Ex-DOJ Whistleblower Calls OPR Report a ‘Whitewash’
By Ryan J. Reilly | February 22, 2010 5:30 pm

Jesselyn Radack (CC license, Flickr user carneasadaburrito).

A former Justice  Department lawyer who was disciplined for leaking confidential information on the “American Taliban” John Walker Lindh case called the DOJ’s Office of Professional Responsibility report on John Yoo and Jay Bybee a “white-wash” and a “joke.”

“This gives me the dubious distinction of being the only Justice Department attorney that OPR referred for bar disciplinary action stemming from advice I gave in a torture case–and my advice was to permit an American terrorism suspect to have counsel,” wrote Jesselyn Radack on her Daily Kos blog.

“If the Holder Justice Department had any inclination to rehabilitate OPR’s lofty mission of ‘ensuring that Department of Justice attorneys perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency,’ they’ve blown it,” she added.

Radack, a former ethics adviser in the Justice Department’s Professional Responsibility and Advisory Office, provided information to Newsweek on the unlawful interrogation of Lindh, an American Muslim convert who was captured in Afghanistan in 2001 while fighting with the Taliban. Radack is currently homeland security director at the Government Accountability Project.

In an interview with Main Justice, Radack criticized the conclusions in the OPR report. Associate Deputy Attorney General David Margolis downgraded OPR’s finding of misconduct to a finding of poor judgment. Margolis is a career DOJ official who has held his current position for 17 years.

“This was kind of one of the last bastions of anything with a whiff of accountability that remained at play,” said Radack. “Pretty much everybody has been given a walk, and so here was the last chance of accountability – some sort of accountability, not that it would have effected John Yoo or Judge Bybee that much… But it would have been at least symbolic.”

While at the Justice Department, Radack received an inquiry from the FBI about the advisability of questioning Lindh without his lawyer present, according to an account in Jane Mayer’s book, “The Dark Side.” Radack responded that the questioning was not permitted because Lindh’s father had retained a lawyer for his son. Despite her advice, the FBI interrogated Lindh without his lawyer. Radack later advised DOJ lawyers that Lindh’s confession could not be used in a criminal case. But prosecutors ignored her advice. They also did not include her e-mails when a judge requested copies of all internal DOJ correspondence. In 2002, Lindh plead guilty to one count of supplying services to the Taliban and was sentenced to 20 years in prison.

Radak said she was given a negative performance evaluation and told to find a new job, which she did at a law firm. After Radack released her e-mails to Newsweek, DOJ opened a criminal investigation into the origin of the e-mail leak. Because of the investigation, her job offer was rescinded and OPR recommended the D.C. bar investigate her for violating rules of professional conduct.

Radack’s case before D.C. bar is still pending. She is being represented by Michael Frisch of Georgetown University Law Center.

“Basically I was accused of the same thing that John Yoo has done with impunity,” Radack told Main Justice. “He was making public legal advice, except mine was not classified, given to the government. He’s made a whole career off of that, written books and law review articles on the torture memos – which by the way were secret and classified – yet they didn’t appear to investigate him for [that] violation.”

Radack said the conclusion of the investigation makes it seem like “okay, you have license to be a bad lawyer if you’re scared and in a rush, if you’re scared and in a hurry.” She said she is planning to attend a Senate Judiciary hearing on the OPR report scheduled for Friday.

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