Jesselyn Radack

Jesselyn Radack (born December 12, 1970) is a former ethics adviser to the United States Department of Justice who came to prominence as a whistleblower after she disclosed that the Federal Bureau of Investigation (FBI) committed what she believed to be an ethics violation in their interrogation of John Walker Lindh (the "American Taliban" captured during the 2001 invasion of Afghanistan) without an attorney present, and alleged that the Department of Justice attempted to suppress that information. The Lindh case was the first major terrorism prosecution after 9/11.^[7] Her experience is chronicled in her memoir, TRAITOR: The Whistleblower and the "American Taliban".

Radack is a national security and human rights attorney, known for her defense of whistleblowers, journalists, and hacktivists. She has spoken in defense of some of the most vilified people in the United States, including National Security Agency whistleblowers Edward Snowden and Thomas Drake, each of whom was charged under the Espionage Act after exposing wrongdoing. Both Snowden and Drake are her clients.

Radack has been widely published and quoted regarding whistleblower rights, surveillance, Internet freedom, and privacy. Her writing has appeared in the New York Times, L.A. Times, Washington Post, Guardian, The Nation, Legal Times, and numerous law journals. She frequently appears in the press, including all the major television networks, NPR, PBS, CNN, and the BBC.

Radack is the director of National Security & Human Rights at the Government Accountability Project. She was named one of Foreign Policy magazine's "100 Leading Global Thinkers of 2013",^[2] was one of 100 worldwide figures pictured in "Justice: Faces of the Human Rights Revolution" and is a visiting Woodrow Wilson Fellow at the Council of Independent Colleges.^[1] She has been honored with the “Hugh M. Hefner First Amendment Award" (2011), "Sam Adams Award for Integrity in Intelligence"(2009), and numerous other accolades. She graduated magna cum laude from Brown University and Yale Law School and began her career as an Honors Program attorney at the U.S. Department of Justice.

A regular speaker at governments, universities, and public and private organizations around the globe, Radack explains the ways in which power structures suppress dissent, the value of free speech and privacy, and how ordinary people can change entire industries, agencies, and sometimes the world.

Early life and education

Radack was born in Washington, D.C., and attended Brown University. She was elected to Phi Beta Kappa in her junior year and graduated magna cum laude in 1992 as a triple major in American civilization, women's studies, and political science, with honors in all three majors. Since 1983 when Brown began tracking such data, only one other student has received honors in three concentrations.^[8]

Radack graduated from Yale Law School and joined the Justice Department through the Attorney General's Honors Program where she practiced constitutional tort litigation from 1995 to 1999 and then worked in the Department's newly created Professional Responsibility Advisory Office (PRAO) from 1999 to 2002.

John Walker Lindh case

Initial inquiry into Lindh case

On December 7, 2001, Radack received an inquiry from Justice Department counterterrorism prosecutor John DePue regarding the ethical propriety of interrogating Lindh in Afghanistan without a lawyer present. He told her that Lindh's father had retained counsel for his son. This was not known to Lindh. Radack responded that interrogating him was not authorized by law.^[9] The principle at issue was that a person represented by a lawyer cannot be contacted by agents of the Justice Department, including the FBI, without permission of that lawyer.^[10] According to Radack, her advice was approved by Claudia Flynn, then head of PRAO, and Joan Goldfrank, a senior PRAO attorney.^[11]

The FBI proceeded to question Lindh without a lawyer. DePue informed Radack of the interrogation on the 10th, and she advised him that Lindh's "interview may have to be sealed or only used for national security purposes; however, I don’t have enough information yet to make that recommendation".^[12]

Radack continued to research the issue until December 20, 2001, when Flynn told her to drop the matter because Lindh had been "Mirandized". It was later learned that the FBI agent Christopher Reimann who read Lindh the Miranda warning had, when noting the right to counsel, ad-libbed: "Of course, there are no lawyers here".^[13]

U.S. government statements on Lindh's legal rights

On January 15, 2002, five weeks after the interrogation, 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".^[9] On February 5, 2002, Ashcroft announced Lindh's indictment, saying that his rights "have been carefully, scrupulously honored".^[14]

In early 2004 Radack indicated in an interview that she disagreed with Ashcroft's view but could see its logic, that Lindh had not himself chosen a lawyer, so he was not represented by one. "You can debate it one way or another”, she said.^[8] She was more troubled by the ethical issues,^[8] later citing the same ruling the government cites to support its legal position.^[15] In Moran v. Burbine (1986), the Supreme Court held that police were within the law in not telling a suspect (who had waived his Miranda rights) that his sister had retained counsel for him,^[8] but the Court also granted that the police behavior was unethical and could rise to a violation of legal rights in more egregious circumstances.^[16]

In early 2005 Radack recalled her reaction to Ashcroft's statements more starkly: "I knew that wasn't true".^[17]

Poor performance review

On February 4, 2002, the day before the Lindh indictment was announced, Flynn gave Radack an unscheduled "blistering" performance evaluation, despite Radack having received a merit raise the year before.^[9] It covered December 27, 2001, to September 30, 2002, two months prior to the Lindh inquiry, and did not mention that case, but it criticized her legal judgment in issues related to the case and in other matters.^[8][18] Flynn had not yet signed the review. She advised Radack to find another job or the review would be put in Radack's official personnel file.^[9] Radack, who had planned on being a career civil servant, soon found a new job in the private sector.^[9][19]

Missing emails

On March 7, 2002, while Radack was still working at PRAO, the lead prosecutor in the Lindh case, Randy Bellows, messaged Radack that there was a court order for all of the Justice Department's internal correspondence about Lindh's interrogation.^[9] He said that he had two of her messages and wanted to make sure he had everything.

Radack immediately became concerned that the court order had been deliberately concealed from her.^[7] She had written more than a dozen emails on the subject, and neither of the ones Bellows had received copies of reflected her fear that the FBI's actions had been unethical and that Lindh's confession, which was the basis for the criminal case, might have to be sealed.^[13] Radack checked the hard-copy file and now claims the files had been tampered with to include only three of her emails, official records indicated that only those three emails had been received by the Lindh prosecutors but which emails DOJ supplied to the court and when cannot be determined as the court records were sealed.^[13][20] Radack confided in a senior colleague, former U.S. Attorney Donald McKay, who examined the file and told her that it had been "purged".^[21]

With the assistance of technical support, Radack then recovered 14 email messages from her computer archives and gave them to Flynn with a cover memorandum. When Flynn asked Radack why the messages weren't in the file, Radack said she didn't know, and her supervisor said "Now I have to explain why PRAO should not look bad for not turning them over," indicating her belief that Radack had overlooked the additional correspondence when originally turning over the messages and attempted to correct her error by presenting the recovered emails while claiming ethical misconduct.^[22] Radack took home a copy of the recovered emails to ensure they wouldn't "disappear" again.^[23]

Which emails the Department of Justice supplied to the court, and when, cannot be determined directly because the court placed them under seal.^[19] In March 2003 investigative journalist Jane Mayer of The New Yorker reported that "[a]n official list compiled by the prosecution confirms that the Justice Department did not hand over Radack's most critical e-mail in which she questioned the viability of Lindh's confession until after her confrontation with Flynn".^[13] Radack continues to rely on Mayer's report.^[15]

On December 31, 2003, Radack requested the court appoint a special prosecutor to probe the alleged suppression of the emails.^[24] The government responded that it had supplied the emails to the court in its initial response to the court order seeking them, i.e., on March 1, 2002.^[25] The description of the 24 documents (probably including duplicates) provided to the court at that time matches Radack's emails, including the one that states interviewing Lindh is not authorized by law.^[26] DePue, the recipient of the emails, also had copies and states that they were submitted to the court.^[27] The judge rejected Radack's request as "impertinent".^[28]

In 2004 Radack filed suit against the government (see below). In 2005, the court found that "[t]hough Flynn informed Radack that she would send the emails to Bellows, Radack maintains that she had a 'good faith belief' that this never occurred...Radack was mistaken, for in filings submitted to the Virginia District Court on March 1, 2002, and March 11, 2002, Bellows turned over thirty-three PRAO-related documents, including Radack's fourteen emails, ex parte and under seal, for in camera review".^[29]

Disclosure to Newsweek of emails believed to have been purged

Radack resigned from the Justice Department on April 5, 2002. In June 2002 she heard a broadcast on NPR stating that the Department claimed they had never taken the position that Lindh was entitled to counsel during his interrogation. She later wrote, "I knew this statement was not true. It also indicated to me that the Justice Department must not have turned over my e-mails to the Lindh court..because I did not believe the Department would have the temerity to make public statements contradicted by its own court filings, even if those filings were in camera." She reasoned that “disclosure of my e-mails would advance compliance with the Lindh court’s discovery order while also exposing gross mismanagement and abuse of authority by my superiors at the Justice Department."^[30]

After hearing the broadcast, Radack sent the emails to Michael Isikoff, a Newsweek reporter, who had been interviewed in the NPR story.^[8] He wrote an article about the purportedly missing emails^[31] that appeared online June 15, 2002.^[32] He did not reveal his source for the emails.

Radack has said she did not turn the documents over to the court or prosecutors at the time she recovered them because she felt intimidated by Flynn, who had told her to drop the matter.^[33] Later, no longer working in government, she reasoned, "I couldn't go to the court because Justice Department lawyers would argue (as they did when I eventually did try to tell my story to the court) that I had no standing. I couldn't go to a Member of Congress because, as a resident of the District of Columbia, I didn't have a voting representative. What I could do is disclose my story to the press--a judicially-sanctioned way of exposing wrongdoing under the Whistleblower Protection Act of 1989, which provides protection to federal government employees who blow the whistle on what they reasonably believe evidences a violation of any law, rule, or regulation; gross mismanagement; or an abuse of authority".^[34]

Radack's reasoning assumed her emails were the position of the Department of Justice. Representatives of the Department have denied that. Michael Chertoff, then head of the criminal division that was prosecuting Lindh, viewed her emails as only a preliminary step in developing a PRAO position.^[8] (Chertoff elaborated that position, and that the advice was not known to him or sought by those responsible for the decision to interview Lindh, in answers to questions from Senator Edward Kennedy, discussed below.)

Radack and some others believe her disclosure of the emails may have contributed to the plea agreement that led to a sentence of 20 years instead of possible multiple life sentences for Lindh.^[35] The plea deal was reached on July 15, 2002, a month after the Newsweek article on the emails appeared online and just hours before the hearing to consider the motions to suppress the Lindh interviews was set to begin.^[36] According to Lindh defense attorneys, the prosecution first approached them about a plea deal around the beginning of June.^[37] On June 14, the day before the emails were disclosed, and June 17, the Lindh defense filed their arguments to suppress all the interviews conducted in Afghanistan, including the ones that Radack had advised might have to be suppressed.^[38] The defense reasoning was different from Radack's; it did not assert that Lindh was represented by a lawyer at the time, which was the basis for Radack's advice in the emails.^[39] Because of the plea deal, the legal questions regarding the interviews were not adjudicated.

Justice Department actions against Radack

On June 19, 2002, the Lindh court ordered the Justice Department to file a pleading "addressing whether any documents ordered protected by the Court were disclosed by any person bound by an Order of this court". The Justice Department launched a criminal investigation of Radack that remained open for 15 months.^[40] No potential criminal charge was ever specified, but as leaking is not a crime, the most likely charge would have been theft of government property,^[19] as she had taken home copies of her emails before she resigned from the PRAO,^[23] and her PRAO supervisor later insinuated she was suspected of having removed other files that had gone missing.^[41] Radack says an agent of the Department of Justice's Office of the Inspector General (OIG) told her new employer and coworkers that she was under criminal investigation^[42] and would steal client files.^[43][44]

Radack believes the OIG agent pressured her employer to fire her.^[44] The firm was initially supportive, but after it obtained phone records of calls between Newsweek writer Isikoff and the firm's office showing that Radack appeared to be the leaker of government emails, that changed. A partner in the firm, which represented mainly government bond issuers, told her they could not be perceived to have an ex-government lawyer who broke confidence when she thought the client was wrong. When she continued to refuse to sign a statement that she did not leak the emails, she was placed on paid and then unpaid leave.^[45]

When Radack was granted unemployment benefits, her now-former employer was assisted by the Justice Department, she says,^[44] in challenging the benefits on the grounds of her alleged misconduct and insubordination. She won the appeal.^[45]

It is not known how her employer obtained records of phone calls between her and Isikoff. They could have been obtained by the firm from the phone company, since they were records of calls to and from their phones. The firm also had records of calls Isikoff made to the Justice Department, which must have been supplied by the government, who knew because the calls were to them.^[46]

The Lindh court issued an order on November 6, 2002, concluding that Radack's disclosure did not violate any order of the Court, but this order was not made available to Radack until two years later.^[47]

The Department of Justice notified Radack that the criminal investigation was closed on September 11, 2003. On October 31, 2003, the Department of Justice's Office of Professional Responsibility (OPR) sent letters to the bar associations of the two jurisdictions in which she was licensed to practice law referring her for a possible ethics violation. The referrals proposed that in disclosing the emails she may have knowingly revealed information protected by attorney-client privilege.^[48] There is disagreement about whether the government or the public is the client of government attorneys.^[8] Radack bypassed that issue by invoking the Whistleblower Protection Act (WPA), which she argues provides the legal basis for an exception to attorney-client privilege, i.e., for disclosure when permitted or authorized by law.^[49] The Justice Department responded that the WPA may not apply to former employees, and that it does not authorize any disclosure, only prevents retaliatory personnel actions for certain disclosures.^[50]

OPR did not follow its own policies in making the referrals, according to Radack, including in not allowing her to formally respond to its findings.^[51] She has contrasted the way she was treated by the Department of Justice and the way the department attorneys who authored the memos giving a purported legal basis for waterboarding and other controversial interrogation methods were treated.^[52]

There was never any serious investigation of how Radack's emails disappeared from the PRAO file, she believes, a conclusion reached in part because no investigator questioned her about it. She says the OIG told her attorney they had "looked into" her allegations and they were "not going to pursue it".^[52]

The criminal investigation and subsequent ethics referrals prevented Radack from finding suitable work as an attorney for years, she says.^[8][34][53] The Maryland Bar dismissed the referral February 23, 2005.^[29] At the District of Columbia Bar the referral is still pending (as of June 1, 2012).^[52]

Radack says she was placed on the "No-Fly List", by which she refers to the Selectee portion of the Terrorist Watchlist.^[54] Selectees are submitted to extra security screening before boarding a flight.^[55] She reports that for a time she was selected for extra security on each flight, at least 19 flights by her count, and that one airline told her she was on the list.^[56] She believes she was eventually removed from the list, after she had complained to the Transportation Security Administration Ombudsman and the ACLU.^[34]

Radack claims that one or more anonymous Justice Department officials have "smeared" her in the media as a "traitor", "turncoat", and "terrorist sympathizer"^[44][52][57] "to alienate me from all my neighbors, all my friends",^[58] sometimes specifying it was in the New York Times.^[43][56][58] Google searches of the Times website confirm only that in 2003 Times journalist Eric Lichtblau wrote, "Government officials suspect [Radack] is a turncoat", without indicating whether the word was his or theirs.^[59][60]

She has implied her being under a gag order, saying in the context of general remarks about gag orders, "There are certain things I cannot talk to you about, and I can't say anything more than that".^[61]

In 2008 Radack said that she had spent hundreds of thousands of dollars fighting the government actions against her.^[62] For a time beginning in 2003, noted constitutional scholar and former Associate Deputy Attorney General under Ronald Reagan, Bruce Fein, represented Radack pro bono.^[8]

Congressional questions

In March 2003 U.S. Senator Edward M. Kennedy submitted questions about Radack's allegations to Attorney General John Ashcroft. On May 7, with no answers yet, Kennedy pressed the matter with Michael Chertoff, who oversaw the criminal division that prosecuted Lindh, and who was before the Senate Judiciary Committee as a nominee for a circuit court judgeship.^[63][64]

Chertoff said Lindh was deemed not to be represented by a lawyer he had not chosen, and he denied that PRAO was consulted about Lindh. His answers did not satisfy Kennedy, who followed up with written questions. Chertoff qualified his earlier answer by saying "those at the Department responsible for the Lindh matter" did not seek PRAO advice. He added, "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".^[65]

Kennedy described Chertoff's responses as "non-responsive, evasive, and hyper-technical" and requested and received a week's delay in the committee's vote on his nomination. Kennedy was more satisfied, though still troubled, by the responses to a second round of written questions in which Chertoff acknowledged that he learned after the Lindh interviews that a lawyer in his division, DePue, had consulted PRAO. He implied DePue was not acting on behalf of those responsible for decisions in the Lindh case, and that he was peripheral to the decision process.^[63][65] (The New York Times reported that DePue has "detailed numerous contacts he had with lawyers inside and outside the [criminal] division on Mr. Lindh's questioning". DePue says he was told by a supervisor that the criminal division's leadership, by which DePue inferred Chertoff, was upset that he contacted PRAO.^[59])

Kennedy also questioned Chertoff about how Radack was treated. Chertoff denied any knowledge of that.^[63][65] After meeting with Chertoff, Kennedy announced his support for his nomination but 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".^[63] (The New York Times reported that Justice Department officials disputed that characterization.^[59]) On May 22 several Democrats on the Judiciary Committee said they wanted more time to review Radack's allegations, but the committee voted 13-0, with six Democrats voting present, to send the nomination on to the full Senate,^[66] where it was confirmed 88–1 on June 9.^[67]

After DOJ

Radack served on the D.C. Bar Legal Ethics Committee from 2005 to 2007. From 2006 until 2008, she represented government contractors blowing the whistle on fraud in the reconstruction of Iraq. Since 2008, she has served as the director of National Security & Human Rights at the Government Accountability Project. She was one of the attorneys who represented National Security Agency whistleblower Thomas Andrews Drake, with whom she won the 2011 Sam Adams Award, given annually by the Sam Adams Associates for Integrity in Intelligence.^[4][68] They also both won the 2012 Hugh M. Hefner First Amendment Award. Her writing has appeared in the New York Times,^[69] Wall Street Journal,^[70] Los Angeles Times,^[71] The Washington Post, The Guardian,^[72][73] The Nation,^[74] Salon,^[75] and numerous law journals. She maintains a blog at the DailyKos.

Related Media Works

In 2014, a documentary called Silenced, in which Radack was featured, was released.^[76][77] This film by Oscar nominated director James Spione explored the increasingly draconian response of the US government to whistleblowers who disclose rampant covert violations of constitutional privacy and terrorism laws. The documentary revealed in unprecedented detail the harassing, harrowing and devastating experiences of three whistleblowers (Radack, John Kiriakou, and Thomas Andrews Drake), which all showed that using integrity, honesty, national loyalty, and courage to report crime - as encouraged and protected by several whistleblower laws - was actually not considered valuable nor legal to many US government officals. Instead, reporting federal and military crimes was actually considered to be a treasonous act punishable without legal prudence nor evidence.^[78] Having an analogous theme as the Oscar winning documentary Citizenfour portraying similar treatment of Edward Snowden, Silenced has been the Official Selection and recipient of several awards from multiple film festivals^[79] even before its release to major cable networks in March 2015.

See also

• Sibel Edmonds
• List of whistleblowers
• Whistleblower Protection Act

References

External links

• On Julian Assange's address to the UNGA, human rights, and the persecution of whistleblowers Jesselyn Radack speaks to RT (TV network), September 27, 2012.
• Disharmonic Convergence of Free Speech Free Fall by Jesselyn Radack (The Whistleblogger/ 2012), Government Accountability Project (GAP), on September 27, 2012.
• Jesselyn Radack:The Canary in the Coalmine, 2004.
• DailyKos blog and profile
• Silenced: documentary trailer published via YouTube
• IMDB: Silenced 2014 documentary's listing on Internet Movie Database