Jesselyn Radack
Encyclopedia
Jesselyn Radack 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 an ethics violation in its interrogation of John Walker Lindh
(the "American Taliban" captured during the 2001 invasion of Afghanistan
), without an attorney present, and that the Department of Justice attempted to suppress that information. The Lindh case was the first major terrorism prosecution after 9/11.
She is currently the homeland security director of the Government Accountability Project
, one of the nation's leading whistleblower organizations.
and attended Brown University
. She was elected to Phi Beta Kappa her junior year, and graduated magna cum laude
in 1992 as a triple-major with honors in all three majors. Since 1983, when Brown began tracking such data, only one other student has received honors in three concentrations.
She graduated from Yale Law School
and joined the Justice Department through the Attorney General Honors Program, where she practiced constitutional tort litigation from 1995–1999 and then worked in the Department's newly-created Professional Responsibility Advisory Office (PRAO) from 1999-2002.
for his son.
Radack responded that interrogating him was not authorized by law because Lindh was represented by counsel. The FBI proceeded to question Lindh without a lawyer. DePue called back Radack the following day, and Radack advised DePue that Lindh's confession
might "have to be sealed" and could be "only used for national security
purposes" and intelligence-gathering, not for criminal prosecution.
Radack continued to research the issue until December 20, 2001, when her supervisor, Claudia 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, when noting the right to counsel, ad-libbed, "Of course, there are no lawyers here" in Afghanistan
.
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." Radack knew that was untrue. Three weeks later, Ashcroft announced Lindh's indictment, saying that his rights "have been carefully, scrupulously honored." This was contradicted by a photograph that was circulating worldwide of Lindh naked, bound to a stretcher with duct tape
, and blindfolded with epithets written across it.
On March 7, 2002, the lead prosecutor in the Lindh case, Randy Bellows, e-mailed Radack 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 her e-mails and wanted to make sure he had everything.
Radack became immediately concerned because the court order had been deliberately concealed from her. Additionally, although Radack had written more than a dozen e-mails on the subject, the Department had turned over only two of them, neither of which 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. Radack checked the hard-copy file and found that the thick, staple-bound stack of paper had been reduced to a few sheets. Radack confided in a senior colleague, former U.S. Attorney
Donald McKay, who examined the file and told her that it had been "purged."
With the assistance of technical support, Radack then recovered 14 e-mails from her computer archives and gave them to Flynn, with a cover memorandum. When Flynn asked Radack why the e-mails were not in the file, Radack replied that she did not know, and her supervisor said, "Now I have to explain why PRAO should not look bad for not turning them over."
of The New Yorker
confirmed 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. Pulitzer Prize
-winning reporter Eric Lichtblau
of the New York Times exposed in 2006 that: "[Alberto] Gonzales made clear that the White House was calling the shots and that he, as White House counsel, had decided not to turn anything over to Lindh's defense lawyer in the way of documents. 'We're not going to provide discovery,' Gonzales said."
Radack resigned from the Justice Department on April 5, 2002. As the Lindh case proceeded, "the administration continued to swear that it knew nothing of the fact that Lindh already had a defense attorney at the time of his interrogation. In June, 2002, Radack heard a broadcast on National Public Radio (NPR) stating that DOJ claimed that it had never taken the position that Lindh was entitled to counsel during his interrogation. Radack did not think that the Justice Department would have the temerity to make public statements contradicted by its own court filings if it had indeed turned over her e-mails.
After hearing the broadcast, Radack sent the e-mails to Michael Isikoff, a Newsweek
reporter who had been interviewed in the NPR story. Such disclosures are authorized under under , the Whistleblower Protection Act
. Isikoff wrote an article about the missing e-mails.
Circa 2002/2003, the DOJ accessed phone records of her conversations with Michael Isikoff.
On July 15, 2002, three weeks after Radack's disclosure was made public and on the morning that Lindh's suppression hearing was due 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 probe the facts surrounding his interrogation--which Radack had advised against--and whether his statements could be used against him at trial--which she had also advised against. Lindh pleaded guilty to two relatively minor charges and journalists agreed that the Lindh prosecution had "imploded."
On June 19, 2002, the judge presiding over Lindh's case requested that the Justice Department file a pleading in three weeks "addressing whether any documents ordered protected by the Court were disclosed by any person bound by an Order of this court." The Justice Department used the court's order as a pretext to launch a criminal investigation of Radack that lasted for the next 15 months. (The judge issued an order in November 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.)
On October 31, 2003, "[t]he Bush-Cheney administration also referred her for 'discipline' to the bar associations in the states where she was licensed to practice law, submitting a secret report she was not allowed to see and making it almost impossible for her to fight the allegations." Maryland
bar officials dismissed the referral on February 23, 2005. The District of Columbia Bar referral is still pending more than eight years later. Radack is the only Justice Department attorney referred to the bar for advice she rendered during the Bush years, in contrast with her law school contemporary, John Yoo, who authored the "torture memos."
She also had a gag order
placed on her, as many other whistleblowers have.
in March 2003 and expressed concern about Radack's situation in May 2003. Sen. Kennedy later said: "It appears she [Radack] was effectively fired for providing legal advice that the [Justice] Department didn't agree with." Constitutional scholar and former Associate Deputy Attorney General under Ronald Reagan, Bruce Fein
, represented Radack pro bono in her effort to clear her name.
as National Security & Human Rights Director in 2006. She also served on the D.C. Bar Legal Ethics Committee. She also represented whistleblowers regarding the reconstruction of Iraq
. She also comments on legal issues such as the Drake case
, the Kim case
, wikileaks, whistleblowing, &c. She maintains a blog at dailykos.
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
who came to prominence as a whistleblower
Whistleblower
A whistleblower is a person who tells the public or someone in authority about alleged dishonest or illegal activities occurring in a government department, a public or private organization, or a company...
after she disclosed that the Federal Bureau of Investigation
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
(FBI) committed an ethics violation in its interrogation of John Walker Lindh
John Walker Lindh
John Phillip Walker Lindh is a United States citizen who was captured as an enemy combatant during the United States' 2001 invasion of Afghanistan. He is now serving a 20-year prison sentence in connection with his participation in Afghanistan's Taliban army...
(the "American Taliban" captured during the 2001 invasion of Afghanistan
War in Afghanistan (2001–present)
The War in Afghanistan began on October 7, 2001, as the armed forces of the United States of America, the United Kingdom, Australia, and the Afghan United Front launched Operation Enduring Freedom...
), without an attorney present, and that the Department of Justice attempted to suppress that information. The Lindh case was the first major terrorism prosecution after 9/11.
She is currently the homeland security director of the Government Accountability Project
Government Accountability Project
The Government Accountability Project is a leading United States whistleblower protection organization. Through litigating of whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability...
, one of the nation's leading whistleblower organizations.
Early life and education
Radack was born in Washington, D.C.Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
and attended Brown University
Brown University
Brown University is a private, Ivy League university located in Providence, Rhode Island, United States. Founded in 1764 prior to American independence from the British Empire as the College in the English Colony of Rhode Island and Providence Plantations early in the reign of King George III ,...
. She was elected to Phi Beta Kappa her junior year, and graduated magna cum laude
Latin honors
Latin honors are Latin phrases used to indicate the level of academic distinction with which an academic degree was earned. This system is primarily used in the United States, Canada, and in many countries of continental Europe, though some institutions also use the English translation of these...
in 1992 as a triple-major with honors in all three majors. Since 1983, when Brown began tracking such data, only one other student has received honors in three concentrations.
She graduated from Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
and joined the Justice Department through the Attorney General Honors Program, where she practiced constitutional tort litigation from 1995–1999 and then worked in the Department's newly-created Professional Responsibility Advisory Office (PRAO) from 1999-2002.
Initial inquiry into Lindh case
On December 7, 2001, Radack received an inquiry from a Justice Department counter-terrorism prosecutor, John DePue, regarding the ethical propriety of interrogating Lindh without a lawyer being present. Radack was told unambiguously that Lindh's father had retained counselCounsel
A counsel or a counselor gives advice, more particularly in legal matters.-U.K. and Ireland:The legal system in England uses the term counsel as an approximate synonym for a barrister-at-law, and may apply it to mean either a single person who pleads a cause, or collectively, the body of barristers...
for his son.
Radack responded that interrogating him was not authorized by law because Lindh was represented by counsel. The FBI proceeded to question Lindh without a lawyer. DePue called back Radack the following day, and Radack advised DePue that Lindh's confession
Confession
This article is for the religious practice of confessing one's sins.Confession is the acknowledgment of sin or wrongs...
might "have to be sealed" and could be "only used for national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
purposes" and intelligence-gathering, not for criminal prosecution.
Radack continued to research the issue until December 20, 2001, when her supervisor, Claudia Flynn, told her to drop the matter because Lindh had been "Mirandized
Miranda warning
The Miranda warning is a warning given by police in the United States to criminal suspects in police custody before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. In Miranda v...
." It was later learned that the FBI agent, Christopher Reimann, who read Lindh the Miranda warning, when noting the right to counsel, ad-libbed, "Of course, there are no lawyers here" in Afghanistan
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
.
Attorney General Ashcroft's public statements regarding Lindh
On January 15, 2002, five weeks after the interrogation, Attorney GeneralUnited States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
John Ashcroft
John Ashcroft
John David Ashcroft is a United States politician who served as the 79th United States Attorney General, from 2001 until 2005, appointed by President George W. Bush. Ashcroft previously served as the 50th Governor of Missouri and a U.S...
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." Radack knew that was untrue. Three weeks later, Ashcroft announced Lindh's indictment, saying that his rights "have been carefully, scrupulously honored." This was contradicted by a photograph that was circulating worldwide of Lindh naked, bound to a stretcher with duct tape
Duct tape
Duct tape, or duck tape, is cloth- or scrim-backed pressure sensitive tape often sealed with polyethylene. It is very similar to gaffer tape but differs in that gaffer tape was designed to be cleanly removed, while duct tape was not. It has a standard width of and is generally silver or black...
, and blindfolded with epithets written across it.
Retribution by Radack's supervisor and missing emails
On February 4, 2002, Flynn gave Radack an unscheduled, undated and unsigned "blistering" performance evaluation, despite Radack having received a performance award and raise a few months earlier. It did not mention the Lindh case by name, but it questioned her legal judgment. Flynn told Radack to find another job or else the review would be put in Radack's official personnel file. Radack had planned on being a career civil servant.On March 7, 2002, the lead prosecutor in the Lindh case, Randy Bellows, e-mailed Radack 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 her e-mails and wanted to make sure he had everything.
Radack became immediately concerned because the court order had been deliberately concealed from her. Additionally, although Radack had written more than a dozen e-mails on the subject, the Department had turned over only two of them, neither of which 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. Radack checked the hard-copy file and found that the thick, staple-bound stack of paper had been reduced to a few sheets. Radack confided in a senior colleague, former U.S. Attorney
United States Attorney
United States Attorneys represent the United States federal government in United States district court and United States court of appeals. There are 93 U.S. Attorneys stationed throughout the United States, Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands...
Donald McKay, who examined the file and told her that it had been "purged."
With the assistance of technical support, Radack then recovered 14 e-mails from her computer archives and gave them to Flynn, with a cover memorandum. When Flynn asked Radack why the e-mails were not in the file, Radack replied that she did not know, and her supervisor said, "Now I have to explain why PRAO should not look bad for not turning them over."
Disclosure of purged emails to Newsweek
A year later, in March 2003, investigative journalist Jane MayerJane Mayer
Jane Mayer is an American investigative journalist who has been a staff writer for The New Yorker magazine since 1995...
of The New Yorker
The New Yorker
The New Yorker is an American magazine of reportage, commentary, criticism, essays, fiction, satire, cartoons and poetry published by Condé Nast...
confirmed 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. Pulitzer Prize
Pulitzer Prize
The Pulitzer Prize is a U.S. award for achievements in newspaper and online journalism, literature and musical composition. It was established by American publisher Joseph Pulitzer and is administered by Columbia University in New York City...
-winning reporter Eric Lichtblau
Eric Lichtblau
Eric Lichtblau is an American journalist and Washington bureau reporter for The New York Times.-Life:Lichtblau joined The Times in September 2002 as a correspondent covering the Justice Department. Previously, Lichtblau worked at the Los Angeles Times for 15 years, where he also covered the Justice...
of the New York Times exposed in 2006 that: "[Alberto] Gonzales made clear that the White House was calling the shots and that he, as White House counsel, had decided not to turn anything over to Lindh's defense lawyer in the way of documents. 'We're not going to provide discovery,' Gonzales said."
Radack resigned from the Justice Department on April 5, 2002. As the Lindh case proceeded, "the administration continued to swear that it knew nothing of the fact that Lindh already had a defense attorney at the time of his interrogation. In June, 2002, Radack heard a broadcast on National Public Radio (NPR) stating that DOJ claimed that it had never taken the position that Lindh was entitled to counsel during his interrogation. Radack did not think that the Justice Department would have the temerity to make public statements contradicted by its own court filings if it had indeed turned over her e-mails.
After hearing the broadcast, Radack sent the e-mails to Michael Isikoff, a Newsweek
Newsweek
Newsweek is an American weekly news magazine published in New York City. It is distributed throughout the United States and internationally. It is the second-largest news weekly magazine in the U.S., having trailed Time in circulation and advertising revenue for most of its existence...
reporter who had been interviewed in the NPR story. Such disclosures are authorized under under , the Whistleblower Protection Act
Whistleblower Protection Act
-Whistleblower Protection Act of 1989:The Whistleblower Protection Act of 1989 is a United States federal law that protects federal whistleblowers who work for the government and report agency misconduct...
. Isikoff wrote an article about the missing e-mails.
Circa 2002/2003, the DOJ accessed phone records of her conversations with Michael Isikoff.
On July 15, 2002, three weeks after Radack's disclosure was made public and on the morning that Lindh's suppression hearing was due 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 probe the facts surrounding his interrogation--which Radack had advised against--and whether his statements could be used against him at trial--which she had also advised against. Lindh pleaded guilty to two relatively minor charges and journalists agreed that the Lindh prosecution had "imploded."
On June 19, 2002, the judge presiding over Lindh's case requested that the Justice Department file a pleading in three weeks "addressing whether any documents ordered protected by the Court were disclosed by any person bound by an Order of this court." The Justice Department used the court's order as a pretext to launch a criminal investigation of Radack that lasted for the next 15 months. (The judge issued an order in November 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.)
Resignation from the Justice Department and Justice Department retaliation against Radack
The Justice Department contacted Radack's new employers and warned the firm that she was under a "criminal leak investigation," even though Radack had never received a "subject" or "target" letter from the Justice Department to that effect, and there is no such crime as "leaking." The law firm placed her on an indefinite, unpaid leave of absence, which is tantamount to being fired. Radack applied for, and received, unemployment compensation benefits, which the Justice Department assisted the law firm in contesting. Radack won the appeal of her benefits; however, the criminal investigation left her unemployed and unemployable. The case closed on September 11, 2003. Investigators never identified a potential charge against her and no charges were ever brought.On October 31, 2003, "[t]he Bush-Cheney administration also referred her for 'discipline' to the bar associations in the states where she was licensed to practice law, submitting a secret report she was not allowed to see and making it almost impossible for her to fight the allegations." Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
bar officials dismissed the referral on February 23, 2005. The District of Columbia Bar referral is still pending more than eight years later. Radack is the only Justice Department attorney referred to the bar for advice she rendered during the Bush years, in contrast with her law school contemporary, John Yoo, who authored the "torture memos."
She also had a gag order
Gag order
A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...
placed on her, as many other whistleblowers have.
Congressional intervention
U.S. Senator Edward M. Kennedy submitted questions about the affair to Attorney General John AshcroftJohn Ashcroft
John David Ashcroft is a United States politician who served as the 79th United States Attorney General, from 2001 until 2005, appointed by President George W. Bush. Ashcroft previously served as the 50th Governor of Missouri and a U.S...
in March 2003 and expressed concern about Radack's situation in May 2003. Sen. Kennedy later said: "It appears she [Radack] was effectively fired for providing legal advice that the [Justice] Department didn't agree with." Constitutional scholar and former Associate Deputy Attorney General under Ronald Reagan, Bruce Fein
Bruce Fein
Bruce Fein is a lawyer in the United States who specializes in constitutional and international law. Fein has written numerous articles on constitutional issues for The Washington Times, Slate.com, The New York Times, Legal Times, and is active on the issues of civil liberties...
, represented Radack pro bono in her effort to clear her name.
Radack suit against the Justice Department
Radack sued DOJ, alleging that its Office of Professional Responsibility violated the Privacy Act of 1974 and the Administrative Procedure Act in connection with its referral of professional misconduct allegations to District of Columbia and Maryland Bar officials. The lawsuit was dismissed in 2006.After DOJ
Radack joined the Government Accountability ProjectGovernment Accountability Project
The Government Accountability Project is a leading United States whistleblower protection organization. Through litigating of whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability...
as National Security & Human Rights Director in 2006. She also served on the D.C. Bar Legal Ethics Committee. She also represented whistleblowers regarding the reconstruction of Iraq
Reconstruction of Iraq
Investment in post-2003 Iraq refers to international efforts to rebuild the infrastructure of Iraq since the Iraq War in 2003.Along with the economic reform of Iraq, international projects have been implemented to repair and upgrade Iraqi water and sewage treatment plants, electricity production,...
. She also comments on legal issues such as the Drake case
Thomas Andrews Drake
Thomas Andrews Drake is a former senior official of the U.S. National Security Agency , decorated United States Air Force and United States Navy veteran, computer software expert, linguist, management and leadership specialist, and whistleblower. In 2010 the government alleged that he 'mishandled'...
, the Kim case
Stephen Jin-Woo Kim
Stephen Jin-Woo Kim is a Senior Analyst at the Office of National Security at Lawrence Livermore National Laboratory with a distinguished career in academia and government service. He lives in McLean, Virginia...
, wikileaks, whistleblowing, &c. She maintains a blog at dailykos.
External links
- Lost in the Jihad, by Jane MayerJane MayerJane Mayer is an American investigative journalist who has been a staff writer for The New Yorker magazine since 1995...
, The New YorkerThe New YorkerThe New Yorker is an American magazine of reportage, commentary, criticism, essays, fiction, satire, cartoons and poetry published by Condé Nast...
, March 10, 2003, p. 7f. - Whistleblowing in Washington by Jesselyn Radack, from Reform Judaism Magazine
- The Woman Who Knew Too Much, Brown Alumni Magazine article
- Anatomy of a Whistleblower, article by Laurie Abraham, Mother JonesMother Jones (magazine)Mother Jones is an American independent news organization, featuring investigative and breaking news reporting on politics, the environment, human rights, and culture. Mother Jones has been nominated for 23 National Magazine Awards and has won six times, including for General Excellence in 2001,...
, January/February 2004 - Whistleblower Charges Justice Dept. with Misconduct - Jesselyn Radack speaks to Democracy Now!Democracy Now!Democracy Now! and its staff have received several journalism awards, including the Gracie Award from American Women in Radio & Television; the George Polk Award for its 1998 radio documentary Drilling and Killing: Chevron and Nigeria's Oil Dictatorship, on the Chevron Corporation and the deaths of...
, January 13, 2005. - Her book, The Canary in the Coalmine (2004), recounts her ordeals.
- DailyKos blog and profile