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Justice and the whistleblower

One whistleblower suffers the consequences of her actions From the Summer 2003 issue of The News Media & The Law,…

One whistleblower suffers the consequences of her actions

From the Summer 2003 issue of The News Media & The Law, page 4.

By Gregg Leslie

Jesselyn Radack was swept into the John Walker Lindh case in a way that changed her life dramatically.

As an attorney with the Justice Department whose job was to answer prosecutors’ ethics questions, she weighed in on the controversy over whether Lindh, the “American Taliban” captured during fighting in Afghanistan, could be interrogated without an attorney, even though Justice officials knew Lindh’s father had hired one. When they ignored her advice and the FBI interrogated him — and then did not pass her warnings on to a judge looking into the matter — she became a whistleblower, which ultimately cost her her job and has left her under a cloud of suspicion as a criminal investigation drags on.

Radack’s case illustrates many of the problems confronting whistleblowers, but it also points out a troubling lesson: The government can sometimes simply ignore a whistleblower’s allegations, even intimidate the whistleblower, and never really be made to answer for its actions.

Radack says she thought she was helping to set the record straight. Instead, she became the focus of a federal investigation in which, she says, investigators pushed to get her removed from a job with a law firm that she joined after effectively being forced out of the Justice Department.

The coverup Radack complained about was never investigated, and went almost unmentioned by Justice even under questioning from Congress. The head of the division responsible for the Lindh case, who was recently confirmed for a lifetime appointment as a federal appellate judge, failed to produce any answers — even in response to pointed questions from Sen. Ted Kennedy (D-Mass.) as to why the information in the Lindh case was not turned over and whether there had been official retaliation against Radack.

Radack’s story began in December 2001 when, while working as an attorney in the Professional Responsibility Advisory Office, she received an e-mail message from John De Pue, a counterterrorism prosecutor who was working on the Lindh case. Lindh had just been captured in Afghanistan, and the prosecutor was wondering whether the FBI could legally question him. Radack discussed the issue with a superior and responded, “We don’t think you can have the FBI agent question Walker. It would be a pre-indictment, custodial overt interview, which is not authorized by law.”

A few days later, Radack learned that Lindh had been interrogated anyway. She told De Pue that the confession obtained might have to be sealed and could not be used in a criminal prosecution. But on Jan. 15, 2002, when Attorney General John Ashcroft announced Lindh’s indictment, he also said that the FBI’s interrogation was legal because Lindh had waived his right to an attorney. Two weeks later, Radack was given what she describes as a “blistering” performance review that severely questioned her legal judgment.

In March 2002, Radack learned that only two of more than a dozen e-mail messages from her had been turned over to the federal judge in the Lindh case, who had demanded all correspondence on the Lindh interrogation. Neither of the messages that were turned over included her comments that the interrogation had been improper. After checking the department’s official archived file, she found that most of the messages she wrote had been removed. Radack was able to recover the missing messages from a backup system, which she presented to her supervisor, Claudia Flynn. Radack offered to send them on to prosecutors, but Flynn told her not to, Radack says.

A few months later, the e-mail messages, obtained by reporter Michael Isikoff from an anonymous source, got their first public airing in the pages of Newsweek. Radack admits she talked to Isikoff, but won’t discuss whether she gave him any materials. An investigation into the disclosure was immediately launched by the department’s inspector general. Ron Powell, an investigator with that office, contacted Radack, who by that time was at a private law firm after leaving Justice in late March 2002.

It is when Radack declined to talk to Powell that the investigator turned up the heat. Radack says Powell called the firm, Hawkins, Delafield & Wood, and told at least one employee that Radack was being investigated for criminal acts. Powell then filled the firm’s managers in on his investigation, and said that Radack was refusing to cooperate. Powell questioned other lawyers at the Hawkins firm and wanted to see the firm’s fax, e-mail and phone records. The firm thought the request was too broad, but after Powell narrowed it to contacts with Newsweek phone numbers, the firm complied. The law firm found that a number of phone calls and faxed messages had been placed to Isikoff from Radack’s phone; it then suspended her when she refused to sign a statement swearing she was not Isikoff’s source.

Powell referred calls for comment to Deputy Inspector General Paul Martin, who said the office could not comment on ongoing investigations.

The Newsweek article drew little journalistic interest at the time, until Jane Mayer investigated further for The New Yorker. In her March 10, 2003, article examining the broader issue of why the case against the “American Taliban” ended with a plea bargain on relatively minor charges, Mayer was the first to report on the investigation of Radack and the department’s contacts with her law firm employer.

But the unanswered question underlying the government’s investigation is: What crime has been committed? Those who have been contacted by the Inspector General’s office say the investigation is being conducted as a criminal investigation, yet none of the e-mail messages were under seal, classified, or even part of a criminal case file, and Radack was not officially an attorney on the Lindh case.

“She has not been accused of any crime, and to my knowledge there is no crime for which she could be charged,” said Rick Robinson, Radack’s attorney for the criminal investigation. (Radack also has hired attorneys for the employment dispute with her law firm and for a possible civil case against Justice.)

Martin, who would not disclose what type of investigation is underway, points out that the Inspector General can conduct investigations unrelated to criminal activity, such as ethics violations and other controversies.

Confirming Chertoff

But Radack is not without support. Mayer’s New Yorker article had caught the attention of Kennedy’s staff, which soon became interested in her plight and in the avoidance of disclosure of the Lindh e-mails to the judge, particularly because the head of the criminal division, Michael Chertoff, was nominated as a judge to the U.S. Court of Appeals in Philadelphia (3rd Cir.) in March.

Chertoff’s nomination came before the Senate Judiciary Committee for confirmation in May, and Kennedy pressed him for answers on the Radack matter. Two months earlier, Kennedy had submitted written questions to Ashcroft for his take on the facts in the New Yorker article, and asked whether Radack was indeed the target of a criminal investigation by the U.S. Attorney’s Office and for what conduct she was being investigated. Kennedy received no response. He now wanted to know what Chertoff’s response was, and why the Lindh interrogation was handled as it was.

But Chertoff claimed he had no knowledge of the e-mail dialogue between De Pue and Radack, and disputed whether advice from one PRAO attorney constituted an “opinion” from that office. Kennedy said he was troubled by Chertoff’s lack of active involvement in the case, according to a New York Times account.

Kennedy got the confirmation delayed for one week over dissatisfaction with Chertoff’s responses. Kennedy then received written responses to another round of questions he had submitted to Chertoff, in which the nominee alleged that no one responsible for the Lindh matter had sought PRAO’s advice.

“Before and during the time of these interrogations, I was informed of no opinion expressed by any individual at PRAO about the Lindh interrogation,” Chertoff said. “Even now, I am not aware that PRAO ever took an official position about the Lindh interrogation or that any views expressed by an individual PRAO attorney were documented, factually and legally substantiated, reviewed and authorized, as I would expect before an official opinion was rendered.”

Radack points out that Chertoff was drawing a technical distinction between a formal opinion from PRAO, which prosecutors can use as a defense to allegedly unethical behavior, and the less formal solicitation of advice, which is how prosecutors more commonly seek advice from the office.

In a prepared statement made during the subsequent hearing after the one week delay, Kennedy said, “I remain very concerned about Ms. Radack’s situation. According to press reports — and the Department has never issued any statement disputing them — Ms. Radack was in effect fired for providing legal advice on a matter involving ethical duties and civil liberties that higher-level officials at the Department disagreed with. Furthermore, after Ms. Radack notified Justice Department officials that they had failed to turn over several e-mails requested by the federal court, Department officials notified the managing partners at Ms. Radack’s new law firm that she was the target of a criminal investigation. I submitted questions to Attorney General Ashcroft regarding this matter in March, and I await his response.”

Kennedy, while noting that he was satisfied with a second round of questioning of Chertoff, said that “his answers to my first set of written questions were non-responsive, evasive, and hyper-technical. They were stingy in substance, avoiding the questions that were asked, and often answering questions that were not asked.”

But not all senators on the judiciary committee were interested in Radack’s case. At the confirmation hearing, the Times account of her story came in for special abuse by committee Chairman Orrin Hatch (R-Utah), who opined, “It’s disgraceful that at this last minute The New York Times is attempting to impugn anybody,” according to an Associated Press account of the hearing.

In an apparent attempt at establishing guilt-by-association, Hatch noted that Eric Lichtblau, the author of the Times article, had “shared bylines with the infamous Mr. Blair,” referring to Jayson Blair, the reporter who has admitted falsifying a number of Times articles. That remark reportedly prompted Sen. Patrick Leahy (D-Vt.) to warn his colleague to avoid engaging in “McCarthyism.”

The dispute did nothing to derail Chertoff’s nomination, which passed the committee on May 22. But by the time of the vote, six Democrats — including Kennedy, who had earlier said he would vote in favor of Chertoff’s nomination — decided they needed more information on a late allegation about the prosecutor’s conduct when he was a U.S. Attorney in New Jersey, and responded only “present” when the vote was taken. The nomination later was passed by the full Senate on an 88-1 vote, with only Hillary Rodham Clinton (D-N.Y.) voting against him. (Although Clinton did not explain her vote, Chertoff had served as counsel to the Senate Whitewater investigation during her husband’s term as president.)

Radack, meanwhile, continues to deal with the looming criminal investigation and a dispute over how she was removed from her job with the law firm.

“The bills we owe are staggering,” she says. “For me, I still feel like I’m twisting in the wind. If I go for a job interview, I have to tell them I’m still under a criminal investigation, which makes things hard.”

She recently formed a legal defense fund to help defray the costs of the investigation.

In addition, she plans to take action to remove the cloud that hangs over her while the secretive investigation drags on. Bruce Fein, a constitutional law expert with strong conservative credentials who Radack has hired to help in the effort, points out that this case is not a crusade for a particular cause, but an effort to hold the government accountable for its actions.

“It seems that there was retaliation against her for giving professional advice in an unusual area,” Fein said, referring to the issue of whether Lindh’s interrogation was proper. “She gives honest and thoughtful legal advice, and is ostracized.”

Fein points out that the allegations of how the department has conducted its investigation so far — contacting employers in ways that might ruin her career prospects — are the “antithesis of fairness.”

Of Radack’s efforts to defend herself, Fein said, “It’s critical to note that this is not to embarrass anyone or beat them over the head, but to make sure Justice conducts its investigations properly, so that it does not end up like the Politburo. We’re not trying to find names and say who should be held accountable, but to show why this investigation is adverse to the government’s own interests, and to let her go on and live her own life.”