JESSELYN RADACK UNIT ED STAT ES — W HISTL EBLOW ER and joined the Justice Department through the Attorney General Honors Program, eventually becoming a legal adviser to the department’s new Professional Responsibility Advisory Office, which had been established to render ethics advice. Shortly after September 11, 2001, I received an inquiry from a Justice Department counter-terrorism prosecutor regarding the ethical propriety of interrogating “American Taliban” John Walker Lindh—a U.S. citizen allegedly fighting on the enemy’s side in Afghanistan—without a lawyer present. I had been informed that Lindh’s father had retained counsel for his son. Accordingly, I responded that interrogating Lindh was not authorized by law; the FBI proceeded to question him without an attorney anyway. When I was contacted again, I recommended that Lindh’s confession might have to be sealed and could only be used for national security and intelligence-gathering purposes, not for criminal prosecution. Five weeks after the botched 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.” I knew that was untrue. Three weeks later, Ashcroft announced Lindh’s indictment, saying that his rights “have been carefully, scrupulously honored.” Ashcroft’s statement was contradicted by a trophy photo that was circulating worldwide of Lindh—naked, blindfolded, and bound to a board with duct tape. The next month, my supervisor gave me a blistering evaluation, despite my having received a performance award and raise a few months earlier. It did not mention the Lindh case by name, but it questioned my legal judgment. I was told to find another job, or the review would be put in my official personnel file. I had planned on being a career civil servant because I believed that public service was an important calling, and federal employment was the only way I could obtain health insurance as someone with multiple sclerosis. On March 7, 2002, the lead prosecutor in the Lindh case informed me that there was a court order for all of the Justice Department’s internal correspondence about Lindh’s interrogation. He said that he had two of my e-mails and wanted to make sure he had everything. I was immediately concerned because the court order had been concealed from me. Although I had written more than a dozen relevant e-mails, the Justice Department had turned over only two of them—neither of which reflected my concern that the FBI’s actions had been unethical and that Lindh’s confession, which formed the basis for the criminal case, I GRADUATED FROM YALE LAW SCHOOL IN 1995
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could not be used. I checked the hard-copy file on Lindh and found that it had been purged. With the assistance of technical support, I then recovered 14 e-mails from my computer archives, gave them to my supervisor, and resigned. I also took home a copy of the e-mails in case they “disappeared” again. As the Lindh case proceeded, the Justice Department continued to assert that it didn’t know Lindh already had a defense attorney at the time of his interrogation. I heard a National Public Radio broadcast stating the Justice Department had never taken the position that Lindh was entitled to counsel during his interrogation. I did not think the department would have the temerity to make public statements contradicted by its own court filings if it had indeed turned over my e-mails, as per the court’s order. After hearing the broadcast, in accordance with the Whistleblower Protection Act, I sent the e-mails to a journalist who had been interviewed in the radio piece. He then wrote an article about the missing e-mails, which sparked a pretextual “leak investigation” against me. Shortly after my disclosure, on the morning that Lindh’s suppression hearing was to begin, Lindh pleaded guilty to two relatively minor charges. The surprise deal, which startled even the judge, averted the crucial evidentiary hearing that would have probed the facts surrounding his interrogation. Commentators widely agreed that the Lindh prosecution had “imploded.” In retaliation, the Justice Department placed me under criminal investigation without ever informing me of the alleged charges. It referred me to the state Bar authorities where I was licensed to practice law, based on a secret report I was not allowed to see, and I was placed on the “No-Fly List.” Senator Kennedy took up my cause, stating: “It appears Radack was effectively fired for providing legal advice that the Justice Department didn’t agree with.” Bruce Fein, a conservative constitutional scholar and a top Justice Department official under Ronald Reagan, represented me pro bono. I now write extensively on the plight of “enemy combatants” in the war on terrorism and have dedicated my career to representing whistleblowers who dare to speak truth to power. I live in Washington, D.C., with my husband and three children. JESSELYN RADACK (b. 1970) served as an Ethics Advisor to the Justice Department during the first terrorism prosecution following 9/11. Later, she served on the D.C. Bar Legal Ethics Committee and now represents whistleblowers as the National Security and Human Rights Director of the Government Accountability Project. Her 2012 book TRAITOR: The Whistleblower and the “American Taliban” became a best seller among human rights books.