A key issue in the trial was whether a confession Lindh had made to an FBI agent in Afghanistan was admissible in court. His defense team granted that the agent had informed Lindh of his right to an attorney, but argued that the agent had improperly added, “Of course, there are no lawyers here.” Hungry, tired, and scared, the man known as the American Taliban had, according to his lawyers, waived his right to counsel only under duress, without knowing that his parents back in California had already retained a lawyer for him in the United States. Lindh’s defense team said that the U.S. government, in its wartime rush to extract information from Lindh, had blocked the lawyer’s attempts to contact his client.
As Radack listened to NPR that morning two years ago, she heard that the U.S. Department of Justice (DOJ) had never believed that the California lawyer, or any other attorney, officially represented Lindh at the time of his confession. Radack was in a position to know that this was not entirely true, and she was outraged at the government’s claim. Six months earlier she had been an attorney-adviser with the DOJ’s Professional Responsibility Advisory Office (PRAO). On December 7, 2001, she fielded a telephone call from John DePue, a prosecutor in the terrorism and violent crimes section of the criminal division in Washington, D.C., a call that would trigger two years of upheaval in her life and that would derail a promising career.
As the attorney on phone duty that day, Radack was responsible for giving advice on ethical matters to federal lawyers around the country. DePue, she remembers, said that an American—Lindh—had been captured and that his family had retained a lawyer for him. Was the FBI within its rights to question him? Later that day she sent DePue an e-mail saying that after consulting with a senior legal adviser at PRAO, she was recommending that the FBI refrain from interviewing Lindh. “It would be a pre-indictment, custodial overt interview,” Radack wrote, “which is not authorized by law.” Radack went on to suggest alternatives, including having the agent say to Lindh, “We understand that your father has retained counsel for you. Do you want this lawyer to represent you?”
The following Monday she learned that the FBI had gone ahead and questioned Lindh anyway. This troubled her enough to send another e-mail. The interview might have to be sealed, she wrote, or used only for national security purposes as intelligence in the war on terrorism. “However,” she added, “I don’t have enough information yet to make that recommendation.” Over the next ten days, Radack says, and at the request of her supervisor, she researched PRAO’s advice on unauthorized interrogations and tried to get more information about Lindh’s legal status from DePue. Then, on December 20, Radack’s boss suddenly said that PRAO’s involvement in the case was over. Radack felt uneasy: generally her office would monitor a case closely when someone disregarded its advice. “I was definitely getting the vibe to drop it,” she says, “but I didn’t feel strongly enough to make a huge issue of it.” (A spokeswoman at DOJ headquarters did not respond to numerous phone requests for comment on Radack’s story. Radack’s then-supervisor did not return phone, fax, or e-mail messages from the BAM.)
THE MATTER KEPT resurfacing in ways that made Radack increasingly uncomfortable. On January 15, 2002, when Attorney General John Ashcroft held a press conference to announce the filing of criminal charges against Lindh, one reporter asked when Lindh would have access to the lawyer his family had hired. “The subject here is entitled to choose his own lawyer,” Ashcroft replied, “and to our knowledge has not chosen a lawyer at this time.” Ashcroft’s reasoning, she believed, was that because Lindh did not pick the lawyer himself, the lawyer did not represent him at the time of the interrogation and that therefore the questioning did not violate his rights.
Radack did not agree with Ashcroft’s reasoning, but says she could see his logic. “You can debate it one way or another,” she says. Michael Chertoff, who was then head of the DOJ criminal division and who is now a federal judge, would later cite a 1986 Supreme Court case to support Ashcroft’s position. In Moran v. Burbine, the court ruled that police officers did nothing unconstitutional when they failed to tell a suspect who’d waived his Miranda rights that his sister had already retained counsel for him. Chertoff would also argue that Lindh’s situation was special: the rules governing contact with a represented person apply only to attorneys, not to FBI agents questioning a combatant overseas. In addition, Chertoff would assert that Radack’s cautionary e-mails should be interpreted not as an official PRAO position, but as only an early step toward developing one.
Radack understood why, in the wake of September 11, the justice department would try any legal way to crack down on an American member of the Taliban. “There was definitely a sense that people were out for blood,” she says, and she was sympathetic. After all, on the morning of 9/11 she had watched from her office window as a plume of smoke rose in the distance from the burning Pentagon. And a friend of hers had died in the World Trade Center that day. But when Ashcroft announced Lindh’s indictment, saying the rights of the accused had been “carefully, scrupulously honored,” Radack couldn’t shake her doubts. While acknowledging that the interview might hold up legally and technically, Radack questioned the ethics of using it to send Lindh to prison. “How far are we going to go?” she wondered.
Radack, who lives with her husband, Dan, and their young children, Jacob, Sam, and Tenlea, had to this point in her career been a loyal government attorney with blue-chip credentials. But she was never one to shrink from controversy. Elected to Phi Beta Kappa at Brown, she’d been a triple concentrator in American civilization, women’s studies, and political science. Since 1983, when Brown began tracking such data, only one other student has received honors in three concentrations. Associate Professor of Political Science Ross Cheit, one of Radack’s teachers, says that in class she was thoughtful and principled: “I’d use the words feisty and outspoken, but I’d say them in the best possible way.”
She became a campus activist during her sophomore year, after, she says, three drunken male students had groped and propositioned her and she’d witnessed the University’s punishment: extra laps at football practice. Radack joined with three other women to try to strengthen Brown’s disciplinary policies on sexual misconduct. In 1990 the women’s efforts attracted national publicity after other women penned a list of alleged student rapists on a bathroom wall in the Rockefeller Library. Radack says she and her three coactivists did not condone the graffiti, but they understood why women were resorting to it. The four even appeared on The Phil Donahue Show that year to discuss their work, which eventually helped pressure the University to add a sexual-misconduct provision to its code of student conduct.
After Brown, Radack moved on to Yale law school, where she published three law review articles, helped edit a student law journal, served as an assistant registrar of voters, and was elected class representative all three years. She went to Washington as a White House intern during her third year. She joined the DOJ through the prestigious Attorney General’s Honor Program, the department’s recruitment program for entry-level lawyers. It offered Radack the opportunity to litigate; as a junior lawyer at a private firm she would have been confined mostly to behind-the-scenes tasks. “I wanted to be a public servant,” she says. She began by working in the DOJ’s civil division, where she defended federal officials and the U.S. government against accusations of wrongdoing. It was a perfect job—until she began having children. She won a jury trial while seven months pregnant with her second son, but grew weary of the heavy travel schedule and the tight deadlines.
In April 1999 Radack at her request began working part-time at the new PRAO and switched to permanent status there in February 2000. After earning a performance bonus six months later, she says, she published an article in the Georgetown Journal of Legal Ethics on the negative effects of the McDade amendment, which placed new restrictions on federal prosecutors. In response to the article, she says, she received a thank-you letter from FBI director Robert Mueller. The deputy attorney general invited her to lunch.
SO ON FEBRUARY 4, 2002, when Radack received what she calls a “blistering” and “vitriolic” performance review—even though it was not the normal time of year for evaluations—she was shocked. The unsigned review covered a period from December 27, 2000, to September 30, 2001, and without mentioning the Lindh case it questioned her judgment and her ability to do her job. “She required more supervision than someone of her training and experience should have required,” the review stated, elaborating that in one instance Radack’s advice caused a serious problem and that at least twice she responded to inquiries or provided advice prematurely, before the director could approve her responses or the office could refine its position.
“I felt blindsided,” Radack says. Her boss gave her an unexpected choice: find a new job or the review would be placed in her personnel file. “I’d really planned on being a career civil servant,” she says. “I thought I would be at the Department of Justice for my whole career.” Characteristically, Radack started drafting a point-by-point rebuttal to the review. Her husband wondered why. Why stay in an office where someone was trying to sabotage her career? Radack began looking for new work.
She was still at PRAO on March 7, 2002, when she says she got an e-mail from Randy Bellows, the lead prosecutor in the Lindh case, telling her that the judge had ordered all internal DOJ correspondence on Lindh turned over to the court. He had two of her e-mails, he said; were there any others? Certain she had printed out and filed at least a dozen Lindh-related e-mails she’d either sent or received, she asked her boss why Bellows didn’t have all of them. She says her boss replied in a slow whisper: “I sent everything that was in the file.”
Confused, Radack went upstairs to the library and pulled the Lindh file, which she says she’d compiled months earlier and turned over to her boss. The folder, Radack says, was much thinner than she’d remembered and contained only three of her e-mails. Her first message to DePue was there; missing, she says, were the e-mails stating that the FBI had questioned Lindh anyway and that the interview might need to be sealed. The only other items in the file were two fax cover sheets showing that her boss had sent the three surviving e-mails to senior DOJ officials. “I felt immediately sickened,” Radack says.
No one at PRAO had told her about the judge’s order or checked to see if she had documents to be turned over. “This was not justice—playing fast and loose with a court order, not making every effort to comply,” Radack says. On the advice of a colleague and with the help of tech support, she recovered from her computer fourteen e-mails detailing her correspondence with DePue on the Lindh case. She printed copies for her boss and offered to send them to Bellows. She says her boss declined the offer, adding that she would take care of the matter herself.
Radack left the government soon after, in April 2002, and began a job at the private firm of Hawkins, Delafield & Wood. Two months later she heard the NPR broadcast about Lindh, the broadcast that made her think again of the Ashcroft press conferences, of her performance review, of the e-mails. She understood why the department would seek to present a united front about its view of Lindh’s legal situation. She even understood the desire to keep under wraps internal e-mails containing dissenting opinions. “What’s not okay,” she says, “is to hide that there was any disagreement when a federal judge has asked for information that happens to show disagreement.” Radack suspected that her most revealing e-mails had never made their way to the judge. “This is not about any kind of bleeding-heart sympathy for Lindh,” she says. “It’s about justice and playing by the rules.”
UNTIL THAT DAY in June 2002, Radack’s situation was the not uncommon one of a government employee who falls out of step with her department’s approach and finds work elsewhere. Now she made a bolder and riskier move.
Radack gave Newsweek reporter Michael Isikoff copies of the e-mails she and DePue had exchanged. Isikoff, one of the reporters she’d heard discussing the case on NPR, then quoted from them in the June 24 issue of the magazine. “The Lindh Case E-Mails,” the headline announced. “The Justice Department’s own lawyers have raised questions about the government’s case against the American Taliban.” Thirteen of the e-mails appeared on Newsweek’s Web site.
Radack had placed herself in the center of the storm, but with the Newsweek leak her story becomes more ambiguous. The suspicion she’d had after the NPR broadcast turned out to be wrong: her e-mails, according to the government, had in fact made their way to the judge and had been filed under seal. The judge, unhappy that secret e-mails had now shown up in a national newsweekly, asked the government to investigate the leak. A special agent from the DOJ’s inspector general’s office called Radack at her new job, asking her to voluntarily provide information. She cut the call short without admitting she had been Isikoff’s source. Of the eighteen DOJ employees who’d received the e-mails, she was the only one, according to court papers, who would not sign a sworn affidavit stating she did not disclose them.
Radack quickly hired a lawyer, Rick Robinson of Fulbright & Jaworski. “There was a fair amount of hysteria surrounding the John Walker Lindh case and the aftermath of September 11,” Robinson says. “Jesselyn needed legal protection so she didn’t get swept up in the frenzy.”
Then, in the middle of that frenzy, the government cut a surprise deal with Lindh. On July 15, 2002, in exchange for a sentence of twenty years in prison, the American Taliban pleaded guilty to supplying services to the Taliban. The deal was announced just before a hearing was to begin on the defense motion to suppress Lindh’s statements to the FBI. The defense’s argument was that the questioning violated Lindh’s rights, the very issue discussed in Radack’s e-mails.
But even with the case settled, the DOJ was not through with Radack. The inquiry into the e-mail leak continued. Radack says the special agent told various people at her law firm—but not Radack—that she was under criminal investigation. On October 1, 2002, a Hawkins attorney notified Radack that in light of “circumstantial evidence” under consideration by the DOJ, the firm’s management committee was inclined to ask for her resignation.
Radack responded by invoking the Whistleblower Protection Act, which Congress passed in 1989 to protect employees who disclose information they believe shows misconduct. Radack suspected the DOJ was punishing her for pressing the issue of the missing e-mails, first by pushing her out of her government job and then by sullying her name at her new firm. Hesitant to come clean to the DOJ or her new employer, she did not admit to giving Isikoff the e-mails; instead she claimed she was protected as a whistleblower because she had brought misconduct to the attention of her superiors.
Unfortunately for Radack, though, lawyers can’t become whistleblowers without walking through another ethical minefield: the confidentiality of attorney-client discussions. The DOJ would eventually write to the Maryland and District of Columbia bars saying that Radack may have violated her lawyerly duty “not to knowingly reveal attorney-client privileged information (i.e. confidential information of the United States).” The government would also argue in court papers that communications between PRAO and the Lindh prosecutors were confidential. But whom does a DOJ attorney represent—the government or its citizens? “She doesn’t work for the attorney general,” says Doug Hartnett of the Government Accountability Project, a nonprofit law firm that defends whistleblowers and that has advised Radack. “She works for the taxpayers.” George Kuhlman, the ethics counsel for the American Bar Association, says it’s not so clear: courts have ruled both ways. “You can’t hide behind attorney-client privilege to commit illegal acts,” Radack argues. “I was trying to secure compliance with a federal court order.”
A week after Radack told her firm she was protected as a whistleblower, its management committee gave her two choices: sign an affidavit saying she did not leak the e-mails, or resign. She did neither. On October 25, 2002, she was placed on paid leave, and a month later on unpaid leave. In January 2003 the inspector general’s office suddenly informed Radack she’d been referred for criminal prosecution. On what grounds, Radack did not know. “I was very scared,” she says. Then, eight months later, she was just as suddenly told that the government was dropping its investigation into a criminal case against her.
THE DAMAGE TO HER CAREER had been done, however. Having to disclose to every potential employer for eight months that she was under federal criminal investigation, Radack found it nearly impossible to land a job interview. “So many in the legal community need the good graces of the justice department to prosper,” says Bruce Fein, an associate deputy attorney general in the Reagan administration who has agreed to join Radack’s legal team pro bono. Since the end of the criminal investigation, Radack has had just one formal interview. But it led nowhere. She learned of her rejection in an e-mail saying that the risk of hiring her would be too great. “She has basically been made a pariah of the legal community,” Fein says.
Shortly after it dropped its criminal investigation, the DOJ informed Radack of its recommendation that the Maryland and District of Columbia bars investigate her for possible professional misconduct in betraying attorney-client privilege and in allegedly leaking e-mails under a court seal. Radack was devastated. The day she got the letter in November she was thirty-one weeks pregnant; she lost five pounds the following week. “Professionally I’m right back to where I was in September,” she laments. Hartnett, of the Government Accountability Project, adds, “It’s pretty clear that they’re overturning any rock they can to retaliate against her. She is long since not a problem for them anymore. Why are they continuing to destroy her career?”
Meanwhile, Radack presses for a meaningful investigation into her allegations of wrongdoing. In late November the DOJ did ask to interview her about her claims, but she refused, primarily because the office handling the questioning is the same one that made the bar referral. “It was completely a shoot-first, ask-questions-later kind of thing,” Radack says.
Although Radack has not ruled out suing the government, she is trying less dramatic means for now to clear her name. On December 31, three days after Radack gave birth to Tenlea, Fein asked the judge in the Lindh case to release a sealed summary of the inspector general’s investigation into the Newsweek leak. The lawyer’s motion argues that the release would show that the government overreached its duties by damaging Radack’s career and reputation. It also asks for a special prosecutor to determine whether the DOJ committed contempt in not fully complying with the Lindh court order. In the motion Radack for the first time admits she was the magazine’s source. She says she has always been willing to tell the full story to the judge, and the motion provided the first vehicle for her to do so.
In late January the government responded in writing to the judge, raising no objection to releasing the summary but, not surprisingly, calling the request for a special prosecutor “not only without substance, but also posturing.” In an e-mail to the BAM, the U.S. attorney’s office in charge of the government’s response said, through a spokeswoman, that Radack’s claims of wrongdoing are based upon speculation and inaccurate and incomplete information.
In its response to the judge, the government noted that Radack, despite working for the DOJ when she discovered her e-mails missing, did not contact the prosecutors. (She says she felt intimidated.) The government did not contest that the PRAO file was incomplete or that Radack should have known earlier about the court order. It did, however, cite a series of docket numbers to prove that the Radack e-mails had indeed been submitted to the court. Those docket items remain under seal, making it impossible to confirm that the e-mails are there. Still, a look at the docket shows that the government did not file some of the items until March 11, 2002, four days after Radack had resurrected the e-mails. It might be that Radack simply brought an innocent oversight to the attention of her superiors, who acted accordingly. The timing might also have been unrelated to her action. Or Radack might have averted a deliberate effort to hide her e-mails from the judge.
In February, while remaining silent on the issue of a special prosecutor, the judge granted Radack’s request to lift the seal. The nine-page, newly public document outlines how the government reached its conclusion that Radack disclosed the e-mails, and adds that the DOJ specifically told her not to take any documents—including e-mails—with her when she left.
On it goes. These days Radack spends most of her time working on her case, writing, and caring for her new baby. She has started a fund to offset the $30,000 she says the ordeal has cost in legal fees. Though she and her husband sometimes speculate about moving far away from Washington, at this point they plan to stay. “If I were to leave D.C., I’d want to leave on my own terms,” she says, “and not because I feel like I’ve been forced out. My home is here. My friends are here. My family is here. I mean, this is our life. I don’t want to be chased away.” Ross Cheit, her former professor, says it’s hard to imagine that someone he describes as among the “cream of the crop” at Brown cannot find work inside the Beltway. “It sounds like she was doing something that ethics would actually demand,” says Cheit, who has a law degree and teaches ethics in his courses. “To think that she’s being punished for it is really regrettable.”
Radack also has no intention of changing careers. “If I quit practicing law, I’ll be giving them exactly what they want,” she says. She tells herself she is a footnote in larger debates about the balance between fighting terror and protecting human rights and about the responsibilities of a government lawyer. But it’s hard. “I’ve basically been blacklisted,” she says. “I’m in this Kafkaesque nightmare. I can’t wake up. It’s something you read about and say, ‘That would never happen to me. That would never happen to anyone I know.’ ”
Emily Gold Boutilier is the BAM’s senior writer.