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In 1998, Tamm landed a job at the Justice Department's Capital Case Unit, a new outfit within the criminal division that handled prosecutions that could bring the federal death penalty. A big part of his job was to review cases forwarded by local U.S. Attorneys' Offices and make recommendations about whether the government should seek execution. Tamm would regularly attend meetings with Attorney General Janet Reno, who was known for asking tough questions about the evidence in such cases—a rigorous approach that Tamm admired. In July 2000, at a gala Justice Department ceremony, Reno awarded Tamm and seven colleagues in his unit the John Marshall Award, one of the department's highest honors.
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. This bothered him, though there was nothing underhanded about it. Bush had campaigned as a champion of the death penalty. Ashcroft and the new Republican leadership of the Justice Department advocated its use as a matter of policy.
Tamm's alienation grew in 2002 when he was assigned to assist on one especially high-profile capital case—the prosecution of Zacarias Moussaoui, a Qaeda terrorist arrested in Minnesota who officials initially (and wrongly) believed might have been the "20th hijacker" in the September 11 plot. Tamm's role was to review classified CIA cables about the 9/11 plot to see if there was any exculpatory information that needed to be relinquished to Moussaoui's lawyers. While reviewing the cables, Tamm says, he first spotted reports that referred to the rendition of terror suspects to countries like Egypt and Morocco, where aggressive interrogation practices banned by American law were used. It appeared to Tamm that CIA officers knew "what was going to happen to [the suspects]"—that the government was indirectly participating in abusive interrogations that would be banned under U.S. law.
But still, Tamm says he was fully committed to the prosecution of the war on terror and wanted to play a bigger role in it. So in early 2003, he applied and was accepted for transfer to the Office of Intelligence Policy and Review (OIPR), probably the most sensitive unit within the Justice Department. It is the job of OIPR lawyers to request permission for national-security wiretaps. These requests are made at secret hearings of the Foreign Intelligence Surveillance Court, a body composed of 11 rotating federal judges.
Congress created the FISA court in 1978 because of well-publicized abuses by the intelligence community. It was designed to protect the civil liberties of Americans who might come under suspicion. The court's role was to review domestic national-security wiretaps to make sure there was "probable cause" that the targets were "agents of a foreign power"—either spies or operatives of a foreign terrorist organization. The law creating the court, called the Foreign Intelligence Surveillance Act, made it a federal crime—punishable by up to five years in prison—for any official to engage in such surveillance without following strict rules, including court approval.
But after arriving at OIPR, Tamm learned about an unusual arrangement by which some wiretap requests were handled under special procedures. These requests, which could be signed only by the attorney general, went directly to the chief judge and none other. It was unclear to Tamm what was being hidden from the other 10 judges on the court (as well as the deputy attorney general, who could sign all other FISA warrants). All that Tamm knew was that the "A.G.-only" wiretap requests involved intelligence gleaned from something that was obliquely referred to within OIPR as "the program."
The program was in fact a wide range of covert surveillance activities authorized by President Bush in the aftermath of 9/11. At that time, White House officials, led by Vice President Dick Cheney, had become convinced that FISA court procedures were too cumbersome and time-consuming to permit U.S. intelligence and law-enforcement agencies to quickly identify possible Qaeda terrorists inside the country. (Cheney's chief counsel, David Addington, referred to the FISA court in one meeting as that "obnoxious court," according to former assistant attorney general Jack Goldsmith.) Under a series of secret orders, Bush authorized the NSA for the first time to eavesdrop on phone calls and e-mails between the United States and a foreign country without any court review. The code name for the NSA collection activities—unknown to all but a tiny number of officials at the White House and in the U.S. intelligence community—was "Stellar Wind."
The NSA identified domestic targets based on leads that were often derived from the seizure of Qaeda computers and cell phones overseas. If, for example, a Qaeda cell phone seized in Pakistan had dialed a phone number in the United States, the NSA would target the U.S. phone number—which would then lead agents to look at other numbers in the United States and abroad called by the targeted phone. 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. Separately, the NSA was also able to access, for the first time, massive volumes of personal financial records—such as credit-card transactions, wire transfers and bank withdrawals—that were being reported to the Treasury Department by financial institutions. These included millions of "suspicious-activity reports," or SARS, according to two former Treasury officials who declined to be identified talking about sensitive programs. (It was one such report that tipped FBI agents to former New York governor Eliot Spitzer's use of prostitutes.) These records were fed into NSA supercomputers for the purpose of "data mining"—looking for links or patterns that might (or might not) suggest terrorist activity.