Posted in full with the author's permission.
TARGETING LAWYERS
A blacklist's real face
Jesselyn Radack/Special to The National Law Journal
February 19, 2007
I was not surprised to read that the Pentagon's former deputy
assistant secretary, Charles D. Stimson, attacked law firms for
representing Guantánamo Bay detainees. (The furor over his remarks
resulted in his resignation on Feb. 2.) For years, the government has
been trying to control attorneys acting on behalf of terrorism
suspects and, if it cannot control them, then to punish them. I speak
from experience.
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.
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 . . . .
accusations
about you, however unfounded, could complicate of our client] . . . .he very public nature . . . would lead to
media scrutiny . . . .The risks here are too great." I was ultimately
hired, although it took more than three years and the fortuity of
finding a boss, Alan Grayson, who possesses a healthy skepticism of
what the government says about whistleblowers and was brave enough to
hire one.
Not an empty threat
The Pentagon's words, even if belatedly and breathlessly disavowed,
are not an empty threat. I was blacklisted for years. Navy judge
advocate general lawyer Charles Swift won a favorable ruling from the
U.S. Supreme Court on behalf of a Guantánamo detainee he was
appointed to represent, then was denied a promotion that ended his
military career. The government threatened to investigate civilian
attorney Clive Stafford Smith, making the wild accusation that he
suggested that his Guantánamo client commit suicide. And DOJ is
forcing out several U.S. attorneys from their jobs for political
reasons.
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.
Jesselyn Radack is the author of The Canary in the Coalmine: Blowing
the Whistle in the Case of "American Taliban" John Walker Lindh,
available at http://www.patriotictruthteller.net.
Also want to point out that Jesselyn Radack will be on PBS (during pledge week) WORT in Wisconsin this Wednesday. She'll be interviewed and will be talking to callers.
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