The Fed Who Blew the Whistle

But all this created a huge legal quandary. Intelligence gathered by the extralegal phone eavesdropping could never be used in a criminal court. So after the NSA would identify potential targets inside the United States, counterterrorism officials would in some instances try to figure out ways to use that information to get legitimate FISA warrants—giving the cases a judicial stamp of approval.

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.")

One official who was aware of Kollar-Kotelly's objections was U.S. Judge Royce C. Lamberth, a former chief of the FISA court. Lamberth tells NEWSWEEK that when the NSA program began in October 2001, he was not informed. But the then chief of OIPR, James Baker, discovered later that year that program intelligence was being used in FISA warrants—and he raised concerns. At that point, Lamberth was called in for a briefing by Ashcroft and Gen. Michael Hayden, the NSA chief at the time. Lamberth made clear to Ashcroft that NSA program intelligence should no longer be allowed in any FISA warrant applications without his knowledge. If it did appear, Lamberth warned, he would be forced to rule on the legality of what the administration was doing, potentially setting off a constitutional clash about the secret program.

Lamberth stepped down as chief FISA judge when his term ended in May 2002, but Kollar-Kotelly asked him to continue as an adviser about matters relating to the program. In early 2004, Kollar-Kotelly thought something was amiss. According to Lamberth, she had concerns that the intelligence community, after collecting information on U.S. citizens without warrants, was again attempting to launder that intelligence through her court—without her knowledge. She "had begun to suspect that they were back-dooring information from the program into" FISA applications, Lamberth tells NEWSWEEK. Kollar-Kotelly drew the line and wouldn't permit it. "She was as tough as I was," says Lamberth, who had once barred a top FBI agent from his court when he concluded the bureau hadn't been honest about FISA applications. "She was going to know what she was signing off on before she signed off … I was proud of her." (Kollar-Kotelly declined to speak with NEWSWEEK.)

Unbeknownst to Tamm, something else was going on at the Justice Department during this period. A new assistant attorney general, a law professor named Jack Goldsmith, had challenged secret legal opinions justifying the NSA surveillance program. (The controversial opinions, written by a young and very conservative legal scholar named John Yoo, had concluded that President Bush had broad executive authority during wartime to override laws passed by Congress and order the surveillance of U.S. citizens.) James Comey, the deputy attorney general, had agreed with Goldsmith and refused to sign off on a renewal of the domestic NSA program in March 2004. Attorney General Ashcroft was in the hospital at the time. The White House first tried to get an extremely ill Ashcroft, drugged and woozy, to overrule Comey, and then, after he refused, President Bush ordered the program to continue anyway. Comey, in turn, drafted a resignation letter. He described the situation he was confronting as "apocalyptic" and then added, "I and the Justice Department have been asked to be part of something that is fundamentally wrong," according to a copy of the letter quoted in "Angler," a book by Washington Post reporter Barton Gellman.

Tamm—who had no knowledge of the separate rebellion within the ranks of the Justice Department—decided independently to get in touch with Sandra Wilkinson, a former colleague of his on the Capital Case Unit who had been detailed to work on the Senate Judiciary Committee. He met with Wilkinson for coffee in the Senate cafeteria, where he laid out his concerns about the program and the unusual procedures within OIPR. "Look, the government is doing something weird here," he recalls saying. "Can you talk to somebody on the intelligence committee and see if they know about this?"

Some weeks passed, and Tamm didn't hear back. So he e-mailed Wilkinson from his OIPR computer (not a smart move, he would later concede) and asked if they could get together again for coffee. This time, when they got together, Wilkinson was cool, Tamm says. What had she learned about the program? "I can't say," she replied and urged him to drop the subject. "Well, you know, then," he says he replied, "I think my only option is to go to the press." (Wilkinson would not respond to phone calls from NEWSWEEK, and her lawyer says she has nothing to say about the matter.)