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Interesting that, as Jim White noted, the letter from the DOJ refers only to a "Presidentially-Authorized" spying program, not a "legal" spying program.
Of course, this language is consistent with the FISA amendment immunity language, which expressly conditions immunity for illegal spying where it was done pursuant to a presidential authorization but in no way finds, determines or legislates that any such authorization was itself legal. The immunity under FISA is a "good faith" type of immunity, and nothing in the FISA amendments legitimizes Bush's illegal orders themselves. Indeed, the immunity is predicated upon the presumption that Bush's orders were unlawful. Bush is the only person not immunized by the FISA amendments.
Now, here sits Mr. Tamm. He is the (rather,"a") guy with actual, first-hand, admissible-in-evidence knowledge of the nature and scope of the illegalities in action and he seems to be one of the very few willing to say so. He hasn't yet testified about his actual knowledge (has he?), he only has spoken to reporters, whose accounts of what he said do not constitute admissible evidence (it's hearsay, generally not allowed in court). And the DOJ reads more elaboration in another media account and sends out a letter inartfully suggesting he may have waived otherwise applicable privileges by publicly disclosing information otherwise potentially privileged.
But if Tamm possesses evidence of government wrongdoing, wouldn't putting it on the record before a grand jury be an heroic act? It is my understanding of grand jury secrecy principles that the witness is not bound by Rule 6(e) concepts and could divulge what the testimony was (OK, that understanding comes from a West Wing episode and CJ Craig's relief). So it the Mukasey DOJ wants to be heavy-handed here, maybe taking them up on it and explaining for a grand jury just how illegal these NSA actions were could whet the appetite of the real lawyers that DOJ is going to hire after Obama gets there. And then... then... then... maybe somebody could pursue criminal prosecution of Mr. Bush, aided by grand jury testimony of Mr. Tamm elaborating, first hand, upon the gravity of the illegalities ordered by the President.
And never forget, the "real criminal" in the NSA spying scandal was and is George w. Bush, and Congress has confirmed that already by granting immunity to those who followed Bush's illegal orders in implementing the NSA spying program.
Granted, Mukasey's shills deserve no quarter; they should be offering Tamm immunity for his testimony, not threatening prosecution. But Mukasey shed any integrity his long career had generated when he undertook to shield Bush's lawlessness from the law, and this latest action is just one more in a sad list of malfeasances. But maybe it could be turned against him and his overlords: imagine, Bush being impaled on testimony haughtily demanded in a blatant effort to silence a critic, but instead openly given....
