It’s not paranoia if they ARE out to get you, No. 5


In his July 14, 2008 No Comment post, Six Questions for Jane Mayer, Author of The Dark Side, Scott Horton introduces his interview with Jane Mayer, author of The Dark Side:

In a series of gripping articles, Jane Mayer has chronicled the Bush Administration’s grim and furtive dealings with torture and has exposed both the individuals within the administration who “made it happen” (a group that starts with Vice President Cheney and his chief of staff, David Addington), the team of psychologists who put together the palette of techniques, and the Fox television program “24,” which was developed to help sell it to the American public. In a new book, The Dark Side, Mayer puts together the major conclusions from her articles and fills in a number of important gaps. Most significantly, we learn the details on the torture techniques and the drama behind the fierce and lingering struggle within the administration over torture, and we learn that many within the administration recognized the potential criminal accountability they faced over these torture tactics and moved frantically to protect themselves from possible future prosecution. I put six questions to Jane Mayer on the subject of her book, The Dark Side. (italics in original)

In the interview, Ms. Mayer describes yet another instance in which the Bush administration has retaliated against someone who dared raise a voice in dissent:

[Horton:] You spend more time showing how the torture process compromised lawyers than how it compromised health care professionals. One of the more revealing cases involves Jessica (sic) Radack, a young career attorney in the Justice Department’s Honors Program, who dispensed ethics advice concerning plans for the interrogation of John Walker Lindh. It seems that her advice was contrary to the ethical views of senior Bush Administration lawyers, and you note that when a federal judge demanded to see the internal Department of Justice records relating to the matter, all of Radack’s emails, including the advice actually dispensed, had been deleted and the hard copies removed, and none of this was furnished to the court. Did the Justice Department ever undertake an internal probe into the obstruction?

[Mayer:] Radack was in some ways an early guinea pig showing how high the costs were for anyone—including administration lawyers—who dissented from the Bush Administration’s determination to rewrite the rules for the treatment of terrorists. Her job in the department was to give ethical advice. She was asked whether an FBI officer in Afghanistan could interrogate John Walker Lindh and use his statements against him in any future trial. By the time she was asked this, however, as she knew, Lindh’s father had already hired a lawyer to represent him. So she concluded that it would not be proper for the FBI to question him outside the presence of his counsel.

To her amazement, the FBI agent went ahead and did so anyway, and then the prosecutors in the Justice Department proceeded to use Lindh’s statements against him in their criminal prosecution. She told me, “It was like ethics were out the window. After 9/11, it was, like, ‘anything goes’ in the name of terrorism. It felt like they’d made up their minds to get him, regardless of the process.” Radack believed that the role of the ethics office was to “rein in the cowboys” whose zeal to stop criminals sometimes led them to overstep legal boundaries. “But after 9/11 we were bending ethics to fit our needs,” she said. “Something wrong was going on. It wasn’t just fishy—it stank.”

What happened next was truly scary. She tried to ensure that a judge overseeing the case, who asked for all information regarding the Department’s handling of Lindh, was given the full record, including her own contrary advice. But instead, she said she found that her superiors at Justice sent the judge only selective portions of the record, excluding her contrary opinion. Her case files, she said, were tampered with, and documents missing. Among the senior Justice Department officials who were sent her files, she said was Alice Fisher, a deputy to Michael Chertoff who followed him as head of the Department’s Criminal Division.

Radack complained about what she thought were serious omissions of the record being withheld from the judge. Within weeks of disagreeing with the top Justice Department officials, Radack went from having been singled out for praise, to being hounded out of the department. Radack got a job in private practice, but after her story appeared in Newsweek, with copies of some of her emails, the Justice Department opened a leak investigation. The U.S. Attorney then opened a criminal investigation. Radack has since become an advocate for whistle-blowers’ rights. But the episode served as a warning to anyone in the government who stood in the way of the so-called, “New Paradigm.” It is unclear to me what sort of investigation, if any, there has been of this case, including of the potential obstruction. (emphasis supplied)

Read the rest of the interview here.

Update: Prof. David Luban, who blogs at Balkinzation, notes by e-mail that Jesselyn Radack wrote about this experience in The Canary in the Coal Mine, which is available for purchase here.

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