Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
With all the attention being paid to the Valerie Plame case, perhaps it's time we took a look at what might well be a far more brazen case of retaliation against a public servant who did nothing more than tell the truth when the Bush administration wanted to tell a lie. Jesselyn Radack was an ethics adviser for the Department of Justice. When DOJ attorneys were involved in an investigation, her job was to make sure that they complied with the law to make sure the case did not run into trouble if it went to court with improperly gathered evidence or mishandled investigations. I'll let her pick up the story below the fold, as told in the National Law Journal.
I am the very real face of what the Pentagon's admonition looks like in practice, and I did not even represent an alleged terrorist-I merely gave the U.S. Department of Justice (DOJ) advice seen as favorable to one. I was the DOJ ethics adviser in the case of the so-called "American Taliban," John Walker Lindh. On Dec. 7, 2001, I received a call from a Criminal Division attorney who wanted to know about the ethical propriety of interrogating Lindh without a lawyer being present. I was told unambiguously that Lindh's father had retained counsel for his son.I advised that, under the anti-contact rule, Lindh should not be questioned without his lawyer. That was on a Friday. Over the weekend, the FBI interviewed him anyway. At that point, I advised that the interview may need to be sealed and used only for intelligence-gathering or national security purposes, not criminal prosecution. Again, my advice was ignored.
Three weeks later, former Attorney General John Ashcroft announced that a criminal complaint had been 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.
Two months later, I inadvertently learned that the judge presiding over the Lindh case had ordered that all DOJ correspondence related to Lindh's interrogation be submitted to the court. There was more. The prosecutor said he had only two of my e-mails when I knew I had written more than a dozen. When I went to check the 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, included them in a memo to my boss and took home a copy in case they "disappeared" again. Then I resigned.
Months later, as DOJ continued to assert that it never believed that Lindh had a lawyer at the time of his interrogation, I disclosed the e-mails to the media in accordance with the Whistleblower Protection Act. This unleashed the full force of the entire executive branch.
Now, in a sane world where the law actually matters, here's what would have happened: an investigation would have commenced and all of the attorneys involved in this deception, from the attorneys who illegally questioned him rather than waiting for his attorney to be present all the way up to John Ashcroft himself, would have been subject to the revocation of their licenses to practice law and faced criminal charges for filing false reports in a government investigation. Here's what actually did happen:
The price: DOJ leaned heavily on my private law firm-New York-based Hawkins Delafield & Wood-to fire me. Hawkins placed me on a "leave of absence sine die" because of "the need of the clients of Hawkins." After my involuntary, indefinite and unpaid "leave of absence" stretched into a constructive discharge, DOJ then assisted Hawkins in contesting my award of meager unemployment compensation. Since when does the government orchestrate the firing of a private person and assist a private employer in contesting the employee's receipt of unemployment benefits?Anonymous government officials branded me a "turncoat" in newspapers, placed me under criminal investigation, put me on the "no-fly" list and referred me to the state bars in which I am licensed. I got the "Guantánamo treatment lite": I was never told for what I was being criminally investigated, the bar complaint was based on a secret report to which I did not have access, and the government will neither confirm that I'm on the "no-fly" list, nor tell me how to be removed from it. The criminal case was dropped with no charges ever being brought. One of the bar complaints was dismissed, and the other is still pending after three years.
The very real consequence of this is that no law firm would hire me because a mere bar referral (even without a finding of misconduct) would increase its malpractice liability insurance rates. One prospective employer, Harris, Wiltshire & Grannis of Washington, told me: "You're obviously a very capable lawyer . . . .[But] accusations about you, however unfounded, could complicate [your representation of our client] . . . .[T]he very public nature . . . would lead to media scrutiny . . . .The risks here are too great."
It took her 3 years to find a law firm with the guts to hire her. She's still on the no fly list. To whom is she a threat? Well, to the administration she busted publicly for committing criminal fraud in an investigation. Radack points to her situation as evidence of why the appalling remarks of Charles Stimson should be taken not merely as one man's misguided statements but as the official policy of this administration:
I am Exhibit 1 as to what can happen when the government paints the 500 volunteer Guantánamo lawyers, and the firms that employ them, as somehow supporting terrorism. One of the first lessons of law school is that an attorney's representation of a client does not constitute an endorsement of the client's political, economic, social or moral views or activities. If it did, then the Bush administration itself would have trouble finding counsel.
Hear, hear. A whole lot of DOJ attorneys should be finding themselves disbarred and facing criminal charges. Patrick Leahy, new chair of the Senate Judiciary Committee, how about some hearings to investigate this?
Comments
I was just about to add a comment on how well the Charles Swift story reflected on the American system of law and justice and now the exact 100% mirror opposite scenario arises. This case is absolutely beyond belief - if you saw a movie with this plot you would laugh it off as the work of a deluded conspiracy nut.
Posted by: Matthew Young | February 21, 2007 10:03 AM
And I'm sure DOJ would love to cooperate fully in any such investigation. But they can't because, you know, national security and whatnot. Just as you have to break a few eggs to make scrambled eggs, so too, you've got to destroy some civil liberties to protect civil liberties. Did you not get the program, Ed?
Posted by: Dan | February 21, 2007 10:07 AM
What strikes me as strange is that this case was first reported in the media back in early 2003. 4 years ago! I think it's time to re-open this in the media world to get some steam behind a Senate Judiciary Committee investigation.
I totally agree that this is way more egregious if this all turns out to be true.
Posted by: egbooth | February 21, 2007 11:04 AM
This doesn't surprise me at all, given the evil at the top of the Justice Dept (still) and the fact that the Whistleblower protection act is a joke.
What a country.
Posted by: SharonB | February 21, 2007 11:56 AM
Department of Justice?
How Orwellian.
Posted by: dogscratcher | February 21, 2007 12:01 PM
Funny, just this weekend I saw an old episode of Rumpole where he was defending a fascist against a charge of inciting hate crimes. His fellow barristers were trying to get him to withdraw, lest the chambers suffer, and one of them asked outright if he approved of the man's philosophy. "I defend murderers," said Rumpole. "That doesn't mean I approve of murder."
But here in the new, post-9/11 USA, even to explain is to approve.
Posted by: The Ridger | February 21, 2007 1:08 PM
I'd be interested to know what the "anti-contact rule" is. An arrested person in custody has a Fifth Amendment right to counsel and a Sixth, but the latter only if he's post-indictment. (Lindh wasn't.) If he waived his Miranda rights, the only other consideration would be the McDade Amendment, extending the application of state bar rules to government attorneys.
Model Rule 4.2 prohibits attorney contact with a represented party unless the other lawyer is present or consents. That may be what Raddack meant by "anti-contact rule." I don't know.
Violation of Rule 4.2 is not as serious as violation of a constitutional right, and I can imagine many scenarios wherein a government investigator, or lawyer, might decide the rule to be inapposite and simply ignore it.
As well, I'm not sure that the father's hiring of a lawyer, without more, means Lindh was represented. There's a very good argument against, well supported by case law. (Representation questions may be decided differently depending on the context, of course.)
But no matter the legal questions, reprisal against an attorney who was providing good faith legal advice is reprehensible. Government reprisal is shocking and intolerable.
If those facts are correct (a big "if"), heads should roll.
Disclaimer: I'm a lawyer. Everything in this comment is my personal opinion, not the opinion of my employer.
Posted by: carpundit | February 21, 2007 2:03 PM
In retrospect, the real mystery is why the Nixon administration wasn't able to get away with this kind of thing.
Posted by: Coin | February 21, 2007 2:25 PM
Matthew Young is right. I wouldn't believe this if I saw it in a movie. Just seems so evil and slimy. How are injustices like this ignored by the media? Thankfully blogs like this exist to actually tell you what is happening in the world as opposed to what people in power want you to hear.
Posted by: Kevin | February 21, 2007 4:02 PM
I think the DOJ's actions in questioning Lindh might have been iffy, ethically, but not unconstitutional, nor illegal, as it stands today. Moran v. Burbine seems to have dealt with this exact issue. The defendant waived Miranda. The police lied to the attorney who had been hired by the defendant's sister, and obtained a confession from the defendant. The confession was allowed. The fact that the sister had obtained counsel on the defendant's behalf didn't change the fact that the defendant had not obtained counsel. (Meaning Ashcroft could, with as much of a straight face as a lawyer can ever have, say that Lindh had not obtained counsel.)
I'll ditto carpundit's disclaimer. Actually, everything in this comment might not even be my personal opinion.
Posted by: Greg | February 21, 2007 4:18 PM
Greg: That may well be (I'm far from an expert on US law), but once the judge of the case ordered all DOJ correspondence on the matter to be presented to the court, it should have been - and everyone implicit in preventing that are at the very least in contempt of court.
And incidentally, if the DOJ and/or FBI were in good faith on the matter, why would they try to hide their correspondence from the judge?
Posted by: konrad_arflane | February 21, 2007 5:15 PM
Absolutely. I missed that part, and that's cause for real concern. It's all concerning, I was just breaking out the crimpro outline for no apparent reason.
Posted by: Greg | February 21, 2007 5:46 PM
Boy, where did I hear that line? "The coverup is worse than the crime."
Posted by: Mustafa Mond, FCD | February 21, 2007 5:54 PM
I think in this instance -- given that Lindh had been captured on the battlefield in Afghanistan and had never had a chance to retain a lawyer himself -- the presumption that the lawyer retained by Lindh's father is legitimately to be seen as Linh's representative has to be given a lot of weight. Moran v Burbane can perhaps be distinguished since 1) Lindh had no prior notice he might be committing a crime (the US was sending anti-drug aid to Afghanistan as late as summer 2001); and 2) As a POW (not that the government recognized him as such) his rights were different from civilian detainees. He was an interesting case, and I still fail to see how he was guilty of anything beyond being young and idealistic.
The treatment of Raddack, however, is beyond the pale under any interpretation. Someone needs to be in jail.
Posted by: kehrsam | February 21, 2007 6:19 PM
Yes - a young, idealistic jihadi sworn to al Qaeda who took up arms against American soldiers. In the end, he's lucky the U.S. treated him poorly when he was captured. Had they not, he'd have gotten life at least.
The US government may have acted badly, and should be held to account, but let's not minimize treason shall we?
Posted by: carpundit | February 21, 2007 8:22 PM
It was not illegal to join the Taliban at the time Lindh signed up, so no treason there. After the US made demands to hand over Bin Laden, did Lindh have a choice about his position? If he was coerced, still no treason. Only if he voluntarily chose to fight is he implicated.
At the time, the Administration claimed to have evidence against Lindh, but this was never made public. Had Lindh been complicit in the death of Johnny Spann (as was at one time alleged) it is quite certain he would have received the death penalty, not 20 years.
He was already bearing arms before there was a conflict with the US: To have quit the Taliban would have been certain death. It's a tough spot. But to show treason you need to show he activly intended to fight the US; other than some anecdotes, I'm not aware of any evidence of malice against the US.
Posted by: kehrsam | February 21, 2007 10:16 PM
He abandoned his country, took up arms in company with its enemies -who were clearly its enemies, even before 9/11- and never renounced that choice. He swore jihad. He admitted being a member of al Qaeda. He said he knew it was illegal to bear arms as he did, and pleaded guilty.
"Young and idealistic?" No.
Posted by: carpundit | February 21, 2007 10:45 PM
Please see the view of Paul Craig Roberts, as expressed here. http://www.lewrockwell.com/roberts/roberts5.html
There may be a case against Mr. Lindh, but the government has not stated it other than as conclusions. Perhaps you know better.
Posted by: kehrsam | February 21, 2007 10:54 PM
I don't think it matters whether Lindh is guilty or not. What matters is that they went against the legal advice of their ethics adviser, lied about it, erased her advice from the file to cover their tracks and tried to destroy her career when she blew the whistle on them. Whether Lindh is Mr. Rogers or the reincarnation of Pol Pot makes no difference.
Posted by: Ed Brayton | February 21, 2007 10:59 PM
Ed: I agree. My comment about Lindh was merely to distinguish the case from Moran and show that Raddack's assessment of the case was justifiable (I have no doubt she is a far better lawyer than I ever was, in any case). But I do also believe that the political overtones of the Lindh case go a long way toward explaining the reaction and antipathy shown to Raddack. I would have thought Ambassador Wilson's op-ed could safely have been ignored as well; that is not the way this Administration operates. If you are seen as an opponent, they will destroy you.
Posted by: kehrsam | February 21, 2007 11:07 PM
Kehrsam:
I think we really need to step away from the idea that political considerations should be taken into account at all when considering the rights of people arrested and/or detained by the government. The people in question are hired to enforce the law, not to join a lynch mob.
The only way to push back against the abuses of power is to demand legal accountability, regardless of whether it is politically astute or not.
Posted by: RickD | February 22, 2007 5:52 AM
I agree with Ed that it doesn't matter about Lindh's guilt or not; its the actions of the government during this process that are reprehensible and should lead to jail-time for many in the DOJ. I think it was carpundit, not Kehrsam, who tried to moderate that with this notion of Lindh being the second coming of evil.
Posted by: Scott Reese | February 22, 2007 8:58 AM
Ed-
I think it was ethics advice, not legal advice. It's a distinction that matters only as it relates to the motivation of the government officials in what they're alleged to have done.
Kehrsam,
The government didn't make its case, that's true. It seems they decided to plead it down to avoid scrutiny. That doesn't make Lindh innocent. No, I don't know anything except what's in the papers. If I had any inside information, I wouldn't commenting about the matter at all.
Scott,
Lindh is evil - I think he and the other homegrowns are the next wave of islamist terror danger we face. His evil does not excuse any government misconduct. But neither does the government misconduct excuse his evil.
CP
Posted by: carpundit | February 22, 2007 9:46 AM
@ carpundit;
Ethics - the analysis and usage of such concepts as right / wrong, good / evil and responsibility.
To wit, it is ethical for lawyers to follow the legal rules and procedures when prosecuting a case. Breaking / avoiding these rules and procedures is unethical.
Does this help?
(Now IANAL, but haven't lawyers been dis-barred because of actions like this?)
Posted by: linnen | February 22, 2007 12:44 PM
I know of no instance of a lawyer being disbarred for improper contact with a represented person.
Also, as I read the facts above, "Over the weekend, the FBI interviewed him anyway." I don't see anything about the lawyers interviewing him. The ethics rules that constrain lawyers do not constrain law enforcement officers/agents.
Posted by: carpundit | February 22, 2007 12:53 PM
carpundit said:
FTA:
Apparently ethics rules apply to everyone, even law enforcement officers. At least they do according to an ethics adviser to the DOJ.
Posted by: Jason I. | February 22, 2007 1:03 PM
The DoJ should be burned to the ground and the earth where it stood salted to prevent its evil from returning.
Figuratively, of course. Literally, everyone involved should be disbarred, fired, forced to repay any wages earned from the state, and imprisoned for at least fifteen years.
That won't happen, of course, because Republican traitors don't go to jail, they get the Medal of Freedom and a promotion.
Posted by: stogoe | February 22, 2007 1:24 PM
>>>Apparently ethics rules apply to everyone, even law enforcement officers. At least they do according to an ethics adviser to the DOJ.
Jason,
I hadn't noticed her position on that issue. That is one opinion, but it is far from settled. Indeed, I suspect that's a minority opinion not strongly supported by the law or policy. (It's hard to know, of course, without knowing exactly what she opined.)
CP
Posted by: carpundit | February 22, 2007 4:36 PM
my story is similiar to that of valarie plame, in mississsippi i was indicted for simply cursing a employment mississippi employment security commission an for calling the other employee a kkk clan wearing a suit an conducting official business.this was said to them 30 miles away over the phone an they said retailition against a public servant.
Posted by: walter reed | July 30, 2010 9:06 AM