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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