There is a disturbing proceeding unfolding before the the District of Columbia Office of Disciplinary Counsel where Thomas Tamm, a former U.S. Department of Justice lawyer who leaked information to the press about warrantless domestic spying under President George W. Bush, is facing legal ethics charges in Washington. Tamm is viewed as a hero by many in exposing the program, but even among his detractors there are those who view him as a whistleblower. The intervention of the DC Bar into the case is troubling given the various policy and legal questions over his status in exposing the program.
The thrust of the ethical charges is the allegation that Tamm should have gone to his supervisors rather than to a New York Times reporter in raising his questions about the surveillance program. Now a public defender in Maryland, Tamm worked at the Justice Department Office of Intelligence Policy and Review in 2003, which included asking the Foreign Intelligence Surveillance Court for electronic surveillance warrants. Tamm said that he did raise the program with colleagues who agreed that it was was probably illegal. In 2004, he contacted the New York Times which later won a Pulitzer Prize in 2006 for its reporting on the surveillance program. The Justice Department declined to prosecute Tamm.
However, prosecutors sought to use the D.C. bar to eke out punishment under the theory that he had failed to refer information about possible illegal activity to higher ups at the Justice Department and that he disclosed the “confidences or secrets” of his client—the Justice Department—to a reporter.
D.C. Disciplinary Counsel Wallace Shipp III opened the formal case against him in late December.
This case involves difficult questions of a whistleblower who has knowledge of what is viewed by many as an illegal operation that endangered the privacy of a large part of the population. The use of the D.C. Bar to punish Tamm is clearly an effort to chill future whistleblowers in seeking to expose such programs. Shipp and the Bar seem all to willing to play that role. This is not a case where a lawyer exposed information to an opposing party or sought to personally gain from a breach of confidentiality. This is a case where a lawyer was trying to protect the public interest.
What is fascinating is that key individuals associated with the Bush Torture Program are still practicing without any penalty of any kind like John Yoo. Jay Bybee was given life tenure to serve on the United States Court of Appeals for the Ninth Circuit, where he still issues judgments on other citizens. Yet, Tamm (who is serving the public interest as a low-paid, overworked public defender) is facing disbarment before the D.C. Bar?
What do you think?
Source: National Law Journal