Ethics

A thread on one of my listservs  praised The Dark Side, Jane Mayer's account of some aspects of the "war on terror" so I bought it and have been reading it.  I am sympathetic to her general theme.  I have studied one story she recounts, however, and I think her version needs to be amended.   

The story concerns John Walker Lindh and how the Justice Department dealt with his questioning. 

Mayer correctly reports the preliminary facts. When Lindh was taken into custody in Afghanistan his parents retained James Brosnahan to represent him.  Brosnahan notified Justice of his retention and did his best to reach Lindh. He could not do so. 

The FBI planned to interrogate Lindh.  John DePue, a lawyer in the Terrorism and Violent Crimes Section of the DOJ, asked the DOJ's Professional Responsibility Advisory Office office whether the FBI could do so given that Lindh's parents had hired Brosnahan.  Jess Radack responded for the PRAO and advised against interrogation.  The FBI went ahead anyway.

When Lindh was indicted Brosnahan sought discovery from Justice. At around this time Radack was given a negative performance review and essentially told to find new work. She did. Before she left she received a call from Randy Bellows (not named in the book), a senior prosecutor on Lindh's case.  Bellows said he had a couple of Radack's e-mails and wanted to know if there were more.  Radack checked the PRAO file and found most of the e-mails (and the most important ones) were missing.  After consultation with a senior lawyer she concluded the file had been purged.

This is where the book begins to have problems.  Mayer reports that "when leaked copies of her internal e-mails turned up in Newsweek, Radack's life became unbearable."  Mayer does not mention that this was because Radack leaked the e-mails herself. 

Mayer also reports that the Justice Department began a year-long investigation of Radack.  That is true. Mayer's book does not mention that the investigation was initially ordered by the Lindh trial judge.  Here is the order: Download InvestigationOrder.pdf  (The order did not specify a criminal investigation, though; I agree with Mayer that making it a criminal matter seems like DOJ hardball.)

The order points to a confusing statement in the book.  Mayer states: "What Radack didn't know was that Gonzalez, at the White House, had decided the administration didn't need to comply with the defense lawyers' discovery requests." (p.97) 

I suppose it is possible that Gonzalez made such a decision; perhaps the passage refers to information regarding the actual treatment of Lindh rather than internal DOJ discussions. As the order indicates, though, the e-mails were in fact produced and in the possession of the court.  The court ordered the investigation because it was unhappy that materials as to which it had granted a protective order had been reproduced in Newsweek.

Regarding that production:

Here is a declaration from John DePue describing his compliance with the subpoena: Download OppDePueDecl.pdf. 

Mr. DePue's declaration reveals a fact consistent with Ms. Mayer's thesis but not recounted in the book: he was told that "the Criminal Division's leadership" was "disturbed" that he had sought advice from the PRAO. (Page 3 of 4 in the declaration) Given that the PRAO was established to advise DOJ lawyers on obligations that apply to them personally, I find that message appalling.  I hope this fact makes its way into the paperback edition.

Here is a copy of a brief filed by Randy Bellows arguing that certain e-mails should not have to be produced to Lindh's counsel because they were work-product and/or privileged.  The description of the e-mails in this document corresponds to the description of the Radack/DePue e-mails in other publications: Download ProtectiveOrderMotion.pdf  The court granted the motion for a protective order and denied the motion to compel: Download LindhOrderGrantingMoProtectiveOrder.pdf

Here is an order from the trial court denying Radack's subsequent request that the trial court appoint counsel to investigate possible contempt of the court's discovery orders: Download UnsealingOrder.pdf.

Lastly, here is a copy of the government's opposition to that request. Page 13 of the brief states that the government produced the e-mails. Download MoDismissExh8.pdf. Because this is a representation as to the state of the court's own files, which could be verified with ease, it seems to me to deserve significant weight.  This document also refers to an investigation into Radack's suppression charges by the DOJ's Office of Professional Responsibility.  (p. 13 n.17).   (This is the office that investigated the politicization of hiring under Attorney General Gonzalez.)

I do not know what the investigation concluded, but this document (and the court's order) partially responds to a comment Ms. Mayer made in an interview with Harpers, in which she states "It is unclear to me what sort of investigation, if any, there has been of this case, including of the potential obstruction."

None of this conclusively demonstrates that the PRAO complied with its obligations, only that Justice as a whole sent the e-mails to the trial court.  (The line prosecutors could have received the whole string from DePue, for example, even if the PRAO file was incomplete.) It may also be worth noting that, as far as I can tell, Lindh did not raise in his motions the Rule 4.2 Ms. Radack opined on.  And Ms. Radack was careful not to advise that Lindh's statements could not be used, as some passages in the book may be read to imply. She stated she did not have enough facts to make that call.

There are lots of aspects of this case we do not know and probably never will.  The public record conflicts on several points. Mayer, for example, does not mention the Justice Department's version of events, which can be inferred from this declaration: Download OppFlynnDecl.pdf  It essentially blames Ms. Radack for the incompleteness of the PRAO file, an accusation she strongly denies. 

Notwithstanding this aspect of the story, I agree with Mayer on three points.  First, Radack leaked the e-mails as a matter of her conscience and sense of fair play.  Second, based on publicly available records Lindh was  severely mistreated in Afghanistan.  I do not understand how he could be held with a bullet in his leg for several days on the theory that a chain of custody needed to be established for its use as evidence.  Third, Lindh probably was over-charged.  He did carry a gun for the Taliban but I have not seen any evidence that his target was the United States rather than the Northern Alliance. Bad timing.

Perhaps these are small points in the grand scheme of things.  But it seems to me that criticism on rule of law grounds must take special care with the facts.  The claim that the DOJ disregarded its discovery obligations at the behest of the White House counsel points the finger of unethical conduct at many people. These include career attorneys such as Mr. DePue as well as political appointees.  Even a close reader of Ms. Mayer's book could be forgiven for concluding that, as the recipient of the e-mails, Mr. DePue had to have been in on any scheme to obstruct justice.  That conclusion would be incorrect and unjust. (Ms. Radack has always been careful not to cast suspicion on Mr. DePue or Mr. Bellows.)  Recognizing the constraints of space, I believe Ms. Mayer's thesis would have been better served by a fuller description of this story.

DM