Administration Pursues Charges Against Another Whistleblower

from the more-'notch'-than-'belt'-by-this-point... dept

Thu, Jan 28th 2016 6:26am — Tim Cushing

Another whistleblower is facing charges brought by this administration -- one that has prosecuted more whistleblowers than all other administrations combined. Thomas Tamm, a DOJ lawyer during the Bush era, exposed the NSA's super-secret domestic surveillance program, whose authorization ran directly from the Attorney General to the Chief Judge of the FISA Court.

His whistleblowing led to a Pulitzer for the New York Times. The information Tamm gave to NYT reporters detailed something referred to only as "the program." The two-person approval process eliminated much of the paper trail and allowed the NSA to perform warrantless domestic surveillance. Colleagues of Tamm's at the DOJ's Office of Intelligence Programs and Review even told Tamm this was "probably illegal."

As Cyrus Farivar points out, Tamm has spent several years being investigated, but, so far, nothing has stuck. In 2007, his house was raided by 18 FBI agents who seized every electronic device they could find in Tamm's house and pressured him to plead guilty to espionage charges. Two years later, Tamm received the "Ridenhour Truth-Telling" prize. Two years after that, the government dropped the espionage charges.

But the government isn't done with Tamm. In what it likely views as a wrist slap, it's bringing ethics charges against Tamm for bypassing the "proper channels" to expose government wrongdoing. Basically, it's a bar complaint -- the government's last-ditch attempt to make Tamm pay for making it look bad.

Respondent became aware that there were some surveillance applications that were given special treatment. The applications could be signed only by the Attorney General and were made only to the chief judge of the Foreign Intelligence Surveillance Court. The existence of these applications and this process was secret.

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 of the Office of Intelligence Policy and Review, he was told by his colleagues that it was probably illegal.

Even though Respondent believed that an agency of the Department of Justice was involved in illegal conduct, he did not refer the matter to higher authority within the Department.

For more than a decade, the government has gone after Tamm. All it's left with is this: a threadbare claim that Tamm's decision to bring this information to the press was a breach of trust. His "client" -- the DOJ -- was not handled in accordance with its "Rules of Professional Conduct." Still, it's more than the government actually needed to do. It could have used the opportunity to shut down a program that was considered "probably illegal" by other DOJ lawyers. Instead, it shot the only messenger it could: the person exposing the wrongdoing.

Tamm-Charges (PDF)Tamm-Charges (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: doj, ethics complaint, fisa court, surveillance, thomas tamm, whistleblower

33 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 28 Jan 2016 @ 5:09am

Respondent became aware that there were some surveillance applications that were given special treatment. The applications could be signed only by the Attorney General and were made only to the chief judge of the Foreign Intelligence Surveillance Court. The existence of these applications and this process was secret.

So at a minimum it would be likely that two of those involved were the AG and the chief judge of the FISC, two individuals that are anything but low ranking lackeys.

Even though Respondent believed that an agency of the Department of Justice was involved in illegal conduct, he did not refer the matter to higher authority within the Department.

Oh yeah, great idea. Let's report potential illegal actions by the department, to the department. That sounds like a highly effective way to fix the problem, if by that you assume that the 'problem' was his continued employment.

The whole 'proper channels' thing for stuff like this is a joke without a punchline. It's a way to lure in well meaning idiots who want to do the right thing, but are naive enough to think that reporting a problem to the very people causing it is going to do anything other than draw a massive target on their back.

In essence they're making an example out of him because he was well meaning, but wasn't stupid enough to fall into their little trap.
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 6:34am

What about the government's breach of public trust.

Wait, the government never had trust to begin with.
[ link to this | view in thread ]
Paul Renault (profile), 28 Jan 2016 @ 6:54am

Just watch...
A whistleblower will find some White House report that also confirms that the TPP will benefit no one except the .01%, and THEY'll be prosecuted.
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 7:04am

Nemo benefacto inpunitus.
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 7:05am

things like this that make me believe someone is running things behind the curtain.

Otherwise you have a ruling body that goes after people out of spite, instead of rule of law. Normally that sort of thing should be making people revolt instead of complacently taking it up the ass
[ link to this | view in thread ]
That One Guy (profile), 28 Jan 2016 @ 7:06am

Re: Just watch...
Will find? That's been pretty much the case with every report relating to the thing, everyone gets screwed except large companies.
[ link to this | view in thread ]
Paul Renault (profile), 28 Jan 2016 @ 7:29am

Re: Re: Just watch...
Oops, I should have completed my thought with "...be prosecuted for leaking it/them."
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 7:39am

Re:
Otherwise you have a ruling body that goes after people out of spite, instead of rule of law.

More like a ruling body that think that they are above the law, and because they are in charge, it is illegal to criticize them. This is a common disease of rulers in every place and time.
[ link to this | view in thread ]
Almost Anonymous (profile), 28 Jan 2016 @ 7:44am

Lies, lies, and damn lies
How much do you want to bet that, like Snowden, he *did* try to go through the proper channels and was either completely ignored or told to shut up and mind his own business?
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 7:51am

Re:
...two of those involved were the AG and the chief judge of the FISC, two individuals that are anything but low ranking lackeys...

The Attorney General requires Congressional approval to take the office. I assume (don't know for sure) the Chief Judge is also a Presidential appointment that requires Congressional approval to take office.

Now maybe Congress cannot remove those individuals from office but they can hold hearings and require them to testify. If they refuse or give bad testimony Congress can hold them in contempt. Granted that might not mean much but the resulting publicity will bring attention, some of which might not be desired.

So maybe it wasn't a good career choice to report a problem to the department that has the problem to begin with. Couldn't the whistleblower report to Congress and let them sort it out? Or was Congress aware and not doing anything?
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 7:57am

how can anyone in this government, especially anyone in the DoJ even think the USA is the 'The Land of the Free and the Home of the Brave'? it's getting less and less like that every day! the way that things are done is in ways close to what i have read about in communist, suppressive societies like Russia, Korea, China. for a government to be doing things like this in the first place and to resort to years of persecuting someone for having the balls to expose that something, is absolutely disgraceful! if there were no wrong doings, there wouldn't be anything for the government to fear. as it is, certain figures seem to be allowed to run outside government and probably have more power that the head of the government and can definitely frighten the crap out of people when told to keep quiet! how can any supposed democratic government even consider taking this course of action because it has been caught behaving illegally? it throws any trust out the window, especially when the actions are taken out of spite for being caught!!
[ link to this | view in thread ]
Ninja (profile), 28 Jan 2016 @ 8:06am

Re:
Actually there are plenty of examples of people that tried the official channels and either got a "haha nice, ignore it and go back to work" o got straight up screwed by the government. If I was to risk everything I'd go straight to the media. The official channels would probably be an invitation to be screwed anyway with no real solution.
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 8:15am

Re: Re:
Congress do something? They are called Congress because they are the opposite of Progress.
[ link to this | view in thread ]
Pyros, 28 Jan 2016 @ 8:36am

The only way
Given his situation, he "Should" go to the person above the person doing the wrongdoing, I guess that would be the President, a member of an over-site committee or a congress critter.

Given the President is right out, and most people who tell congress critters end up tossed in Jail. IF there was an inspector general at the time of the infraction that would be almost the only person who could deal with this.

There was an old case of a Staff Sargent who had reported something up the chain of command, people then tried to kill him (run over him while he was running on base). He went to his Congress Critter, all he got for it was an AWOL charge. The Scandal about drowning recruits came out several years later. After someone died.
[ link to this | view in thread ]
That One Guy (profile), 28 Jan 2016 @ 8:41am

Re: Re:
Yeah, your expectations and trust of Congress may be a little overblown and misplaced.

Assume for a moment that he had gone to them, and they had held a 'hearing' on the matter. The DoJ shows up, brushes it aside as a 'mistake' on the part of the whistleblower 'misunderstanding' things, the hearing concludes with those in the hearing patting themselves on the back for a job well done, and the whistleblower is fired and harassed to make an example out of him. And of course due to the 'sensitive nature' of the matter under discussion, not a word gets out to the public.

As multiple examples have shown, going the 'official route' accomplishes nothing but making a target out of the person doing so, and fixing nothing. You want to shine a light on misconduct, maybe get something done about it, you go to the public, or to the press.
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 8:41am

Even though Respondent believed that an agency of the Department of Justice was involved in illegal conduct, he did not refer the matter to higher authority within the Department.

I'm sorry, but the Attorney General is the highest authority in the Department of Justice. I think 5 sentences of separation isn't enough if you wanted people to forget that said higher authorities were the ones running the program in the first place.
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 9:25am

Another severely botched FBI raid
The raid was a complete travesty. From the Fine Article:
my wife was confronted by these people, some of whom -- and the neighbors said -- had guns drawn

... woke up two of my children in bed. They were awakened by strangers wearing guns.

Of course, from what I know of publicly reported procedures, most raids are botched at least that badly, and the government actually seems proud of itself for doing such a bad job.
[ link to this | view in thread ]
That One Guy (profile), 28 Jan 2016 @ 9:51am

'Botched' implies a mistake
Botched? Not at all. The USG has a penchant of making examples out of those that expose it's wrongdoings, and what better way to show what happens to whistleblowers than to employ a guns drawn raid against his family.

'Make the USG look bad and we won't just take it out on you, but those near and dear to you too.'

Brutal, barbaric, and highly effective intimidation tactic, nothing 'botched' about it.
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 9:59am

Re: Re: Just watch...
Not the politicians ...
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 10:02am

Re: 'Botched' implies a mistake
Fair point. I consider it a serious mistake to employ any agent who thinks that this raid was conducted properly. Their gun safety discipline alone is enough that I think they ought to be banned from field work. Their conduct after that does them no favours either...
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 10:30am

Things like this are what convinced Snowden to do what he did. People inside the NSA were treated the same way around the same time as this guy went to the press. They brought their issues to higher authorities and were shut down and had their homes raided and computers confiscated.

They just got their computers back in 2015. No charges were ever filed against them.
[ link to this | view in thread ]
That One Guy (profile), 28 Jan 2016 @ 10:36am

Re: Re: 'Botched' implies a mistake
In that I would agree, any officer or agent, police or government, who treats a gun as a tool of intimidation rather than a deadly weapon is not someone who should be employed or allowed to carry so much as a cap-gun.

Unfortunately many police and government agencies seem to be firmly of the belief that the best way to 'control' a situation is to wave guns in the faces of all those involved, and don't seem to see anything wrong with that practice, or consider that doing so has the very real possibility of escalating things even more than they were.
[ link to this | view in thread ]
Bees!, 28 Jan 2016 @ 11:23am

It should be noted, that this has a bit more teeth than one would expect. The pleading in the article is NOT a complaint by the DOJ, but rather one filed by the disciplinary counsel of the DC bar itself.

Lawyer discipline is very different from normal proceedings. I cannot speak for the specifics of DC as I am not barred there, but in FL (where I am barred) the general practice is that when the Bar receives an ethics complaint (and I'm not referring to the formal complaint filed in court, but rather the colloquial sense of a complaint) it forwards the matter to disciplinary groups locally throughout the state to do investigation. At this point, there is no formal complaint filed. These groups investigate and communicate with the attorney on the matter- asking documents, client ledgers, etc.- to determine if there is an ethical breach. In most situations, the investigation dies at that point.

If the team DOES find evidence of an ethical breach, it forwards its findings to the Bar itself, who then files a formal complaint with the state Supreme Court. The formal complaint is filed by the Bar itself as a prosecuting party, and signed by the ethics counsel, who acts as the prosecutor. At this point, a referee is assigned and the referee acts as the judge (and is usually in fact a judge), holding hearings to determine fact and liability (more or less a trial). At the end, the referee prepares a report and recommendation to be submitted to the state Supreme Court who then make their decision and either adopt the report and its suggestions, adopt parts and do their own thing, or ignore it entirely.

Now, again, I can't specify for certainty that DC's bar follows the same procedure. But if it does, Tamm might be facing some guns: the pleading in the article is direct from the bar's disciplinary counsel. So if DC follows FL's lead, this means the disciplinary case is further along than we think.
[ link to this | view in thread ]
trollificus (profile), 28 Jan 2016 @ 11:29am

Re: A ruling body that goes after people out of spite...
"...should be making people revolt instead of complacently taking it up the ass."

Amazing, isn't it? How can people be so naive, clueless...stupid?? I mean, they see this happening and instead of concluding the obvious, that it's the party in power, the president in office, and the permanent bureaucracy in DC, it must be a mysterious "someone running things behind the curtain."

Yep, pretty clueless "they" are, I'd say.
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 11:31am

Time and again, those whistle blowers to actually come forward have been shown to have attempted at some point in time to go the official route required in house. All cases to come to light in the media have shown this is nothing but a way used to identify those potential problem children before they get the info that could really make a department look bad.

As with the Wizard of Oz, there is someone behind the scenes pulling the strings. This isn't by accident. Congress has earned the low approval rate it has from the public with good reason. When you look at the proposed bills that come out to address privacy, responsibility, and accountability, nearly all are doomed to having any serious penalties erased out of the context before sending it on in the process of heading towards law.

Asking the head of a branch to straighten out it's wrong doing isn't going to work and never will as long as those who head these branches are the guilty or the ones doing the cover up. Going to the president who installed these heads of office would always been seen as a slight on the judgement and pick the president chose to put in the job and directly reflect on his own. Since perception is a huge part of approval, it will always be in their best interest to kill the leak, rather than address the issue. The only way out of that box is taking it public. There is no other way.
[ link to this | view in thread ]
Bees!, 28 Jan 2016 @ 11:37am

Re: Re:
[quote] I assume (don't know for sure) the Chief Judge is also a Presidential appointment that requires Congressional approval to take office.[/quote]

Almost. The FISC does not have its own judges, but rather the Chief Judge of the SCOTUS appoints current Article III district court judges to have limited time memberships on the court (in addition to their usual responsibilities).

Most courts and administrative tribunals have a chief judge within it, and FISC is no different. But the FISC refers to its chief as "presiding judge".

Since the presiding judge is an Article III judge in general by definition, yes - he was at one point in the past appointed by a sitting president. However, as noted above, actual appointments to the FISC itself are handled by the Chief Judge of SCOTUS.

So the presiding judge (who acts as the chief judge of FISC) is appointed by the Chief Judge of SCOTUS.
[ link to this | view in thread ]
trollificus (profile), 28 Jan 2016 @ 11:46am

Re: Lies, lies, and damn lies
Actually, Snowden was well aware of the fates of some whistleblowers whose unfortunate cases were of recent memory when he was deciding how to proceed. They were attacked, Government service careers ruined, etc., etc.

Look up Thomas Drake's story and see if that wouldn't scare you off even considering "proper channels".
[ link to this | view in thread ]
trollificus (profile), 28 Jan 2016 @ 12:03pm

Why, we just need to vote for a candidate who gives us hope that they'll change things!

Oh hell, I can't really be so partisan...because:
If you think the Dems are the good guys in matters like this, you're NOT part of the solution. If you think the answer is to put Republicans in office, you're NOT part of the solution (and a certified moe-ron, to boot).

We have been so sadly and badly misgoverned* for so long that there is no solution that involves either of the duopolistic, crony-kleptocratic parties we now have. *sigh*

*-that's misleading. If the goal were misgovernment, we should have to say it has been achieved very well.
[ link to this | view in thread ]
Anonymous Coward, 28 Jan 2016 @ 5:43pm

We the People
We must always remember that it is "We the People" who have made this mess. It is "We the People" who have condoned these actions and "We the People" who are the ones fundamentally responsible for these shenanigans that are committed by the government on behalf of "We the People".

"We the People" have the power to change the situation but, in general, "We the People" don't give a thought to this as "We the People" only want our bread and circuses.

How do you think Nero got away with what he did? Your current and previous presidents have used the exact same techniques that have bee so effective in the past.

As a nation, you have the a tremendous base in your constitution, yet you waste it. As a nation, you have the ability to keep control of your government and you do nothing with your power.

I come from a nation that effectively has no rights for the citizens, but interestingly enough, abuses that are allowed in your nation by your government are illegal here.
[ link to this | view in thread ]
OGquaker, 28 Jan 2016 @ 6:25pm

Re: Re: Re: No mistake here
Sitting on your ass all day pushing paper is the obvious alternative.
Waking up a family with deadly fear and brutal noise in the morning darkness & waving your gun around in children's faces (in full costume, granting you impunity) is a lot more fun, and takes the edge off Your wasted life.
[ link to this | view in thread ]
Anonymous Coward, 29 Jan 2016 @ 2:00am

Re:
blind to reality. the belief "it can't happen here" which interestingly most Germans thought that same way prior to the rise of nazi party.

It cannot happen to us so we will not guard against it.
[ link to this | view in thread ]
Anonymous Coward, 29 Jan 2016 @ 2:05am

Re: Another severely botched FBI raid
they did what they are being trained to do. Intimidate the populace through fear of dying. What could be terrifying than having armed men burst into your home screaming at you with guns pointed at you.

The mistaken belief that cowed people will not fight back against unjust rule.
[ link to this | view in thread ]
Anonymous Coward, 29 Jan 2016 @ 2:08am

Re:
Personally I think the goal is a totalitarian government that only allows basic human rights among the top few of the party and makes slaves of everyone else. why be billionaires in a free and wealthy society when you can be trillionaires is a dirt broke economy and where you have the rights of the kings of old over your new slaves.
[ link to this | view in thread ]