The Whistle-Blower That Chertoff Tried To Silence

by Jesselyn Radack

On Wednesday, in hearings on his nomination to be head of Homeland Security, Michael Chertoff had this to say: "If you are dealing with something that makes you nervous, you'd better make sure that you are doing the right thing. And you'd better check it outÉ. You had better be very careful to make sure that whatever it is you decide to do falls well within what is required by the law."

I could hardly believe my ears.

In 2001, Chertoff was the head of the Criminal Division of the Justice Department and I was legal advisor to the department on matters of ethics. When I "did the right thing," and gave the department advice that conflicted with what it wanted to hear, I was forced out of my job, fired from my subsequent private sector job at the government's behest, placed under criminal investigation without any charges ever being brought, referred for disciplinary action to the state bars where I'm licensed as a lawyer, and, so I've been told as I've been searched time and again at airports, put on the "no fly" list.

Here's what happened. In 2001, I was a legal advisor in the Justice Department's Professional Responsibility Advisory Office. On Dec. 7, I fielded a call from a criminal division attorney named John DePue. He wanted to know about the ethical propriety of interrogating "American Talib" John Walker Lindh without a lawyer being present. DePue told me that Lindh's father had retained counsel for his son.

I advised him that Lindh should not be questioned without his lawyer. That was on a Friday. Over the weekend, the FBI interviewed him anyway. DePue called back on Monday asking what to do now.

I advised that the interview might have to be sealed and used only for intelligence-gathering or national security purposes, not criminal prosecution. Again, my advice was ignored.

Three weeks later, on Jan. 15, 2002, then-Atty. Gen. John Ashcroft announced 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 that wasn't true.

Three weeks later, Ashcroft announced Lindh's indictment, saying his rights "have been carefully, scrupulously honored." Again, I knew that wasn't true.

At about the same time, I was given an untimely, unsigned, unprecedented and blistering performance evaluation, despite having received a performance award and a raise during the preceding year. I was told that the vitriolic review would be placed in my permanent personnel file unless I found another job.

I was shocked, but I didn't put two and two together until a few weeks had passed. On March 7, I inadvertently learned that the judge presiding over the Lindh case had ordered that all Justice Department correspondence related to Lindh's interrogation be submitted to the court. Such orders routinely go to everyone with a connection with the case in question, but I heard about it only because the Lindh prosecutor contacted me directly.

There was more. The prosecutor said he had only two of my e-mails. I knew I had written more than a dozen. When I went to check the hard copy file, the e-mails containing my assessment that the FBI had committed an ethical violation in Lindh's interrogation were gone.

With the help of technical support, I resurrected 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. Then I resigned.

Months later, as the Justice Department continued to claim that it never believed that at the time of his interrogation Lindh had a lawyer, I disclosed the e-mails to Newsweek in accordance with the Whistleblower Protection Act.

My story has been backed up. The New York Times recently reported that DePue confirmed that he had contacted my office at the Justice Department and passed along the fact that the questioning of Lindh could be an ethical violation.

Moreover, DePue told the Times, his superiors were "unhappy" that he had sought advice. Chertoff's name wasn't used, he said, but "I certainly inferred É that the unhappiness was coming from Chertoff."

In Wednesday's hearings, Chertoff was asked by Sen. Daniel K. Akaka (D-Hawaii) about the retaliation against me. Chertoff responded, "Senator, first, I had no part in any way, shape or form in any retaliation against this individual for any reason, let alone giving advice."

I don't believe him now, just as I didn't in 2003 when he told Congress that my office and I had not been "asked for advice" about Lindh's interrogation. When Chertoff was later confronted with e-mails that contradicted him, he acknowledged our involvement but said he didn't consider my advice "official."

Chertoff and the Justice Department mishandled Lindh's interrogation, then tried to cover it up and went after me for doing my job. Chertoff should not be confirmed as director of Homeland Security.