Thomas Tamm Hit With Bar Charges For Exposing The Warrantless Surveillance Program Under President Bush

Screen-Shot-2016-01-26-at-3.05.42-PM-640x712There 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

50 thoughts on “Thomas Tamm Hit With Bar Charges For Exposing The Warrantless Surveillance Program Under President Bush

  1. There are lots of client confidences maintained by lawyers that one could argue should be disclosed as a matter of “public policy.” That alone is insufficient to justify a breach. You need to drill down on the recognized exceptions to the duty of confidentiality and whether any of them apply here.

  2. A “whistleblower” is a human who exercises his First Amendment Constitutional right and duty to petition his government for redress of grievances. The grievances are crimes. His superiors in the Dept of Justice hid the crimes and failed to disclose them to Congress fore example. His method of telling the public was a method of petitioning his government for redress of grievances.
    This is protected conduct, protected speech and a duty.

    The person who is prosecuting him is violating his civil rights. The person is a government agent and is therefore may be sued under the federal civil rights act 42 U.S.C. Section 1983 and there is another statute to employ against federal agents. He should file his civil rights law suit now. The bar association is acting outside the box. This conduct was not a violation of any so called ethical code of a lawyer. The bar association may be involved in a conspiracy and might be sued.

    Those of you who belong to the DC Bar need to file a Bar Complaint against the DC Bar and the complainers such as Shipp for violating this man’s right to practice law. Those of you (JT) in the DC Bar need to call for a meeting to discuss this travesty of justice. Today.

  3. The “client” in this situation is “the public”. There is no violation for revealing to the public the crimes and misdemeanors of others.

  4. Mr. Tamm worked for the American people – he did his duty.

    More than anything, this case illustrates that “justice” is a nebulous thing in Washington.

    As a side note, this case also illustrates that the “insiders” of Washington are a vindictive bunch more concerned about their tribe than their responsibilities to both the country and the Constitution.

  5. Just another example of Obama’s campaign against knowledge by persecuting those that tell the truth that the Manchurian (Republican) president and his “friends” don’t want known. Oh my, if the public only knew what the government doesn’t want them to know. Well maybe nothing, this is a nation of sheeple.

  6. Doesn’t the DC Bar do progressive discipline, or deferred prosecution? This isn’t an act involving dishonesty, theft, fraud, etc. If he’s disciplined at all it should be nothing but a reprimand.

    But then again, we don’t live in a democracy, we live in a corporate oligarchy where the masses are fooled into believing they live in a democracy.

    We also don’t live in a nation of laws, only a nation that pretends to be a nation of laws, and those with power can use their power to abuse the hell out of members of the public, or members of the profession, only to then drop charges, or drop an investigation, when nothing is there.

    The Wisconsin Office of Lawyer Regulation, for example, has subjected me to years of investigation over numerous issues, such as refusing to offer a prison inmate a legal loan, or calling an inmate by his given name, rather than by a religious name that the Wisconsin Court of Appeals had already ruled, in a public opinion, that the inmate had forfeited.

    In the investigation where I was accused of violating an inmate’s constitutional rights by refusing to extend a legal loan to him (even though he already owed over a thousand dollars and I was prohibited by Wisconsin law from authorizing a loan for more), I pointed out to the investigator (I believe Cynthia Schally) at the outset that OLR was hardly the forum for litigating the parameters of an inmate’s rights to free court access and free legal supplies, but she ignored that, and ignored the language of the statute that I subsequently pointed out, and carried on with her absurd, plodding investigation that lasted over six months.

    Once the OLR investigated me because I had reported a crime (simulating legal process) to the Chippewa County District Attorney (the DA’s office saw fit to charge the perp with four felonies, and then pled the perp down to witness intimidation). In that case, as I pointed out to OLR, their decision to investigate me actually constituted victim intimidation, as a party to a crime.

    Ultimately, the Wisconsin OLR has had to concede, in each and every one of the numerous investigations that it has commenced against me, that I have done nothing wrong and had not violated any ethical cannon. But it is a way of chilling people, and chilling speech. What attorney wants to spend hundreds of hours of their life stressed out, answering questions, producing documents, having their blood pressure raised and their life-span shortened? The way to avoid this being subjected to this sort of abuse by an unaccountable body is to keep way back from the edges of the ethical rules and over-police oneself, in other words, to allow those in power to abuse their power.

    Attorney Tamm has my sympathies. I’ve been put through hell and back myself by the Wisconsin OLR, only to be fully exonerated every time. No doubt, however, that this has taken years off of my life. And no doubt Attorney Tamm’s life will similarly be shortened by all of the stress.

  7. This may well be a situation where Tamm should not be disciplined, but lawyers are not simply free to disclose crimes and misdemeanors if the information was obtained in confidence. The disciplinary authorities in DC have nothing to do with Obama. They are not federal agents.

  8. They set up laws to legalize harassment of normal citizens, an attorney exposes them and you think they’ll let him off scot free? nooooo. They’ll harass him too. I agree with Barkindog. You can’t just sit and take it. Bundy’s should’ve fought smarter too, they’d have had more sympathy.

  9. I can attest that Mr. Tamm has been a hardworking and ethical public defender in Maryland for the past several years. That office is underfunded and overworked as it is, and if he is lost to reciprocal disbarment, we all lose.

  10. I’m with BarkinDog on this one. The client is the public.

    Moreover, this disclosure concerned ongoing and future criminal activity. How is that privileged?

  11. Also, as to his failure to notify his superiors: Is the Justice Department claiming it didn’t know about it’s own warrantless surveillance program?

  12. Tamm should be compensated for his exemplary performance in upholding the law to protect the public. If he violated some procedural rule or concept then that is the forum wherein he should be dealt with, but in full public view. The law belongs to the people and is accountable to the people. The law only works when it is clear, precise, and transparent. Those who are versed in the law and hold positions of authority within the structure of the law that are found wanting in their responsibilities should be doubly punished. A bully is a bully is a bully.

  13. Many people do not realize that client confidentiality is a much broader concept than the attorney-client privilege. Unless already public, virtually everything learned by a lawyer in the course of a representation is deemed confidential.

  14. It doesn’t surprise me that Obama’s (UN) Justice Dept wants to prosecute a tattle tale or be in the shadows whilst it’s done.

    It also doesn’t surprise me that Obama has done a lot worse, than what this guy exposed Bush for and yet, we hear crickets.

  15. JT noted the Justice Department did not prosecute Mr. Tamm. This is a question of whether Mr. Tamm violated the ethics of his profession by breaching attorney-client privilege. For the record, I am against any program that permits government spying of any type without a properly obtained warrant, and believe Mr. Tamm did the right thing. But that’s not the issue. Suppose he disclosed privileged information disclosed by one of the defendants he represents through the Public Defenders Office, even if in the best interests of the public who pays his salary. How would you look at him? We may praise his actions, but that does not mean that he complied with accepted professional ethics, and the Bar should act accordingly.

  16. If the The illegal activity was on going which I believe it was. I would argue that he was free to disclose under the crime fraud exception to the attorney client privilege.

    As to the activities of the bar, it always amazes me that attorneys get away with a using their clients and taking advantage of them in a myriad of ways while the bar stands must but now they are going to become accomplices in silencing whistleblowers….now that’s ethical!

  17. The number of piblic officials who do not think that they work for the public continues to astonish me. A government lawyer should consider the public his client, not elected officials who want to keep secrets from the people who elected them. Whe was the last time you heard or read the term “public servant,” by the way?

    We had a case here in San Diego where the Mayor was doing the “pay to play” thing. Make a contribution to the mayor’s favorite project and he would give you the permit for the project you are building. The City Attorney, who is elected directly by the voters, called him out on it and the mayor was furious. He claimed the City Attorney worked for him and was supposed to keep his business “confidential” as a matter of attorney/client issue. The City Attorney said he did not work for the mayor but worked for the people who elected him. The mayor filed suit with state court, which refused to hear the issue.

    The mayor was not Filner, who resigned over his inability to keep his hands off of the females who worked under his supervision, but was the one before him. San Diego governance is seldom dull.

  18. We always shoot the person that speaks truth to power – seen it happen all my life – he worked for us the public – he told us the public about the illegal wiretapping – he worked for me and as noted above – there is something about raising the issue to your employer – which he did – no crime – give him a raise – note the part where other lawyers also said the activity was probably illegal – but they did nothing

    Sadly this admin has raised to an art-form the punishment of those that speak the truth

    Note that Woo and others were rewarded for their crimes – that is also a crime

  19. A couple of thoughts, thrown out in the hopes that any errors are pointed out.
    First, I think he could argue that any privilege that attached is superseded by his obligation to raise illegality that would occur in the absence of the disclosure such that his initial ethical obligation was set aside by the higher ethical obligation. (It is my understanding that legal counsel MUST disclose knowledge of a crime that is yet to be committed, but is planned by a client. The ongoing nature of the warrantless searches seems to fulfill that criteria.)
    Second, why muddy the analysis with the “torture” counsel reference? The issues are not the same and it provides misdirection that is unwarranted (pun not unintended). Your point is true, but not directly probative except as to policy/[politics. If you argue this before a judge, it is dismissed out of hand. Of course, it speaks to others.

  20. Obombya: “If you want to keep your banana republic, you can keep your banana republic.”

    Telling, and related to this case: Retired NSA Chief General Keith B. Alexander clearly and unequivocally committed perjury to Congress (think of the irony of a professional liar lying to the most dishonest group on earth) when Alexander denied the existence of the subject warrantless domestic spying program. Result: crickets.

    I have no sympathy for our Lying Liar In Chief Obombya, who belongs in prison or worse for various multiple felonies including those described in this article. But I’ll say this in his defense: For years now Congresscritters committed likely felony treason trading America’s blood, money, and security for financial and political favors from IsraHELL’s President Netenyahu (IsraHELL is a nation of sum total zero interest to the USA).

    In 2015 Congresscritters condemned our Liar In Chief for his recording incriminating conversations between Netenyahu and Congresscritters. Obombya belongs in prison or worse for warrantless domestic spying between exclusively US citizens. But POTUS has sworn duty to protect America by spying on other Heads of State, especially sworn enemies like Netenyahu (a practitioner of the Talmudic vs. “Even the best of the goyim deserve only death”).

  21. If he released information that was classified – as I assume it was – then he broke federal law. The fact that DOJ chose not to prosecute doesn’t make what he did legal. But, when reviewing attorney ethics rules, was his client his employing agency or the “public”, and to what extent did he violate privilege? While a “whistleblower” can be protected from prosecution under the law, an attorney is not simply an “employee”. I think the Ethics Commission needs to have a clearer rule about when an attorney is released from the obligation not to divulge such information, especially he/she agreed to the rules at the outset. The question will surely come up again.

  22. I’m with BarkinDog and Steve Fleischer here. I’ll add that our bound-and-gagged, former US AG’s postulate that some – here, presidents – are too big to fail is at play.

    Perhaps the law should be such that it is an affirmative (complete) defense when disclosure is found to be based on (what is proved to be) unlawfulness and without remuneration.

    As for Obama being behind the ethics charge, that’s speculation, and I’d assume the sharks in DC don’t wait for the president to toss blood in the water before working themselves up into a frenzy. They’ve got their own agendas.

  23. His client was the people of the United States, and he served us well. This is yet another incident in which a whistle-blower is punished for acting in the public interest, and those who acted to evade the law are rewarded. Quite soon we will have no due process left, nor any reason to support this corrupt system.

  24. Since the only legitimate purpose for government is to secure the rights of the people, then Tamm should be judged by that standard. If laws are in place that are actually roadblocks to that purpose then the roadblocks are the problem and not people like Tamm.

  25. hear hear andrea! well said

    an infraction yes– but worth a reprimand. he should wear it like a badge of courage.

  26. All federal employees make the highest form of commitment…taking a formal oath…to protect the Constitution of the Unites States. The Constitution, rightly, was Tamm’s client, and his actions to expose a major threat to the Constitution were, in that light, necessary and appropriate.

  27. His client is the American people. The government (including the Justice Dept.) is just a body that does certain functions for the people. The idea that he violated client-attorney by releasing this info, is absurd.

  28. Oh heck yes. All “sting” operations with their attendant “revelations” must be made illegal. The public has NO right to know. Edward Snowden and Paul Revere are/were enemies of the state. I, for one, had no desire to learn that the federal government had violated my 4th amendment right…”to be secure in their persons, houses, papers, and effects,…”

    Every last government official with knowledge of the capture and retention of Americans’ e-mail, telephonic, text, etc., communications should be in prison for treason right now. And a statue of Edward Snowden should have been erected near the Washington Monument.

    Oh, Constitution, where art thou? The revolutionary American Founders must be rolling over in their graves as every last one of their ideas has been nullified by collectivists, “progressive” to full blown communism.

    Let’s ask a preeminent “constitutional scholar,” he’ll know.

    “Natural born citizen,” anyone?

  29. jerome – next time you are pulled over by a cop tell you are his employer and he is not to give you a ticket. See how that works.

  30. What do you expect from the bullies who have clawed their way to the top of “Courthouse Gang” and have been thwarted in their cover-up’s…………….

  31. The members of the DC Bar have an obligation and a duty to see that Shipp gets shipped out. Call a meeting. Tomorrow. The American Bar Association has a duty to chime in. The members of the DC Bar who are trying to punish our patriot need to be punished themselves.

  32. Most of Tamm’s critics, including prosecutors, voluntarily swore an oath of office to follow the U.S. Constitution as a condition of employment and authority.

    The Oath of Office loyalty oath was one of the first priorities of the Founding a Father’s in ratifying the U.S. Constitution. The oath of office may be the greatest check & balance designed into the American system – it empowers government employees to refuse unconstitutional or illegal orders from superiors.

    Tamm deserves an American loyalty reward for his integrity. His critics should never hold a position of public trust ever again for their disloyalty to their oath of office.

  33. It’s worth mentioning that the Bush Administration “systematicly” (in a premeditated manner) destroyed all internal whistleblower channels for good decent bureaucrats to report fraud and high crimes by the Bush Administration.

    In other words they figuratively “removed the pressure valve from the pressure cooker” making the pot explode. This premeditated criminal activity by Bush officials produced Edward Snowden, John Kiriakou, Thomas Tamm and other loyal Americans.

    If The Bush officials hadn’t illegally removed the internal whistleblower “pressure valve” to report waste, fraud, abuse and Bush felonies – Thomas Tamm and other heroes wouldn’t have been destroyed.

    Webster’s defines this system as a “Banana Republic” and “Kangaroo Court” – we let Bush felons go free and punish those that followed the supreme law of the land.

  34. I’m not familiar with the ABA rules nor case law on government attorneys as whistleblowers. I don’t even know if there is any. However, as a former federal attorney, my relationship with my agency was not at all the same as that of a private attorney and his client. My role was that of a federal employee, working for the agency, but with a greater responsibility to the American people. In 30 years of federal employment as an attorney, with yearly ethics training, we were never once advised that our positions as attorneys prohibited us from exposing agency wrongdoing to Congress or to the press. If I were in private practice and learned that my client, corporation x, were dumping toxic materials into the public waterway, of course it would be a violation of client confidentiality to go to the press. But a government attorney has a different “client.” His client is the American public.

  35. T. – however the real question is, do they really have jurisdiction over government attorneys? If so, shouldn’t they disbar Eric Holder? And Obama?

  36. There is no question that they have jurisdiction over lawyers admitted in DC. Pres. Obama is not practicing law and not admitted in DC.

  37. What do you think?

    The charges are a sham.

    When the criminals responsible for the US government’s rendition, torture and indefinite detention without charge system of gulags are promoted or offered cushy university positions rather than being held to account before a jury of their peers with evidence publicly available it exposes the District of Columbia Office of Disciplinary Counsel to charges of hypocrisy it so deservingly has earned.

    What a complete charade.

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