Almost 12 Years After Calling a Reporter, DOJ Whistleblower Slapped With Ethics Charges

The D.C. Office of Disciplinary Counsel — the legal body responsible for overseeing the D.C. Bar’s professional rules — has filed ethics charges against Thomas Tamm, the former Justice Department lawyer who contacted the New York Times about President Bush’s warrantless wiretapping program in 2004.

The office’s charging papers, which were released Tuesday and first reported by the National Law Journal, cite two counts of professional misconduct. In addition to charging him with referring his client’s secrets to a newspaper, they also allege that Tamm “failed to refer information in his possession that persons within the Department of Justice were violating their legal obligations.”

According to a 2008 interview with Newsweek, Tamm did ask his supervisors about “the program” (as it was referred to by the administration). He was told that it was “probably illegal,” and that he should drop the subject. He even reached out to the staff of the Senate Judiciary Committee, who refused to discuss the program with him on the basis of its secrecy.

The D.C. Office of Disciplinary Counsel declined to comment.

In 2001, Tamm joined the Department of Justice’s Office of Intelligence Policy and Review, the agency responsible for filing individualized warrant requests before the Foreign Intelligence Surveillance Court. He soon discovered that one category of cases was treated differently: under “the program,” only the attorney general could sign the warrant applications, and only one FISA Court judge was allowed to review them. Tamm inferred that the evidence gathered to prepare the warrants must have been obtained illegally. In the spring of 2004, he walked to a nearby payphone to call New York Times journalist Eric Lichtblau. The Times would go on to win a 2006 Pulitzer Prize for its reporting on the NSA’s warrantless wiretapping program.

In 2007, 18 armed FBI agents raided Tamm’s house, interrogated his wife, and pressured him to plead guilty to felony charges. He left the Justice Department and had to borrow money to pay his legal fees.

In 2009, Tamm won the Ridenhour Prize for Truth-Telling, and was celebrated by civil libertarians and transparency advocates for having “imperiled his own future liberty to preserve the liberties of all of us who live in this nation.”

In 2011, the Department of Justice announced that it would not prosecute Tamm for the disclosures.

The D.C. Office of Disciplinary Counsel, formerly known as the Office of Bar Counsel, opened Tamm’s case in 2009, but did not file charges until December. That delay is exceptional, even for an office that has a huge backlog. Tamm will have to argue his case before a hearing committee, and punishment could range from a professional censure to disbarment. According to his attorneys, Tamm could face another four to six years of protracted legal battles.

Top photo: The phone booth at Judiciary Square Metro station used by whistleblower Thomas Tamm.