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. 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.

  2. 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…………….

  3. 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?

  4. 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.

    1. 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.

  5. 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.

  6. hear hear andrea! well said

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

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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”).

  12. 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.

  13. 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

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