March 10, 2003

On John Walker Lindh and Civil Liberties

Note: There is a (1/13/05) update on this story. What role did Michael Chertoff, Bush's recent choice to head Homeland Security, play in the events described below? Find out in the 'Democracy Now!' interview with Jesselyn Radack, entitled 'Whistleblower Charges Justice Dept with Misconduct in Chertoff's Prosecution of John Walker Lindh': [text] [audio] [video]

Also see Senator Kennedy's (March 2003) memo on Chertoff and Radack, in the context of Chertoff's nomination, at that time, to the United States Court of Appeals for the Third Circuit: [1] Or google on Chertoff and Radack for related articles: [2]

In the March 10, 2003 issue of The New Yorker, there is an amazing article on why the government's case against John Walker Lindh collapsed - it is well worth reading. Here we share just a fraction of what the article covered.

Although Lindh repeatedly asked for a lawyer, according to the piece, and Lindh's father, himself a lawyer, independently hired an attorney to represent his son - making this fact known to everyone from Ashcroft down - Lindh was held incommunicado for 54 days. During that period of time he could contact no-one and no-one could contact him.

.. Lindh wasn't told that his parents had hired a lawyer for him until January. Frank Lindh, himself an attorney, tried to send word about Brosnahan [the lawyer he had hired] to his son in a letter entrusted to the Red Cross, whose mandate is to communicate with soldiers across battle lines. American officials blocked the delivery of the letter. His parents also tried to get word to him through the State Department, and their representatives in Congress. 'He was behind a wall of silence,' his father said. Bryan Sierra, the Justice Department spokeman, declined to comment.

During this time, Lindh was sometimes kept blindfolded, naked, and bound to a stretcher with duct tape, according to a declassified account from a Navy physician. He was fed only a thousand calories a day, and was left cold and sleep-deprived in a pitch-dark steel shipping container. The physician described Lindh as 'disoriented' and 'suffering lack of nourishment', adding that 'suicide was a concern'.

The article makes a good case for the proposition that Lindh was not an Al Qaeda operative, and neither involved nor interested in participating in any attacks on the US. In the course of the long and detailed argument presented by this article, the efforts of one 'Jesselyn Radack' is described. Radack had, at the time, "recently joined the internal-ethic unit [of the Terror and Violent Crime section of the Justice Department]". A lawyer in that section consulted Radack on the Lindh case. Her advice was ignored.

'It was like ethics were thrown out the window,' she said during a recent interview at her home, in Washington, D.C. "After 9/11, it was, like, 'anything goes' in the name of terrorism. It felt like they'd made up their minds to get him, regardless of the process.' Radack believed that the role of the ethics office was to 'rein in the cowboys' whose zeal to stop criminals sometimes led them to overstep legal boundaries. 'But after 9/11 we were bending ethics to fit our needs,' she said. 'Something wrong was going on'. It wasn't just fishy - it stank.

Radack recalled that at her office, 'I was getting the vibes: Don't take this further. Drop it.' On January 15th, when Ashcroft announced the government's complaint against Lindh, it became clear why. Ashcroft stated that the Justice Department had concluded that the FBI's interrogation of Lindh was legal because 'the subject here is entitled to choose his own lawyer, and to our knowledge, has not chosen a lawyer at this time'. ... Ashcroft's statement was an unequivocal contradiction of the Professional Responsibility Office's advice. Raddack, who was appalled by Ashcroft's statement, said that she soon learned how costly it was to buck 'the party line'.

Radack was driven out of her job:
Two weeks after the government's complaint was filed, she received a 'blistering' performance review. It never mentioned her advice in the Lindh matter, but it severely questioned her legal judgment. She was advised to get a new job; otherwise, the performance review would be placed in her permanent file. Radack, who had received a merit bonus the year before quickly found a job with a private law firm.

And then a dozen emails that Radack had written, reflecting her fear that the F.B.I.'s actions in the Lindh case had been unethical, suddenly disappear:

Last March, just before her departure, Radack learned that US District Court Judge T.S. Ellis III, who was presiding over the Lindh case, had requested that all copies of the Justice Department's internal correspondence about the conditions of Lindh's interrogation be sent to him. Ellis wanted to determine if the documents should be passed on to the defense team, who had filed a discovery motion requesting various Justice Department files related to the case. Although Radack had written more than a dozen e-mails on the subject, she learned from a prosecutor named Randy Bellows that the Justice Department had turned over only two of them, neither of which reflected her fear that the F.B.I.'s actions had been unethical and that Lindh's confession might have to be sealed. Radack told her supervisor, Flaudia Flynn, that there were many more e-mails than had been sent to the court. According to Radack, Flynn retorted that she had sent everything that had been in the Lindh file. Radack rushed to the archives to check the case's paper file. 'I felt instantly sick', she said. The file, which had been a thick, staple-bound stack of paper, had been reduced to several sheets. All the staples had been removed. ... Only three of the dozen or more e-mails that Radack had written were left in the file.

Radack called the Justice Department's computer help line, and she managed to recover most of the missing e-mails, which she delivered, with a memo, to Flynn. She offered to send them on to Bellows. Radack said that Flynn told her not to do so; she reluctantly complied.

'The e-mails were definitely related,' Radack said. 'They undermine the public statesments the Justice Department was making about how they didn't think Lindh's rights were violated.' She paused. 'Someone deliberately purged the e-mails from the file. In violation of the rules of federal procedure, they were going to withhold these documents from the court.'

Radack continues to be hounded by the Justice Department:

[Later] Radack received a call from the Inspector General's office at Justice, asking her about any involvement [that she may have had with the leaking of these emails to NEWSWEEK]. When she declined to speak at length, Justice Department officials informed her new law firm that she was the target of a 'criminal investigation'. Her firm placed her on administrative leave. Raddack hired a lawyer, Frederick Robinson, who sought protection for her as a whistle-blower.

An interview with the author of the New Yorker article.