A BUZZFLASH INTERVIEW
...Whistleblowers have been blacklisted at best, and completely terrorized at worst. -- Jesselyn Radack, former Justice Department ethics specialist
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The Bush administration likes to say they're fighting the "war on terror" there, so we don't have to fight it here. The reality, as Jesselyn Radack makes clear, is that they actually are conducting a war of terror against American citizens here. Like Ambassador Joe Wilson and FBI translator Sybil Edmonds, Jesselyn Radack was targeted by the administration as an enemy of the people. Her offense was simply that she advised the Justice Department about the ethical restraints that applied to their pursuit of "the bad guys." Radack was doing her job, but the John Ashcrofts of the world wouldn't allow that. They feared Radack couldn't be trusted to throw ethics to the wind and keep quiet. She was forced out and given no choice but to blow the whistle on administration lies about the first American citizen nabbed in the "war on terror" -- John Walker Lindh. Lindh was also the first high profile case of "aggressive interrogation."
It happened in 2001. She's still paying the price to this day.
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BuzzFlash: The Canary in the Coalmine: Blowing the Whistle in the Case of the 'American Taliban' John Walker Lindh is your memoir about a particular experience you’ve had. Let’s start with the person who’s very much at the heart of this. What was your involvement with the case of John Walker Lindh?
Jesselyn Radack: I was the ethics attorney at the Department of Justice. The FBI contacted me about the ethical propriety of interrogating him without his lawyer. Very simply, that started my involvement in the case.
I had joined the Justice Department in October of 1995 and then started with the relatively new Professional Responsibility Advisory Office (PRAO) when it was created in 1999.
BuzzFlash: Is this a political appointment?
Jesselyn Radack: It’s a career position. I planned on being a career civil servant.
BuzzFlash: Your day-to-day responsibilities were to review the practices of the Department of Justice, to see that they were in compliance with ethical regulations and standards.
Jesselyn Radack: That’s right. A lot of people confuse the office for which I worked with the Office of Professional Responsibility (OPR). They are the people who do the discipline; we were the office that would render advice on things that DOJ attorneys wanted to do, that they thought could be ethically problematic, or that they wanted to make sure they were doing things by the book. We were there to keep government attorneys out of trouble, basically.
BuzzFlash: What standards did you use?
Jesselyn Radack: Our measuring stick was the American Bar Association’s "Model Rules of Professional Conduct," and some states still follow the predecessor, "Model Code." Basically, there was a law passed in around 1999 called the McDade Amendment, which said that government attorneys had to abide by not only the bar rules of the state in which they were admitted, but the bar rules of any state in which they practiced. That created a lot of conflicts of law for Justice Department attorneys, because we have multiple jurisdictional practices. We were there to help tease out those problems.
BuzzFlash: In essence, you were applying American Bar Association ethical standards.
Jesselyn Radack: Yes. And there’s case law from the Supreme Court that says government lawyers are actually held to a higher standard than lawyers in private practice. We could debate whether that still holds true, or whether that’s enforced.
BuzzFlash: Could you walk us through how your life as a professional attorney, employed as a career civil servant in the Department of Justice, dealing with ethics, suddenly took a surprising turn as it intersected with the treatment of John Walker Lindh?
Jesselyn Radack: I was just doing my ordinary duty. I was contacted on December 7. I happened to be the duty officer on call that day, and I received a telephone inquiry from an attorney in the Terrorism and Violent Crime Section about the ethical propriety of having the FBI interview John Walker Lindh in Afghanistan. I was told unambiguously that he was represented by counsel. Those were the operative facts with which I was presented.
Under those circumstances, we ordinarily advised that contact with a represented person was not authorized by law, except for pre-indictment, non-custodial, undercover situations. John Walker Lindh’s case struck out on two of those criteria, because he was in custody, and this was not an undercover interview that was being contemplated.
I advised that it would be problematic to do this and discussed some creative ways around that. I tried to help them figure out some ways to interview him and still stay within ethical boundaries -- for example, by saying to him, your parents are saying very publicly that they think you were brainwashed. Do you really want the lawyer of their choosing? Or trying to do an undercover -- we talked about some ways that they could do this.
That was on a Friday. The same attorney called me back on Monday and said, “Well, the FBI is interviewing him anyway. What will we do now?” At that point, I advised that the interview would have to be sealed and used only for national security or intelligence-gathering purposes, not for criminal prosecution.
BuzzFlash: What happened next?
Jesselyn Radack: Normally, if an office has disregarded our advice, we kept close tabs on what was being done in the aftermath, because we were there not only to advise proactively, ahead of time, as to what an office should do, but we were there to help clean up after, if there was a problem. And here, there had been a problem.
So I kept following up with this attorney. He kept kind of blowing me off. I wasn’t hearing a response. I don’t know what was going on on his end, but there was no follow-up.
Then he sent an e-mail on December 20th saying that John Walker Lindh had been Mirandized. I told my boss that, and she just said, "Good. Our office’s involvement in this matter is over." Our offices closed the file.
That seemed very strange to me, because normally we remained involved in cases where our advice had not been followed, and where there could be some kind of ethical liability.
BuzzFlash: What became the source of conflict, where the Department of Justice came down very hard on you for being what one would call a whistleblower?
Jesselyn Radack: On January 15th -- so we’re talking a month later -- Ashcroft had a very public press conference announcing that a criminal complaint was being filed against John Walker Lindh -- which was exactly what I had advised against. Ashcroft said: "The subject here is entitled to choose his own lawyer, and to our knowledge, has not chosen a lawyer at this time." Well, I knew that wasn’t true, but I just let it go because the Department of Justice can take whatever position the Attorney General ultimately wants to take.
Then on February 4th, out of the blue, my supervisor gave me a blistering, untimely, unsigned performance evaluation and told me that I should find another job or it would be put in my permanent personnel file. I didn’t read it at first, because I didn’t think she could really be serious. But the evaluation was so over-the-top and so contradicted by my performance -- meaning I had received a merit bonus and a promotion in the preceding months of the evaluation -- it didn’t make any sense to me.
So, I get this horrible review, and then the very next day, Ashcroft has another one of his flashy, dramatic press conferences announcing the indictment of Lindh. Again, Ashcroft says "that Lindh’s rights had been carefully, scrupulously honored." Another lie, but that wasn’t my real problem. That was not my complaint in any of this.
My real complaint concerns March 7th. I was contacted directly by the prosecutor. And he said, “As you know, there is a federal court order for all correspondence related to the interrogation of John Walker Lindh. I have two of your e-mails. I wanted to make sure I have everything.” Well, number one, no one had told me about a court order, although that was the usual practice in the Department of Justice. Second, I knew that I had written more than two e-mails -- a lot more.
But I was still giving everybody the benefit of the doubt. I didn’t think anything suspect was going on. I went and checked the hard-copy file, and it was empty. There was nothing there. There were two pieces -- two minor, innocuous e-mails -- and a fax cover sheet from my boss to senior officials within the Department of Justice.
BuzzFlash: Let’s go back to this blistering review that seemed to come out of nowhere. Is it safe to assume that the Department of Justice saw you potentially as someone who could undercut the Attorney General by revealing the truth about the availability of counsel to John Walker Lindh, and the manner in which the case had been handled?
Jesselyn Radack: Well, yes, I realize that now in hindsight. I had advised that they shouldn’t do this, and that it would be unethical to do this. My advice that they would be committing an ethical violation by doing so completely contradicted the position ultimately taken by the Department of Justice, which was that they had every right to do this, and did it properly.
At the time, I didn’t know all of that. It wasn’t clear to me whether the missing e-mail was a result of my boss just trying to preserve the reputation of our office, or how far up the food chain it went. That became clear to me over the years, as this unfolded -- that what this is really about is that our government -- Rumsfeld was at the top -- that he was directly involved in the interrogation of John Walker Lindh. He said to take the gloves off. This went all the way to the top. I don’t know if he actually gave a directive to destroy e-mail. I don’t know whose brilliant idea that was. But this really was the first instance of someone being tortured. This was the embryonic stages of American torture policy in the war on terrorism.
BuzzFlash: When did you discover that John Walker Lindh was being tortured?
Jesselyn Radack: I think it was pretty clear to most people, if you look back on the famous picture of him that circulated, in which he was naked, blindfolded, gagged, bound, strapped to a board, and videotaped. It looks a lot like what we later saw at Abu Ghraib, and what caused everybody to flinch. No one was flinching back when this photo circulated. It was pretty clear evidence of someone who was definitely being treated in a degrading, inhumane and very rough kind of way.
But for me, it unfolded over a course of years. There was a heavy-handed response, both in the John Walker Lindh case, and then to me.
BuzzFlash: What then happened with you in relation to the Justice Department? You went looking for the file. Found it was empty. E-mails had been erased -- important e-mail that might have impeached the character of the then-Attorney General, John Ashcroft. What happened at that point?
Jesselyn Radack: When I saw the file was empty, my heart sank. I consulted with a colleague who was very senior within the department, and said, 'I don’t know what to make of this." It gave me a bad feeling. Something was definitely wrong, but I didn’t know what to attribute it to at that point.
He said, “Look, you’ve got to cover yourself. Cover your own back right now. Call the computer help line. Resurrect as many of the missing e-mails as you can. Write a letter to our boss documenting all those e-mails and attach them. And that way, at least you’re covered.” So I did exactly that.
I’m not a computer expert, so I called the technical support folks. Even if you delete your e-mail and empty your virtual trash, it’s still there on the computer archives. I was able to reconstruct the e-mails -- resurrect, basically, the e-mail that was missing from the files. I gave it to my boss, along with the memo, and I took home copies for safekeeping, in case they "disappeared" again.
Then I resigned. I said, I don’t know what’s going on here, but I’m not going to be a part of it. Then I started working at a private law firm.
By all public statements that the Justice Department was making, it didn’t sound like the e-mail had ever been turned over. I gave the e-mail to Newsweek in accordance with the Whistleblower Protection Act, and that unleashed the full force of the entire Executive Branch.
BuzzFlash: In what way?
Jesselyn Radack: First they called my law firm and told them that I was a criminal and under criminal investigation. They wanted to secure the law firm’s files, or else I could steal the files from the firm.
The law firm didn’t completely know what to do with this. The Department of Justice was putting pressure on them to fire me, and they were too scared to do that. The Justice Department did eventually put me under a criminal investigation, though they never told me for what I was being investigated. That lasted for about a year and a half. When the criminal complaint was finally dismissed with no charges ever being brought, like many times along the trajectory, I felt like, good, it’s over with.
But then they referred me to the state bar, in which I’m licensed as an attorney. And I apparently was also put on the no-fly list. And it’s still going on. One of the bar complaints was dismissed, but the D.C. bar complaint is still pending after three and a half years.
BuzzFlash: This is a complaint by the Department of Justice?
Jesselyn Radack: Yes.
BuzzFlash: And you don’t have access to the accusation against you before the D.C. bar?
Jesselyn Radack: That’s right They had based it on a report that was under seal with the court. I eventually did get access to it years and years later. A Constitutional expert here in D.C. was representing me, and they did a motion to unseal. Eventually, the secret report was unsealed, and I responded to the bar about Discipline's contradictory, poorly done report. And it still just remained a cloud over my head. It’s only thanks to the good graces of my current boss that I have a job, because I could not get a job during that time. A referral to a bar association, even without a finding of misconduct, can increase a law firm’s malpractice liability insurance.
BuzzFlash: But the complaint was dismissed by the Maryland bar.
Jesselyn Radack: Yes, they dismissed it. But normally, bars have reciprocity with each other and they’ll follow the lead of what the other bar has done. But D.C. has not followed what Maryland did, and has just sat on the complaint for three and a half years.
BuzzFlash: Am I understanding correctly you’re not at liberty to discuss what is in that file?
Jesselyn Radack: I can talk about it. They’re not supposed to be talking about it, though they don’t seem to have refrained from doing that. The bar complaint against me basically alleges that I violated Department confidentiality and ethics rules by blowing the whistle, and that I had violated attorney-client privilege. I’ve even written a Law Review article about the fact that whistle-blowing is not a violation of the ethics rules, and you can’t use the attorney-client privilege as both a sword and a shield to commit illegal acts, and then say that people cannot blow the whistle on that.
BuzzFlash: So the Department of Justice, under the Bush Administration, and now under Alberto Gonzales, is continuing with the complaint. If we may summarize or paraphrase, it basically says that you committed an ethical violation by disclosing that the Department of Justice committed an ethical violation.
Jesselyn Radack: That’s correct. And to make this even more Kafkaesque than it already is, I serve on the D.C. bar legal ethics committee. I was elected to that position after the bar referrals. Obviously the legal ethics committee is different from the disciplinary committee, and one hand doesn’t speak to the other. One of my attorneys kind of joked, like, how are they going to punish you? Make you teach legal ethics? Make you talk about it? You already do that. You’re already teaching legal ethics. You’re already a well-regarded legal ethicist. Technically, I guess Alberto Gonzales, when he took over the reins from Ashcroft, could have withdrawn the complaint from the D.C. bar if he wanted to.
BuzzFlash: Going back again to John Walker Lindh -- we’ve gone through so many waves of revelations of Bush administration activity that has been abhorrent to many of us. And we forgot the case of John Walker Lindh, and particularly how it was used for such propaganda purpose. The picture of him nude and blindfolded was disseminated, in a way, to sort of say this is what a traitor deserves in some primitive sort of way. But you were sort of there at the beginning. This was in Afghanistan, prior to the Iraq war. It was foreshadowing what was to come in terms of institutionalizing torture as an interrogation technique. And it was done on an American citizen.
Jesselyn Radack: That’s right. Obviously there was a lot of hysteria after 9/11, and this was occurring a couple months following the events of 9/11. He was the poster child that the administration could put forward. They tagged him as "al-Qaeda," even though my understanding is he never belonged to al-Qaeda. He was actually with a group which had been a civilian arm of the Taliban, I guess. He was basically a nobody, as people have said afterwards. I think they kind of went after a minnow with a sledgehammer in John Walker Lindh’s case.
Then they did that to me on a different level in a sort of parallel universe. They made an example out of me, too. All I can say is, wow -- if it happens to John Walker Lindh, a white American, right? -- and it happens to me, a white, educated U.S. citizen. And I speak English. Then you can only imagine the plight of people in this country who are Arab or Muslim, who are immigrants, who are poor, who don’t speak English.
I think they very much made an example of him, and the administration offered him up as the worst of the bad to hide the fact that they really had not caught the big fish at that point. They still haven’t today caught Osama bin Laden. At that point, they had not caught even some of the upper echelon bad guys. It was easy to make him into the poster child of the traitor. I think I was even vulnerable to having some of that sentiment, myself, until, later on, my government called me a traitor and a turncoat, and a terrorist sympathizer. That is what anonymous Department officials told The New York Times about me.
BuzzFlash: What’s interesting to see here is that the Department saw you as a liability. You were the woman who knew too much, in a way. And you’ve said you didn’t really create a big stir, even though the Attorney General was lying. I mean, there’s no other way you can look at it, the way he presented the issue of attorney representation and so forth.
Jesselyn Radack: For me, that became crystal clear during the confirmation hearings of Michael Chertoff, first to be a federal judge, and then more recently head of the Department of Homeland Security. He was questioned during both confirmation hearings specifically about the Lindh case, and specifically about the retaliation towards me that followed. And he blatantly lied. But basically his answers were non-responsive and hyper-technical, and basically very elliptical. At first, he flat-out denied that my office had ever rendered advice in this case, period. Then, when confronted by Senator Kennedy about the actual advice that was given, he still said he didn’t know about it. Later, when confronted with the fact that he did, he kind of backtracked a little bit and said he recalls learning about it, but didn’t really consider it to be an official opinion and that kind of thing. As this progressed, it became clear that this went to much higher levels than just a decision by the director of the ethics office. Later on, The New York Times was able to get the attorney with whom I corresponded to go on the record that his boss -- at the time, that was Michael Chertoff -- was very displeased with the fact that he had sought the advice of the ethics office. He had definitely stepped out of line in doing that.
Michael Chertoff at that time was the Assistant Attorney General in charge of the criminal division. He was the uppermost figurehead in the criminal division.
BuzzFlash: Let’s look at this in perspective now. You had this horrible experience of doing your job and then ending up, as you said, in a Kafkaesque situation because you upheld ethical standards. What do you see now, as an attorney in private practice? It seems to have only gotten worse and more endemic in the Bush administration.
Right now three countries -- Spain, Germany and Italy -- are dealing with the issue of rendition. Germany and Italy have CIA agents who are under indictment. A Spanish judge is requiring the disclosure of flight logs of one of the ghost planes -- the rendition planes -- as it traveled through Spain. You were there at the beginning. Is this just something where -- absent any counterbalance -- it’s gotten completely out of control?
Jesselyn Radack: Yes. I feel like, within the last year or year and a half, the tide has started to turn. The revelation of the torture memos at least got a couple of appalled gasps from people out there in the citizenry.
BuzzFlash: Are you talking about the memo written by Alberto Gonzales when he was White House counsel that basically said you can go ahead with these torture procedures?
Jesselyn Radack: Right. Gonzales had described the Geneva Conventions as being quaint and obsolete. My contemporary from law school, John Yoo, had written a number of the memos, saying basically that the Commander in Chief has almost an imperial kind of authority, and can do whatever he wants, with or without Congressional authorization. I think the extraordinary rendition, the torture, these other things that came to light -- are all in keeping with the slippery slope we were on that started when I was there. It doesn’t surprise me.
But still, even now, I couldn’t even find a publisher for my book -- not a single one. And I know I have a compelling story to tell. I don’t care about whether people know who I am per se, but I’d like them to know my story, because it’s a cautionary tale of what happens, particularly during a time of a national security crisis -- how a country can basically totally overreact.
I’m glad that Spain and Germany and Italy are starting to hold people who’ve had a part in this responsible, in their own countries. But most of the people who were responsible for these policies have enjoyed tremendous promotions and career advancements because of it.
In the back of the book, I talk about where everyone ended up. John Walker Lindh is in jail for twenty years. I’m still under investigation by the D.C. bar after three and a half years. Mike Chertoff is the Director of the Department of Homeland Security. Rumsfeld got to resign. The FBI agent wasn’t fired. He got to resign. George Bush was re-elected as our President. So a lot of the bad actors in my story not only have not been held accountable -- they’ve actually enjoyed quite a benefit from it all.
BuzzFlash: Well, as in Orwell’s 1984, and as what happened in your case, anything that is going to expose what they are really doing disappears. History disappears. Your e-mail disappeared, and they, in essence, made you disappear, by making conditions so intolerable. They were going to do everything, as they did with Joe Wilson, to ruin your career and to make an example of you -- anybody that would dare to expose the truth will be crushed.
Jesselyn Radack: I think that’s right. If you break out the whistleblowers in the war on terrorism, as bizarre and unreal and outrageous as my story may seem, I think it’s actually textbook treatment of whistleblowers by this particular administration. You’ve got Joe Wilson. When he revealed that there was no real uranium enrichment going on, and undermined a whole reason for going to war, he was punished by the outing of his wife. Sybil Edmonds, an FBI translator who blew the whistle on the fact that they were not translating these very important documents, was treated terribly.
I think in general whistleblowers have been blacklisted at best, and completely terrorized at worst. This administration is famous for its secrecy and its silence. We see that in these euphemisms that come up -- "extraordinary rendition" is code for basically kidnapping and torturing people. Guantanamo detainees attempting suicide is called "injurious acts of war" on the United States. How is it that someone being so desperate that they try to kill themselves becomes an act of war on? We have all these euphemisms to talk about what’s happening. The invasion and occupation of Iraq is being referred to as part of the war on terrorism.
So the euphemisms continue on all levels, whether we’re talking about current conflict or whether we’re talking about some poor detainee in Guantanamo Bay who tries to kill himself or goes on a hunger strike. That’s characterized by the administration as an act of aggression against America.
BuzzFlash: Jesselyn, thank you for your courage. We’re glad that despite all the injurious and malevolent efforts of the Bush administration, you’ve landed on your feet. We owe you a lot for what you did. And we recommend The Canary in the Coalmine be read by all the BuzzFlash readers. Thank you, Jesselyn.
Jesselyn Radack: Thank you. My book is available at the website patriotictruthteller.net. Or you can write Canary in the Coalmine and my last name into Google, and probably find it that way, too. Again, I had to self-publish, because no one would take it. So thank you for having me and for everything that you do at BuzzFlash. I appreciate that.
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BuzzFlash Interview conducted by Mark Karlin.
http://www.patriotictruthteller.net/ (Jesselyn Radack's web site)
The Canary in the Coalmine (Buy the Book here)
John Walker Lindh (Wikipedia)
A BUZZFLASH INTERVIEW