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Thomas Tamm, David Petraeus Cases Further Crystallize Double Standard Whistleblowers Face

Developments over the past week further crystallized how high-ranking officials escape accountability for their criminal acts in Washington while well-intentioned low-level government employees, including whistleblowers, face punishment for calling attention to illegal conduct and abuses of power.

In spite of the fact that former Justice Department lawyer Thomas Tamm is a respected whistleblower, who exposed warrantless wiretapping by President George W. Bush’s administration, the D.C. Bar is going after him with disciplinary proceedings. David Petraeus will face no additional actions by the Defense Department to hold him accountable for leaking information, and the State Department will continue to politicize the release of Hillary Clinton’s emails by holding back records until after key primaries.

Jesselyn Radack, a Justice Department whistleblower, a director of national security and human rights at ExposeFacts.org, and one of NSA whistleblower Edward Snowden’s attorneys, joins the show to discuss the D.C. Bar’s decision to go after Tamm. Radack compares the D.C. Bar’s action to the complaint she faced from the D.C. Bar after she became a Justice Department whistleblower.

Later in the interview, Radack responds to what was learned in a Washington Post report on the plea negotiations between David Petraeus’ lawyers and Justice Department prosecutors. Petraeus was concerned he would be embarrassed if former CIA officer John Kiriakou’s case was referenced in his plea, and his lawyers had the Justice Department remove mention from the statement of facts. He successfully protected himself from going to prison and losing his pension.

Finally, Radack addresses the continued scandal over Hillary Clinton’s emails, what she thinks should happen to Clinton and how the process of releasing the emails has become politicized by the State Department.

The podcast is available for download on iTunes. For a link to the episode (and also to download it as well), go here. Click on “go here” and a page will load with the audio file of the podcast. The file will automatically start playing so you can listen to the episode.

Also, below is a player for listening to the podcast. You can listen to the podcast this way by clicking on the player.

Below is a partial transcript of the interview with Jesselyn Radack.

GOSZTOLA: Why is the D.C. Bar investigating Thomas Tamm?

RADACK: The D.C. Bar, which most attorneys in Washington are members of, has taken it upon itself to act as a tool to retaliate against whistleblowers. In Tom Tamm’s, it very much has followed the trajectory of what I went through a number of years ago.

It’s quite unfortunate because it’s completely politicized, and it’s a pretextual investigation into Tamm. Tamm was the source, a source, for the New York Times Pulitzer Prize-winning warrantless wiretapping story. Obviously, hugely, in the public interest.

Basically, the allegation against him is that he complained to his superiors but not the right ones. He complained internally to her supervisor and to the deputy director of the Office of Intelligence Policy and Review. But now, the D.C. Bar is interpreting that as him just talking to a colleague rather than talking to the attorney general, which is crazy. People go through channels, and this is exactly why they get stuck.

Tamm made his revelation in 2004. He was subsequently under a federal criminal leak investigation. That investigation closed in 2011, and now in 2011 the Bar is picking up the slack. For me, this is very personal because I made whistleblower disclosures while I was also a Justice Department attorney, like Tamm. I made mine in 2002. I was also put under a federal criminal leak investigation, and then three weeks after that closed, I was referred to the Bar in D.C. based on a secret report to which I did not have access.

It was very Kafkaesque, and it was also a big career impediment. They’re trying to ruin his career. Basically, it shows how far the government will go to exact its pounds of flesh, and the Bar is a willing accomplice in a series of retaliatory measures that have taken place, which is a shame. But there are a lot of powerful people, who are active in the D.C. Bar, who are high-level government officials, and who are working for the government. But it’s really unfortunate that the office is still so politicized.

The complaint against me was pending for ten years before it got dismissed. With Tamm, he’s going to have to go through—I mean, he’s already been going through this since they started investigating him, the D.C. Bar, in 2009. So, he’s already been dealing with this for seven years. Now, it’s going to occupy a lot of his time.

He’s a public defender in Maryland, and, again, it’s hard enough to get your life back on track after being a whistleblower. But then, once you do, here comes the D.C. Bar to chase after you. So, it’s really unfortunate that they are acting as a proxy for the Justice Department and continuing a series of retaliatory steps against Thomas Tamm, who is a hero, who should get a medal for what he did.

He revealed Stellar Wind, one of the key surveillance programs, one that Snowden confirmed. And, again, the proof is in the pudding. The New York Times story won a Pulitzer Prize. So, yet again, you have like Thomas Drake, Bill Binney, Kirk Wiebe, Diane Roark, Ed Loomis—those are all N.S.A. employees and Thomas Tamm also, who had their homes raided as part of the search into whoever leaked this story about the government’s unconstitutional conduct. A court has ruled the program to be unconstitutional and not based on any law. Two courts have done that, the D.C. Circuit Court and Second Circuit Court of Appeals.

There is plenty of public evidence that Tamm was right to do what he did. And you’re sending a message that if you’re in the government you better not blow the whistle. If you are an attorney, you will lose your license.

GOSZTOLA: That’s what I wanted to say. The takeaway that I have from looking at the complaint against Tamm is essentially what he was sharing with the public was attorney-client privileged information in the eyes of the D.C. Bar, and he was wrong to tell us that illegal surveillance was going on. And, in fact, it was better for him if he had kept it secret and maybe not done much of anything with the information at all. Is that how you read the D.C. Bar’s complaint?

RADACK: Yes. In fact, they don’t even say that it was attorney-client privileged information. They say that he revealed “secrets” and “confidences.” And there’s something that’s called the crime-fraud exception that allows you to do just that if there is a crime being committed, and one of the superiors he went to told him, yeah, I’m pretty sure this is illegal, which is amazing.

These are not rules etched in stone about how you blow the whistle internally at the Justice Department. Obviously, going after people, like me, like Tamm, is to send message to people that you can lose your career, lose your license. It will render you unemployed and unemployable, because it will increase the malpractice liability insurance if any place will hire you—just being under investigation, even absent a finding of misconduct.

The D.C. Bar, it was a Sword of Damocles hanging over my head for ten years, and the only reason I ended up working was because now-Congressman Alan Grayson was willing to hire me and was brave enough to make that decision and willing to incur any costs. That’s not true of most people.

GOSZTOLA: To be clear, there is a process here. Someone files a complaint with the D.C. Bar. Do those people have to be part of the D.C. Bar or how do those complaints come to the D.C. Bar?

RADACK: Normally, anyone can file a complaint with the D.C. Bar. That’s the way this normally works. But here it was sui generis, like the D.C. Bar read something in the news and decided to take it upon itself to open an investigation based on something it read in the news. Which I believe it was an article. Tamm was being still harassed in the criminal case that he finally just decided to out himself and say it was me. I did it, and he did so in an amazing Newsweek cover story. Apparently, they read about it somewhere. They said they read about it and took it upon themselves to start an investigation, which I’ve never heard of that happening before.

GOSZTOLA: So, this complaint is a number of years in the making?

RADACK: Yes, apparently they started investigating him in 2009, but they wanted to let the Department of Justice process unfold, and the charges against Tamm in the pretextual criminal investigation were dropped in 2011.

GOSZTOLA: This is the thing I’m trying to pull out here in the interview is there’s such this space of time between 2011 and now, and of course, one of the things I highlighted this week in my coverage was how Tamm was certain this ordeal was over. I suppose it should be emphasized that once you’re a whistleblower there’s no statute of limitations on government harassment of you or harassment from the establishment.

RADACK: That’s absolutely true. For me, I had blown the whistle in 2002, and again the Bar complaint was not dropped until 2013. As soon as one thing ended, another thing began. I get put on the No Fly List. I get put under criminal investigation, but they can’t tell me for what. When that ends, the Bar. And, yeah, it’s this continuous retaliation, and literally trying to ruin you personally and professionally. It’s brutal, and it’s a complete abuse of power, blatant retaliation against a whistleblower.

I should mention there are probably a hundred different attorneys, including federal judge Jay Bybee and John Yoo, who were found to have engaged in deliberate misconduct, who the Department of Justice did not refer for any Bar disciplinary action. And there are plenty of others, who should be referred to the Bar. People who committed Bush war crimes, people who were architects of policies that were against the law.

Those are the people who should be disbarred, and it amazes that the Bar says we have to continue this case because it is a matter of public safety. Where have you been for the last twelve years because Tom Tamm has been out in the world practicing law the last twelve years? If he was such a threat, you would have gotten off the street as soon as possible and yanked his license immediately. So, it really gives the lie to the idea that he is some sort of public safety concern.

GOSZTOLA: I’m glad you mentioned that because it is what I was going to say next about someone like Bybee or even Yoo. There was a complaint referred against Yoo by Representative Jerrold Nadler to D.C. Bar. They have all of these complaints against Bush administration lawyers, and we can say for certain those have gone nowhere.

RADACK: Right, they’ve gone nowhere. I have not heard of a single Bush administration lawyer, who used complete pretzel legal logic to authorize things that are against both national and international law, including torture, including waterboarding as a torture technique, including rendition. There are probably a hundred lawyers I can think of in the Justice Department, the Department of Defense, the State Department, and the CIA, who are definitely in major violation of a number of ethics rules in the D.C. Bar.

Ironically, during the time that I was under investigation by the D.C. Bar, I was elected by its Board of Governors to serve on the D.C. Bar Legal Ethics Committee from 2005-2007, while I was still being investigated for being this big threat to ethics and violating legal ethics.

For the entire interview with Jesselyn Radack, listen here.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."