DC lawyer ethics board investigating Bush-era DOJ lawyer who leaked info about warrantless wiretaps
Thomas Tamm, the former DOJ attorney who told the media about warrantless surveillance during the Bush administration, is charged with legal ethics violations in Washington, D.C., the National Law Journal (sub. req.) reported Tuesday.
Tamm, who now works as a public defender in Maryland, is accused by the Board on Professional Responsibility of the District of Columbia Court of Criminal Appeals. Charging papers (PDF) released this week fault Tamm for failing to refer information about law-breaking to his superiors, and also for telling the media about it.
Tamm’s former job at the DOJ’s Office of Intelligence Policy and Review included applying to Foreign Intelligence Surveillance Act courts for search warrants having to do with national security. This job required a security clearance, the charging papers say, and the information he handled was secret.
But after he took the job in 2003, Tamm learned that certain applications, having to do with something called “the program,” were supposed to be secret. These were to be signed only by the attorney general and given only to the chief judge of the FISA court. When he asked about these, the charging papers say, his colleagues said it was probably illegal.
Tamm brought that information to the New York Times in 2004, starting an investigation that revealed that National Security Agency was spying on people within the U.S. without warrants. Ars Technica reported Tuesday that the EFF’s lawsuit against the government over the spying is still pending.
In 2007, FBI agents raided Tamm’s home, looking for evidence about the leak. He was criminally charged, but pleaded not guilty. In 2011, the Justice Department declined to prosecute Tamm for his role in bringing the matter to light.
The ethics case against Tamm, which could lead to his disbarment, charges him with revealing his client’s secrets and failing to refer information about wrongdoing to his supervisors. It was filed in 2009, but according to the National Law Journal, the D.C. Disciplinary Counsel’s office has a backlog of discipline complaints.
Attorney ethics rules in D.C. permit lawyers to break client secrecy if the client used the lawyer to commit crime or fraud, but only if disclosing the information would prevent harm to another person’s financial interests.
Ben Wizner, director of the ACLU’s Speech, Privacy & Technology Project, told the NLJ that the prosecution creates unreasonable standards for government lawyers who learn about serious misconduct by their superiors.
“When a government official uncovers an illegal program that’s been authorized by the president, it can’t be that the only ethical response is to report it to an immediate supervisor,” Wizner said.
