Obama’s War on Whistle Blowers
Jesslyn Radack was one of the recipients of the 2011 Sam Adams Associates for Integrity in Intelligence Awards. She spoke at American University on November 21.
JESSELYN RADACK, FMR. ETHICS ADVISER, U.S. JUSTICE DEPARTMENT: For those of you here for the Sam Adams beer drinking contest, you’re really in the wrong place, because this is a dry campus. I’ll pay my kids later for laughing at that.
More seriously, I’m here because I’m guilty of committing the truth, urging decency, moderation, and playing by the rules. I had no way of knowing ten years ago that my story was a snapshot of one of President Bush’s most controversial policies in its embryonic stages, policies we are now seeing the consequences of today.
For those of you who don’t remember, I am the whistleblower–. That includes my kids back there. One of you wasn’t even born. But I was a whistleblower in the case of the so-called "American Taliban", John Walker Lindh. This loaded sentence contains the ingredients of the perfect storm in the war on terrorism–government-sponsored torture, the Patriot Act, the treatment of enemy combatants, coercive interrogation techniques (a euphemism for torture), and punishment of those who speak out against such things.
I was a legal adviser to the Justice Department on matters of ethics. On December 7, 2001, I fielded a call from a Criminal Division attorney named John DePue. He wanted to know about the ethical propriety of interrogating John Walker Lindh without a lawyer being present. DePue told me unambiguously 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. This was not radical advice. It was the law.
Over the weekend, the FBI interviewed Lindh anyway, without counsel. DePue called back on Monday wanting to know what to do now. I advised that the interview might have to be sealed off and used only for national security or intelligence gathering purposes but not criminal prosecution. Again my advice was ignored.
Three weeks later, on January 15, 2002, then-attorney general John Ashcroft announced that a criminal complaint was being filed against Lindh. Quote: "the subject here is entitled to choose his own lawyer," Ashcroft said, "and to our knowledge has not chosen a lawyer at this time." I knew that wasn’t true. [pause] (Paper malfunction.) Three weeks later, Ashcroft announced Lindh’s indictment, saying his rights have been (again, I’m quoting–his words, not mine) "carefully, scrupulously guarded." And again I knew that was not true.
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 still 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 to the case in question, but I heard about it only because a Lindh prosecutor contacted me directly.
There was more. The prosecutor said he had only two of my emails. I knew I had written more than a dozen. When I went back to check the hard copy file, the emails containing my assessment that the government had committed an ethical violation in Lindh’s interrogation were missing. With the help of technical support, I resurrected the missing emails from my computer archives. I documented and included them in a memo to my boss and took home a copy in case they disappeared again. Then I resigned.
Months later, as the Justice Department continued to claim that it never believed at the time of his interrogation that Lindh had a lawyer, I disclosed the emails to Newsweek in accordance with the Whistleblower Protection Act. As a result, I was forced out of my job, fired from my subsequent private sector job at the government’s urging, placed under criminal investigation (for what? I was never told), referred for a disciplinary action to the state bars, in which I’m licensed as a lawyer, and put on a no-fly list.
After years of professional exile and career rehabilitation, I decided to dedicate my life and my career to representing whistleblowers. As horrible as my ordeal was, it taught me important lessons that I was able to bring to bear in helping another whistleblower who was facing something eerily similar to my case. Like me, Tom Drake was the target of a federal criminal leak investigation. (For the record, there is no such crime called "leaking".) As much as the Bush administration treated me unmercifully, at least the leak investigation never led to an indictment. In Drake’s case it did.
To make matters worse, he was charged under the Espionage Act, a World War I era law meant to go after spies, not whistleblowers. His case was also the beginning of a disturbing trend: the criminalization of whistleblowing. The Obama administration has brought more prosecutions against whistleblowers then all previous presidential administrations combined.
With the work of the Maryland public defender’s office, the Government Accountability Project (where I work), and numerous people in this room, the Drake case collapsed in spectacular fashion, with the judge calling the government’s treatment of Drake unconscionable and chastising the Justice Department for putting Tom Drake through four years of hell. Four others who also blew the whistle along with Drake–Bill Binney, Kirk Wiebe, Ed Loomas, and Diane Roark–also went through four years of hell, but miraculously their friendships stayed intact, despite everything the government did to make them turn on each other.
Yet still today the Obama administration has vowed to continue its war on whistleblowers and its policy of, quote, looking forwards–not backwards at the underlying criminal conduct these employees risked their careers to expose.
This award is especially meaningful coming from the intelligence community, because fear mongering about harming national security and intelligence gathering underpinned the malicious prosecution of Tom Drake. We don’t need to jettison ethics, the Constitution, or the rule of law to achieve national security.
I submit that the best way to obtain meaningful intelligence and true national security is to respect civil liberties, behave morally, and act within the law. The notion that liberty and security are in tension is a false dichotomy that has driven much of the war on terrorism. The war on terrorism should not be a war on ethics, a war on integrity, a war on human rights, or a war on the Constitution. Stopping terrorism should not include terrorizing whistleblowers who raise concerns when the government cuts corners to electronically surveil, torture, or assassinate its own people.
The government characterized me as a traitor for what I did and characterized Tom Drake as an enemy of the state. Nothing could be further from the truth. We were patriotic employees trying to help our government achieve its mission while upholding the highest ideals upon which our country is founded.
The war on whistleblowers is a toxic trend, and I hope our stories will help deprive it of oxygen. In responding to terrorism, we must not trample on the very freedoms for which we are fighting. Public servants should not have to choose between their conscience and their career, and especially their very freedom. I’d like to thank the Sam Adams Associates for Integrity in Intelligence for keeping alive Sam Adams’ legacy and keeping our nation’s moral compass pointed in the right direction. Thank you.
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