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Ashcroft’s War on Legal Whistleblowers

D.C. attorney Jesselyn Radack was once employed in the Department of Justice’s Office of Professional Responsibility (an oxymoron these days, if you ask me, but that is another article). She was the wrong woman in the wrong place at the right time. In 2002, Ashcroft was trying to get the lethal injection for young John Walker Lindh. To hear Ashcroft describe him, Lindh, the misguided, naive, well-to-do student of Islam, was the anti-Christ himself.

FBI and DOJ had some explaining to do about Lindh’s so-called confessions and whether his Miranda rights (not to be questioned without an attorney present, if he so chose) were violated. At first, Justice said he never asked for a lawyer. Then they conceded that his father asked for a lawyer but they didn’t know about it. Then they said that his father asked for a lawyer and they did know about it, but that didn’t count because his father did not have the right to ask for a lawyer for his son. His son had to ask. But then, Lindh did ask. Sort of. He said I think my dad is getting me a lawyer. DOJ interrogators, who had removed Lindh from Afghanistan to some ship and kept him in a cargo box, kept on questioning and Lindh made what to the government were incriminating statements.

Back to Jesselyn Radack. Her story, earlier versions of which were reported in The New Yorker and Newsweek, has taken a turn for the worst. As reported in The American Lawyer, not only was Radack forced to resign from DOJ, she has been fired by the law firm that subsequently hired her. And she may be facing criminal prosecution.

That’s right, the Department of Justice is hot on the trail of the Department of Justice attorney who had the audacity to send copies of emails to the federal judge that suggested that Justice did know that Lindh’s father and the lawyer he retained were telling DOJ contacts holding Lindh not to question him without his lawyer being present. The source of the advice not to question Lindh came from Radack herself–after all, that was her job. To advise DOJ employees about thorny legal matters.

According to the article by Douglas McCollam, Radack advised John De Pue, a counterterrorism prosecutor, in a series of emails, that since Lindh’s father had hired James Brosnahan of Morrison & Foerster, she didn’t think the Federal Bureau of Investigation could question Lindh alone. Others at Justice disagreed, and Lindh’s statements became the basis of a 10-count indictment.

When Radack argued that her e-mails should be disclosed to the judge hearing Lindh’s case, she and her bosses ended up at odds. In April 2002 Radack quit the Justice Department and joined the D.C. branch of New York’s Hawkins, Delafield & Wood.

Two months later her e-mails showed up in a story by Newsweek’s Michael Isikoff. And about two weeks after that, she got a call from Ronald Powell, a special agent for the Justice Department’s Office of Inspector General. As Radack begin to realize that she was a potential prosecution target, she hired an attorney to defend her. Her law firm could not stand the heat and fired her.

So now, a 32-year old woman of principle, with two children, a third on the way, and suffering from multiple sclerosis, has DOJ breathing down her neck. They didn’t get to put Lindh to death, partly because the validity of some of his statements were in question, but they got 20 years out of the young man’s life.

What they didn’t get from Lindh, they are trying to make up by ruining Radack’s legal career, and even more. And if having DOJ trying to ruin your life is not enough, after the Hawkins firm firmed her, they appealed her receipt of unemployment benefits. She won that round. But, they struck back. They told her they turned over her office computer to the Justice Department.

Radack’s professional and personal lives are in limbo because Radack dared to mess with one of John Ashcroft’s cases. His prosecutors were left bumbling and scrambling, they had to negotiate with the attorney the FBI would not let Lindh see, and someone is going to pay. This time, it is the attorney who stood for the right thing. That is the wrong thing to do in these times.

ELAINE CASSEL practices law in Virginia and the District of Columbia and teaches law and psychology. She is writing a book on civil liberties post 9/11, and keeps an eye on Bush and Ashcroft’s trampling on the Bill of Rights at her Civil Liberties Watch. She would love to write a book about Ashcroft’s jurisprudence, but finds it too depressing. She can be reached at: ecassel1@cox.net