John Walker Lindh Case more less
Initial inquiry into Lindh case
On December 7, 2001, Radack received an inquiry from a Justice Department counter-terrorism prosecutor, John DePue, regarding the ethical propriety of interrogating Lindh without a lawyer being present. Radack was told unambiguously that Lindh's father had retained counsel for his son.Radack responded that interrogating him was not authorized by law because Lindh was represented by counsel. The FBI proceeded to question Lindh without a lawyer. DePue called back Radack the following day, and Radack advised DePue that Lindh's confession might "have to be sealed" and could be "only used for national security purposes," as it would not be admissible in criminal proceedings against Lindh.
Radack continued to research the issue until December 20, 2001, when her supervisor, Claudia Flynn, told her to drop the matter because Lindh had been "Mirandized." It was later learned that the FBI agent, Christopher Reimann, read Lindh the Miranda warning; however, when noting the right to counsel, he ad-libbed, "Of course, there are no lawyers here" in Afghanistan.
Attorney General Ashcroft's public statements regarding Lindh
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." Radack knew that was untrue. Three weeks later, Ashcroft announced Lindh's indictment, saying that his rights "have been carefully, scrupulously honored." This was contradicted by a photograph that was circulating worldwide of Lindh naked, bound to a stretcher with duct tape, and blindfolded with epithets written across it.
Retribution by Radack's supervisor and missing emails
On February 4, 2002, Flynn gave Radack an unscheduled, undated and unsigned "blistering" performance evaluation, despite Radack having received a performance award and raise a few months earlier. It did not mention the Lindh case by name, but it questioned her legal judgment. Flynn told Radack to find another job or else the review would be put in Radack's official personnel file. Radack had planned on being a career civil servant.
On March 7, 2002, the lead prosecutor in the Lindh case, Randy Bellows, e-mailed Radack that there was a court order for all of the Justice Department's internal correspondence about Lindh's interrogation. He said that he had two of her e-mails and wanted to make sure he had everything.
Radack became immediately concerned because the court order had been deliberately concealed from her. Additionally, although Radack had written more than a dozen e-mails on the subject, the Department had turned over only two of them, neither of which reflected her fear that the FBI's actions had been unethical and that Lindh's confession, which was the basis for the criminal case, might have to be sealed. Radack checked the hard-copy file and found that the thick, staple-bound stack of paper had been reduced to a few sheets. Radack confided in a senior colleague, former U.S. Attorney Donald McKay, who examined the file and told her that it had been "purged."
With the assistance of technical support, Radack then recovered 14 e-mails from her computer archives and gave them to Flynn, with a cover memorandum. When Flynn asked Radack why the e-mails were not in the file, Radack replied that she did not know, and her supervisor said, "Now I have to explain why PRAO should not look bad for not turning them over."
Disclosure of purged emails to Newsweek
A year later, in March 2003, investigative journalist Jane Mayer of The New Yorker confirmed that "[a]n official list compiled by the prosecution confirms that the Justice Department did not hand over Radack's most critical e-mail in which she questioned the viability of Lindh's confession, until after her confrontation with Flynn. Pulitzer Prize-winning reporter Eric Lichtblau of the New York Times exposed in 2006 that: "[Alberto] Gonzales made clear that the White House was calling the shots and that he, as White House counsel, had decided not to turn anything over to Lindh's defense lawyer in the way of documents. 'We're not going to provide discovery,' Gonzales said."
Radack resigned from the Justice Department on April 5, 2002. As the Lindh case proceeded, "the administration continued to swear that it knew nothing of the fact that Lindh already had a defense attorney at the time of his interrogation. In June, 2002, Radack heard a broadcast on National Public Radio (NPR) stating that DOJ claimed that it had never taken the position that Lindh was entitled to counsel during his interrogation. Radack did not think that the Justice Department would have the temerity to make public statements contradicted by its own court filings if it had indeed turned over her e-mails.
After hearing the broadcast, Radack sent the e-mails to Michael Isikoff, a Newsweek reporter who had been interviewed in the NPR story. Such disclosures are authorized under under , the Whistleblower Protection Act.Isikoff wrote an article about the missing e-mails.
On July 15, 2002, three weeks after Radack's disclosure was made public and on the morning that Lindh's suppression hearing was due to begin, Lindh pleaded guilty to two relatively minor charges. The surprise deal, which startled even the judge, averted the crucial evidentiary hearing that would probe the facts surrounding his interrogation--which Radack had advised against--and whether his statements could be used against him at trial--which she had also advised against. Lindh pleaded guilty to two relatively minor charges and journalists agreed that the Lindh prosecution had "imploded."
On June 19, 2002, the judge presiding over Lindh's case requested that the Justice Department file a pleading in three weeks "addressing whether any documents ordered protected by the Court were disclosed by any person bound by an Order of this court." The Justice Department used the court's order as a pretext to launch a criminal investigation of Radack that lasted for the next 15 months. (The judge issued an order in November 2002 concluding that Radack's disclosure did not violate any order of the Court, but this Order was not made available to Radack until two years later.)
Resignation from the Justice Department and Justice Department retaliation against Radack
The Justice Department contacted Radack's new employers and warned the firm that she was under a "criminal leak investigation," even though Radack had never received a "subject" or "target" letter from the Justice Department to that effect, and there is no such crime as "leaking." The law firm placed her on an indefinite, unpaid leave of absence, which is tantamount to being fired. Radack applied for, and received, unemployment compensation benefits, which the Justice Department assisted the law firm in contesting. Radack won the appeal of her benefits; however, the criminal investigation left her unemployed and unemployable. The case closed on September 11, 2003. Investigators never identified a potential charge against her and no charges were ever brought.
On October 31, 2003, "[t]he Bush-Cheney administration also referred her for 'discipline' to the bar associations in the states where she was licensed to practice law, submitting a secret report she was not allowed to see and making it almost impossible for her to fight the allegations." Maryland bar officials dismissed the referral on February 23, 2005. The District of Columbia Bar referral is still pending more than seven years later.
Congressional intervention
U.S. Senator Edward M. Kennedy submitted questions about the affair to Attorney General John Ashcroft in March 2003 and expressed concern about Radack's situation in May 2003. Sen. Kennedy later said: "It appears she [Radack] was effectively fired for providing legal advice that the [Justice] Department didn't agree with." Constitutional scholar and former Associate Deputy Attorney General under Ronald Reagan, Bruce Fein, represented Radack pro bono in her effort to clear her name.
Radack suit against the Justice Department
Radack sued DOJ, alleging that its Office of Professional Responsibility violated the Privacy Act of 1974 and the Administrative Procedure Act in connection with its referral of professional misconduct allegations to District of Columbia and Maryland Bar officials. The lawsuit was dismissed in 2006.
