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Whistleblower Charges Justice Dept. with Misconduct in Chertoff’s Prosecution of John Walker Lindh

StoryJanuary 13, 2005
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We speak with former Justice Department attorney, Jesselyn Radack, who charges that department officials under Michael Chertoff improperly questioned John Waker Lindh and that her memos raising ethical concerns about his interrogation were purged and not turned over to a criminal court. [includes rush transcript]

Michael Chertoff, President Bush’s Homeland Security Chief nominee, was praised by Senate Democrats and state lawyers this week as being a tough but fair prosecutor who would serve well as Tom Ridge’s replacement.

But as his record comes under fresh scrutiny, questions are being raised about his handling of the case of John Walker Lindh–the so-called American Taliban. As head of the criminal division of the Justice Department, the 2002 prosecution of Lindh was one of Chertoff”s biggest triumphs.

But the case resurfaced the following year in Senate confirmation hearings after Chertoff was nominated to be a federal appellate judge. At that time, Senate Democrats questioned Chertoff extensively about concerns that the FBI might have improperly questioned Lindh in Afghanistan even though his family had hired a lawyer for him.

The questioning yielded potentially damaging admissions from Lindh that factored into his decision to later plead guilty to felony charges, resulting in his 20-year prison sentence.

At his 2003 confirmation hearing, Chertoff said he and his deputies did not have an active role in discussions about ethics warnings in the case from lawyers elsewhere in the department. But a Justice Department whistleblower tells a different story.

Jesselyn Radack was an attorney in the Justice Department’s Professional Responsibility Advisory Office during the Lindh case. She raised legal and ethical objections over the questioning of Lindh without his lawyer and revealed misconduct by Department of Justice officials.

As a result, Radack was pushed out of her job at the Justice Department, fired from her next job, put under criminal investigation and put on the no-fly list. She joins us on the phone today from Washington DC.

  • Jesselyn Radack, former Justice Department lawyer.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Jesselyn Radack was an adviser during the Lindh case. She raised legal and ethical objections over the questioning of John Walker Lindh without his attorney and revealed misconduct by Department of Justice officials. As a result, Jessica Radack charges that she was pushed out of her job, fired from her next job, put under criminal investigation and put on a no-fly list. She joins us on the studio today, actually by telephone from Washington, D.C. Welcome to Democracy Now!

JESSELYN RADACK: Thank you for having me.

AMY GOODMAN: Can you tell us your story? What happened? Start with the Lindh case.

JESSELYN RADACK: Basically, back when I worked for the Justice Department’s Professional Responsibility Advisory Office, I happened to be the attorney on duty that day when John Depew, a prosecutor in the terrorism and violent crime section called seeking advice on having an FBI agent interrogate John Walker Lindh in Afghanistan. I was advising not on the legality of interrogating him, but on the ethics of interrogating him. Under the ethics rules governing contact with a represented person, I had, as has been reflected in the public record, advised that he should not be interviewed without his counsel, and that it would be a pre-indictment custodial interview which was not authorized by law. That was on a Friday. And then the counter-terrorism prosecutor called me back on Monday to advise that the FBI had interviewed him anyway, at which point I advised that the interview might have to be sealed, and only used for intelligence gathering purposes — not for criminal prosecution, which, of course, is how it ended up being used. That, however, was not my — my complaint. It was up — I mean, the FBI was free to disregard our advice at their own peril. My concern was that later, I was given a performance evaluation that was baseless and told to find another job, or else it would be placed in my permanent personnel file.

I wasn’t sure what was going on, but it all became clear on March 7 when the lead prosecutor in the Lindh case contacted me and wanted to know if he had all of my email regarding John Walker Lindh’s interrogation. I explained to him that there had been more than a dozen emails, and I didn’t know why he had only two. I was worried immediately that something was amiss. And basically, I went to check the file, and did — it had been purged of my email. I resurrected the missing email from my computer archives with the help of technical support and gave them to my boss. And promptly found another job at that point.

AMY GOODMAN: We’re talking to Jesselyn Radack, who worked for the Justice Department and said she ultimately lost her job for raising questions of ethics in the questioning of John Walker Lindh, charges directly going to Michael Chertoff, the new nominee to head the Department of Homeland security. I’m looking at a piece in the New York Times: “Nomination May Revisit Case of Citizen Seized in Afghanistan.” It’s says, “Newly disclosed documents in the Lindh case appear to conflict with assertions made to congress by Michael Chertoff, nominated this week, about the Justice Department’s handling of ethics concerns in the high-profile prosecution. At his confirmation hearing in 2003, Chertoff said that he and his deputies in the criminal division did not have an active role in the discussions about ethics warnings in the case from lawyers elsewhere in the Department. But, in previously undisclosed department documents provided to the Times by a person involved in the case who insisted on anonymity, a long-time lawyer in the division who worked under Chertoff detailed numerous contacts he had with lawyers inside and outside the division on Lindh’s questioning. The lawyer, John Depew, cautioned in one email message that questioning a suspect represented by a lawyer could be perceived as an ethical violation. Depew told investigators from the Inspector General’s office that the department — that his superiors were upset that he sought the advice of the department’s Professional Responsibility Advisory Office or P.R.A.O., about Lindh’s questioning. A supervisor, “informed me the criminal division’s leadership was disturbed that I sought advice in that matter.” And it goes on from there. It sounds similar to what you were going through.

JESSELYN RADACK: Right. Well, basically, this just confirms what until now I could only speculate about, which was that the advice I rendered contradicted public statements that were being made by the Justice Department. In particular, public statements that were being made by the Attorney General John Ashcroft himself, about the fact that the department believed — never believed, that Lindh was represented by counsel. Now, I knew for a fact that wasn’t true. And — because it was contradicted by the advice I gave. And that led me to, I think, reasonably conclude that my emails had not reached the court, because I did not think that the department would have had the temerity to make public statements contradicted by its own court filings if it indeed forwarded my email to the court, as had been ordered in a federal court discovery order. Why Chertoff denied during his judicial confirmation hearing that the professional responsibility advisory office had ever been consulted is beyond me. I don’t know. I certainly — you know, would not —- don’t feel it’s my place to accuse him of perjury. I think that the public record of his testimony, the first time around speaks loud and clear for -—

JUAN GONZALEZ: I’d like to clarify one thing. In other words, emails that you sent, related to the case warning about the problems with this kind of interrogation, were purged, which would mean that — were purged from the file, which would mean that the defense for — in Lindh’s case would not have access to that material, and would not be able then to point out in a court that there were — that the information solicited from Lindh had been improperly obtained. So, in essence, it was not just a question of them — of their — of the government initially being involved in improper questioning, but then a cover-up of that improper questioning?

JESSELYN RADACK: Right. That was the problem I had with — was with the second part you referred to, the cover-up. Basically, it was up to the judge to determine whether or not the defense would ultimately have access to the documents. But my concern was that the judge did not get all of the documents to consider in the first place. And investigative journalist Jane Mayer confirmed as much in her piece in the New Yorker — which was at the more damning of the emails which contained the advice about not using his statements for criminal prosecution — that those emails were never submitted to the court in the original batch of submitted documents.

AMY GOODMAN: Jesselyn Radack, Senator Kennedy — and this is also raised in the Times piece — briefly held up Michael Chertoff’s nomination last year in 2003, in part because of the questioning, saying that he found some answers about the case non-responsive, evasive, and hyper-technical. A spokesperson for the department, Mark Corallo, said Wednesday, “there was no inconsistency in what Mike testified to.” Can you respond?

JESSELYN RADACK: Well, my response is that in his initial testimony, Chertoff denied that the Professional Responsibility Advisory Office ever took a position on the Lindh interrogation, despite the fact that his denial was contradicted by the public record, specifically articles in Newsweek magazine and in The New Yorker. This is a direct quote by Chertoff: “I have to say, Senator, I think that the Professional Responsibility Office was not asked for advice in this matter. I was involved in it.” And then he went on to say, “Mr. Lindh was Mirandized and had he requested counsel or requested to invoke his right to silence at the point at which the FBI was involved, they would have honored that request.” My position is that the second part of that quote was, at best, a gross mischaracterization of what happened, and at worst, it seems like perjury. As Jane Mayer’s uncontroverted article documented, FBI Agent Reimann read Lindh the Miranda warning but when noting his right to counsel, the agent acknowledged that he ad-libbed, “Of course, there are no lawyers here in Afghanistan.” So, Senator Kennedy asked Chertoff a second time, “Do you remember what the Professional Responsibility Advisory Office position was on this?” And again, Chertoff said, “I was not consulted with respect to this matter. There are parts of the department that generally render opinions in this area of the law and other expertise that was consulted.” Kennedy persevered even more. Kennedy goes on to say, “Well, your statement was the Professional Responsibility Advisory Office did not have that — an official position on this,” and Chertoff said, “I don’t believe they had official position on this.” And it seems very odd to me, because I know, as the author of those emails, that the department–the Professional Responsibility Advisory Office in particular–had taken an official position on this, which is confirmed by this story in The New York Times today, where not only does it indicate that the Ethics Office had taken an official position on it, but that the Senior Leadership of the Criminal Division, which would be Judge Chertoff, that the Senior Leadership was not happy with this official position, and was disturbed by it, and actually went to great lengths to — to read and peruse and familiarize itself with those emails.

JUAN GONZALEZ: Let me ask, the problems in your case did not stop there. You were forced out of the — of your job. You have had trouble finding employment in other law firms, in private — in private law firms, and you were put on a no-fly list. Could you talk to us about this?

JESSELYN RADACK: When I was initially forced out of my job, basically blackmailed with an unsigned, untimely, unprecedented performance evaluation, at that point, I didn’t have trouble finding another job. I took another job with the law firm of Hawkens, Delafield and Wood, and I worked there for about seven months. But during this time, the Justice Department told my new firm that I was under criminal investigation, and that they had just hired a criminal. So, at that point, because the law firm needed to maintain good relationships with the government, and because the government was leaning very heavily on the law firm to fire me, the law firm constructively discharged me by putting me on an unpaid indeterminate leave of absence. Thereafter, there was a criminal investigation of me. It was never specified what I would be charged with, but a criminal investigation for about the next ten months — which makes a very difficult to find a job, of course, with a cloud like that hanging over your head. And, finally, when the criminal investigation concluded, ironically on September 11 of 2003, with no charges being brought against me, they, meaning the Justice Department, immediately referred me to the State Bars in which I’m licensed as an attorney. So, as soon as one cloud was removed, another cloud was soon there. And basically, I feel incumbent upon myself to tell any potential employer that I have been referred to the state bars, and understandably, a lot of law firms are reluctant to hire someone in that circumstance because it could increase their malpractice liability insurance.

JUAN GONZALEZ: So, but tell us also about this no-fly list. Since Chertoff, as the head of Homeland Security would be in charge of these future no-fly lists as well?

JESSELYN RADACK: Well, I hope that since the Department of Homeland Security does take charge over those terrorist watch lists that my name would be removed. During this whole time that the criminal investigation and bar referrals were going on, I began having trouble flying on every single flight that I took. I appear to be on the selectee portion of the no-fly list, which means that I am allowed to eventually board the airline — the airplane — but I have to go through secondary security screening measures each and every time. I have complained about this to the transportation security administration ombudsman and also to the ACLU. I know I am not the only one who is mistakenly on the list, but I hope that if I’m on it, and there’s no way to officially verify that all evidence says that I am, that — that I’m on it by mistake, and not because I am perceived as being some kind of a political enemy.

AMY GOODMAN: Jesselyn Radack, on that note, we have to say thanks very much on that note and conclude this discussion. Former Justice Department employee and whistleblower.

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