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Tilting at Windmills

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December 14, 2008
By: Hilzoy


Newsweek has a fascinating story about the person who first leaked the warrantless surveillance story:

"Thomas M. Tamm was entrusted with some of the government's most important secrets. He had a Sensitive Compartmented Information security clearance, a level above Top Secret. Government agents had probed Tamm's background, his friends and associates, and determined him trustworthy.

It's easy to see why: he comes from a family of high-ranking FBI officials. During his childhood, he played under the desk of J. Edgar Hoover, and as an adult, he enjoyed a long and successful career as a prosecutor. Now gray-haired, 56 and fighting a paunch, Tamm prides himself on his personal rectitude. He has what his 23-year-old son, Terry, calls a "passion for justice." For that reason, there was one secret he says he felt duty-bound to reveal.

In the spring of 2004, Tamm had just finished a yearlong stint at a Justice Department unit handling wiretaps of suspected terrorists and spies -- a unit so sensitive that employees are required to put their hands through a biometric scanner to check their fingerprints upon entering. While there, Tamm stumbled upon the existence of a highly classified National Security Agency program that seemed to be eavesdropping on U.S. citizens. The unit had special rules that appeared to be hiding the NSA activities from a panel of federal judges who are required to approve such surveillance. 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. For weeks, Tamm couldn't sleep. The idea of lawlessness at the Justice Department angered him. Finally, one day during his lunch hour, Tamm ducked into a subway station near the U.S. District Courthouse on Pennsylvania Avenue. He headed for a pair of adjoining pay phones partially concealed by large, illuminated Metro maps. Tamm had been eyeing the phone booths on his way to work in the morning. Now, as he slipped through the parade of midday subway riders, his heart was pounding, his body trembling. Tamm felt like a spy. After looking around to make sure nobody was watching, he picked up a phone and called The New York Times. (...)

The story of Tamm's phone call is an untold chapter in the history of the secret wars inside the Bush administration. The New York Times won a Pulitzer Prize for its story. The two reporters who worked on it each published books. Congress, after extensive debate, last summer passed a major new law to govern the way such surveillance is conducted. But Tamm -- who was not the Times's only source, but played the key role in tipping off the paper -- has not fared so well. The FBI has pursued him relentlessly for the past two and a half years. Agents have raided his house, hauled away personal possessions and grilled his wife, a teenage daughter and a grown son. More recently, they've been questioning Tamm's friends and associates about nearly every aspect of his life. Tamm has resisted pressure to plead to a felony for divulging classified information. But he is living under a pall, never sure if or when federal agents might arrest him.

Exhausted by the uncertainty clouding his life, Tamm now is telling his story publicly for the first time. "I thought this [secret program] was something the other branches of the government -- and the public -- ought to know about. So they could decide: do they want this massive spying program to be taking place?" Tamm told NEWSWEEK, in one of a series of recent interviews that he granted against the advice of his lawyers. "If somebody were to say, who am I to do that? I would say, 'I had taken an oath to uphold the Constitution.' It's stunning that somebody higher up the chain of command didn't speak up.""

It's fascinating, and well worth reading in its entirety. For now, I want to focus on one comment by Frances Frago Townsend:

"You can't have runoffs deciding they're going to be the white knight and running to the press," says Frances Fragos Townsend, who once headed the unit where Tamm worked and later served as President Bush's chief counterterrorism adviser. Townsend made clear that she had no knowledge of Tamm's particular case, but added: "There are legal processes in place [for whistle-blowers' complaints]. This is one where I'm a hawk. It offends me, and I find it incredibly dangerous."

In general, I agree with Townsend. It is generally better for all concerned if whistle-blowers operate within the system, and it is dangerous when people freelance. But there's one big exception to this rule: when the system has itself been corrupted. When you're operating within a system in which whistle-blowers' concerns are not addressed -- where the likelihood that any complaint you make within the system will be addressed is near zero, while the likelihood that you will be targeted for reprisals is high -- then no sane person who is motivated by a desire to have his or her concern addressed will work within that system.

That means that if, like Townsend, you want whistleblowers to work within the system, you need to ensure that that system actually works. A good manager will do this: she will recognize that in any human endeavor, things go wrong, and that it's best for all concerned if people who spot things that have gone wrong can try to do something about it. She will also recognize that those employees who are genuinely worried by the prospect of illegal or immoral conduct are employees she should value. She will therefore bend over backwards to make sure that those employees have ways of making their concerns known that are likely to be effective, and that employees who use those channels are not penalized.

In so doing, she will not only make it more likely that her organization will spot and correct genuine problems; she will also make it more likely that employees who bring what they think are problems to others' attention will accept it if those others don't think that their concerns are warranted. If something worries you and you tell your superiors, but those superiors don't think there is a problem, you are much more likely to accept what they say if you know that they are open to the idea that there are problems, and to dealing with them, but don't think that your specific concern actually indicates anything wrong. If, on the other hand, you know that their response is always to circle the wagons and deny that anything is wrong, you're much more likely to assume that if they don't think that your concern is warranted, they're just being defensive.

If an organization has a functioning system for hearing and addressing employees' concerns about illegal or immoral conduct, then I think that employees should use that system except in truly extraordinary circumstances. But if it does not have such a system, or if that system is dysfunctional, then we should not expect employees to work within it.

It's odd that Townsend doesn't bother to consider whether the "processes in place" for whistleblowers actually worked in the Bush administration's Department of Justice. Given what we know about the degree to which that department was politicized under Bush, it seems likely that they did not.

And it's even odder given that Townsend herself is not an outside observer, but someone who has considerable responsibility within the Bush administration. Saying that whistleblowers ought to work within the system without adding "if the system is in fact functional" is odd in itself. But saying that when you are one of the people who could have helped to make it functional amounts to saying: well, I and my colleagues have failed to do our jobs, but never mind that: we should expect whistle-blowers to work within the system, even if our own failure means that they have no reason to believe that doing so will actually accomplish anything other than the destruction of their careers.

That's a lot to ask.

Hilzoy 11:01 AM Permalink | Trackbacks | Comments (21)

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Fascinating story, sure.

But the headline -- “The Fed Who Blew the Whistle: Is he a hero or a criminal?” -- makes me want to pull my teeth out.

The criminals here were the people who broke the fucking law, not the man who exposed their lawbreaking. How difficult is that for the media morons to understand?

Posted by: TR on December 14, 2008 at 12:00 PM | PERMALINK

Another self-serving comment by a Bush Commissar--if Townsend can say that in the face of the record of this Administration and it's history of punishing people who speak up, she's either cynically manipulating the press, or if she truly doesn't know that record, she's to obtuse to work in her field. It's hard to come to any other conclusion.

Posted by: carwinrpc on December 14, 2008 at 12:05 PM | PERMALINK

Your analysis is right on, but you miss the key point from Townsend: Had Tamm worked through the system, she (Townsend) could have shut him down and no one would be the wiser.

IOW: The dysfunctional system for handling whistleblowers (there and throughout the Bush Administration) is a feature, not a bug.

Posted by: DrGail on December 14, 2008 at 12:11 PM | PERMALINK

I've had many different jobs in my life, mostly in various different offices and call centers. Nearly every one of those employers had some kind of mechanism in place whereby employees could offer feedback or make complaints or file a report or, you know, whatever you want to call it when somebody doesn't like something that is going on at work and wants somebody higher up to do something about it.

Without exception, none of those mechanisms has work very well. Why? Because nobody likes a troublemaker.

Every human organization has internal inertia. Once things have been established for a while, people become accustomed to them, especially the people with any kind of authority/power/influence within that system. Complaints are almost never initiated by anyone who actually has the ability to fix the problem; if they have the ability to fix what they perceive to be a problem, they do it. So this complaint, or this report that there is something going on that needs to be corrected, has to go up the food chain.

See, if a problem is reported and it's something you have the ability to fix, then it's something you should have prevented in the first place. Therefore, you either very quickly determine it's not really a problem at all, and you're dealing with a whiner and a troublemaker, or you realize it's a real, very serious problem, and you have to take steps to fix it, but since you didn't see it yourself and you let it get this way, you're inclined to resent the person who did spot it, and think of them as a whiner and a troublemaker, even as you are doing whatever it is you have to to fix this problem.

There's another option -- you get a complaint and it's about a problem that you yourself can't fix. You'd need to buck it up the line. This will, of course, call attention to the fact that somewhere in your department there is a problem that you yourself can't fix. That's NEVER good. If it's a problem you yourself are causing, well, the odds that you're going to call that to the attention of your own supervisor are slim to none.

Nobody anywhere likes people who bitch about stuff. Nobody anywhere wants extra work on their desk. Everybody who has a job thinks they are already working too hard. You do NOT want to be the man or woman who keeps putting extra work on someone's desk, especially when that person is in a position to resolve such complaints. That usually means they have some kind of disciplinary function, and they are much much likelier to start to resent YOU than whoever it is you are bitching about.

Whistleblowing is nearly always an act of great courage, but it is also nearly always an act of desperation, and the consequences are generally dire. That's how it's always been and I can't imagine any office or system so enlightened that it will change.

Posted by: Doc Nebula on December 14, 2008 at 12:19 PM | PERMALINK

Townsend's purpose was NOT to uphold justice, it was to protect the Bush criminal family. She's angry because she failed.

Posted by: CN on December 14, 2008 at 12:28 PM | PERMALINK

Townshend's problem is that Congress is part of the system. We indeed have procedures in place to deal with such problems. We set them up in the 18th century. One of them is Congressional oversight.
Another is a free press.
Townshend doesn't get to restrict the size of the system--even though it's a perennial tendency.
The system is not the FBI, it's the USA.
And the top of the org chart is the people.

Posted by: pbg on December 14, 2008 at 12:37 PM | PERMALINK

Another disappointing post by Hilzoy. If the government is breaking the law as a matter of policy, Americans need to know about, period.

Posted by: Boronx on December 14, 2008 at 12:55 PM | PERMALINK

On January 21, new President Obama should personally order Tamm to be arrested and charged, making clear that Obama himself wants to be notified as soon as Tamm is in custody.

At such point as Obama knows there are charges of record to support a pardon, Obama should immediately issue Tamm a full pardon (stressful on Tamm, but it avoids the legal debate as to whether preemptive pardons are really legit) and schedule him to visit the White House to receive a Presidential Medal of Freedom.

Posted by: zeitgeist on December 14, 2008 at 1:31 PM | PERMALINK

That it was necessary for Tamm to go outside the system is deeply disturbing considering the challenges we face. We have an EPA that has been manipulated to justify environmental degradation, just when we are peering at catastrophic climatic change. The DOD can't seem to find either the people who attacked us or a way out of the swamp(s) we're stuck in. The Treasury throws big money at organizations that have failed without any measure of success or consequences for those who use the funds to reward stockholders.

We are on the verge of surrendering our future to the money holders of China and our media can't seem to do more than blather on about Blagojevich.

There is no fear of being brought to justice for those people who respond to fear, and there is no vision of the rewards that accrue to a people who hew to high standards.

People like Townsend demonstrate our greatest challenge - to elevate people who can focus clearly on our challenges to positions of leadership, and to continue to craft a compelling vision of an America that meets those challenges.

To the rest of the world Townsend is just another player in the tragic Soap Opera that America became over the past 8 years.

Posted by: D Pecan on December 14, 2008 at 1:48 PM | PERMALINK

I'm a reluctant whistle-blower several times over. In each case I did so reluctantly and tried to work within the system. I have active death threats against me made by elected officials in the presence of officers of the court and law enforcement. I've been terminated and blacklisted from a job where I had to act to safeguard patients in imminent danger from illegal work practices known to the employer. My reputation is ruined beyond any repair. I am destitute, ill, and, like most other whistle-blowers, have no protections, tangible or intangible. I am so completely ostracized and have been for so long that I have forgotten how to speak and have a great deal of difficulty in even making a simple face to face transaction in a store.

Whistle-blowing brings with it an early and agonizing death. There is no difference in how people from varying points on the political spectra treat whistle-blowers. There is only difference in the rhetoric and spoken intention.

Tamm is already suffering persecution which will never end. He will lose his family and his friends, probably sooner rather than later. People will turn away and run lest the taint of his condemnation and smeared reputation coat them, as well.

He doesn't suffer from PTSD because the trauma is ongoing and it will never be in the past. It's terrorism, in my view.


The humane thing for this predatory society would be to outright kill us quickly rather than treat whistle-blowers as untouchables.

The hypocrisy of people demanding whistle-blowing without doing anything to support those people is the same, in my view, as yelling to a drowning person to keep swimming while holding a life preserver and rope and refusing to throw it and haul the victim to safety.

It's cruel, it's definitely unusual, and it's the American way.

Posted by: Annie on December 14, 2008 at 2:16 PM | PERMALINK

Tamm is an American hero. Perhaps the new President will pardon him on his first day in office...

Has anyone tracked down where to donate to Tamm's defense fund?

Posted by: melior on December 14, 2008 at 3:23 PM | PERMALINK

Your analysis is right on, but you miss the key point from Townsend: Had Tamm worked through the system, she (Townsend) could have shut him down and no one would be the wiser.

Instead they had to shut down the New York Times, and despite their best efforts the Times rushed to press with the story -- a year later, after sitting on the story until after the elections (with their lead reporter just days from publishing independently out of what reads as sheer frustration and disgust).

Heckuva job, Professional Journalism™!

Posted by: Ghost of Joe Liebling's Dog on December 14, 2008 at 3:39 PM | PERMALINK

Monica Goodling slipped up and said she took an oath to serve the President. Leahy brought her short, reminding that she took an oath to uphold the Constitution.

From their words and their actions, many many Bush appointees served their President and didn't take their obligation to serve the Constitution seriously. Does anyone seriously think Monica Goodling regrets her allegiance? More likely she regrets being a bit too truthful in her testimony. She is a true believer, and the ends justify the means for true believers.

I have no idea if Townsend is a true believer, but she is a manager. Being a manager is about being a player. It isn't about being serious about some fusty oath you have to make to get the plum job. The typical attitude of a manager is that those under them should do what they are told and not ask embarrassing questions. People nearer the bottom in an organization tend to take their oaths more seriously. Often they focus on doing their job, and they are often straight arrows who take things like oaths seriously.

Like Kevin I served my time in a big organization. Of perhaps 10 managers I had only one was seriously interested in getting the important work done with soul intact. The other were players, ranging from Neil LaBute type sociopaths to typical perk-happy butt kissers.

Posted by: tomtom on December 14, 2008 at 3:53 PM | PERMALINK

Doc Nebula's 12:19 PM post shows exactly why we need to establish a Federal Ombudsman to handle cases such as Mr. Tamm's.
Any "program" set up by a bureaucracy is almost certainly designed solely for the protection of that particular bureaucracy and its managers, rather than solve actual problems. Such programs, whether in government or private industry, are falsely presumed to be able to act in the best interests of the organization as whole - let the chips fall where they may sort of thing - while experience has continued to show that these programs are most likely to be used to hide misjudgements of higher-ups by punishing those who bring their errors to light.

Posted by: Doug on December 14, 2008 at 6:42 PM | PERMALINK

I was having a conversation with somebody about the possibility of 9-11 having been an inside job. He told me that if it were, we would have gotten whistleblowers on it by now, I pointed out the case of Joe Wilson and Valerie Plame Wilson, adding "Dude, the mafia won't go after members of your family!"
He couldn't come up with an answer to that.

Posted by: Rich2506 on December 14, 2008 at 8:20 PM | PERMALINK

Re: zeitgeist's solution - Overly complicated. Obama should simply place Tamm in a position to supervise the dismantling of the warrantless wiretapping program.

Posted by: Rich2506 on December 14, 2008 at 8:24 PM | PERMALINK
But the headline -- “The Fed Who Blew the Whistle: Is he a hero or a criminal?” -- makes me want to pull my teeth out.

The criminals here were the people who broke the fucking law, not the man who exposed their lawbreaking. How difficult is that for the media morons to understand?
Posted by: TR on December 14, 2008

What I wonder is why anybody would trust the NY Times? The Republicans would certainly know better and the Democrats shouldn't trust them.

I would think the better solution is to contact another branch of the government: Congress or a Federal Court. That keeps it within government.

Posted by: MarkH on December 14, 2008 at 10:26 PM | PERMALINK

The big problem MarkH is who to contact and how.

When I was a defense contractor I tried to get big overcharges of the AirForce unit I worked for addressed and nobody would do a thing no matter which avenue I pursued. I got a phone call from a GM15 at the pentagon asking about my complaint and nothing came of it. I asked my own company about ethical violations I saw and was told to 'get another job'. This was the corporate ethics officer who told me this.So even if you want to point these things out as a 'whistleblower' the avenues to address ethical or legal questions in the government is mostly nonexistent.

Posted by: RC on December 15, 2008 at 12:45 AM | PERMALINK

Monica Goodling slipped up and said she took an oath to serve the President. Leahy brought her short, reminding that she took an oath to uphold the Constitution.

I thought Sen. Leahy made unwarranted assumptions in that exchange. He should have asked: "Is the oath you swore to serve the President in addition to, or instead of, an oath to uphold the Constitution?" Give her a little more rope as it were.

Posted by: Wapiti on December 15, 2008 at 1:40 AM | PERMALINK

If you ever are in a position to be a whistleblower, for God's sake read what Annie and Doc Nebula have to say.

And please, please, PLEASE don't EVER put your trust in ANY "official process" for whistleblower-type concerns.

Doc Nebula nails the dynamics of it. The status quo is there for a reason - it's either by design, or somebody has dropped the ball. Both the designer or the ball-dropper have more power than you do. These people are sitting in their offices fretfully wondering, "Which of these little people is a threat to me, and how can I identify and destroy them?" By using the "official process," you're basically walking into their office crying "ME ME ME ME ME ME!"

For crying out loud, when they say you will be protected from retaliation, THEY ARE LYING!

If you have the courage can blow the whistle, you are a hero. But for God's sake, keep your head down! If you know something, find out who can do something about it and get them the information ANONYMOUSLY. Your role model is the hero who got the information about the o-rings to Feinman in the Challenger investigation.

You know his name...psych! No you don't! And he's still got his health, family, and career because of it.

Give information to the media in return for confidentiality. Remember that journalists don't give a fuck about you. They will fuck you if it advances their careers. Consider the possibility that many journalists are in the employ of the state security apparatus.

Blogging anonymously, or passing information to bloggers, may be a winner. Bloggers also don't give a fuck and will fuck you if it suits them, but they may be the only way to get the information out.

Be paranoid. Assume that you are under very effective surveillance - remember that trained members of the intelligence services are available for hire privately.

Annie, thank you so much for not going quietly. Your story is important.

Posted by: foxtrotsky on December 15, 2008 at 5:47 AM | PERMALINK

Illegal acts of our government should automatically be declassified. Then anyone in contact with a program can not only report it, they can remove the physical proof w/o having the government try and imprison them.

I have always found it amazing that people like Gonzo can still find private sector gigs to support his family, while actual people with integrity get left out to fend for themselves. This country has decided long ago that loyalty is far more important then integrity.

Posted by: ScottW on December 15, 2008 at 11:35 AM | PERMALINK



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