Jesselyn Radack (born December 12, 1970) is an American national security and human rights attorney known for her defense of whistleblowers, journalists, and hacktivists. She has defended more people charged under the Espionage Act of 1917 than any attorney in U.S. history, including CIA whistleblower John Kiriakou and NSA whistleblowers Edward Snowden, Thomas Drake, and Daniel Hale. In addition, she represented a dozen CIA and Air Force whistleblowers who made disclosures about the U.S. drone program, including Brandon Bryant, Cian Westmoreland, Christopher Aaron, Michael Haas, Stephen Lewis, Heather Linebaugh, and Lisa Ling.
In addition to her client work, Radack was also integral to advocacy campaigns for others prosecuted under the Espionage Act, including U.S. Army whistleblower Chelsea Manning; CIA whistleblower Jeffrey Alexander Sterling; Air Force veteran Reality Leigh Winner; and Wikileaks publisher Julian Assange.
She graduated from Wilde Lake High School, Brown University and Yale Law School, and began her career as an Honors Program attorney at the U.S. Department of Justice.
She later became a whistleblower in the Justice Department's first major terrorism prosecution after 9/11. Radack resigned in protest, and her experience is chronicled in her memoir, Traitor: The Whistleblower and the "American Taliban" and in the Emmy-nominated documentary Silenced.
After resigning from the Justice Department, Radack worked for Alan Grayson from 2006 until 2008 when he was elected to Congress. She then became the Director of National Security and Human Rights at the Government Accountability Project from 2008 until 2015, and is currently the director of the Whistleblower and Source Protection Program at the Institute for Public Accuracy. She has been widely published and quoted on the topics of whistleblowing, torture, surveillance, Internet freedom, and privacy. She is a contributing writer for Salon and her writing has appeared in The New York Times, the L.A. Times, Washington Post, the Guardian, The Nation, Legal Times, and various law journals. She appears in the press, including on the major American television networks as well as NPR, PBS, CNN, BBC, and Al Jazeera English.
Early life and education Radack was born in Washington, D.C., and attended Wilde Lake High School and Brown University. She was elected to Phi Beta Kappa in her junior year and graduated magna cum laude in 1992 as a triple major with honors in all three majors. While in college, she was diagnosed with multiple sclerosis.
In 1995 Radack graduated from Yale Law School and, through the Attorney General's Honors Program, joined the Department of Justice. When the Department's Professional Responsibility Advisory OfficeProfessional Responsibility Advisory Office was created in 1999, she served as a legal advisor until leaving Justice in April 2002.
John Walker Lindh case
Radack worked at the Justice Department's Professional Responsibility Advisory Office, which advises department lawyers on ethics issues. An attorney in the counterterrorism section of the Criminal Division inquired about the ethical propriety of interrogating John Walker Lindh, dubbed the "American Taliban". Lindh was captured during the United States invasion of Afghanistan. With her director's approval, she advised that such an interrogation would violate the Justice Department's ethics rule governing contact with a represented person and was not authorized by law. During this time, a photo circulated in the news of Lindh naked, blindfolded, and bound to a stretcher with duct tape. Radack considered this to be torture.
After the FBI interrogated Lindh despite her office's advice, the counterterrorism attorney sought further guidance. She and her director concluded that the FBI committed an ethics violation in their custodial interrogation of Lindh without counsel. They further advised that the fruits of Lindh's interrogation could be used for intelligence-gathering purposes, but not for criminal prosecution. When the Justice Department prosecuted Lindh against the advice of the ethics office, Radack alleged that her boss attempted to conceal the advice when the judge ordered its production.
Initial inquiry into Lindh case On December 7, 2001, Radack received an inquiry from Justice Department counterterrorism prosecutor John DePue, regarding the ethical propriety of interrogating Lindh in Afghanistan without Lindh's legal representative being present. He told her that Lindh's father had retained a lawyer for his son; Lindh was not aware of this arrangement. Radack responded that interrogating him was not authorized by law. The principle at issue was that a person represented by a lawyer cannot be contacted by agents of the Justice Department, including the FBI, without permission of that lawyer.The application of the "no-contact rule" to the Department of Justice is discussed by James S. Montana Jr. and John A. Galotto "Right to Counsel: Courts Adhere to Bright-line Limits." Criminal Justice Magazine 16:2 Summer 2001, see section "Ethical rules in lieu of constitutional protections". Radack has indicated that she was relying on that principle, e.g., in "Whistleblower Charges Justice Dept. with Misconduct in Chertoff's Prosecution of John Walker Lindh," Democracy Now, January 13, 2005. According to Radack, the advice she gave had been approved by Claudia Flynn, then head of PRAO, and Joan Goldfrank, a senior PRAO attorney.David McGowan, "Politics, Office Politics, and Legal Ethics: A Case Study in the Strategy of Judgment", University of San Diego School of Law, San Diego Legal Studies Paper No. 07-55, September 7, 2006, p. 7.
The FBI proceeded to question Lindh without Lindh's lawyer having given permission. DePue informed Radack of the interrogation on December 10, 2001, and she advised him that Lindh's "interview may have to be sealed or only used for national security purposes; however, I don't have enough information yet to make that recommendation".Proffer of Facts in Support of Suppression Motion, at 19, United States v. John Philip Walker Lindh, Crim. No. 02-37-A (E.D. VA 2002), cited in McGowan, p. 7.
Radack continued to research the issue until December 20, 2001, when Flynn told her to drop the matter, because Lindh had been "Mirandized". It was later learned that the FBI agent who read Lindh the Miranda warning had, when noting the right to counsel, ad-libbed: "Of course, there are no lawyers here".Jane Mayer, "Lost in the Jihad", The New Yorker, March 10, 2003, p. 57-59
U.S. government statements on Lindh's legal rights 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". On February 5, 2002, Ashcroft announced Lindh's indictment, saying that his rights "have been carefully, scrupulously honored".
In June 2002, Newsweek published internal emails between Radack and a counterterrorism attorney in which Radack and her supervisor concluded that the FBI plans to interrogate Lindh without counsel would violate ethics guidelines and were not authorized by law. In late 2003, the Supreme Court confirmed Radack's position that U.S. citizens designated as "enemy combatants" have a right to counsel in the case Hamdi v. Rumsfeld.
In early 2005 Radack recalled her reaction to a different Ashcroft statement—that Lindh's rights had been "carefully, scrupulously guarded"—more starkly : "I knew that wasn't true".Jesselyn Radack "A Whistle-Blower's Inside View of the Homeland Security Nominee", Los Angeles Times, February 4, 2005.
Poor performance review On February 4, 2002, the day before the Lindh indictment was announced, Flynn gave Radack an unscheduled, "blistering" performance evaluation, despite Radack having received a merit raise the year before. The evaluation covered December 27, 2000, to September 30, 2001, two months prior to the Lindh inquiry, and did not mention the Lindh case, but it criticized her legal judgment in issues related to the case, as well as in other matters.Emily Gold Boutilier, "The Woman Who Knew Too Much," Brown Alumni Magazine, March/April 2004, p.35.McGowan, p. 8-9. Flynn had not yet signed the review. She advised Radack to find another job, or the review would be put in Radack's official personnel file. Radack, who had planned on being a career civil servant, soon found a new job outside of government, at the law firm Hawkins, Delafield & Wood, from which she was effectively fired in November 2002 for refusing to either sign an affidavit stating that she had not leaked the government documents, or resign.Laurie Abraham, "Anatomy of a Whistleblower", Mother Jones, January/February 2004 p. 62
Missing emails On March 7, 2002, while Radack was still working at PRAO, the lead prosecutor in the Lindh case, Randy Bellows, messaged 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 messages and asked if there were more.
Radack immediately became concerned that the court order had been deliberately concealed from her. She had written more than a dozen emails on the subject, and neither of the ones Bellows had received copies of 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. After checking the hard-copy file, Radack said the files were tampered with to include only three of her emails; official records indicated that only those three emails were received by the Lindh prosecutors, but which emails DOJ supplied to the court and when cannot be determined as the court records were sealed.Complaint Against United States Department of Justice , Radack v. United States Department of Justice, No. 04-1881 (D.D.C. 2004), ¶18. Radack confided in a senior colleague, former U.S. Attorney Donald McKay, who examined the file and told her that it had been "purged".McGowan, p.11.
Which emails the Department of Justice supplied to the court, and when, cannot be determined directly because the court placed them under seal. In March 2003 investigative journalist Jane Mayer of The New Yorker reported 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".
On December 31, 2003, Radack requested the court appoint a special prosecutor to probe the alleged suppression of the emails.Boutilier The government responded that it had supplied the emails to the court in its initial response to the court order seeking them, i.e., on March 1, 2002.McGowan, p. 15; a copy of the government's response is at http://legalethicsforum.typepad.com/blog/files/MoDismissExh8.pdf. The description of the 24 documents (probably including duplicates) provided to the court at that time matches Radack's emails, including the one that states interviewing Lindh is not authorized by law.McGowan, p. 13-14, 47; a copy of the government's motion that includes the description is at http://legalethicsforum.typepad.com/blog/files/ProtectiveOrderMotion.pdf. DePue, the recipient of the emails, also had copies and states that they were submitted to the court.McGowan, p. 14; a copy of his statement is at http://legalethicsforum.typepad.com/blog/files/OppDePueDecl.pdf. The judge rejected Radack's request as "impertinent".McGowan, p 15; a copy of the order is at http://legalethicsforum.typepad.com/blog/files/UnsealingOrder.pdf.