forms of communications. The problem is when a government (our government) stops following the rule of law and does it in secret. Modifying existing statutes for the FISA court to update its procedures would have been one way (potentially) to solve this problem.
… regulations? I see, so any president can just set regulations at his discretion to circumvent our Constitutional rights? No way. Don’t confuse getting a court order for wire tapping with not allowing our government to protect us. All they had to do was set up the appropriate LAWFUL procedures and oversight and there would not have been any problem. We have three branches of government not just a “unitary” Presidency.
This is primarily an issue of Intelligence gathering against an active enemy of the United States.
Intellience Gathering, prior to the Church Committee and the FIS Act were entirely the province of the Executive Branch of Government.
There is no right to communicate privately with active enemies of the United States who are making war upon the United States.
Until a United States Person is Prosecuted in Federal Court based on information gathered via monitoring of communications with a foreign terrorists, or unless doing so is viewed as a likely outcome of such interception, there is no requirement for a warrant.
Any other issues you’re unclear on, “Blast”?
Let’s see… FISA regulations came into enactment in 1978. Do you think technology has changed since then?
So first let’s go a bit off of what Rodney pointed out… that until someone is prosecuted in a federal court using illegal monitoring, there has been no “crime” as you see it. Therefore we are addressing what you believe is lawful, and what a court sees as lawful. And believe me, their opinion carries more weight than yours.
Bush utilized his WH legal counsel’s opinion prior to doing what he did. Oddly enuf, the Congress agreed by… much to your chagrin, no doubt… approving the FISA makeover and telecom immunity. (note, story is just the Senate approval, but it has all come to fruition… just cheated by pulling out of my bookmark archives instead of getting the law text)
Evidently both sides of the Congressional aisle see enuf intel stuff that warrants approval of the ability to listen in on foreign calls into the US by suspected terrorists…. including the President-elect. Nor do they see it as a Constitutional conflict.
Why you don’t baffles me. The feds don’t care about you, blast… unless a jihad movement leader is calling you, that is. Other than that, they don’t have the resources, nor wilthey waste the time and federal funds to either listen in, or prosecute you for your (or my) piddly lives.
And if you think this is new… listening in via new technology that preceded FISA… you may want to read up on Clinton’s Echelon.
So tell you what… why don’t you give us an example of someone who’s privacy rights have been proven violated via this “illegal wiretapping”… which isn’t “illegal” afterall.
The act was created to prevent 4th Amendment abuses that were happening at the time. It was and is the legal mechanism created for implementing the 4th Amendment (given our modern communications facilities) and the President is not above the law.
Did you just make that up?
“The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year provided it is only for foreign intelligence information; targeting foreign powers as defined by 50 U.S.C. §1801(a)(1),(2),(3) or their agents; and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”
NO SUBSTANTIAL LIKELIHOOD THAT THE SURVEILLANCE WILL ACQUIRE CONTENTS OF ANY COMMUNICATIONS TO WHICH A UNITED STATES PERSON IS A PARTY… that is for needing a warrant not “Until a United States Person is Prosecuted in Federal Court”
Any other issues you’re unclear on, Rodney?
mata
It was not to my chagrin… I am glad the law was updated and now the government is following the law. Unchecked power is my problem, not fighting terrorism which we need to do.
Because you need to know if you were listened to to have standing in the courts, which you probably already knew.
Rodney was wrong on that. The law requires a warrant if a “substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party”.
Blasted,
The act was one of several over-reactions of the era which linger to this day, and are part of “Deep Throat’s Legacy.” Every Administration since the passage of the act has disputed the Constitutionality of the limits it places on the Executive Branch’s ability to gather foreign intelligence.
The Clinton Administration conducted warrantless searches and seizures of evidence related to National Intelligence issues on United States Citizens, which searches were upheld as being “reasonable”:
See also 2000’s, in Re Sealed Case No. 02-001: the United States Foreign Intelligence Surveillance Court of Review examined all the significant appellate decisions. They noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, “FISA could not encroach on the president’s constitutional power.”
Furthermore, the FIS Act (as it existed in 2003) specifically exempted communications where at least one leg did NOT include a United States Person.
The Bush Administration’s intelligence gathering program was specifically targeted at communications between terrorist cells which were passing through switching gear in the United States.
Rod, you were wrong when you said
As to Clinton doing it or Obama in the future… I am against the government eavesdropping without a warrant on American citizens… period. As to listening in on foreign governments and foreigners, no problem. I am not against these actions because Bush did them, I am against the actions because they are unconstitutional. Every Amendment needs to be protected!
Blasted,
I don’t subscribe to your point of view.
And you can’t demonstrate that any tangible harm has resulted to any United States Person as a consequence of the Terrorist Surveillance Program.
Rod,
So your view is the government can listen in at will on your phone and electronic communications? How about taking your guns? What other rights will you allow the government take away? Maybe you want the sedition acts brought back? Freedom of speech is kinda problematic too.
As to harm, at present the government has not released who it did listen to under their warrantless searches, but why then grant immunity to the telecoms if no one was injured?
Presently the Blackwater guards are being charged with violations of “War on Drugs” period laws, using the automatic weapons. This is just how government miss uses a law they told us was for combating drug cartels and now is being used against citizens who were actually supporting our country in a time of war. You might like the concept of what the warrantless wire tapping should do… namely target terrorists, but can you be certain your government won’t change its priorities at some point and target us? There always needs to be checks and balances, particularly when such power can be misused.
blasted,
My view is that if someone within the United States is communicating with identified foreign terrorists said communications should be monitored. If over the course of that monitoring it becomes evident that the party communicating from within the United States is a United States Person and the monitored communications rise to the level of a prosecutable offense, then a Warrant should be sought before the FIS Court and evidence collected via that warrant should be admissible in court.
The NSA lacks the resources or interest to monitor communications which are not already of interest due to source, destination, or other sigint indicators.
blast, we must always remain ever vigilant about every Constitutional right, I agree. However the “listen at will on your phone and electronic communications” is over reaching on the truth. The FISA allows for listening in on communications *come in to the US from suspected terrorists* only.
The feds have neither the resources, nor the time, to sift thru ordinary calls from overseas to the mother land. Nor is it domestic to domestic calls. What you suggest is absurd, and impossible with manpower and funding. Not to mention a waste of valuable intel personnel’s time.
The govt has already tempered the 2nd amendment, and to some extent, the first, with Congressional legislation. We can battle their ability ’til the cows come home as to if regulation of a right is Constitutional, and to what extent. That’s where the “ever vigilant” comes in. And truly, I have my own internal battle on ‘regulating rights”.
But you are just plain building a mountain out of a mole hill on communications. As far as electronic via Internet…. nothing’s private in this cyber world anyway. The big questions is just how intrusive are data sifting programs like Echelon… a Bill Clinton era creation? And how effective are they in intercepting terrorist plots?
We agree on this. I just want the government to follow the law and respect the 4th Amendment.
The problem of allowing unfettered (without supervision) wired tapping, the instruments of government used for the eavesdropping could be used for other nefarious purposes. It would be nice to believe that those with these tools and power would solely use it to listen to terrorists as directed, but we have seen so many examples of abuse of power by government. Our founders could not see telephones and modern communication, but they did understand to give us the 4th Amendment to be certain that one branch of government could not do certain things without a check. So although we might agree on the spirit of what we must do (listen to terrorists etc), my belief is a process is needed to insure our long term rights are respected.
Let me give you an example. Lets say the program is totally secret and Obama operatives use the technology unfettered to listen in on some Republican politicians. Since there was no intervening step in the process, I believe that harm could be done to our freedom. That might be a bit of a stretch, but who knows who is being listened to and for what reason. I for one am not going to take a politician’s word. That is why the law is a better framework to operate. The liberal way the law is written now allows for the government so much flexibility already. What is the big deal about getting a warrant under the current system?
mataharley
You don’t know if they listened in on your communications. That is the problem, no checks and balances and accountability. Hey, in an emergency what the government did at first is fine. But the emergency has passed (meaning we have in place systems and people) and it is time to look at how this system should operate as an ongoing enterprise. I don’t fault the President for doing what he did at first. Now the law has been updated and all the flexibility needed has been added. Lets protect the 4th Amendment, our rights and catch those who wish to do us harm. If there ever is a conflict between the FISA and security needs, let those issues be dealt with properly and lawfully to accomplish both needs.
You think this is new??? You’ve never known if you’ve been listened to… even before FISA and Echelon. What you suggest is again, absurd, Blast. The laws do not allow the feds to listen to you without probable cause. The only way you’d know is if they hauled you into a court and charged you with something. And then you litigate in defense, and the evidence they present have to be admissible. Remember that Bill Ayers got off “guilty as sin and free as a bird” because of improper surveillance.
But to suggest you want the “security” of knowing you can never be listened to is impractical.
So why don’t you show us someone who has been successfully prosecuted with improper surveillance and intrustion of privacy… to back up your fears?
Now… I’ve got to go play snow shovel and see if I can get out of my driveway…. dang “global warming”.
If they have probably cause and a warrant I have no problem for them to listen to whomever they required. What is wrong with having checks and balances to protect our 4th Amendment Mataharley?
blasted,
What say we reserve Warrants for the situations where we anticipate a prosecution of a United States Person.
Warfare remains a far better approach for dealing with terrorists than does lawfare.
And what do you call the US judicial system – the 3rd branch of power – blast? I call it checks and balances via legal recourse… just as it is supposed to be. Just as Bill Ayers used for his surveillance that did not follow the letter of the law.
Rod, I am saying you don’t have to compromise our rights to go after terrorists. That is a false compromise.
Our government should never have the right to listen in to our calls without a warrant. It is fine for them to listen into foreign governments and foreign nationals as they like. The flexibility in the laws is more then adequate to meet their needs and preserve our constitutional rights. If they need more latitude then let them ask for it… so proper oversight can be applied.
What is so wrong about having a procedure in place to check the power we give to the government? Especially when that power has the potential for misuse and abuse.
blasted,
Lawfare has already cost lives and blown opportunities to neutralize terrorists.
Rod, yeah… “Lawfare” that old pesky notion of Constitutional protections and rule of law. The story you link to is an example of misinformation in my book. The courts have found that type of communication (both parties being in Iraq) is not covered by the FISA or 4th Amendment, no warrant would be required. Why the delay for a warrant or order from the AG is not really specified in the article but obviously they need to straighten out their management controls in the DOJ and DoD to prevent such delays.
Here is my belief. The government requires a warrant when monitoring communications of citizens in the US. Outside the US, foreign agents, or foreign governments, there is not such protection and let them listen in without warrants. The process to get a warrant in FISA can be retro active, so there never is a reason that they have to stop listening and and ignore potential leads.
You might feel all justified in your reasoning today, but what about when a different government is in power? How about when they decide that gun owners who complain and protest too much might be home grown terrorists? Can they just listen into their conversations because it suits them? I just feel giving power to the government without checks and oversight is dangerous.
Check and balances are not only for legal recourse… the Constitution limits the power of the government and leaves other rights to the states and people. It is bad president to allow the government to just do what it wants and “only if” they want a prosecutable case to then get warrants.
blast,
No one has the right to privately communicate with a hostile foreign power.
The problem you elide so lightly over is that it is not immediately obvious nor trivially determined that traffic passing across telecommunications gear located within the United States has both its terminal ends outside of the United States.
You can show no evidence of any tangible harm having resulted to any United States Person as a consequence of the Terrorist Surveillance Program. I can and have shown 3 dead service men.
I’m deeply saddened to see you value the lives of our servicemen so little.
F- U! That is just bullshit. YOU DON’T KNOW ME… DON’T YOU ACCUSE ME OF SUCH… ASSHOLE
RETRACT THAT!
Blast, abusing the legal system by shopping lawsuits for sympathetic judges may be legal, but disgusting. That is exactly what those suing on behalf of captured terrorists did.
The ACLU using just the cost of lawsuits to force cities and states to bend to their anti Christian beliefs is ok in your eyes? Your sarcastic response that it is ok or not abuse does not reflect well on you or your opinion.
What are you talking about? My sarcastic response to anti Christian lawsuits? What are you talking about?
Let’s try this again, blast. Congress passes bills, signed (or vetoed) into law by the POTUS. They act, with their limited knowledge, within what they believe is scope of the Constitution (or not…). Doesn’t matter. They write and pass the bills. The POTUS just signs ’em, or not.
The admin branch enforces these laws, and has legal counsel (i.e. on this FISA bit) who interpret this law for the POTUS for specific actions he wants to take. If the legal counsel says “yup, you should be able to do this because…”, the POTUS does it.
If this action seems outside the law, the action is then challenged in court.
Welcome to checks and balances set up by our Founding Fathers. You can’t have the SCOTUS examining every bill passed and law enacted prior to signing into law. It can only be challenged.
Bush relied on his legal counsel. Courts ruled one way, so Congress came back in July and revised the FISA… and a new law amending FISA was enacted.
ACLU has greeted it immediately with another lawsuit.
Again, welcome to the US and our Constitutional checks and balances. I don’t know what more you want to satisfy yourself. You are not equipped to determine what is legal or illegal via letter of the law… that Congress wrote and passed. Only the judicial system can interpret the law with certainty.
Don’t like how Congress writes bills/laws? Get in line. Neither do I. So help send ’em all home and let’s replace ’em. Suits me.
So you’re just going to have to live with the system we got, and not the system you wish we had. Frankly, I think our set up is good. I just think the corruption in all three branches of power is very nerve racking.
MataHarley, listen, I have seen School House Rock and how a bill becomes law. Geez.
Mata, do you think the government has a right to monitor communication between citizens of the USA (inside the USA) without a warrant. – oh and feel free to expand on areas the government does not need a warrant if you like.
Ya know, blast… I actually give you credit that you *do*. But I’ll be darned if some of the things you type away at shake that confidence I attribute to you. Things like “Check and balances are not only for legal recourse…”
blast… when it comes to checks and balances for the first two branches, the third branch IS legal recourse. So perhaps it’s just a “failure to communicate”, eh?
blast, I haven’t read the latest incarnation of FISA since the summer. And even if I had, I am not part of the judicial system with a case in front of me. It’s judges that interpret the law… not your or I. So I don’t know how to answer your question on legal tecnicalities.
If you are speaking philosophically. I believe the government has the right to monitor communications between suspected terrorists and whomever they are calling. And I don’t care where the hell they are located… outside the US or inside. If they are on a suspected list…. go for it, IMHO. I want our intel to know who they are talking to, and about what.
Does this have the power to be abused? Hang yes. And frankly, I’m more worried about it under this POTUS than the last. But it all gets straightened out in a court of law – checks and balances, i.e. Wm Ayers – with probable cause. (hopefully) That’s all you can do. Corruption exists in govt, in the private sector, and thruout humanity.