The Justice Department lawyer who disclosed the secret and warrantless surveillance program then-President George W. Bush adopted in the immediate aftermath of the Sept. 11 terror attacks was publicly censured Thursday by a federal appeals court for breaching legal ethics. As a Lawyer for the Justice Department's Intelligence Policy and Review unit, Thomas Tamm violated professional conduct rules for disclosing to The New York Times "confidences" and "secrets," the US Court of Appeals for the District of Columbia Circuit concluded. (PDF)

As part of his Justice Department duties, Tamm was tasked with requesting electronic surveillance warrants from the secret Foreign Intelligence Surveillance Court. The District of Columbia Court of Appeals Board of Professional Responsibility said Tamm became aware in 2004 that certain applications to that FISA Court for national security surveillance authority "were given special treatment" and he leaked details of the program to the newspaper.

Tamm, who could have been disbarred, but now can continue practicing law as a Maryland state public defender (he resigned from the Justice Department in 2006), said he learned that "these applications derived from special intelligence obtained not pursuant to prior applications to the Court, but from an extra-judicial source referred to as 'the program.'" After digging into it, he "concluded that it was probably illegal as it was not court-supervised."

Under the warrantless surveillance program, which The New York Times won a Pulitzer Prize for disclosing in December 2005, the NSA was scooping up the nation's electronic communications and eavesdropping on Americans' telephone calls in bulk. Litigation surrounding the snooping brought by the Electronic Frontier Foundation continues to this day, and it was bolstered by the disclosures of Edward Snowden, the National Security Agency whistleblower. Congress has adopted legislation legalizing the program and immunized the nation's telecoms from being sued for participating in it.

In 2011, the government declined to prosecute Tamm. In 2009, he won the "Ridenhour Prize for Truth-Telling." Two years before, the FBI raided his house and unsuccessfully pressured him to plead guilty.

Tamm's lawyer, Paul Kemp, told The National Law Journal that they were “just glad this nightmare is over for him and his family.”

“We’re still sorry that they felt the need to bring the petition in the first place, but the best news is that it’s over, and Tom is a hero for having disclosed what he did in the fashion in which he did it,” Kemp added

The court's public censure against Tamm essentially has no legal consequences, but the proceedings could have resulted in him losing his law license to practice in the District of Columbia. The outcome was expected—in March, Tamm agreed (PDF) to the public censure, which needed approval from the US Court of Appeals for the District of Columbia Circuit.

The appellate court said there were several factors mitigating the ethics breach. Among them, the court said he cooperated with the disciplinary proceedings, that his intent was "to further government compliance with the law," and that he "did not receive any financial compensation from disclosure of the information."

A District of Columbia bar review panel opened Tamm's case in 2009, and the charges were lodged in December. The delay was attributed to a backlog of cases.