Whistleblowing in Washington
I was convinced that the Justice Department had acted illegally in the “American Taliban” case. My Jewish conscience compelled me to act.
by Jesselyn Radack

My bat mitzvah Torah portion at Temple Isaiah in Columbia, Maryland included the verse "Lo ti-eh aharay rabim," "Thou shalt not follow a multitude to do wrong" (Exodus 22:3)--a dictum that has informed my decision-making ever since. In high school it meant not drinking alcohol in the bathroom with some of the fast kids in my class. It also meant feeling deep regret at my choice not to speak out when classmates were ganging up on an unpopular student with a disability. My failure--which, when I think of it today, still leaves me with dyspepsia of the soul--taught me that acts of omission, standing silent in the face of wrong-doing, can be as harmful as acts of commission. Twenty years later, it led me to a far more serious decision.

It all began on Friday, December 7, 2001. Serving as a legal advisor to the Department of Justice on ethical matters in the Professional Responsibility Advisory Office, I fielded a call from John De Pue, a counterterrorism attorney who was the FBI's point of contact in the Criminal Division on the case of John Walker Lindh. Prosecuting the "American Taliban" would be the Justice Department's first high-profile case in the post-9/11 war on terrorism.

De Pue inquired about the ethical propriety of interrogating Lindh without a lawyer being present. He told me unambiguously that Lindh's father had retained counsel for his son. I replied that Lindh should not be questioned without his lawyer. Later that day I followed up with an e-mail, explaining to De Pue that such contact would be a pre-indictment, custodial, overt interview, which was not authorized by law under the ethics rule governing communication with a person represented by counsel. (We always put our advice in writing because if attorneys sought our office's guidance on an ethical dilemma and followed our advice in good faith, then the Justice Department would defend them should they later face ethics charges from opposing counsel, the judge, or a state bar association.)

Sometime that weekend the FBI interviewed Lindh. De Pue called back on Monday--what should they do now?

I advised--again both verbally and in writing--that the interview might have to be sealed and used only for intelligence gathering or national security purposes--not for criminal prosecution.

Weeks later, I learned that once again my advice was ignored.

On January 15, 2002, then Attorney General John Ashcroft announced at a nationally-televised press conference that a criminal complaint was being filed against Lindh. "The subject here is entitled to choose his own lawyer," he said, "and to our knowledge has not chosen a lawyer at this time." I knew this wasn't true. De Pue's concerns had reached Michael Chertoff, then-assistant attorney general for the Criminal Division, who stood beside Ashcroft at the press conference. I didn't say anything--it was the attorney general's prerogative to decide on the ultimate position taken by the Justice Department.

Another three weeks went by. Then came the announcement of Lindh's indictment. Ashcroft proclaimed that Lindh's rights had been "carefully, scrupulously honored." Another falsehood. Again, I didn't say anything, because a trophy photo then widely printed in the press plainly belied this assertion. In the famous picture, Lindh was naked, blindfolded, and strapped to a board with duct tape wrapped around his chest, arms, and ankles.

Shortly thereafter, I was handed a scathing, unsigned, untimely, and unprecedented performance evaluation by my boss--the same boss who had in the preceding months assessed my work as worthy of a merit bonus and a raise. She told me the review would be placed in my permanent personnel file unless I found another job. She didn't give me a deadline for leaving, but came by my office almost daily with job leads. At the time I did not understand why she was so eager to get rid of me.

A few weeks later, I was finally able to put two and two together. On March 7, Randy Bellows, the lead prosecutor in the Lindh case, informed me by e-mail that the judge presiding over the case had ordered all Justice Department correspondence related to Lindh's interrogation to be submitted to the court. Such orders are routinely disseminated in writing to everyone even remotely connected with the case in question; in this instance I heard about it only because the prosecutor contacted me directly.

There was more. Bellows said he had two of my e-mails. I knew I had written more than a dozen. I went to check the office files, which contained the hard copy of our advice, and discovered that the e-mails containing my assessment that the FBI had committed an ethical violation were gone.

I was astounded. Those documents were proof that the line attorney had sought our guidance in case he ever got into trouble over the ethics of his conduct. More importantly, they were germane to the case and the subject of a court discovery order. With the help of technical support, I recovered the missing e-mails from my computer archives. I documented and included them in a memo to my boss and took home a copy for safekeeping in case they "disappeared" again. I asked my boss if she wanted me to send them to the prosecutor or the court.

"No," she said firmly. "I'll handle it."

Then I resigned. I did not fully understand what was going on, but it felt very wrong, and I didn't want to be part of it.

Months went by. As the Lindh case proceeded toward trial, the Justice Department asserted yet again that, at the time of his interrogation, Lindh did not have a lawyer. I was now convinced that my e-mails had never been turned over to the court; I didn't believe the Justice Department would have the temerity to make public statements contradicted by its own court filings. I also knew it would soon be time for the suppression hearing, a pretrial proceeding in criminal cases in which a defendant seeks to prevent the introduction of evidence alleged to have been obtained illegally. All indications were that the court did not have all the evidence--and not by accident or oversight, but by deliberate design.

Now I had an ethical decision of my own to make. I could do nothing, which would in effect continue the cover-up. Or I could blow the whistle.

What was at stake in this case, I believed, went far beyond the particulars of Lindh's innocence or guilt to the fundamental fairness of the American criminal justice system. As the Supreme Court has noted, the Justice Department's interest in a criminal prosecution "is not that it shall win a case, but that justice shall be done." The consequences of playing fast and loose with the ethics rules would not only delegitimize the integrity of any conviction, but debase the entire legal system. (Ironically, during this time the Department was prosecuting Arthur Anderson for destruction of evidence and obstruction of justice in the Enron case.)

As I weighed the matter before me, I found myself thinking back to the lesson of my Torah portion--"Thou shalt not follow a multitude to do wrong"--words which had guided me so many other times in my life.

I decided to set the record straight.

Now, what were my options? 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.

In June of 2002, I sent the e-mails to Newsweek. The story ran on June 24. Lindh pleaded guilty to two minor charges three weeks later, on the morning that his suppression hearing was due to begin. The bombshell plea bargain, which startled even the judge, was announced before a packed courtroom awaiting the start of what was to be a crucial evidentiary hearing on whether statements Lindh made while in custody in Afghanistan--the ones I had advised against--could be used against him at his trial--which I had also advised against. The trial had been set to start the following month.

The Newsweek story seemed to play a part in the Justice Department's agreement to a plea bargain deal. As CBS commentator Andrew Cohen noted in writing about my role, "It was clear, although the government never explicitly conceded so, that prosecutors were open to a deal with Lindh because of the brutal way in which he was treated by his military captors in Afghanistan and the spurious way in which federal law enforcement officials had observed Lindh's constitutional rights. It is no coincidence that the Lindh deal came about on the eve of a scheduled week-long [suppression] hearing that was going to bring into the open the specifics of how Lindh was treated and by whom."

My decision to blow the whistle in the Lindh case came at a stiff price. I was out of a job. I also lost my next job at a private law firm because the government told firm decision-makers that I was a "criminal" and leaned on them to terminate me (as firing me would expose them to a wrongful termination suit, the firm instead chose to put me on an involuntary, indefinite, unpaid leave of absence).

The Justice Department then brought a criminal case against me. I was never told for what I was being investigated or for what I could be charged. Later, the Department referred me for discipline to the D.C. and Maryland bar associations based on a secret report to which I did not have access. This rendered me unemployable (the referrals alone would increase the malpractice liability insurance premiums of any potential employer). And as a final retribution, I was put on the "no-fly" list.

Although the Whistleblower Protection Act prohibits an agency from retaliating against an employee, it provides no remedy when such reprisals occur. The U.S. Office of Special Counsel, an investigatory agency that is statutorily obligated to protect federal employees from prohibited personnel practices, has been a failure. Moreover, the Whistleblower Protection Act does not provide for a private cause of action; in other words, unless you've been "damaged" in some other actionable way--for example, by having your privacy rights violated--there are no grounds to sue.

On September 11, 2003, my attorney was informed, without explanation, that the criminal case against me was being closed. I was apparently removed from the "no-fly" list after complaining to the ACLU. After more than a year, the Attorney Grievance Commission of Maryland dismissed the bar complaint against me, but the D.C. bar complaint is still pending. I was elected to the D.C. Bar Legal Ethics Committee, and now serve as an adjunct professor teaching professional responsibility at American University's Washington College of Law, but my teaching position is not tenured. And my legal bills are approaching $100,000.

People often ask me if, knowing then what I know now, I would make the same choice to blow the whistle. My answer is always yes. Despite what I've endured, I can face God with a clear conscience.

People also ask me if this experience has engendered a crisis of faith. On the contrary, Judaism has helped me get through this difficult period. My childhood rabbis, Stephen Fuchs and Amy Scheinerman, and my current rabbi, Fred Reiner, have all been sympathetic and supportive. I have also drawn strength from the writings of Rabbi Harold Kushner, who taught me that God did not cause my suffering and could not prevent it. Rabbi Kushner's re-interpretation of the story of Adam and Eve teaches that the ability to choose between right and wrong is what makes us human. God does not interfere with that choice. But God can give us the strength of character we need to handle the consequences.

I chose my conscience over my career and take pride in having spoken truth to power.

Jesselyn Radack is an adjunct professor at American University's Washington College of Law and serves on the D.C. Bar's Legal Ethics Committee. To learn more about her case visit www.cradl.info.

Union for Reform Judaism.