Intellectual Property Law

NSA Whistleblower Meets Anthrax ?Person of Interest?

By Kevin Poulsen

WASHINGTON — They sat near different ends of a long table Thursday: a former Justice Department official who leaked information on Bush’s warrantless domestic spying program to the New York Times, and a former Army scientist who was wrongly linked to the 2001 anthrax attacks by different, but equally-anonymous, government sources.

You couldn’t ask for a starker example of everything good and bad about journalists’ use of anonymous sources in Washington, and both men have had their lives changed by their experiences.

Speaking on the final panel at the Computers, Freedom and Privacy Conference here, ex-DOJ attorney Thomas Tamm discussed the dread he felt after telling the Times about the NSA’s covert spying program in late 2004. A lawyer in the department’s sensitive Office of Intelligence Policy and Review, Tamm went to the press, instead of his superiors, because the attorney general and Tamm’s boss were party to the program.

But after talking about the spying with a Times reporter, a long period of uncertainty began. “Their editors would not publish the story,” he said. “They waited until December 2005 to publish it. So for a year, I’m sitting here going, I know I’ve revealed what they say is secret information. I wonder what will happen to me?”

When the Times finally ran the story, setting off a firestorm in Congress and the national press, and spawning dozens of lawsuits against telecoms and the government, the FBI began trying to track down the leak. In 2007, Tamm came home to find 18 agents in his house. “They were all wearing body armor, they were all well armed,” he recalled. “They asked my kids if we had any secret rooms in the house ? or whether I had any weapons. They were in my house for over seven hours.”

“I’m sure before that time my phone was listened to,” he added. His wife, who didn’t know he’d turned whistleblower, has been forever changed. “She will never feel the same in my house … She really felt that her security had been victimized.”

Dr. Steven J. Hatfill was also very publicly targeted by the government: Justice Department leaks identified him as a “person of interest” in the federal investigation of the 2001 anthrax mail attacks, instantly turning him into a national news story and nearly ruining his life.

The feds never charged him with anything, and eventually focused on a different suspect.  Hatfill sued the Justice Department under the federal Privacy Act, and subpoenaed a slew of reporters to try and force them identify the specific officials who named him. A federal judge held a subpoenaed USA Today reporter in contempt for failing to name her sources, setting up a First Amendment showdown that was called off only when the government settled with Hatfill, paying him $4.6 million, and later officially exonerating him. Hatfill also sued the New York Times for libel, in a case subsequently thrown out of court.

So one might think that Hatfill would be the last one to support reporter’s shield laws, or protection of anonymous sources. But on the panel Thursday, he drew a more nuanced line. “In my case, there was the distinction that the information that was being given was nothing more than propaganda,” he said. “I’ve collected most of the newspaper articles over the years, and most of it was crap.”

Tamm, he said, is a whistleblower, who did the right thing by leaking the government’s warrantless eavesdropping. The New York Times — Hatfill’s enemy in court — was right to grant Tamm anonymity.

“Mr. Tamm should have been protected.” Legitimate whistleblowing “is why we offer the press these freedoms … Disseminating, willy-nilly, government propaganda by government sources who do not wish to be identified… because they were breaking the law” is not.

Hatfill’s reputation may be restored, but the experience follows him like a dust plume. “You go to the airport sometimes and the guy looks at you — like a TSA guy the other week — like, do I know you?”

As for Tamm, he’s publicly acknowledged his role in exposing the warrantless surveillance program. Now he’s waiting to see what Obama’s Justice Department decides to do with his case. He told Threat Level after the panel discussion that he doesn’t believe he broke the law.

See Also:

• NSA Whistleblower’s TV Interview
• New York Times’ NSA Whistleblower Reveals Himself
• Did Blog Comments Lead Feds to Raid Ex-Justice Lawyer in NSA Spy …
• Should NSA Whistleblower Be Prosecuted?

Full post as published by Threat Level on June 04, 2009 (boomark / email).