Tuesday, February 6, 2018

Significance in Retrospect


Significance in Retrospect

Jesselyn Radack, joined the Department of Justice after graduating from Yale Law School in 1995.  In 1999 she moved to DoJ’s Professional Responsibility Advisory Office.  She felt forced out of the DoJ in 2002 following her involvement in the government’s interrogation of John Walker Lindh, an American citizen captured with Taliban forces in Afghanistan.  She became a very public whistleblower.

In her telling, the story was straightforward.  She was asked whether Lindh could be interrogated without an attorney being present.  She advised, no, not under U.S. law since his parents had secured an attorney for him.  The FBI went ahead and interrogated him anyway.  Her boss suggested she leave or else.  Lindh’s attorney’s later requested copies of relevant DoJ communications, but DoJ didn’t provide copies of all Radack’s emails, which might have strengthened Lindh’s defense.  Radack, then with a private law firm, leaked her emails to Newsweek, which published them and her name.  For years afterward, the government made Radack’s life a hell of attacks, inconveniences, and legal expenses.

But ambiguities of Radack’s story are as striking as those of most whistleblower cases.  The government debated whether her emails constituted formal advice.  Whether an attorney engaged by Lindh’s parents, unbeknownst to him, was really his attorney.  Whether DoJ intentionally withheld emails from Lindh’s defense.  And whether Radack was really forced out of DoJ.  Government lawyers contended Radack violated attorney-client privilege by disclosing the emails to Newsweek.  They claimed actions against her were justified because she violated her professional ethics.

That the government challenges Radack’s depiction doesn’t make her rendition wrong.  That the government echoes most accused companies by saying Radack misunderstood situation and she misbehaved doesn’t make her telling right either.  We will never get to what is really true in the matter.

The government case against Lindh arguably fell apart.  In 2002 he received a 20-year sentence, not the multiple life sentences initially sought.  That some of the evidence against Lindh was obtained through torture may have been why.  Maybe Radack’s whistleblowing contributed.  Whatever the reason, Lindh retains his faith in global jihad and will be released next year.

It can be hard to see how our whistleblowing had any impact on the situation we wanted to change.  While I was CFO at HomeFirst Services, I suggested we do a better job of reporting results but I got nowhere.  HomeFirst continues that lack of transparency by not publishing its 2017 audit report[1], which shows a $1.4 million loss before noncash activities, until after its big winter contribution season ends.

While CFO I argued unsuccessfully for expense reductions to avoid financial problems.  But annual administrative costs were increased by $1.4 million, and HomeFirst’s June 2017 cash balance wouldn’t cover even one biweekly payroll.

While Compliance Officer, I reported eight legal violations and identified a dozen more.  None resulted in action against HomeFirst or in any meaningful change in its operations.  HomeFirst’s largest financial violation – overbilling HUD by $1.2 million – was mostly forgiven by HUD[2].  The company’s misuse of $138,000 of City of San Jose money was entirely forgiven.

Nothing was accomplished by my whistleblowing.  Nearly everyone else involved has moved on.  Now that the State has rejected my complaint, my footnote to the HomeFirst audit report will vanish.  The entire incident can be forgotten.

America was caught up in post-9/11 frenzy over terrorism, torture of suspected terrorists, and the Bush Administration’s lurch to war in Iraq.  Radack rode a pretty minor misdeed into whistleblower fame.  Her story has been told in Newsweek, The New Yorker, The New York Times, NPR, among many media outlets.   Three years after she was first attacked, she recovered professionally to join the D.C. Bar Legal Ethics Committee.  She went on to serve as director of National Security & Human Rights at Government Accountability Project, where she represented NSA whistleblower Thomas Drake.  She traveled to Moscow to meet with Edward Snowden.  She won awards.

Few whistleblowers win awards, see their stories told in The New Yorker, or mix with big-time whistleblowers.  But, like Radack, the results of their whistleblowing are slight.

This can be true even of big-time whistleblowers.  Daniel Ellsberg, the patriarch of whistleblowers, released the Pentagon Papers in 1971, hoping to stop the war in Vietnam.  Responding to widespread public pressure, the Nixon administration began to draw down troops years before the release, but the war continued for nearly four more years.  Like Radack, Ellsberg is justifiably a whistleblowing celebrity despite doubtful results.

We go through life uncertain of the meaning of our efforts.  We perform jobs, raise families, accumulate some assets, and form friendships.  The significance of any of our accomplishments is open to great doubt, our whistleblowing no less than anything else.

I appreciate the encouragement Radack, Ellsberg, Government Accountability Project, and others give to whistleblowers.  Having hope for a successful outcome can make it easier to undertake a dangerous project.  But I also think that the ability to launch a project we expect will fail can be a valuable life skill.



[1] The report, issued on October 31, 2017 and available at Federal Audit Clearinghouse, was not available on HomeFirst’s website as of February 5, 2018.
[2] HomeFirst’s 2017 audit report stated that HUD had forgiven about $800,000 of the amount and the balance is payable in three installments beginning in 2018.

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