Editing Jesselyn Radack (section)

==John Walker Lindh case==

Radack worked at the Justice Department's Professional Responsibility Advisory Office, which advises department lawyers on ethics issues.<ref>{{cite web | url=https://www.nytimes.com/2003/05/22/us/aftereffects-justice-department-dispute-over-legal-advice-costs-job-complicates.html | title=AFTEREFFECTS: THE JUSTICE DEPARTMENT; Dispute over Legal Advice Costs a Job and Complicates a Nomination | work=The New York Times | date=May 22, 2003 | last1=Lichtblau | first1=Eric }}</ref> An attorney in the counterterrorism section of the Criminal Division inquired about the ethical propriety of interrogating [[John Walker Lindh]], dubbed the "American [[Taliban]]".<ref>{{cite web | url=https://www.newsweek.com/lindh-case-e-mails-146037 | title=The Lindh Case E-Mails | website=[[Newsweek]] | date=June 23, 2002 }}</ref> 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.<ref>{{cite magazine |last1=Mayer |first1=Jane |title=Lost in the Jihad |url=https://www.newyorker.com/magazine/2003/03/10/lost-in-the-jihad |access-date=16 November 2024 |magazine=The New Yorker |date=2 March 2003}}</ref><ref>{{cite news |last1=Easterbrook |first1=John |title=Pentagon Uncovers More Lindh Photos |url=https://www.cbsnews.com/news/pentagon-uncovers-more-lindh-photos/ |access-date=16 November 2024 |publisher=CBS News |date=11 April 2002}}</ref> Radack considered this to be torture.<ref>{{cite news |last1=Horton |first1=Scott |title=Traitor: Six Questions for Jesselyn Radack |url=https://harpers.org/2012/06/_traitor_-six-questions-for-jesselyn-radack/ |access-date=9 December 2024 |publisher=Harper's Magazine |date=1 June 2012}}</ref>

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 [[Public sector ethics|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.<ref name=Mayer/> 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.<ref>The application of the "no-contact rule" to the Department of Justice is discussed by James S. Montana Jr. and John A. Galotto [http://www.americanbar.org/publications/criminal_justice_magazine_home/crimjust_cjmag_16_2_montanta.html "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 [http://www.democracynow.org/2005/1/13/whistleblower_charges_justice_dept_with_misconduct "Whistleblower Charges Justice Dept. with Misconduct in Chertoff's Prosecution of John Walker Lindh,"] ''Democracy Now'', January 13, 2005.</ref> According to Radack, the advice she gave had been approved by Claudia Flynn, then head of PRAO, and Joan Goldfrank, a senior PRAO attorney.<ref>David McGowan, "[https://ssrn.com/abstract=929497 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.</ref>

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".<ref>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.</ref>

Radack continued to research the issue until December 20, 2001, when Flynn told her to drop the matter, because Lindh had been "[[Miranda warning|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".<ref name="Mayer New Yorker">[[Jane Mayer]], "[http://www.newyorker.com/archive/2003/03/10/030310fa_fact2?currentPage=7 Lost in the Jihad]", ''The New Yorker'', March 10, 2003, p. 57-59</ref>

===U.S. government statements on Lindh's legal rights===
On January 15, 2002, five weeks after the interrogation, [[United States Attorney General|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".<ref name=Mayer/> On February 5, 2002, Ashcroft announced Lindh's indictment, saying that his rights "have been carefully, scrupulously honored".<ref name="CNN">{{cite news|url=http://transcripts.cnn.com/TRANSCRIPTS/0202/05/ip.00.html |title=Transcript of John Ashcroft – February 5, 2002 |publisher=Transcripts.cnn.com |date=February 5, 2002 |access-date=March 22, 2010}}</ref>

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.<ref>{{cite news |last1=Isikoff |first1=Jesselyn |title=The Lindh Case E-Mails |url=https://www.newsweek.com/lindh-case-e-mails-146037 |access-date=17 November 2024 |work=Newsweek |date=23 June 2002}}</ref> In late 2003, the [[Supreme Court of the United States|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".<ref>Jesselyn Radack [https://www.latimes.com/archives/la-xpm-2005-feb-04-oe-radack4-story.html "A Whistle-Blower's Inside View of the Homeland Security Nominee"], ''Los Angeles Times'', February 4, 2005.</ref>

===Poor performance review===
On February 4, 2002, the day before the Lindh indictment was announced, Flynn gave Radack an unscheduled, "blistering" [[Performance appraisal|performance evaluation]], despite Radack having received a merit raise the year before.<ref name=Mayer/> 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.<ref name="Boutilier Woman">Emily Gold Boutilier, [http://www.brownalumnimagazine.com/content/view/719/40/ "The Woman Who Knew Too Much,"] ''Brown Alumni Magazine'', March/April 2004, p.35.</ref><ref>McGowan, p. 8-9.</ref> 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.<ref name=Mayer/> 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.<ref name=Mayer/><ref name=Abraham>Laurie Abraham, "[https://www.motherjones.com/politics/2004/01/anatomy-whistleblower Anatomy of a Whistleblower]", [[Mother Jones (magazine)|''Mother Jones'']], January/February 2004 p. 62</ref>

===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.<ref name=Mayer/> He said that he had two of her messages and asked if there were more.<ref name="Anatomy of a Whistleblower"/>

Radack immediately became concerned that the court order had been deliberately concealed from her.<ref name=Savage/> 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.<ref name="Mayer New Yorker"/> 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.<ref name="Mayer New Yorker"/><ref>[http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf Complaint Against United States Department of Justice] {{webarchive|url=https://web.archive.org/web/20140407151857/http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf |date=April 7, 2014 }}, ''Radack v. United States Department of Justice'', No. 04-1881 (D.D.C. 2004), ¶18.</ref> Radack confided in a senior colleague, former [[United States Attorney|U.S. Attorney]] Donald McKay, who examined the file and told her that it had been "purged".<ref>McGowan, p.11.</ref>

Which emails the Department of Justice supplied to the court, and when, cannot be determined directly because the court placed them under seal.<ref name=Abraham/> 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".<ref name="Mayer New Yorker"/>

On December 31, 2003, Radack requested the court appoint a special prosecutor to probe the alleged suppression of the emails.<ref>Boutilier</ref> 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.<ref>McGowan, p. 15; a copy of the government's response is at http://legalethicsforum.typepad.com/blog/files/MoDismissExh8.pdf.</ref> 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.<ref>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.</ref> DePue, the recipient of the emails, also had copies and states that they were submitted to the court.<ref>McGowan, p. 14; a copy of his statement is at http://legalethicsforum.typepad.com/blog/files/OppDePueDecl.pdf.</ref> The judge rejected Radack's request as "impertinent".<ref>McGowan, p 15; a copy of the order is at http://legalethicsforum.typepad.com/blog/files/UnsealingOrder.pdf.</ref>

In 2004 Radack filed suit against the government (see below). In 2005, the court found that "[t]hough Flynn informed Radack that she would send the emails to Bellows, Radack maintains that she had a 'good faith belief' that this never occurred...Radack was mistaken, for in filings submitted to the Virginia District Court on March 1, 2002, and March 11, 2002, Bellows turned over thirty-three PRAO-related documents, including Radack's fourteen emails, ex parte and under seal, for [[in camera]] review".<ref name="Radack v. DOJ 1">[https://scholar.google.com/scholar_case?case=12058639658992428431&hl=en&as_sdt=2&as_vis=1&oi=scholarr ''Radack v. U.S. Dept. of Justice, Memorandum Opinion and Order'', August 9, 2005, 402 F. Supp. 99] ([[U.S. District Court for the District of Columbia]] 2005).</ref>

===Disclosure to ''Newsweek'' of emails believed to have been purged===
Radack resigned from the Justice Department on April 5, 2002. In June 2002 she heard a broadcast on [[National Public Radio|NPR]] stating that the department said they had never taken the position that Lindh was entitled to counsel during his interrogation. She later wrote, "I knew this statement was not true. It also indicated to me that the Justice Department must not have turned over my e-mails to the Lindh court ... because I did not believe the Department would have the temerity to make public statements contradicted by its own court filings, even if those filings were ''[[in camera]]''." She reasoned that "disclosure of my e-mails would advance compliance with the Lindh court's discovery order while also exposing gross mismanagement and abuse of authority by my superiors at the Justice Department."<ref>[http://radackvdoj.files.wordpress.com/2013/01/radack6-1.pdf Declaration of Jesselyn Radack, Exhibit 1] {{webarchive|url=https://web.archive.org/web/20140407151104/http://radackvdoj.files.wordpress.com/2013/01/radack6-1.pdf |date=April 7, 2014 }}, ¶¶20, 23-24, Response to Defendant's Motion to Dismiss or, in the Alternative, Response to Defendant's Motion for
Summary Judgment, March 15, 2005, ''Radack v. United States Department of Justice'', No. 04-1881 (D.D.C. 2004); quoted by McGowan, p. 12-13.</ref> After hearing the broadcast, Radack sent the emails to [[Michael Isikoff]], a ''[[Newsweek]]'' reporter, who had been interviewed in the NPR story.<ref name="Boutilier Woman"/> He then wrote an article about the Lindh case emails, quoting Radack but not naming her as the source of what he called "internal e-mails obtained by ''Newsweek''".<ref name=LindhEmailIsikoff/>

Radack has said she did not turn the documents over to the court or prosecutors at the time she recovered them because she felt intimidated by Flynn, who had told her to drop the matter.<ref>Emily Gold Boutilier [http://www.brownalumnimagazine.com/content/view/781/40/ "Mail Room: Senior writer Emily Gold Boutilier replies,"] ''Brown Alumni Magazine'' May/June 2004.</ref> Later, no longer working in government, she reasoned, "I couldn't go to the court because Justice Department lawyers would argue (as they did when I eventually did try to tell my story to the court) that I had no standing. I couldn't go to a Member of Congress because, as a resident of the District of Columbia, I didn't have a voting representative. What I could do is disclose my story to the press--a judicially-sanctioned way of exposing wrongdoing under the Whistleblower Protection Act of 1989, which provides protection to federal government employees who blow the whistle on what they reasonably believe evidences a violation of any law, rule, or regulation; gross mismanagement; or an abuse of authority".<ref name=Whistleblowing>Jesselyn Radack [http://reformjudaismmag.org/Articles/index.cfm?id=1104 "Whistleblowing in Washington,"] {{webarchive|url=https://web.archive.org/web/20070928170534/http://reformjudaismmag.org/Articles/index.cfm?id=1104 |date=September 28, 2007 }} ''Reform Judaism'' Spring 2006.</ref>

Radack and some others believe her disclosure of the emails may have contributed to the plea agreement that led to a sentence of 20 years instead of possible multiple life sentences for Lindh.<ref>Radack "Whistleblowing in Washington"; on the sentence: [http://archives.cnn.com/2002/LAW/07/15/walker.lindh.hearing/ "'I plead guilty,' Taliban American says,"] {{webarchive|url=https://web.archive.org/web/20070103042243/http://archives.cnn.com/2002/LAW/07/15/walker.lindh.hearing/ |date=January 3, 2007 }} CNN July 17, 2002.</ref> The plea deal was reached on July 15, 2002, a month after the ''Newsweek'' article on the emails appeared online and just hours before the hearing to consider the motions to suppress the Lindh interviews was set to begin.<ref>Toni Locy and Kevin Johnson, [http://usatoday30.usatoday.com/news/nation/2002-07-16-lindh-inside_x.htm "Lindh plea removes risks of trial,"] ''USA Today'' July 16, 2002.</ref> According to Lindh defense attorneys, the prosecution first approached them about a plea deal around the beginning of June.<ref>Terry Frieden and Laura Bernardini, [http://edition.cnn.com/2002/LAW/07/15/lindh.deal.behind.scenes/ "Lindh plea bargain talks began last week,"] CNN July 15, 2002.</ref> On June 14, the day before the emails were disclosed, and June 17, the Lindh defense filed their arguments to suppress all the interviews conducted in Afghanistan, including the ones that Radack had advised might have to be suppressed.<ref>U.S. District Court Eastern District of Virginia High Profile Cases (Alexandria), [http://notablecases.vaed.uscourts.gov/1:02-cr-00037/DocketSheet.html Criminal Docket for Case #: 1:02-cr-00037-ALL] {{Webarchive|url=https://web.archive.org/web/20090512172805/http://notablecases.vaed.uscourts.gov/1:02-cr-00037/DocketSheet.html |date=May 12, 2009 }}</ref> The defense reasoning was different from Radack's; it did not assert that Lindh was represented by a lawyer at the time, which was the basis for Radack's advice in the emails.<ref>The defense arguments are summarized in Tony Locy [http://usatoday30.usatoday.com/news/nation/2002/07/15/usat-lindh.htm "Court hearing begins on use of Lindh statements,"] ''USA Today'' July 15, 2002.</ref>

===Justice Department actions against Radack===
On June 19, 2002, the Lindh court ordered the Justice Department to file a pleading "addressing whether any documents ordered protected by the Court were disclosed by any person bound by an Order of this court". The Justice Department launched a criminal investigation of Radack that remained open for 15 months.<ref>[http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf Complaint Against United States Department of Justice] {{webarchive|url=https://web.archive.org/web/20140407151857/http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf |date=April 7, 2014 }}, ''Radack v. United States Department of Justice'', No. 04-1881 (D.D.C. 2004), ¶¶34-35, 39.</ref> No potential criminal charge was ever specified.<ref name=Abraham/> Radack says an agent of the Department of Justice's Office of the Inspector General (OIG) told her new employer and coworkers that she was under criminal investigation<ref>[http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf Complaint Against United States Department of Justice] {{webarchive|url=https://web.archive.org/web/20140407151857/http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf |date=April 7, 2014 }}, ''Radack v. United States Department of Justice'', No. 04-1881 (D.D.C. 2004), ¶35.</ref> and would steal client files.<ref name=suffer>Jesselyn Radack, "[https://www.latimes.com/archives/la-xpm-2010-apr-27-la-oe-radack-20100427-story.html When whistle-blowers suffer]", ''Los Angeles Times'', April 27, 2010.</ref>

Radack believes the OIG agent pressured her employer to fire her.<ref name=suffer/> The firm was initially supportive, but after it obtained phone records of calls between ''Newsweek'' writer Isikoff and the firm's office showing that Radack appeared to be the leaker of government emails, that changed. A partner in the firm, which represented mainly government bond issuers, told her they could not be perceived to have an ex-government lawyer who broke confidence when she thought the client was wrong. When she continued to refuse to sign a statement that she did not leak the emails, she was placed on paid and then unpaid leave.<ref name=McCollam>Douglas McCollam, ''The Trials of Jesselyn Radack'', ''The American Lawyer'', July 2003, p. 19.</ref>

When Radack was granted unemployment benefits, her now-former employer was assisted by the Justice Department, she says,<ref name=suffer/> in challenging the benefits on the grounds of her alleged misconduct and insubordination. She won the appeal.<ref name=McCollam/>

The Lindh court issued an order on November 6, 2002, concluding that Radack's disclosure did not violate any order of the Court, but this order was not made available to Radack until two years later.<ref>Jesselyn Radack: ''The Canary in the Coalmine'', p. 69. Sheridan, 2006; [http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf Complaint Against United States Department of Justice] {{webarchive|url=https://web.archive.org/web/20140407151857/http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf |date=April 7, 2014 }}, ''Radack v. United States Department of Justice'', No. 04-1881 (D.D.C. 2004), ¶37.</ref>

The Department of Justice notified Radack that the criminal investigation was closed on September 11, 2003. On October 31, 2003, the Department of Justice's [[Office of Professional Responsibility]] (OPR) sent letters to the bar associations of the two jurisdictions in which she was licensed to practice law referring her for a possible ethics violation. The referrals proposed that in disclosing the emails she may have knowingly revealed information protected by attorney-client privilege.<ref>[http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf Complaint Against United States Department of Justice] {{webarchive|url=https://web.archive.org/web/20140407151857/http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf |date=April 7, 2014 }}, ''Radack v. United States Department of Justice'', No. 04-1881 (D.D.C. 2004), ¶¶39-40.</ref> There is disagreement about whether the government or the public is the client of government attorneys.<ref name="Boutilier Woman"/> Radack bypassed that issue by invoking the Whistleblower Protection Act (WPA), which she argues provides the legal basis for an exception to attorney-client privilege, i.e., for disclosure when permitted or authorized by law.<ref>[http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf Complaint Against United States Department of Justice] {{webarchive|url=https://web.archive.org/web/20140407151857/http://radackvdoj.files.wordpress.com/2013/01/radack1.pdf |date=April 7, 2014 }}, ''Radack v. United States Department of Justice'', No. 04-1881 (D.D.C. 2004), ¶¶30-32.</ref> The Justice Department responded that the WPA may not apply to former employees, and that it does not authorize any disclosure, only prevents retaliatory personnel actions for certain disclosures.<ref>[http://radackvdoj.files.wordpress.com/2013/01/radack9.pdf Defendant's Reply in Support of Motion to Dismiss or, in the Alternative, for Summary Judgment]{{dead link|date=December 2017 |bot=InternetArchiveBot |fix-attempted=yes }}, p. 19 fn. 11-12, April 22, 2005, ''Radack v. United States Department of Justice'', No. 04-1881 (D.D.C. 2004)</ref>

Radack has contrasted the way she was treated by the Department of Justice and the way the department attorneys who authored the memos giving a purported legal basis for waterboarding and other controversial interrogation methods were treated.<ref name=Horton/>

The criminal investigation and subsequent ethics referrals prevented Radack from finding suitable work as an attorney for years, she says.<ref name="Boutilier Woman"/><ref name=Whistleblowing/><ref>[https://www.npr.org/2013/08/01/207987822/whistleblower-protection-act-doesnt-cover-enough-people "Whistle-Blower: Protection Act Doesn't Cover Enough People,"] ''All Things Considered'', NPR, August 1, 2013</ref> The Maryland Bar dismissed the referral February 23, 2005.<ref name="Radack v. DOJ 1"/> At the District of Columbia Bar, the referral was not resolved until 2011.<ref name=Horton>Scott Horton [http://harpers.org/blog/2012/06/_traitor_-six-questions-for-jesselyn-radack/ "Traitor: Six Questions for Jesselyn Radack,"] ''Harper's Magazine''  June 1, 2012.</ref>

Radack has said that one or more anonymous Justice Department officials "smeared" her in the media as a "traitor", "turncoat", and "terrorist sympathizer"<ref name=suffer/><ref name=Horton/><ref>Jesselyn Radack ''Traitor: The Whistleblower and the "American Taliban,"'' Whistleblower Press (2012), [http://www.traitorbook.com/4.html Chapter 1: "Shoot The Messenger"]</ref> "to alienate me from all my neighbors, all my friends",<ref name=Jiang>Jenny Jiang, [http://www.whatthefolly.com/2013/06/17/transcript-panel-qa-on-bradley-manning-and-the-media-on-june-2-2013/ "Transcript: Panel Q&A on Bradley Manning and the media on June 2, 2013,"] {{Webarchive|url=https://web.archive.org/web/20131008043848/http://www.whatthefolly.com/2013/06/17/transcript-panel-qa-on-bradley-manning-and-the-media-on-june-2-2013/ |date=October 8, 2013 }} All Souls Church Unitarian, Washington, D.C., ''What The Folly?!'', June 17, 2013.</ref> sometimes specifying it was in ''[[The New York Times]]''.<ref name=Jiang/><ref name=BuzzFlash>[http://www.truth-out.org/buzzflash/commentary/item/1606-jesselyn-radack-was-the-justice-department-official-who-knew-too-much--a-buzzflash-interview "Jesselyn Radack Was the Justice Department Official Who Knew Too Much -- A BuzzFlash Interview"] ''BuzzFlash'' (website), February 16, 2007</ref><ref name=reprehensor>Reprehensor (pseudonym) [http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=103x147030 "Truthtelling with Rowley, Radack and Wright,"] Democratic Underground (discussion board), August 13, 2005. Interview with Radack, August 5, 2005.</ref> In May 2003, [[Eric Lichtblau]] reported at ''The New York Times'' that "Government officials suspect she is a turncoat who leaked documents on one of their most important investigations, the John Walker Lindh case."<ref name="Nomination 2003">Eric Lichtblau [https://www.nytimes.com/2003/05/22/politics/22WHIS.html "Dispute Over Legal Advice Costs a Job and Snarls a Nomination,"] ''New York Times'' May 22, 2003.</ref>

For a time beginning in 2003, [[Bruce Fein]], a noted constitutional scholar and former associate deputy attorney general under Ronald Reagan, represented Radack ''[[pro bono]]''.<ref name="Boutilier Woman"/> Rick Robinson of Fulbright & Jaworski<ref name="Boutilier Woman"/> and Mona Lyons<ref name="Anatomy of a Whistleblower"/> also represented her.

===Congressional questions===
At a May 7, 2003, hearing of the [[United States Senate Committee on the Judiciary|Senate Judiciary Committee]], Senator [[Ted Kennedy]] questioned [[Michael Chertoff]], who was before the committee as a nominee for a circuit court judgeship,<ref>[http://www.gpo.gov/fdsys/pkg/CHRG-108shrg92548/html/CHRG-108shrg92548.htm ''Hearings before the Committee on the Judiciary, United States Senate, One Hundred Eight Congress, First Session, April 30, May 7, May 22, June 25, and July 9, 2003, Serial No. J-108-1, Part 3''], U.S. Government Printing Office (2003)</ref> and who, as an [[United States Assistant Attorney General|Assistant Attorney General]] during the period in which Lindh was prosecuted, headed the [[United States Department of Justice Criminal Division|Justice Department's Criminal Division]]. Kennedy later said that Chertoff's initial answers about Radack's case were "nonresponsive, evasive and hyper-technical" but that after follow-up questions, Chertoff provided more "direct and forthcoming" answers.<ref name="Panel Clears 3">{{cite web|url=http://www.nytimes.com/2003/05/23/us/panel-clears-3-bush-nominees-for-senate-vote.html |title=Panel Clears 3 Bush Nominees for Senate Vote |work=[[The New York Times]] |date=May 23, 2003 |access-date=December 7, 2020 |author=Lichtblau, Eric}}</ref>

On May 22, Kennedy issued a statement saying, "Mr. Chertoff has told me that [he] has no knowledge of the facts surrounding Ms. Radack's employment, performance, or departure from the Department, and I take him at his word. Nevertheless, I remain very concerned about Ms. Radack's situation. According to press reports—and the Department has never issued any statement disputing them—Ms. Radack was in effect fired for providing legal advice on a matter involving ethical duties and civil liberties that higher-level officials at the Department disagreed with."<ref name=Kennedy>Edward Kennedy Sr., "[http://votesmart.org/public-statement/7895/statement-of-senator-edward-m-kennedy-regarding-the-nomination-of-michael-chertoff-to-the-united-states-court-of-appeals-for-the-third-circuit#.Uf3_kRZwHpQ Statement of Senator Edward M. Kennedy Regarding the Nomination of Michael Chertoff to the United States Court of Appeals for the Third Circuit]", May 22, 2003.</ref>

On May 23, by a vote of 13 to 0, the committee sent Chertoff's judicial nomination to the full Senate for confirmation. Six Democrats, however, voted "present", saying they wanted more time to review Radack's accusations.<ref name="Panel Clears 3"/>