Intellectual Property Law

The news that a former justice department prosecutor was the original source for the NY Times 2005 story on the NSA's warrantless wiretapping has led to some divided opinions about whether or not Thomas Tamm should be prosecuted for revealing classified information.

Some bloggers think Tamm is a patriot and are encouraging readers to contribute to his defense fund. A blogger at Empty Wheel writes:

Irrespective of his precise personal motivations, Tom Tamm has done the Constitution, the Fourth Amendment, the rule of law and all of us a favor by exposing the rank lawlessness of the elected leaders of this country. If you see fit, send him a few bucks to lighten the load he has taken on.

I don't know about you, but if the wingnuts can pony up hundreds of thousands for the traitor Scooter Libby, I am sure as heck going to ante up a little to thank Tom Tamm for doing the right thing.

Others feel Tamm should be punished for breaking the law and violating an oath he took to preserve classified information. A commenter on the Volokh Conspiracy blog writes:

I have no sympathy for this guy. If you are entrusted with classified information, particularly in a national security setting, it is not up to YOU to decide that you disagree with the government and want to spill your guts to a newspaper. And I don't give a damn what justification you think you have.

There are plenty of other ways to blow the whistle.

Some say whistleblowers can have legitimate reasons for revealing information about probable illegal activity by government officials but find fault with Tamm's motives because he admitted to being driven not just by legal issues but by political ones as well -- he conceded to Newsweek that he was angry with the Bush administration for zealously pushing prosecutors to seek the death penalty in criminal cases.

Others feel Tamm should be prosecuted because he took his concerns to the media rather than taking them to a congressional leader, the Justice Department inspector general or to one of the judges in the Foreign Intelligence Surveillance Court. Although Tamm told Newsweek he did approach a congressional staffer that he knew on the Senate Judicial Committee, the staffer rebuffed him because she was wary of hearing about a classified project and urged him to drop the topic. Colleagues in his Justice Department office also declined to discuss the matter with him.

Washington Monthly blogger Hilary Bok says although whistleblowers should not as a matter of course "freelance" out classified information, there are exceptions when the system put in place to monitor wrongdoing has itself been subverted.

It is generally better for all concerned if whistle-blowers operate within the system, and it is dangerous when people freelance. But there's one big exception to this rule: when the system has itself been corrupted. When you're operating within a system in which whistle-blowers' concerns are not addressed -- where the likelihood that any complaint you make within the system will be addressed is near zero, while the likelihood that you will be targeted for reprisals is high -- then no sane person who is motivated by a desire to have his or her concern addressed will work within that system.

Tell us what you think.

See also:

• New York Times' NSA Whistleblower Reveals Himself