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Protecting Whistleblowers since 1977

The Verge: Edward Snowden's Lawyer Will Keep Your Secrets, Jesselyn Radack is a Whistleblower's Best Defense

June 24, 2014
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By RUSSELL BRANDOM

In a Jesuit church hall at Georgetown University in April, a crowd gathers to listen to enemies of the state. The law school has invited half a dozen whistleblowers to speak, including the headliner, Daniel Ellsberg. In 1971, Ellsberg leaked The New York Times a copy of a secret Department of Defense war assessment, documents that came to be known as the Pentagon Papers. Seated in a semicircle behind him are whistleblowers formerly of nearly every other government agency with secrets to keep: the NSA, the CIA, the FBI, the Department of Justice. The audience is some professors, but mostly a recognizable array of earnest college kids: pre-law students, Ron Paul supporters, members of the feminist group Code Pink. Frescoed on the wall behind them, there’s a trio of beatific female figures labeled as Faith, Morality, and Patriotism.

Edward Snowden is on the cover of the May issue of Vanity Fair, and the crowd is humming about it. Ellsberg reads a Snowden quote from the story: “There’s a limit to the amount of incivility and inequality and inhumanity that each individual can tolerate. I crossed that line.” Ellsberg likes Snowden, but has a problem with that idea. “Humans have this self image: ‘There’s a line that I won’t cross’” he says. “What I’ve learned is that most officials, my colleagues, people in Congress, never do find a level of injustice that would lead them to cross the line … You have to be willing to be called names like traitor.”

Most everyone on the panel has been called that name. Ellsberg battled with prosecutors for years while the government tapped his phones and raided his psychiatrist’s office. Thomas Drake, sitting behind him, had his house raided and nearly went to prison for possessing classified documents. Another whistleblower, John Kiriakou, comes up in the panel’s conversation. He can’t be here tonight, as he’s serving time in federal prison in Loretto, Pennsylvania. Kiriakou worked for the CIA, and was one of the first government officials to publicly reveal that torture was being used in US interrogations. In 2012, he was convicted of confirming the name of a covert operative off the record to a Times reporter and sentenced to 30 months. His wife sits in the audience, looking on.

Kiriakou’s lawyer is here too. Jesselyn Radack sits on the right side of the stage with a black dress and unruly blonde hair, a mic pack clipped to the top of one of her calf-high leather boots. She’s here as Kirakou’s representative, but also represents Edward Snowden and Thomas Drake, and was once a whistleblower herself. When a Code Pinker from the audience asks what students like her can do to help Kirakou and those like him, Radack breaks into a friendly stump speech, her trial lawyer’s insistence softened by a slight Maryland accent. “Call Congress. It does matter to them,” she says. “Request clemency for John.” Her voice softens and begins to break. “He’s been in jail long enough.”

After the Q&A session, everyone is ushered into a hallway between classrooms where food and wine are waiting. The crowd thins out, and Radack trades her boots for a pair of pink New Balance sneakers. She starts plucking panelists out of the crowd for a photo. It’s the first time the whole group — Ray McGovern from the CIA, Coleen Rowley from the FBI, Drake from the NSA, and Radack herself — has been together since October, when they all visited Snowden in Moscow for a kind of whistleblower congress. “I don’t think I got a single picture,” she says, pulling McGovern out of his conversation. They find someone to man the camera and then gather into the frame, bunched together like in a class photo. Snowden, of course, is missing.

The next morning, Jesselyn Radack is in her K Street office early. She works as national security and human rights director for the Government Accountability Project, a kind of nonprofit clearinghouse for whistleblowers. Her program focuses on whistleblowers from the secret side of the government, which means she spends much of her time dealing with surveillance and torture. She’s been here six years, and the office is thoroughly lived-in. There’s a picture of her husband and three kids behind the desk, as well as a birthday card with two check marks: Kick Ass and Take Names. (Both are checked.) Orchids grow in the corner next to a trophy paddle from the Maine People’s Alliance, awarded for "her work in truth-telling." The secrecy of Radack’s work with Snowden requires two laptops beside each other: one standard Windows, and another running an encryption setup that she asks me not to describe in detail. There’s no Wi-Fi anywhere in the office; it’s too hard to secure. "I joke that I use drug dealer tactics," she says. That means burner phones, paying in cash, meeting in person. "It’s a terrible way to work as an attorney, but you have to."

Radack first adopted the precautions when she took on Snowden as a client. He was already in Moscow when they met. Snowden had recently fled Hong Kong, hoping to stay one step ahead of the US government. Julian Assange introduced them, figuring Snowden needed all the help he could get. Together with Ben Wizner from the ACLU, Radack has pushed Snowden’s asylum claims forward while pleading his case in the media. In the months since, Snowden has given statements to the European parliament, German Bundestag, at South by Southwest, and at the TED conference. "I thought it was very important to show that he was not just living some isolated life in Russia," Radack says. "It’s also to show that our Congress in the US has not deigned to hear from him."

"THERE’S A LIMIT TO THE AMOUNT OF INCIVILITY AND INEQUALITY AND INHUMANITY THAT EACH INDIVIDUAL CAN TOLERATE."

It’s still not easy visiting Snowden, although Radack has made the trip twice now. The first visit came last October, with Drake and others in tow. The group was presenting him with the Sam Adams award, an prize established by former CIA officials "to reward intelligence officials who demonstrated a commitment to truth and integrity, no matter the consequences." Just getting there took a fair amount of tradecraft. A few months earlier, the Bolivian president’s plane had been forced to land on suspicions that he was smuggling Snowden out of the country. Some worried that, if the government knew who they were flying to meet, they would be stopped at the airport. Radack told her children they couldn’t use the word "Moscow" in the house, or tell anyone outside the family that she was even taking a trip.

Once the group arrived safely in Moscow, they ran into Russian surveillance. "We would go into a public part of the hotel and there would be people there, the same woman there the whole time, taking pictures," she says. "You know you’re being monitored." When she returned to the US, now publicly aligned with Snowden, Radack had to worry about the same monitoring at home. As the government puzzled over Snowden’s next move, his lawyer was an obvious surveillance target. "I try really hard not to be paranoid," she says. "I hope the government’s not surveilling me because I live a pretty staid life."

She no longer brings work home for fear of putting her family in danger, but on at least one occasion last year, work followed her home on its own. Leaving the house in the morning, she spotted a black van idling on the street outside. She walked up to its window and asked the men inside if they needed anything. They said they were there for her neighbor, but were stumped when she asked for the neighbor’s name. "It’s about intimidation," she says. "It doesn’t matter if they’re surveilling you all the time, as long as you think they might be."

Radack grew up in and around Washington, DC as a "typical first-child, parent-pleaser, perfect grades, do-gooder." She says she was attuned to life’s unfairness even then, and drawn early to a career where she could decide what was right and what was wrong. She was diagnosed with multiple sclerosis in college, but it didn’t slow her down. ("I get fatigued physically by MS, but mentally I’m like brbrbrbr!" she told me, making a kind of caffeinated bird call.) She moved from Brown to Yale Law School, then to the Justice Department Honors program in 1995. "I always wanted to work there," she says. "I thought the government wears a white hat, you always get to be on the right side of every issue."

Six years later, that same enthusiasm for justice would drive her away from the department. In 2001, she got a call from the FBI about John Walker Lindh, the American citizen who had been captured fighting alongside the Taliban. The FBI wanted to know if they could interrogate him for information as they would a member of an enemy nation’s military detained during war. But Lindh is an American citizen, making the situation, and Radack’s response, more nuanced. Lindh’s parents had hired a lawyer in San Francisco to represent their son, but Lindh was still in Afghanistan, and no visitors were allowed on the base where he was being held. Radack said they could question him for intelligence purposes, but without his lawyer, anything he said would be inadmissible in court. He was interrogated anyway. As the case moved to trial, Attorney General John Ashcroft pushed to have him tried for treason with the possibility of death penalty upon conviction. More worrying, for Radack, the government was claiming Lindh had no lawyer, and using statements from the interrogation against him in court.

During the trial, the government was required to present all correspondence related to Lindh’s interrogation, an order that included Radack’s advisory emails discussing his lawyer. But when the lead prosecutor showed Radack the file to verify that it was complete, she saw that the bulk of her emails were missing. Suddenly, there was no record of her conversations, no record that the Justice Department had known Lindh had a lawyer. All she could think was that someone had deliberately kept them out of evidence — a serious crime that, under other circumstances, would get a prosecutor fired. Keenly aware of the stakes, Radack started to worry she would lose her job if she kept up the fight. Her MS meant she couldn’t afford any break in health insurance and she was newly pregnant with her second child.

Still, Radack felt she had no choice. "I couldn’t live with the idea that someone might be killed because I didn’t speak up," she says. She dug up the missing emails, sent them to her superiors and resigned from the Justice Department. Despite her protest, the DOJ failed to reverse its stance. She tried to bring submit the emails directly to the court, but now that she was outside the Justice Department, a legal nuance prevented her from entering it into evidence. Out of options, Radack put in a call to a Newsweek reporter and faxed him the emails proving the department knew about Lindh’s lawyer. The Newsweek story made headlines, and a few months later, the terrorism charges in the Lindh case were dropped, leaving just two technical charges with a maximum sentence 20 years in prison. But as Lindh’s case settled down, Radack’s troubles were just beginning. "I told her, they’re going to retaliate against you," says Bruce Fein, Radack’s lawyer during the period. "They need to crush someone to make an example because otherwise they’re going to have half the Justice Department doing this."

"I COULDN'T LIVE WITH THE IDEA THAT SOMEONE MIGHT BE KILLED BECAUSE I DIDN'T SPEAK UP."

He was right. The DOJ’s inspector general suspected Radack of violating attorney-client privilege by revealing the legal advice she gave the FBI, and began to build a case against her. Radack found a new job as an affordable-housing attorney, but after the inspector general told her bosses about the investigation, the firm decided to put her on indefinite leave. She found herself stopped for extra screenings at airports and discovered she was now a "selectee" on the no-fly list. One day, she got a call from her office telling her agents were gearing up to arrest her that night. The tip turned out to be wrong but it took a toll, sending her into a panic and aggravating her MS. Her pregnancy miscarried that night. "It’s such a horrible thing, even though everything worked out," Radack says. "Just thinking about it takes you back to a really painful time."

The trauma of a leak investigation is hard to describe. Sometimes it starts with a SWAT team or an indictment, but often it’s just a polite man in a suit who tells you he’s going to send you to prison for the rest of your life. Just not now. And maybe not any time soon. The pressure starts. You tell your family you did nothing wrong, but they start to doubt you. The government is saying you’re a traitor; there must be some reason. Why would there be so much pressure if you did nothing wrong? You lose another job, run out of money for lawyers, money for insurance. Still no trial, just investigations, depositions, motion after motion. Years go by. Radack has had clients call on the edge of suicide. "I tell them, you need to call your psychiatrist," Radack says. "I make sure they get help."

Radack says her family got her through the worst of the investigation, although she knows not everyone is so lucky. After a few years of unemployment following the Lindh trial, she found work with Alan Grayson — a Florida lawyer who went on to become a Democratic congressman — representing defense contractors in a False Claims Act suit. She then moved to her current position at Government Accountability Project, to help others through the same ordeal she’d faced. "It didn’t dawn on me that I was a whistleblower until [my lawyer told me]," Radack says. "And often that epiphany will take place here at GAP." Almost immediately, she found herself taking on the fiercely guarded secrecy of the NSA, as employees alienated by the agency’s post-9/11 turn began to speak out. They were known as the Thinthread group, four leakers responsible for most of the public’s knowledge of the NSA, pre-Snowden. They all sought refuge with Radack.

Her most public fight turned out to be over the most senior member of the Thinthread group, Thomas Drake. A manager at the NSA, Drake raised doubts about the Trailblazer warrantless wiretapping program in a 2002 report filed with the Pentagon’s inspector general, just a few months after Radack’s leak to Newsweek. When in 2005, The New York Times published a piece about warrantless surveillance, Drake’s report put him on the NSA’s radar as a potential leaker, and he was a prime suspect for tipping off the reporter. In November of 2007, a SWAT team raided his home, turning up a cache of unclassified documents but nothing that connected him with the Times leak. It took years to find a case, but the government did eventually. Some of the documents in Drake’s apartment were classified after the fact as part of an NSA review, and in April of 2010, he was charged with possession of classified material.

"I had everybody that I knew turn their back on me," Drake told me when I met him at a hotel bar in Bethesda, Maryland in April. "The everyday reality was the crushing possibility that I’d end up in prison no matter what I did." By the time the indictment came down, his savings were long gone, and he was forced to trade his private lawyer for a public defender. When he saw an editorial Radack had written about his case in the LA Times, he reached out to her. They met at a coffee shop and he signed on as a pro-bono client the same day. "I’ve been extraordinarily lucky," Drake says. "She is the only other person, still to this day, who understands exactly what I went through."

"THE EVERYDAY REALITY WAS THE CRUSHING POSSIBILITY THAT I'D END UP IN PRISON NO MATTER WHAT I DID."

When the case reached court the next year, the charges against Drake collapsed. Radack successfully filed a brief that established Drake as a whistleblower, an official designation giving him a host of legal protections. Ultimately he was convicted of exceeding the authorized use of a government computer, a misdemeanor charge with no prison time. "It was just a huge victory," Drake says. "I had gone through hell for five years and she was at the center of my defense for the last 13 months of it."

Though Drake won his case, Trailblazer has gone on unchanged and he’ll never work in government again. What was it all for? If you ask Drake, he’ll tell you about the oath of office that national security workers recite every time they take a new position, vowing to protect and defend the constitution from "all enemies, foreign and domestic." "I was in government," he says. "I took that oath four times. And if that oath doesn’t matter, then America doesn’t matter."

For Radack, the fight is about something simpler. Her clients are all underdogs, sometimes risking freedom and safety on a point of principle. They come to her with doubts, wondering if they’ve done the right thing, and she leaves them certain that they have. That unwavering attachment to truth is one of the reasons she’s so good on panels and on TV. For her, it’s never more complicated than right and wrong.

A few weeks after her talk at Georgetown, Radack is running late for our meeting. We’d planned to chat over lunch, but she has to appear on Fox News at the last minute. That means she needs her "Superman transformation," grabbing the purple shirt and blazer that she keeps stashed in her office. The studio handles the rest, giving her HD-ready makeup and straightening her hair. "The media trainers told me, straight hair is serious hair." To save time, the hairstylist focused most of her energies on the front, but you can see a tuft of curls that’s survived in the back.

It’s late May, just a few days before NBC airs its big Snowden interview, which means she’s already prepping for another cycle of talking head appearances. She knows the gist of the interview from chatting with Snowden, but won’t see the final footage until it airs. Of course, there will be another round of questions from pundits about why he’s still in Russia. By now, Radack is used to answering them. "There are just not that many countries on the planet where he can really be safe right now," she says. "There’s Germany. Brazil would be a possibility maybe. But again, in terms of just pure safety, Russia is the safest place for him for now." Since the Espionage Act doesn’t make allowances for whistleblowing, returning to the US may never be an option.

For now, Snowden will have to rely on a shift in public opinion. President Obama has been hostile to any mention of Snowden as a whistleblower, but other public figures have taken a softer line. In April, Bill Clinton called Snowden an "imperfect messenger" who was starting an important conversation. How long before a standing president is willing to say the same? Radack believes justice will win out, that the government will come around with time — but she knows it won’t happen soon. "I’m very clear with Ed," she says. "We are not talking about a one- or two-year resolution. It could be a decade before things significantly change for you. Because people have to calm the fuck down. That could take a long time."

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