Balkinization  

Monday, December 15, 2008

A Defender of the Rule of Law Waits in Legal Jeopardy, While Abusers are Doing Well

Brian Tamanaha

Mr. Thomas Tamm, a former employee of the Department of Justice, has lost everything and lives under the threat of criminal charges. He is in trouble for defending the rule of law.

We’ll get back to Mr. Tamm in a moment, but first a few words about abusers of the rule of law who are doing just fine. As Jack notes below, the Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody, chaired by Senator Carl Leven (D) and Senator John McCain (R), recently issued a summary of its Report. News accounts of the Report emphasize that it places responsibility squarely on Donald Rumsfeld and other higher ups.

But what really stands out about the report—what the report itself emphasizes—is the pivotal role legal opinions issued by the Office of Legal Counsel (OLC) played in the authorization of torture. This story has been told many times, but nowhere so explicitly by an authoritative, nonpartisan body.

The Report suggests--without saying so conclusively--that Jay Bybee and John Yoo of the OLC, prior to producing the "torture memos," had knowledge of the abusive techniques interrogators wished to use on detainees (Bybee admits general awareness; Yoo refused to answer the question, but Bybee indicates that Yoo was present at relevant discussions. p.xvi). The interrogators worried that these techniques violated legal restrictions against torture--a sensible concern since the techniques came out of SERE, a manual on torture. They wanted legal cover.

Below are three key findings taken from different parts of the Report that highlight the link between the memos and ensuing abuse:

1. "The first Bybee memo, dated August 1, 2002, had concluded that, to violate the federal torture statute, physical pain that resulted from an act would have to be 'equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.' Mr. Yoo’s March 14th memo stated that criminal laws, such as the federal torture statute, would not apply to certain military interrogations, and that interrogators could not be prosecuted by the Justice Department for using interrogation methods that would otherwise violate the law." (xxii)

2. "The Central Intelligence Agency’s (CIA) interrogation program included at least one SERE training technique, waterboarding. Senior Administration lawyers, including Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, were consulted on the development of legal analysis of CIA interrogation techniques. Legal opinions subsequently issued by the Department of Justice’s Office of Legal Counsel (OLC)[by Bybee and Yoo] interpreted legal obligations under U.S. anti-torture laws and determined the legality of CIA interrogation techniques. Those OLC opinions distorted the meaning and intent of anti-torture laws, rationalized the abuse of detainees in U.S. custody and influenced Department of Defense determinations as to what interrogation techniques were legal for use during interrogations conducted by U.S. military personnel." (xxvii)

3. "Department of Defense General Counsel William J. Haynes II’s direction to the Department of Defense’s Detainee Working Group in early 2003 to consider a legal memo from John Yoo of the Department of Justice’s OLC as authoritative, blocked the Working Group from conducting a fair and complete legal analysis….Reliance on the OLC memo resulted in a final Working Group report that recommended approval of several aggressive techniques, including removal of clothing, sleep deprivation, and slapping, similar to those used in SERE training to teach U.S. personnel to resist abusive interrogations." (xxviii)

Bybee is a sitting federal appellate judge; Yoo is a law professor at one of the top law schools in the country.

Thomas Tamm, in comparison, lost his job, and has lived for more than two years in fear of prosecution by the Department of Justice. Department investigators have searched his home, interviewed in his family and contacts, and are contemplating whether to file criminal charges. He has been criticized “as a renegade who took the law into his own hands and violated solemn obligations…”

What were Tamm's heinous crimes? He blew the whistle on the Bush Administration’s illegal secret wiretapping program.

After being warned to silence by higher ups when he raised questions about the legality of the program, Tamm contacted a New York Times reporter and expressed his concerns that the Administration was violating the law. Tamm did not provide any details of the program (which he knew little about). A year and a half later, following an exhaustive investigation, two reporters broke the story that exposed the illegal program.

A Newsweek article about Tamm asks “Is he a hero or a criminal?”

Of course he’s a hero. Tamm risked everything to defend the law against an Administration that systematically engaged in violations of the law. He lost his career as a result—with his freedom still at risk. Fortunately, the new Administration will make the decision on whether to prosecute Tamm. Let’s hope they act with alacrity to remove the cloud hanging over him.

Law and order types might be outraged if Tamm is allowed to escape criminal sanction for his unauthorized disclosures. But what about the Bush Administration officials whose conduct to skirt the law provoked Tamm’s actions in defense of the law?

All signs suggest that the Obama Administration will not likely pursue criminal charges against Bush Administration officials who engaged in or facilitated illegal activities (much of which has been immunized anyway). To pursue such charges would be explosive and divisive, and might cripple the effort to move forward. As Jack suggests below, however, there is every reason to insist that these machinations be fully investigated and exposed.

The Obama Administration can also do something more positive. It can honor the individuals who heroically stood up for the rule of law against the Bush Administration. Thomas Tamm should be on that list, along with Alberto Mora, the Navy’s General Counsel, as well as a few others (including several stalwart conservatives).

Imagine the perfect symbolism if these individuals, several of whom sacrificed their careers to do the right thing, were to receive Presidential Medals for their conduct in resisting a president who acted above the law.

Comments:

Brian:

Please tell me you are kidding.

The evidence offered by the Newsweek article indicates that Tamm is guilty of multiple felonies for disclosing the existence of a top secret intelligence gathering program to the enemy.

Tamm claims that he was a whistleblower disclosing an illegal program, when in fact he knew very little about the workings of the TSP nor its legal basis. Rather, it appears that Tamm had a series of policy disputes with his bosses which partly or primarily motivated his felonies.

There is absolutely no valid excuse for Tamm's felonious actions blowing the TSP to the enemy. Even if he had knowledge of the program and a good faith legal basis to question its legality (which he admittedly did not), Tamm should have brought this to the DOJ IG and then to the congressional intel committees, not to the NYT and then to al Qeada.

Tamm should be indicted and brought to trial ASAP both to stand judgment for his acts and to serve as a signal example to other similar felons disclosing our operations to the enemy in a time of war. He is free to offer the defense that the TSP was unlawful and needed to be disclosed to the enemy. I doubt a jury would buy it.

The only reason he has not been prosecuted is that a trial would require further disclosure of the TSP to the enemy. This is the reason why spies often are not prosecuted.

However, why this felon is still permitted to practice law is a mystery to me. Even Bill Clinton lost his license as a result of his far less damaging perjuries without a criminal conviction.

A just result would be twenty years in a maximum security federal prison in the general population with the rest of the human excrement. Tamm is a disgrace to is country, DOJ and the legal profession.
 

Little Lisa's bro hears the neocon whistles that only dogs can hear with his judge, jury and executioner screed. One would think that an alleged seasoned legal professional such as little Lisa's bro would refrain from calling someone a felon who I understand has not been charged by any authority with committing an alleged felony. Doesn't this get into the grey area of defamatory speech? Or is bro once again blowing into the wrong end of little Lisa's saxophone?
 

The only reason he has not been prosecuted is that a trial would require further disclosure of the TSP to the enemy. This is the reason why spies often are not prosecuted.

So, the more dangerous the spy, the less likely they will be prosecuted?
 

There is absolutely no valid excuse for Tamm's felonious actions blowing the TSP to the enemy.

What evidence do you have that Tamm provided information to al-Qaeda? Or are you contending that the NYT is an enemy of the state?
 

So, the more dangerous the spy, the less likely they will be prosecuted?

Actually, Bart is right that this is true in general of prosecutions for espionage.

Where he goes wrong is in equating a whistleblower with espionage.
 

Actually, Bart is right that this is true in general of prosecutions for espionage.


Have you got some examples?
 

Brian,
The prosecutions will happen if we insist on them. Every time someone like Jack or you speaks or writes I would hope you should wonder whether your statements make those prosecutions more possible or undermine efforts to get them going.

There are people working to get the people prosecuted and/or impeached (Bybee).

BEsst,
Ben
 

If you feel like supporting Mr Tamm,the details of his legal support fund can be found here. A paypal account might be forth coming. Being from abroad I'll have to wait for that.
 

A point which occurred to me a while ago, but which I've never seen properly addressed. When prosecutions are discussed in relation to the TSP, the focus is usually on 18 USC § 798 (a)(3), which provides, in relevant part:

"Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information [...] concerning the communication intelligence activities of the United States or any foreign government [...] Shall be fined under this title or imprisoned not more than ten years, or both."

Leaving aside the question of whether the information leaked to the Times communications actually involved "communication intelligence activities" (as opposed to legal procedures--submission or non-submission of a warrant request to FISA--preparatory to communications intelligence activities), is it entirely clear that the TSP was, in the relevant sense, an action of the United States?

My understanding -- and please correct me if I'm wrong as I don't all that much about this area of the law -- is that (at least in some contexts) ultra vires actions of agents of the state are considered to be simply the actions of the agents themselves, rather than actions attributable to the state in its sovereign character. See, e.g., Ex parte Young, 209 U.S. 123, 159-60 (1908): "The answer to all this is the same as made in every case where an official claims to be acting under the authority of the State. The act to be enforced is alleged to be unconstitutional, and, if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a State official in attempting, by the use of the name of the State, to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is, in that case, stripped of his official or representative character, and is subjected in his person to the consequences of his individual conduct."

I know that the law of official immunity is very complex and has evolved greatly since Young, but it's unclear to me how much this law would affect the construction of the phrase "activities of the United States" in this context. Does anyone have any thoughts on this?

Of course, this argument will only work if the action taken was indeed ultra vires the executive's power.

(For what it's worth, I think it clearly was, but there's no need to rehash that argument here. Let me say also that I have great respect for Mr. Tamm's courage and consider his actions wholly morally justifiable; but here I'm only raising the issue of legal responsibility under 18 USC § 798, because I've never seen anyone address this point and I'm curious about it.)
 

Incidentally, I realize that the state involved in Young is a State rather than the United States, but I can't see how it affects the relevant point; for similar statements with respect to federal officials, see Larson v. Domestic & Foreign Commerce Co., 337 U.S. 682, 689-91 (1949).
 

this might explain why we haven't heard from Prof. Lederman is a while.
 

PMS_Chicago said...

There is absolutely no valid excuse for Tamm's felonious actions blowing the TSP to the enemy.

What evidence do you have that Tamm provided information to al-Qaeda?


To prove the felonies, it is sufficient that Tamm disclosed classified information to a party unauthorized to receive it. However, what Tamm did was far worse. The only reason you disclose classified information to a newspaper is to publish it to a mass audience. Only a complete idiot would not assume that such a mass audience would not include our wartime enemies being targeted by the TSP.

Or are you contending that the NYT is an enemy of the state?

Tamm and the NYT are not enemies of the state, rather they are recklessly providing aid and comfort to an enemy hell bent on mass murder of our citizenry. [This is not treason because the provision of aid and comfort is not intentional - I hope].

I have laid out the basis for indicting the NYT, Rosen and Lichtblau for variations of the same felonies of which Tamm is a admittedly guilty.
 

Ben,

Just to be clear, I am not opposed to the prosecution of Administration higher-ups for their participation in illegal actions, but am merely noting that it appears unlikely for political reasons. I would not find it surprising, however, if criminal charges are lodged against these individuals by national authorities outside the United States (though I doubt that the International Criminal Court, still in an early stage of its existence, would touch this).

Brian
 

Alix Cavanaugh said...

[I]s it entirely clear that the TSP was, in the relevant sense, an action of the United States?

The President ordered the creation and operation of TSP.

Congress' intelligence committees were notified of the TSP and authorized funding for it

Actions of the United States do not get much more solid than that.
 

Have to agree with Bart here; There was a large universe of people with security clearances, such as the Congressional intelligence committees, to whom Tamm should at the very least have gone first. Going to the media should have been, no matter how heinous the matter, a last resort, not a first resort.
 

I agree that Tamm must have done this knowing full well he ran the risk of having to face the music someday. He went to Congress as would be expected - Congress turned a blind eye. Rather than sit quietly then, he went to the press. He brought this on himself, I agree. But, sometimes, people are willing to do the time for a principle.
Best,
Ben
 

Have you got some examples?

Sure. In the cold war, we exchanged numerous spies in prisoner exchanges with the Soviet Union rather than having embarrassing trials. We also plea bargained with some spies who theoretically could have been tried and executed.

By the way, this principle is in no way limited to espionage prosecutions. It is often the case in ALL aspects of law enforcement that the biggest fish are harder to prosecute than smaller fish.
 

Brian,
Point noted. Having tried twice to get Germany to criminally prosecute high-level US civilians for torture, I doubt a foreign court will do it unless we exhaust all legal remedies in the United States. That requires the ongoing effort here first.
Best,
Ben
 

n.b. Trisodium Phosphate is perfectly legal and uncontroversial. What's being referred to here is the warrantless wiretapping program.
 

"Bybee is a sitting federal appellate judge; Yoo is a law professor at one of the top law schools in the country."

B. Davis implies there is a chance that discussions on legal blogs like this would in some fashion 'undermine efforts' to bring people to justice. How exactly would that be the case?

As to impeachments efforts for Bybee. It's good to know efforts are out there, but honestly, I have not seen much evidence there is much chance of this happening at the end of the day.

Impeachment requires in part a public and/or political will that this blog in the end helps in some small fashion. As to Yoo, this blog had repeated posts (including in praise of a guest blogger who sneered at a semi-regular) opposing on faux academic grounds to a real investigation.

They didn't even honestly answer the intelligent attempts by regular commenters (e.g., Mark Field, et. al.) to challenge the self-interested support of Yoo.

This and other matters related to this torture matter puts into context repeated complaints about the flaws of our constitution, how it needs to be amended before real change occurs, etc.

Our Constitution itself didn't cause this to happen. Evidence was out there, even via the flawed MSM, that underlined the administration furthered torture. Not just a few bad apples. But, ti was ignored, and Bush was re-elected anyway.

Yet again, we need to face the real enemy of justice here, and it is not always pretty.

As to telling Congress, the Newsweek article linked said:

"Tamm agonized over what to do. He tried to raise the issue with a former colleague working for the Senate Judiciary Committee. But the friend, wary of discussing what sounded like government secrets, shut down their conversation."

We've been downt that road before. See, the Pentagon Papers. Congress has been shown to be aiders and abetters, repeatedly by the press. Which some consider the enemy.
 

It's rather striking to see Bart argue that even if the TSP was in fact illegal, someone can still be charged and convicted of a felony for disclosing the illegal activity! That's pretty breathtaking.

Setting that aside, I thought it was well-established during the Valerie Plame brouhaha that there is no broadly applicable federal statute which makes it a crime to disclose classified information, although it is of course a firing offense. Bart seems to have rediscovered that previously lost statute.
 

My fundamental problem with this post, and with Tamm's behavior, is that both appear to be motivated by anger with other Bush policies than the one that Tamm revealed. Tamm himself admits as much, "Tamm concedes he was also motivated in part by his anger at other Bush-administration policies at the Justice Department, including its aggressive pursuit of death-penalty cases and the legal justifications for "enhanced" interrogation techniques that many believe are tantamount to torture."

The original post is a bit more ambiguous on that point, but it says, "Of course he’s a hero. Tamm risked everything to defend the law against an Administration that systematically engaged in violations of the law." I presume the post was referring not only to the measures that Tamm revealed.

It's a common flaw with would-be whistle blowers that they let their anger over behavior X serve a psychological justification to take act Y that is otherwise unlawful. That form of substituted justification isn't "the rule of law."

The second problem concerns who Tamm called: the NYT. It's not clear that Tamm ran this matter aggressively "up the org chart" the way Mora and others did -- which is the first option in such cases. We had a similar case in California, involving a government lawyer named Cindy Ossias. Afterwards, she concluded that she had erred not in the disclosure of bad acts, but in her choice of who to tell. She should have pursued the matter with the Attorney General's office. Did Tamm do this correctly in that sense? It's not clear. The military lawyer, Matthew Diaz, made a similar error.

Third, if Tamm didn't know the details, how was he so sure that it was illegal that he was justified not in internal reporting but revealing outside the organization?

Both the post and the Newsweek article have a long way to go if the goal is to justify Tamm's conduct.
 

Steve M said...

It's rather striking to see Bart argue that even if the TSP was in fact illegal, someone can still be charged and convicted of a felony for disclosing the illegal activity! That's pretty breathtaking.

I never argued anything of the kind. Indeed, I have noted in the past that illegal acts cannot be classified and this would be an affirmative defense to the charge of disclosing classified materials in the past.

However, Tamm admitted that he did not know the operational details of the TSP and thus did not have a good faith basis for believing the program to be illegal. In fact, the TSP was perfectly legal. Thus, Tamm's whistleblower pose is garbage.
 

I never argued anything of the kind. Indeed, I have noted in the past that illegal acts cannot be classified and this would be an affirmative defense to the charge of disclosing classified materials in the past.

You certainly did make such an argument, when you argued in your very first comment that if Tamm wants to argue that the TSP was illegal, his arguments must be directed to the jury.

At least under my view of the law, if the judge concludes that the TSP was illegal, the proper result is to dismiss the charges, not to say "well, you better hope the jury buys it."

I trust you understand that your own views concerning the legality of the TSP, well-reasoned though they may be, are not in fact res judicata.
 

Prof. Volokh has just posted some thoughts regarding a recent Second Circuit opinion which seem relevant to this issue as well.
 

Bart,

The "human excrement" comment is beneath your usual self-control.

As for your final point, I consider bad faith legal arguments by legal officials to enable illegal activity far more of a "disgrace" to the "DOJ and the legal profession" than what Tamm did.

One course of action was in defense of the rule of law while the other was a blatant abuse of the rule of law. It's not even a close question.

Brian
 

Tamm claims that he was a whistleblower disclosing an illegal program, when in fact he knew very little about the workings of the TSP nor its legal basis.

Regardless of the factuality of "Bart"'s assertions here, I'm not sure that Tamm has to actually know the program was illegal in order to be able to out it without fear of prosecution. If it was illegal (and this has little or nothing to do with Tamm's state of mind), it loses its protection. And what to say of "Bart"'s claim that Tamm "knew very little about the workings of the TSP"? You can't reveal what you don't know....

Cheers,
 

"As for your final point, I consider bad faith legal arguments by legal officials to enable illegal activity far more of a "disgrace" to the "DOJ and the legal profession" than what Tamm did."

Well, that's more or less how I feel about the extension of commerce clause power to non-interstate, non-commerce matters, along with delegation of legislative authority to executive branch agencies, and so on, and so forth.

But the point remains: Tamm had plenty of options for whistle blowing which didn't involve violating his voluntarily undertaken obligation to not disclose classified information to people without the relevant security clearance. He didn't exhaust them before going to the media.

He is, thus, a criminal.
 

Tamm should be indicted and brought to trial ASAP both to stand judgment for his acts and to serve as a signal example to other similar felons disclosing our operations to the enemy in a time of war.

... and Khalil el-Masri and Maher Arar should be gibbeted at dawn for "disclosing our operations to the enemy in a time of war" ... even while we weren't doing any such thing. They're traitors, I tellya, and the worst kind of rag-headed bin Laden lovers to boot. As for their lawyers (and the other traitorous "defence" lawyers down in Gitmo), Shakespeare knew how to deal with them....

Cheers,
 

However, why this felon is still permitted to practice law is a mystery to me. Even Bill Clinton lost his license as a result of his far less damaging perjuries without a criminal conviction.

Clinton didn't "lo[se] his license" in Arkansas. It was suspended (and since reinstated, AFAIK). And that suspension was a result of a MRPC/ArkRPC 8.4(c) complaint:

Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
[...]
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

Note that no perjury is required. A lawyer has a duty to be honest .. at all times. This is something that you should carefully consider, "Bart", as you shovel your sh*te here....

And note that your allegation of "perjuries" could be considered defamatory ... and false.

Cheers,
 

[Dilan]: Actually, Bart is right that this is true in general of prosecutions for espionage.

[bartbuster]: Have you got some examples?


It's actually true in many cases where revelation or publication of the crime would be further harmful to the erstwhile 'victim'. Bank fraud and other such embarrassing and confidence-destroying insider crimes are known to be handled sub rosa in many cases, because the institutions don't want people to know how vulnerable or incometent they are.

I heard that the famous ESPN "wrestling" tape that played was no accident; an employee did it deliberately. He was shown the door, but was let go without charges or other adverse action on condition that he not disclose it....

The CIA, FWIW, has such a bad track record and such a bad reputation that they're quite inclined to keep things quiet when they really screw up (once again).

Cheers,
 

I'm curious: to what extent can the damage that was done to an illegal program be considered in the punishment of those who revealed the existence of the illegal program to the public? If I rat out my next door neighbor's meth lab, am I going to be held responsible for his loss of profits? Obviously not, and the situation is quite different, as I haven't been sworn to secrecy--at least not in any form that would be punishable by statute.

Can Blagojevich punish the FBI for revealing his top-secret "pay to play" program? Lord knows he would if he could, but no, obviously he can't.

What then makes Tamm's situation any different? Is it his internal and subordinate status that causes the feathers to be ruffled? Why does the government get a pass when it does something illegal?

The obvious counter here, of course, is that the program wasn't illegal. But that's not what other people within his unit were saying:
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."

If the government can't be trusted to monitor itself, why is telling the people (the true leaders of this nation)--through whatever means--an act worthy of the title "human excrement"?
 

Tamm was not a whistleblower because he did not know any details about the program, never claimed to have reviewed the law and thus could not have reasonably concluded it was illegal:

He told reporters Eric Lichtblau and James Risen nothing about the operational details of the NSA program because he didn't know them, he says. He had never been "read into," or briefed, on the details of the program. All he knew was that a domestic surveillance program existed, and it "didn't smell right."

How can an attorney fully briefed about the classification system and who swore to protect his nation's secrets in good faith disclose a top secret intelligence program to the enemy on nothing more than his surmise that "a domestic surveillance program existed, and it "didn't smell right?""

The answer is that he did not act in good faith and his whistleblower pose is pure CYA.

Here are Tamm's real motivations:

Tamm concedes he was also motivated in part by his anger at other Bush-administration policies at the Justice Department, including its aggressive pursuit of death-penalty cases and the legal justifications for "enhanced" interrogation techniques that many believe are tantamount to torture...

After John Ashcroft took over as President Bush's attorney general the next year, Tamm became disaffected. The Justice Department began to encourage U.S. attorneys to seek the death penalty in as many cases as possible. Instead of Reno's skepticism about recommendations to seek death, the capital-case committee under Ashcroft approved them with little, if any, challenge. "It became a rubber stamp," Tamm says...

Tamm grew frustrated when the story did not immediately appear. He was hoping, he says, that Lichtblau and his partner Risen (with whom he also met) would figure out on their own what the program was really all about and break it before the 2004 election. He was, by this time, "pissed off" at the Bush administration, he says. He contributed $300 to the Democratic National Committee in September 2004, according to campaign finance records...


Tamm betrayed his country out policy and partisan disagreements with his bosses. There is absolutely no excuse for this behavior.
 

I have laid out the basis for indicting the NYT, Rosen and Lichtblau for variations of the same felonies of which Tamm is a admittedly guilty.

It is amasing that "Don Quixote" DePalma can convict these treasonous slimebuckets in a Washington minute, yet can simultaneously prevail in defence of maladministration torturers through artful (albeit novel) claims that our criminal law is woefully subjective.

What a man. Why doesn't everyone see how great "Bart" is? He's truly a legend in his own mind!

F*ck Eric Holder, I'm pushing for the sorely under-appreciated and under-utilised [in his present occupation of securing plea bargains for drunk drivers] Harold Arlan "Bart" DePalma for the next Attorney General!!!!

Cheers,
 

No one seems to be able to identify the statute which this "felon" violated.
 

It is amazing that an Newsweek editor did not catch that Isikoff was reporting the old speculation that DOJ rebelled against the TSP which Tamm feloniously disclosed, when Newsweek's Daniel Klaidman was simultaneously breaking a story that the DOJ rebellion had nothing to do with the TSP and instead concerned a second program collecting domestic telephone and email records.
 

Sure. In the cold war, we exchanged numerous spies in prisoner exchanges with the Soviet Union rather than having embarrassing trials.

Actually, I think we usually did that to get our own people back, not to avoid a trial.

We also plea bargained with some spies who theoretically could have been tried and executed.

Pleas bargain is not the same as "not prosecuting".
 

[Alix Cavanaugh]: [I]s it entirely clear that the TSP was, in the relevant sense, an action of the United States?

["Bart"]: The President ordered the creation and operation of TSP.

Congress' intelligence committees were notified of the TSP and authorized funding for it

Actions of the United States do not get much more solid than that.


Yes. "When the president does it that means that it is not illegal."

;-)

Cheers,
 

Steve:

Alix discussed the appropriate statute above:

A point which occurred to me a while ago, but which I've never seen properly addressed. When prosecutions are discussed in relation to the TSP, the focus is usually on 18 USC § 798 (a)(3), which provides, in relevant part:

"Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information [...] concerning the communication intelligence activities of the United States or any foreign government [...] Shall be fined under this title or imprisoned not more than ten years, or both."

 

Bart:Newsweek's Daniel Klaidman was simultaneously breaking a story that the DOJ rebellion had nothing to do with the TSP and instead concerned a second program collecting domestic telephone and email records.

Or, alternately, we're talking about apples and apples. Back to the article cited by Brian:


Other parts of the program were far more sweeping. The NSA, with the secret cooperation of U.S. telecommunications companies, had begun collecting vast amounts of information about the phone and e-mail records of American citizens.


Note that neither Brian nor the Newsweek article pigeonholed the program into something called the "TSP."
 

PMS:

Isikoff led off with this statement"

The drama followed a quiet, separate rebellion within the highest ranks of the Justice Department concerning the same program. (James Comey, then the deputy attorney general, together with FBI head Robert Mueller and several other senior Justice officials, threatened to resign.)

And then Isikoff spent most of the article describing the timeline of the TSP.
 

John: "My fundamental problem with this post, and with Tamm's behavior, is that both appear to be motivated by anger with other Bush policies than the one that Tamm revealed."

I'm unsure why this is so relevant. Motivations are often mixed, but the bottom line is if he did something that should have been done. The fact he says he was "in part" motivated about 'x,' which is probably often the case for whistleblowers, doesn't seem like some "fundamental problem."

It's akin to the need to have secular laws. The fact some legislator was "in part" motivated by religious reasons doesn't make it unconstitutional.

Some pure whistleblower is too high a test.
 

Joe,

My comment should have been clearer. Once one reads the Newsweek article, one realizes that the proffered justification is "because the Bush administration has done various bad things, I am exempt from laws that would otherwise apply so long as I am hurting the Bush administration."

The two arguments that Tamm does not make, because he cannot make them, include: (1) it was lawful for me to reveal the information; (2) although it was unlawful for me to reveal that information, the Bush administration's behavior was so wrongful that I have an implied right to reveal it; (3) the Bush administration's behavior was so wrongful that I was willing to break the law and pay the price as a way of demonstrating how wrongful was the breach and the law forbidding me to reveal it; (4) I fought this issue up the org chart within DOJ and the Executive Branch until it became futile to pursue it further there; (5) because I had the detailed knowledge that proved that the program was unlawful, and because no one else was doing anything about it, it was necessary for me to reveal the details of the illegality to the NYT.

From the Newsweek articles and what else I've been able to gather about Tamm, he is more like Matthew Diaz than Alberto Mora. Tamm became so incensed that he convinced himself that he was a law unto himself -- the exact opposite of the rule of law.
 

oops. i really can count. that's five arguments Tamm can't make.

john steele
 

From the Newsweek article:

When Tamm started asking questions, his supervisors told him to drop the subject. He says one volunteered that "the program" (as it was commonly called within the office) was "probably illegal."

Tamm agonized over what to do. He tried to raise the issue with a former colleague working for the Senate Judiciary Committee. But the friend, wary of discussing what sounded like government secrets, shut down their conversation.


Did he explore internal remedies enough? It's hard to tell. A few questions to supervisors may not facially seem much, but being told to drop it can mean many things, some of them very unpleasant. It appears that the reasons or tone used to tell him to "drop it" discouraged him from going higher. Purely speculatively, since none of us yet know, he may have been told that it has been cleared at higher levels, and his questions up would go nowhere.

Then he decided to go the the other branch, and was again effectively told it was going nowhere. This, of course, is the branch that was "read in" to what has happening, and did nothing. It is easy to see why he may have been discouraged.

So, executive perpetrating at higher levels than him, and he was told to drop it.

Legislative read into the program, and not interested.

Finally, judicial supposedly managing the program through FISA.

It is quite likely that he felt he only had the Fourth Estate to turn to.

Recall that his discussions of his reasons are after a few years of stress and worry (and depression) about what is going to happen to him; this will likely color his post facto discussions of his reasoning. He was just on Maddow, and did not sound very convincing, but she didn't have a thorough interview (which should take hours, based on his story).

And as to whether he had enough detail--he admits he was told by at least one supervisor, who who presumably trusted and was better read into the program than he, that the program was likely illegal. And also, perhaps, some of the supervisors hinted to him that they could not speak more of it, and he felt that his lack of knowledge limited the likelihood that he would be surveilled.

Again, just reading from what was disclosed, but I am trying not to jump to conclusory conviction based on limited information.
 

Bart asserts that a jury won't buy Tamm's rationale. Perhaps not. However, while I'm not a lawyer, I am a citizen, and were I to be a juror on Tamm's case, I would vote for acquittal, even knowing full well that he broke the law. Laws should follow from what is right, they should not be considered to define what is right. If Tamm had revealed confidential information about a lawful program to enrich or otherwise aggrandize himself, he would deserve a jail sentence. However, he broke the law to reveal an illegal program, knowing full well the possible consequences, and his act serves the greater public good. Bart, who can find no end of energy to excuse the barbaric mass murder and torture by the pigs in this administration, one of whom had two shoes thrown at him recently, makes much of Tamm's apparent lack of knowledge that the program was illegal, yet he doesn't know just what Tamm knew, and, as it turns out, the program was illegal!

This is why juries are so crucial a part of the justice system, so we the people can say NO!, even in the face of an edifice of laws that serve only to obfuscate the wrongdoings of the powerful or subvert that which preserves the welfare of the people. From the jury box,the people can say to the state, "You have abused your power and we will not have it."
 

And of course, Robert, we should remember that the threshold for indictment is much lower than that for conviction. I didn't realize that until I sat on a jury which acquitted a defendant who insisted on trial (despite her public defender's admitted bias towards a plea).

The prosecutor asked afterwards what jurors thought, and I told him that after he rested his case, my first thought was "that's it?", and he supported the decision to go to trial with the fact that they only had to prove it was possible that the defendant committed a crime, not that it was likely they had.

That's ten hours I will never get back, but I helped keep a very likely innocent person away from a permanent mark in her history.
 

Yep, I have served on several juries, including one criminal trial, a few civil trials, and one grand jury. In fact, I'm due for jury duty come this February! (I was called for December 9, but I had to postpone, so I know my next date to act as a citizen of this country.)

In my experience, the jurors I have served with have largely been thoughtful, intelligent people who took their responsibility seriously. I know this is not universally so, but it can be and in my experience has been the case.
 

The law that Tamm broke is certainly clearer than the claim that the TSP or the "other program" violated the law. Nobody knows for certain that the TSP actually represented "electronic surveillance" as defined originally in FISA (before Congress changed FISA so it unambiguously was not covered). The other program depends on whether E-Mail headers are "contents" under the law. I am not saying one way or the other whether any administration program broke the law, but what Tamm did clearly did break the law.

For years we have seen people on this blog say that the law is the law and the President has no right to break it no matter what his motive. Now the same people say that some low level guy in DOJ should be able to break the law with impunity. I say you have to be consistent. If you think Bush broke the law, then Tamm did too. If you want Tamm to get off even though he broke the law, then the Administration should all get pardons before Bush leaves office.

There are two Newsweek stories. The other story points out that the TSP that Tamm disclosed may not have been the program that DOJ officials were worried might be illegal. If so, Tamm disclosed to the NYT a program that neither he nor anyone else believed was illegal, although some people believed that some other program he did not disclose might be illegal. Sorry, but that does not make him a "whistle blower." He was not defending the rule of law by disclosing some privileged and classified information based only on a rumor he could not confirm that there might be a program that someone else thought was illegal.
 

For years we have seen people on this blog say that the law is the law and the President has no right to break it no matter what his motive. Now the same people say that some low level guy in DOJ should be able to break the law with impunity.

These are not inconsistent views. We hold the President to a higher standard for two reasons: the amount of power given him; and his sworn duty to "take care that the laws be faithfully executed".

Moreover, we might well excuse even the President from breaking the law if done in a truly good cause. What separates the Bush Administration from this defense is the sheer lack of necessity -- they broke the law for the sheer joy of breaking it, not because the really needed to.
 

For some reason, this raises one of my favorite bugaboos.

Because of their heightened privilege, if not in law but in fact, holders of elected or confirmed public office should have a lower threshold of guilt in criminal trials than ordinary citizens, such as clear and compelling evidence. This would tie in to the concept that they should avoid even the near appearance of corruption, the fact that they have been more likely to be able to manipulate the justice system to their own ends, and ties to the lower threshold of impeachment for high crimes and misdemeanors.

In my own state, this lower standard is used for determining child custody, in order to better protect vulnerable children, especially by easing the ability to prove sufficient likelihood of harm in order to move children. I can easily see moving the concept from protecting our children to protecting our government from internal abuse.
 

Howard,

Oh right, like trying to report a crime is a crime.

You demented fascist hypocrites make me want to VOMIT.
 

Howard Gilbert:

The other program depends on whether E-Mail headers are "contents" under the law.

50 USC 1801(n) is very specific:

(n) “Contents”, when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.

You don't even need to know the "subject". You just need to know that it happened.

This, FYI, is quite different from the distinction between "call content" and "call data" WRT domestic wiretap law and the respective Title III warrants versus trap'n'trace court orders (but it should be pointed out that both Title III and TNT require at the very least a judge's OK).

Cheers,
 

Howard Gilbert:

I say you have to be consistent. If you think Bush broke the law, then Tamm did too.

As Hertz says, "not exactly". Even our illustrious maladministration flack "Bart" has admitted that the existence of illegal activity is not properly a "secret". If Dubya's acts were illegal, then disclosing such was no crime.

And this is as it should be.

Cheers,
 

"the proffered justification"

I read the Newsweek article John, and I disagree with your analysis of his reasoning. Reading it and watching his appearance on Rachel Maddow, one gets the idea that yes he thinks the Bush Administration is particularly lawless.

But, if this drove him to whistleblow, iow, realizing it wasn't just one thing, which might be forgiven, but many, it isn't exactly damning. This idea he just wanted to "hurt" the Bush Admnistration, akin to the "you hate Bush" sneering crowd is a bit petty.

As to the org chart, Fraud Guy's comments are helpful. As to his non-acceptance of the marytr role, I don't know enough to say. But, others argue people like him shouldn't have to take that risk for doing the right thing, so this doesn't necessarily damn him.

He might have thought the same thing if he just whistleblew simply on some saintly desire to address the evils of this specific lawbreaking. It seems you fall back on his motivation per se.

I don't see that as enough given the situation.
 

The vogue in recent years for mandatory sentences seems to have blinded us to the possibility that judges and juries serve a purpose beyond just making a determination of fact in assessing guilt or innocence. They also serve to act as the human component, to give the cold words of written legislation the blood of human compassion and the balance of human judgement. Tamm may have broken the law. He did so hoping not to be discovered, of course, but knowing the consequences if he were found out, and certainly he was aware he might be found out. He broke the law in order to halt what he felt was greater lawbreaking by the administration.

If Tamm broke the law, then I can't argue against those who say he should be prosecuted, although what's going unsaid here is that prosecutors do decline to bring charges in criminal cases for various reasons. But, assuming no such decision were to be made on Tamm's behalf and he were to be prosecuted, that does not mean he must be convicted. The jury may decide that, on balance, Tamm's act served the greater good--my view--and thus he should not be punished. Or the jury might not realize it has the power to make this judgement to acquit, or may not be inclined to do so; unless he is bound by mandatory sentencing guidelines, the judge may make the determination that Tamm acted for the greater good and give him a suspended sentence or some other minimal punishment.

It does not follow that Bush, Cheney, Rumsfeld and the other mass murderers and torturers in this criminal administration should simply be given free passes--although, in reality, we know they almost certainly will. It follows that they should be brought to trial as well, where their guilt or innocence will be determined, and the judge and jury will act as the facts and their consciences compel them to do. Even if Bush and his cabal of murderers were acquitted, their having been tried would have served the purpose of demonstrating that no matter their positions of power, they cannot escape the process of the law. That alone might serve to deter future holders of office—our public servants, after all—from so cavalierly disregarding their obligations to obey the law and uphold their oaths of office. It would not satisfy me to see them be acquitted, but at least they would have been tried, which I think will almost certainly never happen in the real world.
 

Robert Cook said...

Bart asserts that a jury won't buy Tamm's rationale. Perhaps not. However, while I'm not a lawyer, I am a citizen, and were I to be a juror on Tamm's case, I would vote for acquittal, even knowing full well that he broke the law.

Would you also lie about this point of view to sneak onto the jury as a ringer? Otherwise, you would be dismissed for cause.

I am referring to an average jury who has not made uo their minds ahead of time.
 

HowardGilbert said...

For years we have seen people on this blog say that the law is the law and the President has no right to break it no matter what his motive. Now the same people say that some low level guy in DOJ should be able to break the law with impunity. I say you have to be consistent. If you think Bush broke the law, then Tamm did too. If you want Tamm to get off even though he broke the law, then the Administration should all get pardons before Bush leaves office.

Actually, I believe this is an either or case.

I doubt a judge will hold that the President has the power to classify illegal activity. Thus, if the TSP is unlawful, then it was not properly classified and Tamm did not feloniously disclose classified information to the NYT. If the jury thinks the TSP was lawful, then Tamm is guilty.

I suspect this is why the DOJ never prosecuted Tamm. A trial of Tamm would necessarily also become a trial of the TSP and a further disclosure of the means and methods of of the TSP to al Qaeda at a public trial. This is why I posted that a Tamm trial would be similar to a trial of a spy - spy trials often require the disclosure to a wider audience of the classified materials the spy stole.
 

"if the TSP is unlawful, then it was not properly classified" This might be true of a program that is inherently illegal, where there is no way the program can be conducted without breaking the law. Then hiding the program is hiding a violation of the law. However, the TSP that Tamm disclosed may have been legal even before Congress "clarified" the law to make it absolutely legal. In the original law there were many ways to gather the data legally and one way to do it illegally. The illegal was was the easiest, but the NSA is in the business of solving the most difficult problems imaginable and had no reason to be lazy here. Tamm did not know any law was broken. He may have known that some DOJ officials questioned the legality of a different program, but that did not affect the TSP. You would not have the right to expose critical national secrets if you believe that some small part of some program is being done in an improper manner. What you should do is to report through proper channels so that the program is changed to do things the right way instead of the wrong way.

During WWII, someone would not have had the right to disclose that we could crack the Japanese code simply because the people who carried the intercepts routinely exceeded the speed limit while doing so. Tamm had no right to disclose the existence of the TSP to al Qaeda because he believed that the NSA might be acquiring communications in New Jersey, where it is illegal to do so without a warrant, rather than 12 miles away (offshore) where no warrant would have been required under even the most unfavorable reading of the original law.
 

Bart, of course I would not conceal my opinion to become a juror for Tamm. I would be very clear on my views during jury selection. This is assuming I knew enough about the case to have formed an opinion beforehand

However, given my more general views, if I were to end up on a jury for Tamm having never heard of him or the details of his case, I would vote to acquit, for reasons I have described.
 

This comment has been removed by the author.
 

[Robert Cook]: Bart asserts that a jury won't buy Tamm's rationale. Perhaps not. However, while I'm not a lawyer, I am a citizen, and were I to be a juror on Tamm's case, I would vote for acquittal, even knowing full well that he broke the law.

["Bart" DeBugblatter]: Would you also lie about this point of view to sneak onto the jury as a ringer? Otherwise, you would be dismissed for cause.


This is funny ... no, make that risible ... from someone that has already admitted that he, good and honest lawyer that he is, would seek to improperly influence jurors (see this, for instance).

I wonder how many drunks he's got in his card file for when jury selection comes up in Colorado Springs?....

Cheers,
 

The Bugblatter may be on to something here:

I suspect this is why the DOJ never prosecuted Tamm. A trial of Tamm would necessarily also become a trial of the TSP....

The maladministration has been loath to try their "theories" in any court.

Cheers,
 

Brian Tamanaha said...

Bart, The "human excrement" comment is beneath your usual self-control.

I apologize if you found that rather restrained comment offensive. It was the best I could muster.
Be assured that the terms this old grunt would have preferred to use to describe Tamm were far more colorful and unfit for this respectable academic venue.

As you can tell, I have a very low tolerance for a species of sub-treason that is willing to recklessly provide aid and comfort to a mortal enemy of the country for no better reason that partisan "disaffection."

In the Cold War, at least the traitors were communist true believers or sought payment by the KGB. Tamm has reduced providing aid and comfort for the enemy to something pathetically banal.

As for your final point, I consider bad faith legal arguments by legal officials to enable illegal activity far more of a "disgrace" to the "DOJ and the legal profession" than what Tamm did.

What concerns me about your post is that you appear to be more upset about obviously legal (changing environments) to legally questionable (waterboarding) interrogation techniques which aided your country and at most harmed al Qaeda, but label as a "hero" a man who clearly committed felonies that harmed your country and provided aid and comfort to al Qaeda.

With respect, I would suggest that these priorities need to be re-examined.
 

Howard Gilbert:

However, the TSP that Tamm disclosed may have been legal even before Congress "clarified" the law to make it absolutely legal.

Perhaps (although almost the entire top ranks of the DoJ thought not). But we're talking about what would result if the TSP were illegal.

And a FYI: you misspelled "amended".

Cheers,
 

Howard Gilbert:

In the original law there were many ways to gather the data legally and one way to do it illegally.

Nonsense. What ever possessed you to say such a thing?

Cheers,
 


And then Isikoff spent most of the article describing the timeline of the TSP.


Bart,

I think you're reading with your categories and not with your eyes. Nowhere does it mention the TSP, and throughout the article it makes it clear that we're talking primarily about domestic wiretapping and the collection of phone and email records of American citizens. You can call something "TSP" if you like, but you're bringing that to the table.

Isikoff himself describes "the program" as "a wide range of covert surveillance activities." Isikoff folds at least two efforts into this label: first, the standard story of eavesdropping on foreign<-->American communications. Second, and more germane to the current discussion, there is the ("more sweeping") collection of personal communication records, including phone calls and emails, of American citizens without the necessity of foreign contact.

You, Bart DePalma, would call these two separate programs, with the previous being the TSP and the other being what Comey objected to, perhaps. Isikoff seems to lump these into a general NSA counterterrorism effort ("the program"). Your division may be appropriate and factually correct, but I think it is clouding the way that you're reading the article.

If you look at the article as its own text, the comparisons are absolutely warranted. If Tamm's objection is not to surveilling terrorists and communications involving foreign agents, but to the collection of Americans' personal communications without suspicion, as he tells us, then we are indeed talking about apples and apples.

I think that should mitigate your ferocity towards Tamm and your absolute conviction that he is a traitor. I agree with people above who believe he should have exhausted his own chain of command before going to the press. However, if his intention was truly to protect the rights of Americans against a tyrannical government, I think this qualifies him more for patriot status than the hangman's noose.
 

When Bart starts giving a whoop about prosecuting violations of the War Crimes Act, I will take more interest in his opinions as to whether Mr. Tamm should be prosecuted.

Until then, I don't see why a reasonable person would care to discuss the issue with Bart.

My own two cents is that it would be a poor use of resources to try Mr. Tamm, and that the illegality of the reported conduct should be an affirmative defense. I doubt the feds want to go there in open court.

But yes, whistleblowers on classified misdeeds do face potential prosecution. That's the law.
 

Back in August 2008 when the FBI executed the search warrant on Tamm's home and his name first appeared on the radar screen as the possible source of the NY Times story, Strata Sphere quickly discovered that Tamm worked with the George Soros funded anti-capital punishment group Equal Justice while working for Justice as a capital case prosecutor.

What the hell was a capital punishment opponent doing on the Justice capital case team? Did he ever inform his superiors of his positions?

Additionally, it appears that Tamm also liked targeting the occasional snark at the Bush Administration at lefty blogs like NY Times' The Caucus and Media Matters.

One has to wonder whether Tamm's posts also attracted the FBI's attentions.

In any case, it is becoming increasingly apparent that Tamm fancied himself an ideological and partisan mole inside the Bush Administration.
 

PMS_Chicago said...

Isikoff seems to lump these into a general NSA counterterrorism effort ("the program"). Your division may be appropriate and factually correct, but I think it is clouding the way that you're reading the article.

What Isikoff is engaged in is shoe horning.

Tamm tipped off the existence of the Terrorist Surveillance Program (TSP) to the NYT, not the other program seeking meta data.

The NYT's RIsen and Lichtblau disclosed the TSP, not the other program seeking meta data.

The timeline Isikoff provided concerned the FISC's well publicized interactions with DOJ over the TSP, not the other program seeking meta data.

Newsweek's other reporting indicates that the DoJ "rebellion" had nothing to do with the TSP and instead was a complaint about the other program involving collection of email headlines and metadata, most likely about the content contained in the email headlines.

However, this revelation is rather inconvenient for Isikoff's efforts to paint Tamm as a whistleblower who was merely the first at DoJ to rebel against the "illegal" TSP. Thus, it appears that Isikoff is dishonestly attempting to coflate the two dissimilar programs in order to shoe horn in the rebellion over the meta data collection with Tamm's disclosure of the TSP to the NYT.

I agree with people above who believe he should have exhausted his own chain of command before going to the press. However, if his intention was truly to protect the rights of Americans against a tyrannical government, I think this qualifies him more for patriot status than the hangman's noose.

Tamm admitted that he had no knowledge of the means and methods of the TSP, which means that he also had no knowledge that the TSP was targeting innocent Americans.

Tamm's history as reported in the Isikoff article and which I supplemented in the post above indicates that he was a liberal Democrat who opposed the death penalty and War on Terror policies of the GOP President and feloniously abused his position to undermine those policies.

If a GOP DoJ lawyer engages in the same sub-treason to undermine the Obama Administration, I assure you that I would have him hang right next to Tamm. Placing party and ideology over country is simply wrong
 

Arne:

FISA defines four things that are "electronic surveillance" covered by the law. If the TSP fell under the law, it was due to the rule that a warrant is required if the target is a person outside the US and the content of the call is collected inside the US. A few years back Congress passed another law "clarifying" the definition to make the location of data collection unimportant.

Before that "clarification", if the data was collected in the ATT call center in NJ, a warrant would have been required. Twelve miles out to sea, or in space if the call is routed by satellite, or at any point along the route outside the US, or in Pakistan at the other end of the call, no warrant was required. Lots of ways to do it, only one is illegal.

I have argued in this blog (and been regarded as a crank for doing so) that the NSA probably did follow the law and collect the conversations outside the US. Here the issue is simply that they could easily have done so if they felt it was worth the extra effort and cost to do so. An agency that tapped into the Soviet strategic military communications network in the '80s can certainly mount an operation 12 miles off the Jersey coast (although I suspect the collection capability was already in place).

Until this week, everyone assumed that the big controversy inside the DOJ was about the TSP itself, and if DOJ officials though the program was illegal they assumed the NSA must have done something wrong. Now it appears that the confrontation around Ashcroft's hospital bed may have been about an entirely different program. At that point there isn't a single shred of evidence on the table, except for an incoherent half sentence mumbled by Gonzales on late night TV, that the TSP actually required a warrant under the pre-clarification language of FISA.
 

Placing party and ideology over country is simply wrong

# posted by Bart DePalma : 12:31 PM


That is pretty much all you do.
 

Anderson:

Of course, I agree entirely. Perhaps I've been grading too many papers this week, and should quit trying to correct the world. :)
 

Bart,

The only real treason here is YOURS.
 

No criticism intended, PMS, just explaining why I wasn't going to bother.

But it's a bit depressing how the blog becomes Bartization. It's one reason I drop in less frequently here than I once did (the loss is all mine of course).
 

Indeed Anderson,

I've been trying VERY hard to just ignore the demented goon, with the result that very few threads retain much interest for me once the Bart-baiting sets in. We all exhausted any basis for serious discussion with the guy long ago.

Every once in awhile he says something so outrageous that I can't let it pass, like today when put on his brown shirt and starts calling OTHER people traitors...

But we should simply shun him. The man is to humanity and reason what raw sewage is to drinking water.
 

Folks,

Do not blame me because you want to argue with me as one of the few token conservatives here.

I usually post once or twice in response to the subject of a thread that interests me and in response to posts directed to me.

If you do not want to have a conversion, do not direct posts to me.

If you direct posts to me, especially those challenging my positions, expect that I will extend you the courtesy of a response (unless you are simply spamming like arne and bb, then I will generally ignore you).
 

If you do not want to have a conversion, do not direct posts to me.

Indeed.
 

Do not blame me because you want to argue with me as one of the few token conservatives here.


Baghdad, they're not blaming you for arguing with them, they're blaming you for being a despicable, lying, piece of shit.
 

"If you do not want to have a conversion, do not direct posts to me."

What would a textualist make of this, whether in the sense of religion, finance, football, rugby, law, logic, math or psychiatry? Maybe we should have a conversation about this. Or just laugh out loud. A slip of the tongue might demonstrate a slip of a mind.
 

Now this is the classical example to argumentum ad hominem:

["Bart]: One has to wonder whether Tamm's posts also attracted the FBI's attentions.

In any case, it is becoming increasingly apparent that Tamm fancied himself an ideological and partisan mole inside the Bush Administration.


RICH (Moves swiftly to exit; turns) I would be steadfast!

MORE Richard, you couldn't answer for yourself even so far as tonight. (RICH exits. All watch him; the others turn to mom, their faces alert)

ROPER Arrest him.

ALICE Yes!

MORE For what?

ALICE He's dangerous!

ROPER For libel; he's a spy.

ALICE He is! Arrest him!

MARGARET Father, that man's bad.

MORE There is no law against that.

ROPER There is! God's law!

MORE Then God can arrest him."


I'd also note that Dubya's been busy lately "burrowing" his "partisan moles" into the federal gummint....

Cheers,
 

Bart DePalma said:

I have a very low tolerance for a species of sub-treason that is willing to recklessly provide aid and comfort to a mortal enemy of the country for no better reason that partisan "disaffection."

I must have missed your posts containing spirited condemnation of the outing of Valerie Plame.
 

Howard Gilbert:

FISA defines four things that are "electronic surveillance" covered by the law....

True. 50 USC § 1801(f). So far, so good.

... If the TSP fell under the law, it was due to the rule that a warrant is required if the target is a person outside the US and the content of the call is collected inside the US....

No.

This is the most likely definition of "electronic surveillance" in play WRT the data mining:

50 USC § 1801(f)(4):

"the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes."

Such would be, for purposes of FISA, an "electronic surveillance". You'll note that there's no mention of "target" here, nor of the "person" being outside the U.S.

Note that 50 USC § 1801(f)(3), while the subject of discussion WRT wiretapping (by people that are probably a bit confoozed about phone technology), really doesn't apply; it seems -- by its terms -- to cover radio broadcasts (the "all intended recipients" bit) and not point-to-point telephone conversations which are invariable wireline at some point on the transmission pathway.

For the TSP, the problem was probably domestic interception of wire communications under 50 USC § 1801(f)(2), which considers such "electronic surveillance" if any of the parties are in the United States (regardless of "target"). And that's pretty black-and-white. You want to do that, you need a warrant. Here it is:

50 USC § 1801(f)(2):

"the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;..."

A few years back Congress passed another law "clarifying" the definition to make the location of data collection unimportant.

The proper word is "amending". See above. They had to amend it if they wanted to allow warrantless domestic intercepts of communications to or from person in the U.S. (even if the "target" was not a U.S. person).

IOW, they amended it because what they were doing (and wanted to continue to do) was illegal absent warrants.

Cheers,
 

"Bart" DeBugblatter:

If you do not want to have a conversion, do not direct posts to me.

I've understood since before Greenwald booted you from his blog and you wound up over here that there is no conversation possible with you. Thus, I have long contented myself to mainly just point out the absurdity of your posts; your response is not required and my comments stand on their own ... as enlightenment or entertainment as the case may be. Which is good, because you do not respond to criticism honestly or constructively.

Cheers,
 

Why does the Monty Python "Argument Clinic" sketch come to mind?....

Cheers,
 

Do not blame me because you want to argue with me as one of the few token conservatives here.

I'll say this: tray comments here, tray is a conservative, tray has described you as "delusional" and tray is right.
 

Why's everyone picking on poor "Bart"? Is it because he's a tried'n'true conservative (despite being a self-proclaimed "classical Liberal" when the mood suits him over on Volokh Conspiracy)? Persecution complex is part of the RW Authoritarian make-up, but the real reason we all pic on him is that he's an ignorant, stoopid, and obnoxious azo that would be well served to say much less and listen much more (for the reasons described).

I'm still waiting for the dishonest SOB to explain how Brown II ordered school busing....

But as I indicated above, I'm not holding my breath; I understand the "nature of the beast" here ... and he'll never acknowledge that he was simply flat out wrong when he was pretending to know WTF he was talking about.

Cheers,
 

Arne:

§ 1801(f)(4) doesn't come into play because "other than from a wire or radio communication" means it doesn't apply to phone or Internet (wire communications under other definitions). I assume this is the "break into your home and office and plant a bug" part of FISA.

(f)(2) is the definition I referred to, but it requires both one person in the US and also "if such acquisition occurs in the United States" which excludes from FISA warrant requirements any communications collected at least 12 miles off shore (see definition of "in the US"). Since these were international calls, there were thousands of miles of fiber or satellite transmission outside the US and not covered by (2) where the NSA did not need a warrant.

This was then modified by the Protect America Act of 2007, which included the following:

"CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE UNITED STATES

Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."

The "clarified" definition means a warrant is not required if the target is outside the US even if the other party is inside and the conversation is collected inside. This has the effect of eliminating the one basis for asserting that the TSP was illegal (unless you believe any of the targets were in the US). Congress titled it a "Clarification" and I just used their language.
 

Joe,

Thanks for replying and it seems we're at an impasse. The more I read about Tamm the less convinced I am that he's the kind of whistle-blower who deserves protection. Even less am I convinced that what he did embodies the rule of law.

best,

John Steele
 

Howard Gilbert:

§ 1801(f)(4) doesn't come into play because "other than from a wire or radio communication" means it doesn't apply to phone or Internet (wire communications under other definitions). I assume this is the "break into your home and office and plant a bug" part of FISA.

As I said, it would seem to be applicable to the "data mining" program, as such "store and forward"/"get it off the server's DB" type things are really not "wire communications" or "radio broadcasts". Keep in mind that the title of 50 USC § 1801(f) is "electronic surveillance".

(f)(2) is the definition I referred to, but it requires both one person in the US and also "if such acquisition occurs in the United States" which excludes from FISA warrant requirements any communications collected at least 12 miles off shore (see definition of "in the US"). Since these were international calls, there were thousands of miles of fiber or satellite transmission outside the US and not covered by (2) where the NSA did not need a warrant.

SFW? You were saying something about the "target". You were simply wrong. To quote you:

[Howard]: "If the TSP fell under the law, it was due to the rule that a warrant is required if the target is a person outside the US and the content of the call is collected inside the US."

If you want to take back what you said, and simply quote 50 USC § 1801(f)(2), fine, but then how does that show that what they were doing was legal to begin with?

This was then modified by the Protect America Act of 2007, which included the following:

"CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE UNITED STATES

Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."


This was amended to remove the requirement for a FISA warrant in the case of a 'target' that is outside the U.S. (assuming that "directed at" is the same as "targeting" ... something that some people have expressed some doubt about, thinking the former a less specific restriction and the modification a lessening of standards). Well and fine; one might argue that the restriction didn't make much sense when ned up along 1801(f)(1), But that hardly changes the fact that 1801(f)(2) didn't specify "target" location, and on its plain terms, required a warrant for any communication where one party was in the U.S.

The "clarified" definition means a warrant is not required if the target is outside the US even if the other party is inside and the conversation is collected inside. This has the effect of eliminating the one basis for asserting that the TSP was illegal (unless you believe any of the targets were in the US). Congress titled it a "Clarification" and I just used their language.

Your problem here (as I pointed out above) is that the plain text of the 1801(f)(2) didn't care about "targets" overseas when snooping domestically, and made no such exception. This might have been an oversight, a misunderstanding, or whatever. Some laws are poorly written, and some unwise. But the remedy is to amend the law (or repeal it), not to ignore it.

Cheers,
 

lol .. bart sez .. "the prez laid it out [the TSP] .. the schmucks in congress looked it over ..and funded it .. and presto it wuz law "

then brett sez .. "oh i gotta agree with bart there " ..

'scuse me ?? ..but you boyz being lawyers and all .. have you ever heard of judicial review ??

why .. in earlier times .. i've even seen legislation actually written down .. then passed and signed off on .. which later failed to meet constitutional muster .. does that still go on from time to time ??

and i'm throughly impressed by this selective ability y'all have to only see the laws y'all like ..

i mean ..c'mon now .. y'all can sit back for eight long years and fail to see the scofflaw-ism and ignore outright blatant anti-constitutionalism hid behind the narrowest of twisted fig leaves ..of an adminstration-gone-wild which actually waged war on "the law" itself and yet you never uttered a peep .. or if you did it took the form of cheerleading the war on "the law" itself .. or defending the narrow twisted fig leaves ..

but now suddenly .. we're back to "the law is the law .. is the law" .. unless it's the unitary executive breaking the law .. then not so much so eh ??

but please do carry on gentlemen .. the amusement value of this string of comments is nothing short of priceless ..

i'm beginnning to understand the genesis of all the lawyer jokes ..
 

John @6:37:

My fundamental problem with this post, and with Tamm's behavior, is that both appear to be motivated by anger with other Bush policies than the one that Tamm revealed.

John, your "fundamental problem" is irrelevant; as irrelevant as the righteousness of Tamm's anger over other Bush policies.
 

Perhaps, I should add, for the benefit of non-lawyers, Bart & thee, that I mean irrelevant in the legal sense.

If the mental element in the mooted crime, whatever section of whatever enactment that may be, is intention to disclose, then motive for disclosing is irrelevant.

Motive could be relevant to sentence, but let's at least try the guy before we decide whether to hang him. Better yet, let's not try him - think how embarrassing that could be for the complainants (I use the plural advisedly - the US government is singular)
 

Bart: I find it amusing, (and a trifle bathetic) that you pretend to 1: know the mind of Tamm, 2: lecture the rest of the habitués as to their failings for having a different take on his mind, and 3: pretend to know the certain disposition of a jury trying the facts of the case.

Is it is possible he violated the letter of the law? Yes. Prima facie it appears he 1: had a clearance, and 2: was therefore enjoined from releasing classified information. However, your argument that he didn’t know it was illegal (which he couldn’t as he hadn’t been “read on” [not read in, but I digress], and so knew only what came up from tangential conversations), and so had no good grounds to blow the whistle calls for an almost impossible burden.

I’m an interrogator. I happen to have a pretty good idea of what constitutes torture. I’m also more than a trifle vocal in being opposed to it; first, last and always. As such I am not ever likely to be read on to a program which engaged in it. Therefore I’d be forced, (by your reasoning) to presume that any program I didn’t have specific details on must be legal, and so could not benefit from whistle blower protections.

That way lies the effective classification of illegal activities. If those who take part are carefully screened then those who might blow the lid off it, dare not, because they will be exposed to the fear of ten years imprisonment.

It’s hard enough to stand for what is right when fools and idiots go about blathering about, “subtreason” and bleating about the moral standing they get from once wearing the uniform, but you know what... I happen to have less respect for people who swore to uphold and defend the Constitution, against all enemies; foreign and domestic, who make apologia for the wholesale undermining and destruction of it.

Can a case be made for the prosecution of Tamm? Yes. But if Libby can be commuted; and those who are baying for Tamm’s blood can’t condemn Novak, and decry the miscarriage of justice Irving Libby made possible with his perjury, well I can’t really feel all that unhappy if Tamm’s actions aren’t prosecuted.

I happen to think the rule of law, and the principles of the Constitution, merit allowing such things as Tamm’s actions. Al Qaeda isn’t getting any news when someone like Tamm lets the word out that we are eavesdropping on their calls. Nothing Tamm did leads me to think the operational details were compromised (and certainly less than various pronouncements of the Bush administration revealed), so your frothy dudgeon is mere posing, a way for you to pretend to a moral high ground you don’t really hold.
 

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