Radack worked at the Justice Department's Professional Responsibility Advisory Office, which advises department lawyers on ethics issues. An attorney in the counterterrorism section of the Criminal Division inquired about the ethical propriety of interrogating
John Walker Lindh, dubbed the "American
Taliban". Lindh was captured during the
United States invasion of Afghanistan. With her director's approval, she advised that such an interrogation would violate the Justice Department's ethics rule governing contact with a represented person and was not authorized by law. During this time, a photo circulated in the news of Lindh naked, blindfolded, and bound to a stretcher with duct tape. Radack considered this to be torture. After the FBI interrogated Lindh despite her office's advice, the counterterrorism attorney sought further guidance. She and her director concluded that the FBI committed an
ethics violation in their custodial interrogation of Lindh without counsel. They further advised that the fruits of Lindh's interrogation could be used for intelligence-gathering purposes, but not for criminal prosecution. When the Justice Department prosecuted Lindh against the advice of the ethics office, Radack alleged that her boss attempted to conceal the advice when the judge ordered its production.
Initial inquiry into Lindh case On December 7, 2001, Radack received an inquiry from Justice Department counterterrorism prosecutor John DePue, regarding the ethical propriety of interrogating Lindh in Afghanistan without Lindh's legal representative being present. He told her that Lindh's father had retained a lawyer for his son; Lindh was not aware of this arrangement. Radack responded that interrogating him was not authorized by law. According to Radack, the advice she gave had been approved by Claudia Flynn, then head of PRAO, and Joan Goldfrank, a senior PRAO attorney. The FBI proceeded to question Lindh without Lindh's lawyer having given permission. DePue informed Radack of the interrogation on December 10, 2001, and she advised him that Lindh's "interview may have to be sealed or only used for national security purposes; however, I don't have enough information yet to make that recommendation". Radack continued to research the issue until December 20, 2001, when Flynn told her to drop the matter, because Lindh had been "
Mirandized". It was later learned that the FBI agent who read Lindh the Miranda warning had, when noting the right to counsel, ad-libbed: "Of course, there are no lawyers here".
U.S. government statements on Lindh's legal rights On January 15, 2002, five weeks after the interrogation,
Attorney General 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". In June 2002,
Newsweek published internal emails between Radack and a counterterrorism attorney in which Radack and her supervisor concluded that the FBI plans to interrogate Lindh without counsel would violate ethics guidelines and were not authorized by law. In late 2003, the
Supreme Court confirmed Radack's position that U.S. citizens designated as "enemy combatants" have a right to counsel in the case
Hamdi v. Rumsfeld. In early 2005 Radack recalled her reaction to a different Ashcroft statement—that Lindh's rights had been "carefully, scrupulously guarded"—more starkly : "I knew that wasn't true".
Poor performance review On February 4, 2002, the day before the Lindh indictment was announced, Flynn gave Radack an unscheduled, "blistering"
performance evaluation, despite Radack having received a merit raise the year before. Flynn had not yet signed the review. She advised Radack to find another job, or the review would be put in Radack's official personnel file.
Missing emails On March 7, 2002, while Radack was still working at PRAO, the lead prosecutor in the Lindh case, Randy Bellows, messaged Radack that there was a court order for all of the Justice Department's internal correspondence about Lindh's interrogation. Radack confided in a senior colleague, former
U.S. Attorney Donald McKay, who examined the file and told her that it had been "purged". Which emails the Department of Justice supplied to the court, and when, cannot be determined directly because the court placed them under seal. The government responded that it had supplied the emails to the court in its initial response to the court order seeking them, i.e., on March 1, 2002. The description of the 24 documents (probably including duplicates) provided to the court at that time matches Radack's emails, including the one that states interviewing Lindh is not authorized by law. DePue, the recipient of the emails, also had copies and states that they were submitted to the court. The judge rejected Radack's request as "impertinent". In 2004 Radack filed suit against the government (see below). In 2005, the court found that "[t]hough Flynn informed Radack that she would send the emails to Bellows, Radack maintains that she had a 'good faith belief' that this never occurred...Radack was mistaken, for in filings submitted to the Virginia District Court on March 1, 2002, and March 11, 2002, Bellows turned over thirty-three PRAO-related documents, including Radack's fourteen emails, ex parte and under seal, for
in camera review".
Disclosure to Newsweek of emails believed to have been purged Radack resigned from the Justice Department on April 5, 2002. In June 2002 she heard a broadcast on
NPR stating that the department said they had never taken the position that Lindh was entitled to counsel during his interrogation. She later wrote, "I knew this statement was not true. It also indicated to me that the Justice Department must not have turned over my e-mails to the Lindh court ... because I did not believe the Department would have the temerity to make public statements contradicted by its own court filings, even if those filings were
in camera." She reasoned that "disclosure of my e-mails would advance compliance with the Lindh court's discovery order while also exposing gross mismanagement and abuse of authority by my superiors at the Justice Department." After hearing the broadcast, Radack sent the emails to
Michael Isikoff, a
Newsweek reporter, who had been interviewed in the NPR story. Later, no longer working in government, she reasoned, "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". Radack and some others believe her disclosure of the emails may have contributed to the plea agreement that led to a sentence of 20 years instead of possible multiple life sentences for Lindh. The plea deal was reached on July 15, 2002, a month after the
Newsweek article on the emails appeared online and just hours before the hearing to consider the motions to suppress the Lindh interviews was set to begin. According to Lindh defense attorneys, the prosecution first approached them about a plea deal around the beginning of June. On June 14, the day before the emails were disclosed, and June 17, the Lindh defense filed their arguments to suppress all the interviews conducted in Afghanistan, including the ones that Radack had advised might have to be suppressed. The defense reasoning was different from Radack's; it did not assert that Lindh was represented by a lawyer at the time, which was the basis for Radack's advice in the emails.
Justice Department actions against Radack On June 19, 2002, the Lindh court ordered the Justice Department to file a pleading "addressing whether any documents ordered protected by the Court were disclosed by any person bound by an Order of this court". The Justice Department launched a criminal investigation of Radack that remained open for 15 months. No potential criminal charge was ever specified. and would steal client files. Radack believes the OIG agent pressured her employer to fire her. When Radack was granted unemployment benefits, her now-former employer was assisted by the Justice Department, she says, The Department of Justice notified Radack that the criminal investigation was closed on September 11, 2003. On October 31, 2003, the Department of Justice's
Office of Professional Responsibility (OPR) sent letters to the bar associations of the two jurisdictions in which she was licensed to practice law referring her for a possible ethics violation. The referrals proposed that in disclosing the emails she may have knowingly revealed information protected by attorney-client privilege. There is disagreement about whether the government or the public is the client of government attorneys. The Justice Department responded that the WPA may not apply to former employees, and that it does not authorize any disclosure, only prevents retaliatory personnel actions for certain disclosures. Radack has contrasted the way she was treated by the Department of Justice and the way the department attorneys who authored the memos giving a purported legal basis for waterboarding and other controversial interrogation methods were treated. The Maryland Bar dismissed the referral February 23, 2005. Radack has said that one or more anonymous Justice Department officials "smeared" her in the media as a "traitor", "turncoat", and "terrorist sympathizer" "to alienate me from all my neighbors, all my friends", sometimes specifying it was in
The New York Times. In May 2003,
Eric Lichtblau reported at
The New York Times that "Government officials suspect she is a turncoat who leaked documents on one of their most important investigations, the John Walker Lindh case." For a time beginning in 2003,
Bruce Fein, a noted constitutional scholar and former associate deputy attorney general under Ronald Reagan, represented Radack
pro bono. and who, as an
Assistant Attorney General during the period in which Lindh was prosecuted, headed the
Justice Department's Criminal Division. Kennedy later said that Chertoff's initial answers about Radack's case were "nonresponsive, evasive and hyper-technical" but that after follow-up questions, Chertoff provided more "direct and forthcoming" answers. On May 22, Kennedy issued a statement saying, "Mr. Chertoff has told me that [he] has no knowledge of the facts surrounding Ms. Radack's employment, performance, or departure from the Department, and I take him at his word. Nevertheless, I remain very concerned about Ms. Radack's situation. According to press reports—and the Department has never issued any statement disputing them—Ms. Radack was in effect fired for providing legal advice on a matter involving ethical duties and civil liberties that higher-level officials at the Department disagreed with." On May 23, by a vote of 13 to 0, the committee sent Chertoff's judicial nomination to the full Senate for confirmation. Six Democrats, however, voted "present", saying they wanted more time to review Radack's accusations. ==Whistleblower defense lawyer, after DOJ==