Defending the Whistleblowers


Jesselyn Radack

Would National Security Agency (NSA) whistleblower Edward Snowden be better off had he gone through official channels to expose his employer's questionable domestic surveillance practices? No way, says his lawyer, Jesselyn Radack of ExposeFacts.org. And she should know: The national security and human rights attorney has represented numerous other government whistleblowers and even acted as one herself. In October 2015, reason.com Editor in Chief Nick Gillespie sat down with Radack to discuss the U.S. government's war on information.

Q: You used to work at the Department of Justice during the prosecution of John Walker Lindh. How did that change your perspective?

A: I was the ethics attorney for the Justice Department. Despite giving advice not to interrogate the so-called "American Taliban" without his lawyer and also not to torture him, it was clear the U.S. was doing both. And then I advised not to use that information in a criminal prosecution…because it was an improper interrogation.

Q: And then all of your emails went missing from the official record?

A: That's correct. There was a department-wide discovery order for all correspondence dealing with John Walker Lindh's interrogation. I had written more than a dozen that reflected pretty badly on the FBI. I went to check—back then we kept hard copies of things—and they were not in the file. I resurrected them from my computer archives, and wrote a memo to my boss, and attached them, and resigned.

Q: What had brought you to the Department of Justice?

A: It was my lifelong ambition to be a career public servant. But it really caused a crisis of conscience for me.

Q: Some of your clients went through what channels seemed to be official at the time.

A: Thomas Drake went through every conceivable internal channel about a number of surveillance programs. He went to his boss. He went to the NSA general counsel. He went to the House and Senate intelligence committees. And not only did they fail to redress his concern, they turned around and prosecuted him for espionage. So for all the people out there shouting that Edward Snowden should have gone through the proper channels, first of all, there are not that many channels for national security whistleblowers. They are excluded from most avenues. But second of all, Tom Drake, Bill Binney, Kirk Wiebe, and Ed Loomis did go through the proper channels. And all of them fell under criminal investigation for having done so.

Q: What is different about Snowden?

A: There are a number of differences. He has publicly said that he studied the cases of Tom Drake and Bill Binney and how they had gone through the proper channels. He made his decision differently, to give the information directly to reporters and let them use their editorial judgment about what was in the public interest to know. He also had what a lot of whistleblowers don't have, which was documentary evidence.

Q: Talk about the scrambled politics of this.

A: So many left-wing people, when Obama was elected, suddenly became very centrist on a lot of the more controversial programs that were occurring under Bush. People are like, "If a Republican did that, they would have been skewered." Which is true! Obama was like, "We're ending torture. We're closing Guantanamo. We're going to be the most open and transparent administration." And he's done the complete opposite on all three of those. OK, you got rid of torture, but you instituted a drone program that I think is even more frightening. At least if you're tortured you can live to tell the story.