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Justice's Vendetta Against a Whistleblower: Six Questions for Jesselyn Radack

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Message Scott Horton
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?

Jesselyn Radack

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 Afghanistanthe ones I had advised againstcould be used against him at trialwhich 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.

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Scott Horton is a contributor to Harper's Magazine and writes No Comment for this website, A New York attorney known for his work in emerging markets and international law, especially human rights law and the law of armed conflict, (more...)
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