Wednesday, December 17, 2008
Michael Isikoff asks this question in his Newsweek article this week on Thomas Tamm, the former Justice Department attorney who blew the whistle on--or, depending on who you talk to, leaked--the NSA's warrantless surveillance program and its violation of the FISA. Tamm told the NYT about the program, leading to the famous December 16, 2005, article that blew the lid off it.
Isikoff reminds us of the widespread criticism of the program in the wake of the NTY article:
The story--which the Times said relied on "nearly a dozen current and former officials"--had immediate repercussions. Democrats, including the then Sen. Barack Obama, denounced the Bush administration for violating the FISA law and demanded hearings. James Robertson, one of the judges on the FISA court, resigned.
And what was the administration's first reaction to this criticism? Revise or retract the program? Get Congressional approval? Discipline those responsible? (Well clearly not this, as the President himself was responsible.) None of the above. Instead:
on Dec. 30, the Justice Department announced that it was launching a criminal investigation to determine who had leaked to the Times.
Now there's nothing new about an administration investigating and charging those who blow the whistle on illegal activities (rather than investigate or reevaluate the illegal activities themselves). You may remember another whistleblower whose case was eerily similar to Tamm's (and on which Isikoff also reported): Jesselyn Radack was fired, blacklisted, and investigated for revealing that as a legal adviser in DOJ's Professional Responsibility Advisory Office she advised the DOJ Terrorism and Violent Crime Section that it was not proper for the FBI to interview John Walker Lindh without his attorney. (Radack's e-mail advice mysteriously disappeared after the FBI interviewed Lindh against her advice; it subsequently turned up in Newsweek, leading to the reprisals.)
The Obama administration will have to deal with the Tamm case--along with the other hold-over issues from the Bush administration. A key consideration for the Obama team: Whether the whistleblowers (ironically) will be the only individuals held to account in the Bush administration's various sketchy and illegal programs in the war on terror.
It's looking increasingly likely that nobody else will be held to account. Between statutory immunities and politics, criminal charges against Bush administration officials are all but ruled out. And the Supreme Court last week seemed to move in the direction of closing the window for civil liability in the oral arguments in Ashcroft v. Iqbal. That case involves the pleading standard for civil Bivens actions against high-ranking administration officials acting in the wake of 9/11 for condoning subordinates' illegal behavior (in that case, racial and religious discrimination). Justices' comments and questions at oral argument suggest that several (even most) would endorse a heightened pleading standard against high-level officials, or against officials acting in the wake of 9/11, or both. A heightened pleading standard could, in effect, cut off such civil actions, as plaintiffs' complaints would be dismissed before plaintiffs could gather evidence to meet the standard (assuming they ever could gather such evidence).
With criminal and civil responsibility for high-level officials close to off the table, we'll see what the Obama team does with whistleblowers. (Brian Tamanaha at Balkinization makes a good case for treating them as heroes.)
We'll keep an eye on developments on both the whistleblower and high-level-official sides.