The Fed Who Blew the Whistle

After the raid, Justice Department prosecutors encouraged Tamm to plead guilty to a felony for disclosing classified information—an offer he refused. More recently, Agent Lawless, a former prosecutor from Tennessee, has been methodically tracking down Tamm's friends and former colleagues. The agent and a partner have asked questions about Tamm's associates and political meetings he might have attended, apparently looking for clues about his motivations for going to the press, according to three of those interviewed.

In the meantime, Tamm lives in a perpetual state of limbo, uncertain whether he's going to be arrested at any moment. He could be charged with violating two laws, one concerning the disclosure of information harmful to "the national defense," the other involving "communications intelligence." Both carry penalties of up to 10 years in prison. "This has been devastating to him," says Jeffrey Taylor, an old law-school friend of Tamm's. "It's just been hanging over his head for such a long time … Sometimes Tom will just zone out. It's like he goes off in a special place. He's sort of consumed with this because he doesn't know where it's going."

Taylor got a few clues into what the case was about last September when Agent Lawless and a partner visited him. The FBI agents sat in his office for more than an hour, asking what he knew about Tamm. The agents even asked about Tamm's participation in a political lunch group headed by his former boss, Andrew Sonner, that takes place once a month at a Rockville, Md., restaurant. "What does that have to do with anything?" Taylor asked.

Agent Lawless explained. "This kind of activity"—leaking to the news media—"can be motivated by somebody who is a do-gooder who thinks that something wrong occurred," Lawless said, according to Taylor. "Or it could be politically motivated by somebody who wants to cause harm." If it was the former—if Tamm was a "do-gooder"—the government could face a problem if it tried to bring a case to trial. The jurors might sympathize with Tamm and "you'd face jury nullification," said Lawless, according to Taylor, referring to a situation in which a jury refuses to convict a defendant regardless of the law.

Just this month, Lawless and another agent questioned Sonner, the retired judge who had served as a mentor to Tamm. The agents wanted to know if Tamm had ever confided in Sonner about leaking to the Times. Sonner said he hadn't, but he told the agents what he thought of their probe. "I told them I thought operating outside of the FISA law was one of the biggest injustices of the Bush administration," says Sonner. If Tamm helped blow the whistle, "I'd be proud of him for doing that."

Paul Kemp, one of Tamm's lawyers, says he was recently told by the Justice Department prosecutor in charge of Tamm's case that there will be no decision about whether to prosecute until next year—after the Obama administration takes office. The case could present a dilemma for the new leadership at Justice. During the presidential campaign, Obama condemned the warrantless-wiretapping program. So did Eric Holder, Obama's choice to become attorney general. In a tough speech last June, Holder said that Bush had acted "in direct defiance of federal law" by authorizing the NSA program.

Tamm's lawyers say his case should be judged in that light. "When I looked at this, I was convinced that the action he took was based on his view of a higher responsibility," says Asa Hutchinson, the former U.S. attorney in Little Rock and under secretary of the Department of Homeland Security who is assisting in Tamm's defense. "It reflected a lawyer's responsibility to protect the rule of law." Hutchinson also challenged the idea—argued forcefully by other Bush administration officials at the time—that The New York Times story undermined the war on terror by tipping off Qaeda terrorists to surveillance. "Anybody who looks at the overall result of what happened wouldn't conclude there was any harm to the United States," he says. After reviewing all the circumstances, Hutchinson says he hopes the Justice Department would use its "discretion" and drop the investigation. In judging Tamm's actions—his decision to reveal what little he knew about a secret domestic spying program that still isn't completely known—it can be hard to decipher right from wrong. Sometimes the thinnest of lines separates the criminal from the hero.

© 2008