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
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.
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.
Tin Foil Hat – it could be as a government employee the DC Bar has no jurisdiction over him.
The DC bar has jurisdiction over lawyers practicing law in DC.
T. – however the real question is, do they really have jurisdiction over government attorneys? If so, shouldn’t they disbar Eric Holder? And Obama?
There is no question that they have jurisdiction over lawyers admitted in DC. Pres. Obama is not practicing law and not admitted in DC.
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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.
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.