On Wednesday, in hearings on his nomination to be head of Homeland
Security, Michael Chertoff had this to say: "If you are dealing with
something that makes you nervous, you'd better make sure that you are doing
the right thing. And you'd better check it out.... You had better be very
careful to make sure that whatever it is you decide to do falls well within
what is required by the law."
I could hardly believe my ears.
In 2001, Chertoff was the head of the Criminal Division of the Justice
Department and I was legal advisor to the department on matters of ethics.
When I "did the right thing," and gave the department advice that
conflicted with what it wanted to hear, I was forced out of my job, fired
from my subsequent private sector job at the government's behest, placed
under criminal investigation without any charges ever being brought,
referred for disciplinary action to the state bars where I'm licensed as a
lawyer, and, so I've been told as I've been searched time and again at
airports, put on the "no fly" list.
Here's what happened. In 2001, I was a legal advisor in the Justice
Department's Professional Responsibility Advisory Office. On Dec. 7, I
fielded a call from a criminal division attorney named John DePue. He
wanted to know about the ethical propriety of interrogating "American
Talib" John Walker Lindh without a lawyer being present. DePue told me 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. Over the weekend, the FBI interviewed him anyway. DePue
called back on Monday asking what to do now.
I advised that the interview might have to be sealed and used only for
intelligence-gathering or national security purposes, not criminal
prosecution. Again, my advice was ignored.
Three weeks later, on Jan. 15, 2002, then-Atty. Gen. John Ashcroft
announced that a criminal complaint was being 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…
[Jesselyn Radack writes on legal ethics. She has filed a whistle-blower
lawsuit against the Justice Department. Her website is www.cradl.info.