FISA leak investigation:An interesting Development

Newsweek is reporting an interesting development in the FISA leak investigation:

Aug. 13, 2007 issue - The controversy over President Bush's warrantless surveillance program took another surprise turn last week when a team of FBI agents, armed with a classified search warrant, raided the suburban Washington home of a former Justice Department lawyer. The lawyer, Thomas M. Tamm, previously worked in Justice's Office of Intelligence Policy and Review (OIPR)-the supersecret unit that oversees surveillance of terrorist and espionage targets. The agents seized Tamm's desktop computer, two of his children's laptops and a cache of personal files. Tamm and his lawyer, Paul Kemp, declined any comment. So did the FBI. But two legal sources who asked not to be identified talking about an ongoing case told NEWSWEEK the raid was related to a Justice criminal probe into who leaked details of the warrantless eavesdropping program to the news media. The raid appears to be the first significant development in the probe since The New York Times reported in December 2005 that Bush had authorized the National Security Agency to eavesdrop on the international phone calls and e-mails of U.S. residents without court warrants. For some quick background on this investigation, see my article from early 2006.

Tom Maguire notes that Mr. Tamm made a contribution to the DNC in 2004. Elsewhere, the JOM'ers have turned up these tidbits on Mr. Tamm and the OIPR where he was once employed.

There's a blog comment from a Thomas Tamm from Nov 2006, critical of the Bush Admin not calling Iraq a Civil War in sarcastic terms. Same guy? If so he's a lib with the so called "Shadow Gov't".

Dear Eric: Is not the administration's position that they would not permit the U.S. Attorney to prosecute a Congressional Contempt referral an implicit admission that they allow politics to impact prosecutions? They are admitting that they would interfere with the independent judgment of a prosecutor on a specific case. I suggest that this is precisely what the firings of the U.S. Attorneys are ultimately about. Yes, they serve at the pleasure of the president, but they do not prosecute at the pleasure of the president. The White House is guilty of taking the blindfold off lady justice, not just covering her breasts. I am a former DOJ lawyer, for what that is worth.

But the prosecution of Aldrich Ames for espionage in 1994 revived concerns about the prosecutors' role in intelligence investigations.The Department of Justice's Office of Intelligence Policy and Review (OIPR) is responsible for reviewing and presenting all FISA applications to the FISA Court. It worried that because of the numerous prior consultations between FBI agents and prosecutors, the judge might rule that the FISA warrants had been misused. If that had happened, Ames might have escaped conviction. Richard Scruggs, the acting head of OIPR, complained to Attorney General Janet Reno about the lack of information-sharing controls. On his own, he began imposing information-sharing procedures for FISA material. The Office of Intelligence Policy and Review became the gatekeeper for the flow of FISA information to criminal prosecutors.

I also remember that OIPR was the stumbling block in the Moussaoui case. So FISA seemed to be working fine prior to 1994, Gorelick et al decide to tweak it, and now it has become part of the problem. I think I'm starting to understand...and this guy Tamm just happened to be in that shop. I do not know how long Mr. Tamm worked at DoJ but he received an award in 2000,which means he was a holdover from the prior Administration.

Last week we noted that Secrecy News reported that DoJ has announced that is determined that journalists could be prosecuted under the Espionage Act for publishing classified information.

Strategypage.com
Stop Listening to Terrorists, Or Else

http://www.strategypage.com/htmw/htintel/articles/20070806.aspx

August 6, 2007: If you ever wondered why people viewed leaks about intelligence programs as bad, why not take a look at how a series of leaks in the global war on terror have affected the intelligence gathered. Recent reports indicate that the amount of intelligence collected has dropped by as much as two-thirds. This is the result of not just the leaks, but some of the consequences of the leaks. Perhaps the most famous of these leaks was the New York Times article concerning the NSA’s efforts to listen in on terrorist conversations. The result was a major firestorm. While some were upset that a classified program was revealed, others were upset that the NSA was listening in on phone conversations (never mind that there was no credible evidence of abuse). The result was lawfare targeting technical intelligence, and very heated debate.

The problem with that is that leaks – and the ensuing controversy – tend to let people know they are being listened to. Once a person, group, or country find out that they are of interest to an intelligence agency, two things happen. First, they tend to become very careful with regards to communications – they take steps to throw off surveillance efforts, and they will even shift to means that cannot be intercepted (like couriers or flying for face-to-face meetings). al Qaeda has done this in the past. Second, they begin to wonder how the information is acquired – and try to cut off the flow. If they find out enough of what an intelligence agency knows (usually through a process of elimination), they will have an idea of who might be a source. If the intelligence service is lucky, they can extract the compromised source, but they lose the ability to get future information. If said source is caught, he usually ends up dead or mutilated.

Technical intelligence has normally been preferred, as a method of gathering information, over human intelligence, precisely because it avoids controversy. Satellites do not tend to demand money for their services, nor do they have habits that can prove embarrassing should they hit the front page of the Washington Post, nor had they ever really violated the sensibilities of human rights groups. But the recent controversy has changed that – and now, the technical intelligence personnel have become somewhat gun-shy – often cutting back on what they are trying to do in order to avoid a lawsuit that air secrets, and do even more damage. This gun-shyness is worse than the loss of sources, because that affects the entire agency. In essence, they will not take chances on technical intelligence or human intelligence lest it show up in the paper.

Groups like the ACLU that have waged a relentless campaign against the intelligence community, including court rulings. They, and the reporters who broke the stories and won Pulitzers, were not the only winners. Terrorists have been biggest beneficiaries of these controversies. With intelligence agencies afraid to aggressively gather information due to fears of angering groups like the ACLU, terrorists have more freedom to talk to cells inside the U.S. In the wake of a successful attack, the reporters will probably write articles about how the intelligence community failed. These reporters will keep the finger pointed away from themselves and their sources, as well as those who filed lawsuits. – Harold C. Hutchison (haroldc.hutchison@gmail.com)

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