19 December, 2008

The Whistleblower

I highly recommend the long but fascinating, and heartbreaking, Newsweek feature on Thomas Tamm, the Justice Department official who leaked the administration's illegal NSA wiretapping program to the NYT. A Republican from a long line of high level FBI officials, he was working in the top secret unit that approved wiretaps for suspected terrorists when he began to realize that his office was being asked to post facto approve intelligence that was being collected illegally, without the legally mandated authorization of the FISA court. After months of soul-searching and consulting with his closest legal colleagues, he decided that he had to reveal the existence of a secret program to the press, which he did from a DC metro pay phone:

His new offices were just above Washington's Judiciary Square Metro stop. When he went to make the call to the Times, Tamm said, "My whole body was shaking." Tamm described himself to Lichtblau as a "former" Justice employee and called himself "Mark," his middle name. He said he had some information that was best discussed in person. He and Lichtblau arranged to meet for coffee at Olsson's, a now shuttered bookstore near the Justice Department. After Tamm hung up the phone, he was struck by the consequences of what he had just done. "Oh, my God," he thought. "I can't talk to anybody about this." An even more terrifying question ran through his mind. He thought back to his days at the capital-case squad and wondered if disclosing information about a classified program could earn him the death penalty.

Despite a personal appeal from President Bush, the NYT editor ran the story in 2005, and the world learned about the administration's criminal wiretapping program. Tamm's life since then has been a living hell, as he has lost his job and he and his family have been continuously hounded by the FBI. Unless Obama's Justice Department decides to grant him leniency in light of the Bush administration's wrongdoing, he will likely be convicted and spend much of the rest of his life in prison - or possibly, the death penalty for treason.

Its a tragic story, and its made me think about the odd role whistleblowers play in providing accountability in our society. You are considered in some abstract sense a hero, and you are admired from afar for your courage, but in a concrete sense you are ostracized - even if not convicted, Tamm will probably never be able to work in government or law again, his colleagues want nothing to do with him, he's deep in debt from legal fees, etc. Yet there is really no other way to learn about high-level abuses. Any secret government program worth its salt will be able to get around any sort of formal complaint process.

Its odd that the Newsweek article mistates the quandary of whistleblowing: the tagline asks "Is he a hero or a criminal?" and the final line reads "Sometimes the thinnest of lines separates the criminal from the hero." But the trouble with whistleblowing is clearly not deciding whether the perpetrator is a criminal or not. Tamm indisputably broke the law. The curse of the whistleblower is that he must become a criminal in order to be the hero - that in the higher service of the law, the hero must himself break the law, and face the consequences thereof. His willingness to face those consequences as a sacrifice to his loyalty to the law constitutes his heroism. The two are inextricably intertwined. The Dark Knight taught us that much. But then - isn't that the justification for the illegal wiretapping program itself?



spencer said...

Tamm will probably write a best-selling book about his experience and it'll be turned into a movie or something.

The tragedy of the law is that its prescriptions are not always right because it's simply impossible to specify every contingency. Nonetheless, it must be followed because it must be credible to have any force whatsoever. If the law is not credible, society will collapse.

Elliot said...

I don't really think its a tragedy that the law sometimes gets it wrong, at least if you live in a free society that is able to course-correct.

But this circumstance isn't about the law being wrong - I think that both laws in question are correct. It should be illegal for the government to wiretap me without a warrant, and it should be illegal to release classified information.

But since both laws are correct, where are we when we can only enforce the first by breaking the second? That seems like the tragedy and challenge of whistleblowing - that there is a whole class of laws dealing with powerful people and secretive things that can't seem to be reliably enforced except through extra-legal measures.

Elliot said...

I don't know why I used the "extra-legal" euphemism. What Tamm did was illegal.

spencer said...

I guess it depends on what you mean by "wrong" and "correct". I agree that it should be illegal for the government to wiretap without warrants and that it should be illegal to leak government secrets. I believe that having laws against these activities will lead to a better world than not. In that sense, both laws are "correct". However, there may be cases where it is moral to break one or both of the laws. If wiretapping one terrorist without a warrant will save a million lives, it's moral to do so. In this sense, the law does get it wrong because it can't provide for such contingencies.

Moreover, it shouldn't provide for such contingencies. Lawbreakers should be punished, even if their lawbreaking was in fact moral. If we can't credibly commit to punishing people who break laws, then the system of laws ceases to function.

For example, suppose I am lost in the woods and will die within hours if help is not found. I find a cabin, break in, and use the phone to call for help. Breaking into the cabin was illegal, but if I did not do it, I would have died. So it was moral for me to do this, even though it was illegal. I should still be punished for breaking into the cabin, simply because I've imposed a cost on someone else. If I'm not punished, maybe someone else will break into a cabin because they want a snack. Thus why Cheney tortured and wiretapped without shame--he knows he'll never be held accountable.

This is also a reason why common law seems to work better than civil law. Common law allows for judges to exercise leniency if they determine that certain actions were moral, even if the were illegal.

Elliot said...

I believe in the moral violation of law as much as the next man, and I certainly think that what Tamm did was moral, as well as necessary, even if illegal.

But shifting the contradiction of whistleblowing onto a claim of morality is still problematic. We have law and law enforcement in the first place because what people think they are entitled to do in any given circumstance is often not in the general best interest, and must be intervened upon with force. So what rubric should we judge claims of moral law breaking as somehow different than what people want anyway, which is to get away with as much as they can with the least cost? Immediate life and death, as in the example you gave, is an easy case, but anything less than that, and any objective moral claim seems to run into trouble.

Without some sort of objective moral framework, lawbreaking is just imposing your individual preferences on the generally established preferences - which, as you say, is corrosive to society. But an objective moral framework is just another word for ideology - which no one can agree on in the first place, and which is why we have this arduous process of give-and-take to establish our laws.

So this is just a long-winded way of saying that I agree that even morally-bound lawbreaking must be punished with the full force of the law - because, of course, everyone will argue that she was bound by higher moral considerations, if that's what works. But my point goes beyond that to the observation that we would have no chance of holding Cheney accountable without the lawless selflessness of a Tamm.

And isn't it a poorly designed legal system that relies on the selflessness of a rationally self interested individual to undergo all sorts of penalties and punishments in order to simply have a shot at applying one of our most important and far reaching laws? It seems so to me, but I don't really know what the alternative would be.

Elliot said...

I guess a clearer way to put it is that whistleblowing is different from other sorts of lawbreaking because it involves a feedback loop. When someone breaks into a cabin, there is a single crime that is easily discernible. In a whistleblowing type case, the first, and more serious, crime, is not discernible by any legal means, and thus can only be uncovered by illegal means. This feedback loop is hard to square with the sentiment that "[the law] must be followed because it must be credible to have any force whatsoever". To enforce the law, you must break it - not only reducing the chances that it will be enforced, but also reducing its credibility if its enforced.

higgy said...

I'm in complete agreement with Elliot on his last point - whistleblowing is a special type of lawbreaking; a class unto its own. (It is also unusual in that it's fairly easy to define in precise terms, so that lawbreakers can't try to interpret its meaning to their advantage.)

We could provide exceptions within civil law for whistleblowing while enforcing all other infractions of the law, and society would not fall apart.