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Crime Government Privacy United States Politics

12 Years Later, Warrantless Wiretaps Whistleblower Facing Misconduct Charges (usnews.com) 96

cold fjord writes: Former Justice Department attorney Thomas Tamm sparked an intense public debate about warrantless surveillance nearly a decade before Edward Snowden. Tamm tipped reporters in 2004 about the use of nonstandard warrantless procedures under the Bush administration for intercepting international phone calls and emails of Americans. New York Times reporters James Risen and Eric Lichtblau used Tamm's revelations to help them win a Pulitzer Prize. Barack Obama criticized the program and the Obama administration Justice Department announced in 2011 that it would not bring criminal charges against him. Unfortunately Tamm is now facing disciplinary hearings before the D.C. Office of Disciplinary Counsel which prosecutes the D.C. Bar's disciplinary cases. Tamm is facing ethics charges that could result is his disbarment, revoking his law license. Tamm is alleged to have "failed to refer information in his possession that persons within the Department of Justice were violating their legal obligations to higher authority within the Department" and "revealed to a newspaper reporter confidences or secrets of his client, the Department of Justice." Tamm currently resides in Maryland where he is a public defender. The effect of the D.C. case on him there is unclear. Tamm's attorney, Georgetown University law professor Michael Frisch, says the delays seen in this case are not unusual in D.C., it can take years for matters to play out. Another of Frisch's clients, who exposed the interrogation of "American Taliban" John Walker Lindh, believes the prosecution is political persecution.
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12 Years Later, Warrantless Wiretaps Whistleblower Facing Misconduct Charges

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  • by Anonymous Coward on Thursday January 28, 2016 @01:13PM (#51389921)
    Everyone chip in $10, we'll pay his legal bills and whatever is left over goes to him, regardless of how things turn out.
    • by chaboud ( 231590 )

      So how does this work? Is a lawyer supposed to break their client's confidence or maintain a secret in the executive that, by its non-disclosure, perpetuates an an ongoing criminal conspiracy in violation of the constitution?

      And, yes, I'll gladly chip in $10 for this guy.

      • by NotDrWho ( 3543773 ) on Thursday January 28, 2016 @02:27PM (#51390659)

        Somehow, by law, he was supposed to simultaneously blow the whistle on criminal activity, not participate in criminal activity, and not break the confidence of his "client" who was engaging in said criminal activity.

        Proving once again that a whistleblower is almost ALWAYS screwed over no matter how they handle it.

        • by Obfuscant ( 592200 ) on Thursday January 28, 2016 @04:49PM (#51391801)

          Somehow, by law, he was supposed to simultaneously blow the whistle on criminal activity, not participate in criminal activity, and not break the confidence of his "client" who was engaging in said criminal activity.

          How is telling the people who are running the department you work for something they already know "break[ing] a confidence"?

          As a lawyer, he had an ethical requirement to tell the people who were paying him that what they were doing was wrong, and not do it himself. That's breaking no confidences. Yes, it might result in him getting fired, but by not following the legal ethics rules he was breaking those rules and promoting the illegal activity. If the ethics were important, he'd not continue working there anyway.

          Instead, he broke confidences by telling an outside party. That doesn't absolve him of the responsibility to tell his client of the problem.

          It would appear that the ethical course of action would be to: 1) tell your employer/client, 2) quit because you really do value the ethics and not just pay lip service to them, and then 3) blow the whistle to the newspaper.

          Proving once again that a whistleblower is almost ALWAYS screwed over no matter how they handle it.

          This situation is a bit different than the vanilla whistleblower, in that he had an ethical obligation to discuss this issue with his employer/client because he is a lawyer. Had he been a run of the mill clerk, he'd not be in trouble with the bar association for breaking legal ethics. As a lawyer, he had a higher standard to keep, and didn't. Notice that it isn't the government acting against him, it is his professional organization.

          • by DRJlaw ( 946416 ) on Thursday January 28, 2016 @08:24PM (#51392979)

            Notice that it isn't the government acting against him, it is his professional organization.

            Lawyer here. You're wrong. The professional organization has no power to discipline or sanction. It actually is the government acting against him.

            In most states, lawyer discipline is a bizarre private-court hybrid. A private, bar-association-related disciplinary committe screens the complaint to see if it has potential merit. If it does, the issue becomes public and is referred up. An office of disciplinary counsel will also perform the same function.

            After that, everything gets handled by a quasi-judicial body -- a board of professional conduct, an office of disciplinary counsel, or what have you -- that is made up of attorneys appointed or employed by the state's highest court. It's a trial-like process. If you don't respond, it's not good for you. Quasi-trial. Quasi-appeal.

            If things go poorly (for the lawer), the determination (actually a recommendation) is referred to the state's highest court. That court makes a determination based upon the recommendation, and any objections by the lawyer, and metes out any discipline.

            Summary is this: the "professional organization" can go fly a kite. You do not have to be a member to practice, it has virtually no power over your ability to practice, and its principal use is for education, referrals, networking, and lobbying.

            The quasi-judical review body is no joke. The referral to the Supreme Court of [insert state name here] is really no joke. And that body, my friend, is definitely the government.

            • And that body, my friend, is definitely the government.

              I stand corrected, thank you.

              The important point, however, is that this is not a criminal proceeding related to the blowing of a whistle, it is due to his failure to follow the ethical rules of the legal profession.

            • by ebvwfbw ( 864834 )

              Wow, could you run for President?

          • "2) quit because you really do value the ethics and not just pay lip service to them, and then 3) blow the whistle to the newspaper."

            Once you quit you have no credibility with the newspaper as then you are just a disgruntled ex-employee.

            • Once you quit you have no credibility with the newspaper as then you are just a disgruntled ex-employee.

              And the newspaper would care exactly why? The allure of being the next Woodward or Bernstein is too strong. And it was the Bush administration.

      • At least in theory, what he is supposed to do is go to his direct superior or a direct superior of the individuals who were involved in the conduct and say "This client of ours is involved in illegal/unethical/unconstitutional (delete as appropriate) conduct. This client happens to be the Department of Justice".
        Except that he was working for the DoJ at the time, so painting the DoJ as the "client" in this case seems at first face to be a tenuous thread on which to hang the case against him, and if it really

    • Check out The Madison Fund [poorrichardsnews.com] - a strategy for treating government as an insurable risk.

    • by Richard Dick Head ( 803293 ) on Thursday January 28, 2016 @02:52PM (#51390889) Homepage Journal

      Everyone chip in $10

      What bugs me is that the common voter should even have to consider supporting this person in lieu of a non-corrupt government. Is there not a single earnest populist left in Capitol Hill? A decent president would be quick to sign a pardon and put this to rest.

      This is why if you are eligible and registered to vote in the USA, you should be voting straight-ticket non-incumbent and non-establishment.It is no secret our government is fcked, even to people who have never visited the states. The party does not matter, this year I'll be withholding my party loyalties and voting Libertarepublicrateen...for whomever has a chance of winning, and has the best non-establishment credentials. There is no protection for whistleblowers from todays crop of empty suits and Pinocchios.

      • This has nothing to do with any criminal court case. He's facing a disciplinary review by a legal bar association, a private entity. He can't be pardoned for that by anyone in any government, the private entity can kick him out of their club if they want. He was already pardoned for the original revelations. So the worst that happens is that he can't easily practice law in DC. Not a complete career killer but it's definately painful. To the private entity, protecting your clients is more important tha

      • A decent president would be quick to sign a pardon and put this to rest.

        He can be pardoned for criminal activity, but the bar association can still disbar him for it.

      • Everyone chip in $10

        What bugs me is that the common voter should even have to consider supporting this person in lieu of a non-corrupt government. Is there not a single earnest populist left in Capitol Hill? A decent president would be quick to sign a pardon and put this to rest.

        I think the President can pardon only at the federal level, not state.

        Also, probably can't pardon someone for something they haven't yet been found guilty of.

        • I think the President can pardon only at the federal level, not state.

          Also, probably can't pardon someone for something they haven't yet been found guilty of.

          Guess you weren't paying attention when G.Ford gave RMN a full pardon for all possible misdeeds.

          • I think the President can pardon only at the federal level, not state.

            Also, probably can't pardon someone for something they haven't yet been found guilty of.

            Guess you weren't paying attention when G.Ford gave RMN a full pardon for all possible misdeeds.

            "The pardon power of the President extends only to offenses recognizable under federal law."
            https://en.wikipedia.org/wiki/... [wikipedia.org]

    • Everyone chip in $10, we'll pay his legal bills and whatever is left over goes to him, regardless of how things turn out.

      quiet down! you're interrupting the circus! ;)

  • by Anonymous Coward

    Wake up and smell the coffee people, deal with this crap before it spreads...no nation has gone down this route of gov bullshit and had its people survive.

    • by bkr1_2k ( 237627 )

      Generally speaking the people, as a general term, survive just fine. It's the governments that usually fall. Unfortunately it often takes several generations.

    • This is being done by the DC bar association, which is not a part of the government. The president already pardoned Tamm.

      Sheesh, I know it's a joke that Slashdot doesn't read the articles or even the summaries, but it is just that, a *joke*. Please try to read more than the headline.

      • (sorry, I'm half moron, there was no pardon, because the government never even brought charges or prosecuted)

  • by 110010001000 ( 697113 ) on Thursday January 28, 2016 @01:24PM (#51390049) Homepage Journal
    It has taken 12 years to get to this point. There are too many laws, lawyers and it all takes way too much time. I really have a hard time feeling bad for someone who feeds the law machine. Living in DC I am tired of performing Jury Duty on the various courts. Most cases are a complete waste of time and should be decided by a judge or arbitrator.
    • It has taken 12 years to get to this point. There are too many laws, lawyers and it all takes way too much time. I really have a hard time feeling bad for someone who feeds the law machine. Living in DC I am tired of performing Jury Duty on the various courts. Most cases are a complete waste of time and should be decided by a judge or arbitrator.

      Hard to imagine this isn't the government (or a Bush crony) trying to get even (and discourage others form acting in a similar manner).

      When the agency that employs you is doing dirty work, obviously sanctioned at the highest levels, to expect you to report your misgivings to a superior is farcical on the face of it.

      He did the right thing going to the press, because he would have been ignored and fired if he took it up the chain.

    • by phantomfive ( 622387 ) on Thursday January 28, 2016 @01:52PM (#51390277) Journal

      There are too many laws, lawyers and it all takes way too much time.

      Maybe it will make you feel better to know then, that if Thomas loses this case, there will be one fewer lawyers in DC. This is a trial for disbarment, not a criminal trial.

      • by Jawnn ( 445279 )

        There are too many laws, lawyers and it all takes way too much time.

        Maybe it will make you feel better to know then, that if Thomas loses this case, there will be one fewer lawyers in DC. This is a trial for disbarment, not a criminal trial.

        Only in deepest Dumbfuckistan would some drooling dittohead twist things this way. This guy is a hero. What is being done to him is criminal, not his brave actions to expose our government's crimes.

      • by qeveren ( 318805 )

        Everyone hates lawyers... until they need one themselves.

        • I don't know, in my experience, people still tend to hate lawyers after they need one. Sometimes they hate them more.
    • by tnk1 ( 899206 )

      While I agree that law should be more efficient, sometimes you don't want it's enforcement to be *too* efficient.

      Although I am not really sure where I stand on this, theoretically a judge, who is often a careerist, will frequently decide based on the case in the manner his colleagues prefer so that he receives preferment and does not receive scorn for his action. He will hand out sentences based on guidelines he doesn't necessarily believe in because of non-legislative "rules" created by the judiciary itse

  • Circular lies ... (Score:5, Insightful)

    by gstoddart ( 321705 ) on Thursday January 28, 2016 @01:29PM (#51390089) Homepage

    So, it's a crime to not report evidence of wrong doing to the people who are committing the wrong doing so they can bury the evidence of the wrong doing?

    Right, that totally makes fucking sense.

    This is why Bush refused to give whistle blower protection to government employees .. so nothing would change.

    • This is why Bush refused to give whistle blower protection to government employees .. so nothing would change.

      As if Barrak "I'm not Bush" Obama was any better.

      • However the executive branch under Obama also publically announced it would not charge Tamm with any crime. They could have done this without an announcement if they just wanted the headache to go away; though maybe cynically you could say they felt the need to show a change in attitude after Snowden's revelations.

    • No, the summary says it is an ethics violation punishable by his civilian professional association. Crimes are punished by the government and have different consequences.

    • Right? No conflict of interest there whatsoever, yeah? /s

      SMFH.

    • So, it's a crime to not report evidence of wrong doing to the people who are committing the wrong doing so they can bury the evidence of the wrong doing?

      Right, that totally makes fucking sense.

      This is why Bush refused to give whistle blower protection to government employees .. so nothing would change.

      No. It's an *ethics violation* (you lose the ability to practice law or more likely get reprimanded, but it is not a criminal sanction). You report the unethical conduct to the *bar*, not to the lawyers committing the wrongdoing.

      It is probably not enforced much--imagine trying to enforce a rule that cops had to "rat" on each other--but it is an ethics violation.

  • by Anonymous Coward

    says Snowden should have gone through proper channels. Lulz.

    • Snowden tried, was ignored, went public.

      • LIES! The gov't has very clearly said that they have not found any evidence that he tried to report any wrongdoing.

  • that the next guy who thinks of blowing the gaff on government wrong doing will think hard and probably not expose what he knows. Is this not terrorism by the government of the USA, or maybe just a protection racket "Nice little life you have there, it would be a pity if you ended up in jail" ?

  • this is rich (Score:5, Insightful)

    by Anonymous Coward on Thursday January 28, 2016 @01:52PM (#51390275)

    From ethics charge complaint:

    ...
    4. The information with which Respondent [Tamm] was entrusted to support his warrant
    applications was secret, and Respondent was required to obtain a special security clearance before
    he could make such applications.
    5. Respondent became aware that there were some surveillance applications that were
    given special treatment. The applications could be signed only by the Attomey General and were
    made only to the chiefjudge ofthe Foreign Intelligence Surveillance Court.
    The existence of these
    applications and this process was secret.
    6. Respondent learned that these applications involved special intelligence obtained
    from something referred to as “the program.” When he inquired about “the program” of other
    members ofthe Ofce of Intelligence Policy and Review, he was told by his colleagues that it was
    probably illegal.
    7. Even though Respondent believed that an agency of the Department ofJustice was
    involved in illegal conduct, he did not refer the matter to higher authority within the Department.

    ...

    9. Respondent’s conduct violated the following provision ofthe Rules ofProfessional
    Conduct:
    a) Rule l.l3(b), in that he failed to refer information in his possession that
    persons within the Department of Justice were violating their legal obligations to higher authority within the Department, including, if warranted, the highest authority that can act on behalf of the
    Department, the Attorney General
    ; and

    IOW, Tamm was suppose to report illegal surveillance applications signed by the Attorney General to the Attorney General! Well, he was supposed to go up the chain first, but still ultimately the AG would know he was being reported for illegality probably along with Cheney's office where "the program" was being run out of, IIRC. That means that they would be in a position to cover up and thwart any Congressional investigation, or maybe get Congress to pass a amendment to the FISA court law giving backwards immunity to the AG and the FISA Chief Judge.

    Anyway, this is an ethics disciplinary charge and not a criminal charge. I doubt he's gonna lose his license over this, though he may have it suspended for short period.

  • Client (Score:3, Insightful)

    by Anonymous Coward on Thursday January 28, 2016 @01:53PM (#51390301)

    "his client, the Department of Justice"

    No, his "client" was the American people, and he represented them expertly by reveling a secret program to bypass the protections provided by the very document that the entire government including the "Department of Justice" derives its authority.

  • I thought Mark Klein [wikipedia.org] was the whistleblower. He was the AT&T contractor who revealed that there was an NSA closet that all phone traffic was routed through. Although reading the Wikipedia article I can't tell who he revealed it to.

    • by AHuxley ( 892839 )
      It was more on the domestic, warrantless use of mass collection of U.S. residents.
      Paper work was been created to give cover to staff asking questions but it was not from a court ie just an authority.
      ie it was a lot of news about how the domestic paperwork was been created to cover for domestic, warrantless collection.
      The authorizing of warrantless surveillance of American citizens was the issue and how deep, far the program went.

      Thats why the US had its FISA court, the F been for "Foreign" that made w
  • This is pathetic.. (Score:5, Insightful)

    by bravecanadian ( 638315 ) on Thursday January 28, 2016 @02:20PM (#51390581)

    They ignore the constitution, and Tamm is the one whose ethics are being questioned..

    I am sure I saw a documentary where he did first question the validity of the wiretaps and he was shut down.

    The fact that he did question it and blow the lid off it when they didn't fix the situation shows me that he is pretty good on the ethics front.

    That is saying something for a lawyer. :)

  • later, whom I'm willing to bet almost no one has heard of, imagine what's in store for Edward Snowden should he come back home voluntarily (or be extradited).

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