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Harper's Magazine: Justice’s Vendetta Against a Whistleblower, Six Questions for Jesselyn Radack
February 23, 2010
The current controversy surrounding the velvet glove treatment the Justice Department gave to torture memo authors John Yoo, Jay Bybee, and Steven Bradbury led me to an interview with Jesselyn Radack, a former Justice Department lawyer who “did the right thing.” Not only did she dispense indubitably accurate advice, she caught the Justice Department in the middle of acts of what might have been criminal obstruction and insisted that they be corrected. What happened? Radack found herself facing trumped up criminal charges, had frivolous complaints filed against her before two bar associations, and was subjected to repeated petty harassment, including being placed on the “No-Fly” List. I put six questions to Jesselyn Radack about her nightmarish experience in the hands of so-called Justice Department ethics staffers.
1. When an American citizen, John Walker Lindh, was captured in northern Afghanistan, FBI agents sought guidance on whether and how he could be questioned and the request was sent to you for an opinion. Can you explain what your job was, and what advice you wound up giving?
I was a legal advisor to the Justice Department on matters of ethics. On December 7, 2001, I fielded a call from a Criminal Division attorney named John DePue. He wanted to know about the ethical propriety of interrogating “American Taliban” John Walker Lindh without a lawyer being present. DePue told me unambiguously that Lindh’s father had retained counsel for his son. I advised him that Lindh should not be questioned without his lawyer.
2. Was your advice followed?
I gave my advice on a Friday. Over the weekend, the FBI interrogated Lindh anyway. DePue called back on Monday asking what to do now. I advised that the interview might have to be sealed and used only for intelligence-gathering or national security purposes, not criminal prosecution. Again, my advice was ignored.
Three weeks later, on January 15, 2002, then-Attorney General John Ashcroft announced that a criminal complaint was being filed against Lindh. “The subject here is entitled to choose his own lawyer,” Ashcroft said, “and to our knowledge, has not chosen a lawyer at this time.” I knew that wasn’t true.
Three weeks later, Ashcroft announced Lindh’s indictment, saying Lindh’s rights “have been carefully, scrupulously honored.” Again, I knew that wasn’t true.
3. Later, when the Bush Administration decided to try Lindh on criminal charges in a federal court in Virginia, the judge issued a discovery order. How did you find out about it? What did you learn about the Justice Department’s compliance with discovery requests? What did you do about that?
On March 7, I inadvertently learned that the judge presiding over the Lindh case had ordered that all Justice Department correspondence related to Lindh’s interrogation be submitted to the court. Such orders routinely are disseminated to everyone with even a remote connection to the case in question, but I heard about it only because the Lindh prosecutor contacted me directly.
There was more. The prosecutor said he had only two of my e-mails. I knew I had written more than a dozen. When I went to check the hard copy file, the e-mails containing my assessment that the FBI had committed an ethical violation in Lindh’s interrogation were missing.
With the help of technical support, I resurrected the missing e-mails from my computer archives. I documented and included them in a memo to my boss and took home a copy for safekeeping in case they “disappeared” again. Then I resigned.
4. Once the “disappeared” e-mails resurfaced, what did the Justice Department do to you?
As the prosecution proceeded rapidly, and the Justice Department continued to claim that it never believed at the time of his interrogation that Lindh had a lawyer, I disclosed the e-mails to Newsweek in accordance with the Whistleblower Protection Act and the crime-fraud exception to confidentiality.
A few weeks later, the Lindh case ended in a surprise plea bargain on the eve of a suppression hearing regarding whether statements Lindh made while in custody in Afghanistan–the ones I had advised against–could be used against him at trial–which I also advised against.
Afterwards, I was forced out of my job, fired from my subsequent private sector job at the government’s behest, placed under criminal investigation without any charges ever being brought, referred for disciplinary action to the state bars where I’m licensed as a lawyer, and put on the “No-Fly” List.
5. I understand the Maryland ethics board concluded that the Justice Department’s accusations were meritless in 2005, but now, seven years later, the same charges are still pending with the D.C. Bar Counsel—with which the Justice Department claims a “special relationship.” What’s going on there?
You would have to ask Bar Counsel Wallace E. “Gene” Shipp, Jr. He personally took over the handling of my case a year and a half ago. The Maryland Bar dismissed the charges against me in 2005. My referral to the D.C. Bar (the same Bar to which Yoo and Bybee would have been referred) is still pending after almost seven years. A number of legal scholars, including Jim Moliterno, have written about politically-motivated bar discipline. The referral was certainly retaliatory. I am disappointed, though, that the D.C. Bar would allow itself to be used as a tool of the Bush Justice Department.
Ironically, from 2005-07, I was elected by the D.C. Bar Board of Governors to serve on the D.C. Bar Legal Ethics Committee, which is separate from the disciplinary arm of the bar. Obviously, the right hand doesn’t speak to the left.
6. How can your case be compared with the cases of John Yoo, Jay Bybee, and Steven Bradbury?
I am now the only Justice Department attorney that OPR referred for bar disciplinary action stemming from advice I gave in a terrorism case–and my advice was to permit an American terrorism suspect to have counsel.
Contrary to OPR’s own policies, it hastily and vindictively forwarded my case to the state bars in which I’m licensed, absent a finding of “professional misconduct,” much less a finding of “intentional misconduct or reckless disregard of an applicable standard or obligation”–the benchmark that OPR uses. Instead, OPR referred me to the bar disciplinary authorities for “possible misconduct.” Moreover, I was referred based on a secret report to which I did not have access. Finally, I was referred for conduct I engaged in as a private citizen, not as a public servant, after I had left the employ of the Justice Department.
To the extent that OPR holds itself out as an internal watchdog of the Justice Department, that is belied by the fact that David Margolis, a single senior career attorney who has been with the Department for more than 40 years, has the unilateral power to override anything OPR does. Like most career bureaucrats, he obviously has a vested institutional interest in legitimizing Department conduct. Margolis’s take-away message is that it’s okay to ignore the rules of professional conduct if you’re scared or in a hurry, failing to realize, perhaps because he’s a government attorney, that stress and deadlines are the status quo for most lawyers.
Although entirely predictable, the Justice Department’s decision to give Yoo and his cohorts a pass should offend all lawyers. It is now incumbent upon the legal profession, which is entirely self-regulated, to provide oversight and accountability within its own ranks and to the public.