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Anatomy of a Whistleblower
Is Jesselyn Radack’s story of being persecuted by the Justice Department typical of what happens to those who speak against the Bush administration? Or is hers a more complicated tale?
LAURIE ABRAHAMJANUARY/FEBRUARY 2004 ISSUE
Photo: Ethan Hill
Could you compare Jesselyn Radack’s lovely but modest Tudor home, in a cool bower of leafy trees in Washington, D.C., to a jail? Of course not. There is her tall, handsome husband, an Africa specialist for the World Bank, pushing open the front door in the evening and planting a kiss on his wife. There are her two young sons, three and five, banging on the piano and slopping juice on the recently refinished coffee table. No, it’s an exaggeration to imagine the 32-year-old Radack, who’s pregnant—with a girl, finally!—as a prisoner. Just as overwrought as the letter Radack wrote about a year ago, when the D.C.-area sniper was still on the loose, saying that she felt “hunted”—not by the mysterious gunman but by her former employer, the U.S. Department of Justice.
But then, how to explain what it feels like to have your life stopped, to go from being a golden-girl government lawyer—who marched through Brown, Yale Law School, and straight into the Attorney General’s Honor Program—to living under the drip, drip torture of a seemingly unending investigation, one that has cost you $30,000 in unpaid legal bills and stripped you of the profession that was you, or at least such a big part of you that staying home with the boys
certainly isn’t the “silver lining” that friends and family keep ever so kindly insisting? “I would want to choose to become a full-time mom,” Radack tells me repeatedly and tightly, the implication being that it’s a choice she never would’ve made.
Radack’s home detention of sorts began in November 2002, when she was effectively fired from Hawkins, Delafield & Wood, the Washington law firm where she’d been practicing housing law for just seven months after being forced out of the Justice Department’s ethics unit in April 2002. An agent from DOJ’s Inspector General’s Office had spent the summer poking around her new office, informing Radack’s co-workers that she was a “criminal,” suspected of leaking
to Newsweek emails she’d written while with the government that were critical of the FBI’s interrogation of “American Taliban” John Walker Lindh. At first, Hawkins partner Cullen MacDonald was supportive, assuring Radack that it was a “hallmark of a government lawyer to be investigated.” But by the fall, he demanded she sign an affidavit saying she didn’t leak the emails, or resign. (For legal reasons, Radack still won’t say whether she gave the emails to Newsweek, but she did claim protection under the Whistleblower Protection Act, which makes it illegal for a government agency to retaliate against someone who may have gone to the press.)
Things rapidly went from bad to worse. Last January, the Inspector General referred its leak report to the U.S. attorney in the District of Columbia for possible criminal prosecution. That office wouldn’t say what crime she may or may not have committed; though since “leaking” isn’t criminal, the charge presumably would be “theft of government property,” or some similar offense. The case was finally dropped nine months later, on September 11, 2003, but in early
November, the DOJ’s Office of Professional Responsibility informed Radack that it had reported her to the Maryland and D.C. attorney regulatory authorities for violating confidentiality rules. The outcome of those inquiries won’t be known for some time—whistleblowers are usually exempt from confidentiality rules—but even if Radack beats this latest rap, the damage to her reputation, to her ability to find work in Washington’s close-knit legal and political community,
may well be permanent.
Although not as well known, Radack seems to have joined the ranks of people who’ve been punished or exiled by the Bush administration for questioning its policies or spin, the most recent being Ambassador Joseph Wilson and his CIA operative wife. But what’s happened to Radack is more than just a case study of political vengeance, Bush-style. “Whistleblowers are not necessarily people I’d want to have a beer with,” says C. Fred Alford, a University of Maryland
political scientist and the author of a fascinating book that applies psychological theory to whistleblowers’ experiences. “There is almost by definition something a little unsocialized about the true believer, as I like to call them.” Or even, in our go-along-to-get-along society, something a little scary. As one whistleblower told Alford, we’re all afraid of people who feel compelled to “commit the truth.”
ESSELYN RADACK’S LIFE story is almost inconceivably sympathetic, a Lifetime TV writer’s dream. Her childhood in Columbia, Maryland, was filled with gaping but familiar suffering—a divorced, overwhelmed mother who dated volatile men and spent the evenings self-medicating with alcohol; a house so filthy her youngest brother had to take a half-dozen allergy medications until he left at 18; for-auction signs periodically staked in the front yard; a successful lawyer-father living nearby in Washington, D.C., but somehow unable or unwilling to intervene—and small, inadvertent cruelties: teenage Jesselyn, a serious ice-skater, switching on her competition video to find that her mother had taped Dallas over the only record she had of herself gliding and twirling and leaping into the air.
Nonetheless, Radack managed, in addition to skating, to earn excellent
grades, start on the field-hockey team, land a spot on the homecoming court, and get into Brown University. There, on her own for the first time—”The only person I have to worry about is me, how unbelievably, amazingly selfish. What a gift!”—she really soared: tip-top of her class, triple major, resident adviser, women’s-rights activist, etc.
Except…she was diagnosed with multiple sclerosis in February of her junior year and thereafter was in and out of the hospital for steroid treatments to control
blindness in her left eye and the inability to write or even walk when the feeling drained from her arms or legs. She was admitted to Yale Law School, and although she spent much of her second year reeling with fever and nausea—the side effects of adjusting to a new drug that would eventually loosen the hold M.S. had on her—she kept her nearly perfect A record intact (they call them “H’s” at Yale, but nobody’s fooled), while publishing a few law-review articles on the side.
Which brings us to the present, almost. Upon graduation from law school
in 1995, Radack was chosen for the Justice Department’s prestigious Honor Program, where, by many accounts, she performed admirably for the next seven years. The only downside to her success was that once she’d transferred from the civil to the ethics unit, a few colleagues there grew to resent her, she says, particularly after an article she published in Georgetown’s ethics journal
was lauded by Deputy Attorney General Larry Thompson and FBI Director Robert Mueller. But gnarly office politics notwithstanding, Radack figured she might stay at Justice for the rest of her career—until, that is, she exchanged a few emails on the interrogation of John Walker Lindh.
Radack had been working full time in the ethics unit for 10 months when,
in December 2001, she received an email from John De Pue, a lawyer in the terrorism unit, asking if it would be appropriate for an FBI agent to interview Walker Lindh in Afghanistan without a lawyer, even though his father had hired one for him. After consulting with a senior ethics staffer, she emailed him no, but a few days later, De Pue informed her that the agent had done it anyway. Radack responded that the interview “may have to be sealed or only used for national security purposes.” “Ugh,” De Pue retorted.
It then became her job, Radack says, to try to strategize with her superiors
about how to minimize the damage of this potential ethics breach. But Radack may have pushed the matter a little more vigorously than was wise, given the political climate. The validity of Walker Lindh’s confession was becoming pivotal to the government’s case; his lawyers were arguing their client had been Mirandized under extreme duress (bound with duct tape, starved, kept in a cold,
dark shipping container), while Attorney General John Ashcroft was countering that the 21-year-old’s rights had been “carefully, scrupulously honored.” As a result, U.S. District Judge T.S. Ellis ordered the Justice Department to turn over all internal documents regarding Walker Lindh’s questioning, which Radack only learned when lead prosecutor Randy Bellows emailed her on March 7, 2002, to say he had two emails she’d exchanged with the terrorism unit—were there more? She was stunned. The ethics chief, Claudia Flynn, hadn’t mentioned the court order, and Radack and De Pue had emailed back and forth at least a dozen times.
Radack rushed to tell Flynn about the missing emails. “I sent everything
that was in the file,” Flynn shot back, according to Radack. (Flynn, like most DOJ officials involved, declined to comment for this story.) Radack immediately went to check the paper file the ethics unit is required to keep intact on each inquiry it handles, a once thick sheaf that she herself compiled, and found only three emails. “I literally got sick, like I was going to vomit,” Radack says. She called the computer help line and frantically recovered what she thought were all of the emails and set them on Flynn’s chair with a memo. A while later at the elevator she bumped into her boss, whose only comment was, “Now I have to explain why [the ethics unit] shouldn’t look bad.”
Radack says it appeared to her as if she was caught in the middle of an effort
by someone at DOJ to destroy evidence in violation of a federal court order. Suddenly, an unscheduled, scathing performance review she’d received a few weeks earlier made sense. When Flynn, with whom Radack says she’d previously been on good terms, had handed it to her, she told her that she was going to be “shocked,” Radack says—and she was: “When you’ve gone through life getting rave reviews, I’ve never got anything even mediocre….” The evaluation didn’t mention Walker Lindh, but it was written during the period when Radack was pestering Flynn about the interrogation. Flynn hadn’t signed the review and told Radack that she wouldn’t put it in her file if she found another job, which she now did, at Hawkins.
She began at the law firm on April 8, and two months later Newsweek‘s Michael
Isikoff had the emails between Radack and De Pue.
Apart from whether Radack leaked the emails, in the aftermath, she’s gradually embraced the role of whistleblower. She started a website, Coalition for Civil Rights and Democratic Liberties; accepted an invitation to assist the American Bar Association’s task force on the treatment of enemy combatants; and was quoted in a sprawling New Yorker piece on John Walker Lindh published last March. In May, she fed information about her case to Senator Edward Kennedy, a member of the Senate Judiciary Committee, which led to a short delay in the confirmation of DOJ official Michael Chertoff to the U.S. Appeals Court in Philadelphia.
Yet to hear DOJ spokeswoman Barbara Comstock tell it, Radack has been
wasting her righteous breath from the get-go. According to a court document Comstock faxed me, the Walker Lindh prosecutors (though apparently not Bellows) had the vast majority of the emails between the ethics and terrorism units before Radack complained to Flynn. More broadly, DOJ’s position is that the back-and-forth between Radack and De Pue was a sideshow. The legality, not
the ethics, of questioning Walker Lindh was always the burning issue, says Comstock, who left DOJ for the private sector this fall. And, as Chertoff told the Judiciary Committee, more senior parts of the criminal division decided early on that Walker Lindh could be questioned without an attorney because Supreme Court precedent says suspects don’t have to be treated as represented
persons when a family member hires a lawyer for them.
Great, Radack responds, the judge got the emails, but she had no way of
knowing that, since so much of the case took place under wraps, and she had ample reason to suspect a “cover-up”: Why would Bellows tell her he had only two emails? (Bellows, now a judge, declined to comment.) Why were there only three emails in the official paper file? Why did Flynn get so aggravated when Radack confronted her?
It’s unclear, then, whether there was a cover-up, or whether any attempt at one was abandoned or somehow thwarted. What’s unmistakable, however, is that Radack’s boss wanted to get rid of her, and, once the emails became public, DOJ hounded her out of her private-sector job. The only motive her supporters, as well as several former assistant U.S. attorneys and Justice Department officials who’d comment only off the record, can glean is revenge. The Walker Lindh case was the showpiece of the government’s war on terrorism, and while prosecutors were saying up to the moment they struck a plea deal in July 2002 that they had the goods to seek three consecutive life sentences against him, they ended up agreeing to 20 years, probably, say legal experts, because of the troubling way the FBI and military handled their captive.
But while Radack’s emails made for lousy P.R. when they were published a month before the scheduled trial date, they were a blip in the process, so why keep giving Radack the Javert treatment? Says Doran Bunkin, among Radack’s closest friends and a D.C. attorney herself, “You’ve got this beautiful woman who’s pregnant, who has two little kids, who has M.S., who’s just trying to do her job, and you’re going to crucify her?” Put less delicately, Radack isn’t some foreign national whom the government can lock away indefinitely as an enemy combatant and the public won’t notice or care. She’s one of us.
Or maybe not. The great relief is that whistleblowers aren’t like the vast majority of us, says Alford, the political scientist. For him, Radack’s story is less about a world turned upside down by 9/11 than about what strange creatures whistleblowers necessarily are.
STRANGE DOESN’T have to mean wearing funny shoes,” Alford says. “It can just mean being a true believer. A real cynic isn’t going to blow the whistle. A real conformist isn’t going to blow the whistle. And a real radical probably won’t be in a position to do it. It takes someone who believes in the system far more than the system ever believes in itself.”
Talking with Radack in her neat, placid home, she seems anything but
weird, in the clichéd, whistleblower-as-misfit sense. Her fingernails and toenails match (deep mauve); her kinky hair (though she often dries it straight) is cinched in a ponytail, her eyebrows lightly plucked. As her Brown friend Christin Semaprabon recalls, she’s “very, very put together, all the time.”
I myself felt a little sloppy around Radack, a little bumbling, too jokey or flip. It’s not that she’s icy, not in the least; she listens intently, radiating concern. Rather, she’s deeply earnest and hyperarticulate, capable of saying things like “I ask myself, ‘Would I do this again?’ And from a utilitarian perspective, I’d say no. From a deontological perspective, I’d have to say yes.”
Radack actually has a long history of whistleblowing or, as a shrink once told her, of “setting the record straight.” At 16, she shared her family’s wretchedness with a vice principal concerned she wouldn’t graduate if she couldn’t get to school on time. Soon after, a county child-welfare worker was at the door. Radack’s younger brother Jeremy remembers that his mother told the three kids, “‘If you don’t tell these people you’re happy here, they’re
going to take you away from me.’” He kept quiet, but his older sister was incredulous, if not incensed, that the guy interviewed them in front of their mom. “Obviously,” she says, “we weren’t going to say anything.” Not quite. “When he was leaving, I was like, ‘There’s a gun in the house,’” Radack whispers, as she did back then.
Radack decided that she didn’t want to live with her mother anymore, but she was adamant about graduating from the public high school that had become her refuge. The entire family had begun to see a therapist (even her father had decided to get involved) who, fortuitously, was also counseling a divorced woman who had a son but longed for a daughter, too. After a single meeting with the woman—and a glance at what would be her bedroom, all pink—Jesselyn moved in. “It was so calmmmmm,” she says.
In college in the early 1990s, Radack kept speaking up. She was a leading defender of Brown’s wildly controversial “rape list.” Early in her junior year, female students had scrawled the names of men who’d allegedly sexually violated them on bathroom walls. Radack hadn’t done so herself, but she and three other women had been working with the administration to develop a sexual-misconduct disciplinary policy, and when the rape list hit, the so-called Committee
of Four were thrust into a public role. Radack was quoted in the New York Times and Newsweek, and even appeared, with huge hair, a red cowl neck, and turquoise eye shadow, on Phil Donahue. Interestingly, opponents of the list heaped their most vicious invective on Radack because she wasn’t the stereotypical feminist, Semaprabon says—she didn’t hide her femininity and obviously “liked” boys.
Radack had a reason for lobbying the administration in the first place, a very personal one. “In the fall of my sophomore year at Brown, I was sexually assaulted on my way home from a semiformal by three football players,” she wrote in a law-school paper later adapted for a 2000 essay collection called Just Sex: Students Rewrite the Rules on Sex, Violence, Activism, and Equality. The drunken guys propositioned her and groped her butt and breasts, she wrote, and only peeled off when a car came by. Back at her dorm room, she found a message from one of them on her memo board: “Hi. It’s Jack and I have a very big dick and I’m going to f— you up the ass.” Radack knew “Jack” (the pseudonym she used in her article) vaguely and immediately reported the incident to campus police, offering the memo board and her ripped dress as evidence. When all three admitted what they’d done but said they were just joking, the university cops turned the complaint over to the dean of students, who left it to the football coach to deliver a punishment that Radack thought wholly inadequate: extra laps at practice.
What’s relevant about this episode from today’s perspective is not what a “radical” Radack was or is, but how narrowly she describes her motivation for pressing the claim. “You were told at orientation, ‘If something happens to you, here’s what you do.’ I’d followed all the right steps, all the right channels, and nothing happened. I wasn’t going to put up with this.”
This insider’s outsider quality isn’t immediately apparent in Radack; it sneaks up on you. Yes, she was the ultimate good girl in high school, but she also carpooled with a classmate whose father was in jail (they bonded over their unhappy home lives) and even stayed in touch with him after he himself was incarcerated for stabbing a female classmate to death while robbing a convenience store. Her third year at Yale Law, a place in which I found, as a journalism fellow there, that people fretted about the smallest details of their personal conduct lest an ill-chosen word or bathroom toke come back to haunt them in confirmation hearings (it was assumed, without a hint of self-consciousness, that all Yalies were headed for such greatness), she posed topless for Playboy’s “Women of the Ivy League.”
The topless picture is grist for Radack’s detractors, but the back story
isn’t surprising—if you’re Jesselyn Radack. About a week before graduation, she had to rush home to help her mother out of a legal fix, and when she returned to school she saw Playboy’s recruitment flyers. “I happen to have big boobs, and it was the easiest, quickest way out for me,” she says. She made $600 and signed the check over to her mother to pay for a lawyer. (“I didn’t ask her to do it, but it was nice of her,” her mother says today.) Radack says she doesn’t see anything odd about what she did: She’s always been a free-speech, not an anti-pornography, feminist—the rape list was applauded by First Amendment absolutists. Still, didn’t it cross her mind that taking off her shirt for 600 bucks, at the image-obsessed law school, after writing about her own “assault” might be unwise? No, Radack says, she was just grateful to hand over the money and get back to her own life: finals, graduation, studying for the bar, and starting at Justice in the fall.
“NARCISSISM MORALIZED” is Alford’s provocative term to explain why whistleblowers do what they do. “Whistleblowers blow the whistle because they dread living with the corrupted self more than they dread living in isolation from others,” he writes in Whistleblowers: Broken Lives and Organizational Power, his 10th book of moral psychology. With this concept, Alford sets aside the pathological definition of narcissism—which includes as its well-known
features exploitation of others and lack of empathy—and instead puts whistleblowers in such exalted company as Gandhi and Martin Luther King Jr.
Moral narcissists strive to live up to their “ego ideal,” as Freud would
have it, rather than lower the ideal and say to themselves, consciously or not, “Well, I’m just going to go to work every day and go along,” Alford argues. He came to the notion after sitting in on a whistleblower support group for a year, eavesdropping at a retreat for stressed-out whistleblowers, and interviewing
24 more in depth. The only force strong enough to make whistleblowers blow and keep blowing, despite mounting psychological and financial costs (most studies show about two-thirds lose their jobs and many never return to their original fields), is narcissistic rage. “Look what you’ve done to my moral purity!” the whistleblower’s heart cries.
Alford is wary of picking apart why Radack, or any whistleblower, did it, because that process transforms political disagreements into “private acts of disobedience that may be subject to discipline.” Assuming the whistleblower’s case isn’t “totally implausible,” Alford’s question “is not, ‘Was the whistleblower right (pure, just, well balanced)?’ But what can the whistleblower’s experience teach us about the fate of the individual in the organization?” Or, as he told me, “The most striking thing about Radack’s story was the way the law firm behaved. It begins to look like there really is something called the System, and if you violate the rules in one part, there’s no safe haven.”
Last March, in fact, Hawkins went so far as to (unsuccessfully) challenge
Radack’s unemployment claim, for $309 a week, telling the court in a letter that the firm was “particularly concerned” about her failure to cooperate with the Inspector General because “the entire focus of its law practice is representing governmental entities.” Radack’s employment lawyer, Mona Lyons, says she’s amazed at how clearly Hawkins stated that it unloaded Radack for fear she might
threaten its ability to get government business. “I mean, it’s not Mack’s trucking company—this is a law firm, for god’s sakes,” Lyons says. (Hawkins’ counsel didn’t return phone calls.)
“People are scared of [the Ashcroft] Justice Department,” Lyons goes on. But Alford would say that organizations in general can’t bear truth tellers, those who dare “to bring the outside in.” Ask yourself this question: Assuming you’re convinced that Radack was convinced she’d witnessed a serious wrong, would you hire her?
SO FAR, NO ONE HAS. Granted, Radack has no way of knowing why she hasn’t gotten an offer from any of the half-dozen public-interest groups and small law firms where she’s interviewed. “It’s hard to tease out how much is being seven months pregnant, how much it’s the cloud of what’s happened, and how much it’s the bad economy,” she says. Back when the criminal investigation was pending, Radack applied for a job at the American Civil Liberties Union, but a close friend who knew someone there told her that the free-speech group wanted her to put all this behind her before they’d consider hiring her. Around the same time, a partner at Harris Wiltshire, the D.C. law firm that represents Steven Hatfill—the biologist who sued Justice for publicly fingering him in the anthrax investigation—told her he was very interested in having her work on the Hatfill case. (Radack even got a mention in the lawsuit: DOJ had undertaken only a “token effort” to find the source of repeated leaks trashing Hatfill, the complaint says, while “leaks that embarrass the DOJ are treated seriously and lead to criminal referrals [as in the case of former DOJ employee Jesselyn Radack].”) But a month later, Hatfill’s lawyer emailed her to say he’d consulted
with his colleagues, and though she was “obviously a very capable lawyer,” the “accusations about you, however unfounded, could complicate the issue…. The risks here are too great.”
And now, of course, a new cloud looms: the possibility of disbarment or suspension. “I thought it was over; I don’t know why I believed that,” Radack says, sounding crushed, after learning she’d been reported for alleged ethics violations. Considering the DOJ’s halfhearted pursuit of whoever leaked the name of Ambassador Wilson’s wife, her situation couldn’t be more ironic, she adds. “My presumed leak was for the purpose of whistleblowing; the White House’s presumed leak was to punish a whistleblower.”
Actually, it’s not quite right to call Radack unemployed; she’s become a professional whistleblower. After putting her sons down for their afternoon naps, she hurries down to her basement office to check her website: Has she picked up any new signatures on her petition on behalf of Americans’ civil rights or contributions to her legal-defense fund? She writes law-review articles on ethics and speaks about her experience. And she continues to huddle with her legal team. Lyons, the employment attorney, may sue Hawkins for back pay, and Bruce Fein, a very high-powered conservative constitutional lawyer, has stepped forward to help clear her name—pro bono.
Radack seems so purposeful, so “together,” as Semaprabon put it, that it’s sometimes easy to forget that there’s anything amiss in her life, easy to numb out as she tells her story for the umpteenth time. A single question, on the phone or in an email, unleashes a cascade of information; once she’s leaped into her story, she can’t seem to stop. “We’ve just got to keep moving forward,” her husband says. But is that what she’s doing?
Alford speculates that this relentless chronologizing helps Radack (and other whistleblowers) avoid the true moral to her story, which is that her act has no meaning in the common narrative sense: There is no ending, because true vindication—the little gal took on the big organization and won—is unlikely ever to come. “She will not be put back in her former position. She’ll be lucky to get a job with the ACLU,” he says. “And everything she’s learned about how the world works that she didn’t want to know will be shown true. The real damage is the knowledge.”
His comments made me think of Jesselyn’s bat mitzvah videotape, which her mother keeps. She read from Exodus, all about “different laws of justice,” as she put it, and spoke of Jeremiah. Today, Jeremiah is seen as something of a hero, but he died disgraced, loathed for incessantly warning his people that they’d become debased and would suffer mightily for it.
Wearing a “Heidi” dress with a wine-colored bodice and white billowy sleeves, 13-year-old Jesselyn stands in front of the congregation, next to her beaming rabbi. “This verse warns not to follow the majority of the people blindly for evil purposes, especially to disrupt justice,” she says in a girlish, slightly lisping voice. “I hope that I will always be able to make the right decisions about my actions.” Radack believes she has, of course. But will she ever know a happy ending? It depends on whose stories you trust more: the Old Testament’s or Lifetime’s.