National Security
2:54 pm
Thu August 1, 2013

Whistle-Blower: Protection Act Doesn't Cover Enough People

Originally published on Fri August 2, 2013 11:43 am

Transcript

AUDIE CORNISH, HOST:

There's a large contingent of the public that sees Edward Snowden as a victim, a whistle-blower who saw abuse and revealed it. Just today, a poll released by Quinnipiac University found that among registered voters, 55 percent consider him a whistle-blower; only 34 percent called Snowden a traitor. Of course, it all depends on how you define whistle-blower.

JESSELYN RADACK: My definition is based on the legal definition...

CORNISH: This is attorney Jesselyn Radack.

RADACK: ...Which is a federal employee - and that includes contractors - who reveal what they reasonably believe evidences fraud, waste, abuse, illegality, or a danger to public health and safety. So under that definition I think he, clearly, fits.

CORNISH: Radack makes her living defending federal government employees who go public with those kinds of allegations. And we talked to her to hear one person's story about how revealing documents, especially about national security, can change your life. When Radack thinks back to the moment when she questioned her government bosses, she didn't even think it qualified as blowing the whistle - at first.

RADACK: I didn't think there would be any consequences. I thought, as an ethics adviser at the Justice Department, that I was just doing my job.

CORNISH: Her story starts back in 2001, in the months after 9/11. The U.S. had gone to war in Afghanistan, and this was in the headlines:

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NOAH ADAMS: Among the Taliban prisoners captured in the northern Afghan city of Mazar-e-Sharif this weekend is a young man who claims to be a U.S. citizen...

CORNISH: He was John Walker Lindh. Lindh was taken into custody and over at the Justice Department, where Jesselyn Radack was an ethics adviser, she received a query. Could lawyers question Walker Lindh without his attorney present? Radack said no, but they did it anyway. To make a very long story short, Radack raised concerns about this within the Justice Department. And soon, she says, she found herself urged by superiors to leave her job.

She found work at a private law firm in Washington, D.C., but was still troubled about the incident. So in June of 2002, Radack leaked the story of what she saw as prosecutorial misconduct, to Newsweek. And she did it anonymously.

RADACK: Most whistle-blowers blow the whistle anonymously. They don't want the story to be about them; they want the story to be about the information that they're revealing.

CORNISH: So did you come to regret that decision?

RADACK: Eventually - for me - I did. I felt like OK - for me, at least - I should have just held the press conference on my front stairs, and shouted it from the rooftops and said all right, if you think this is a crime, come get me.

But obviously, that's not always the case. I mean, with Snowden, that's kind of had the opposite effect. He's revealed himself and unfortunately, now everybody is focusing on him rather than robustly examining the issues that he raised, in terms of NSA illegality.

CORNISH: And so - you know, talk about what happens when the actual repercussions start to come down. When do you realize - like, whoa, this is not going the way I expected?

RADACK: You know, in the case of John Walker Lindh, I thought when his case settled, that the whole ordeal was over for me. And I was actually, very relieved. But after you blow the whistle and you think OK, I've done my duty, I can sleep at night; and then you realize, you've unleashed the full force of the entire executive branch, when the retaliation rains down on you.

CORNISH: So you're calling it retaliation. What, exactly, are we talking about here?

RADACK: For me, the Justice Department went to the private law firm where I worked, and leaned on them to fire me. The department placed me under federal criminal investigation, but they wouldn't tell me for what. They referred me to the state bars in which I'm licensed, and they put me on the selectee portion of the no-fly list - among other things.

CORNISH: When we reached out the Justice Department for this story, they declined to comment on Jesselyn Radack's case. But back in 2002, the department did deny her claim that they acted unethically in the case of John Walker Lindh. Radack says she was fired from her law firm after the story hit the news because she refused to reveal whether she'd been the one to leak the documents to Newsweek. And at that point, she says, her life was in ruins.

RADACK: (Laughing) I couldn't get a job because no one would hire me since I was under bar investigation. And that haunts you for years; it's a sword of Damocles over your head. And we call those years - in my household, we jokingly refer to it as my time in the wilderness, where I mainly was doing pro bono work - volunteering legal services - and trying to reconstruct and rebuild my resume, and my career, knowing that I'm in a government town, and that I'm not going to be able to work for government again; and that if I work for a nonprofit - or for a law firm - the government could always come to them again, and lean on them to fire me.

CORNISH: And what about your personal life - did people look at you differently?

RADACK: Definitely. I mean, when an anonymous government official calls you a turncoat in The New York Times, it makes you radioactive. And suddenly, the soccer moms are giving you the cold shoulder, and people don't want to get too close; whether, you know, it's the other moms in the neighborhood, or people at my synagogue. You've gotten this horrible label; and it's like the scarlet letter, in a way. Even my friends would say: We can still be in touch with each other, but don't email me at work.

CORNISH: Now, there is a Whistleblower Protection Act that is supposed to protect federal workers who expose certain kinds of government abuse. But for Radack and others in this informal, post-9/11 fraternity of government leakers, it's no help.

RADACK: The Whistleblower Protection Act does not cover people in the national security and intelligence fields, which I know is very counterintuitive because in a way...

CORNISH: Or some people would say logical, right?

RADACK: Right.

CORNISH: That those are areas where the government wants to exert control over important secrets, things that would keep Americans safe.

RADACK: I agree completely that there are some things that should be kept secret; obviously, sources and methods, troop movements, nuclear design and information. But the idea that you can classify illegal conduct is actually completely antithetical to the executive order on classification. You can't hide illegal conduct by classifying it, and then accusing people who are trying to blow the whistle on it of being the ones who are the lawbreakers. Whatever minor administrative infraction they may have committed by violating a secrecy agreement, the crimes of the government - the fraud and the waste, and the abuse and the illegality - and same in Snowden's case, far outweigh anything that he may have done.

CORNISH: That's Jesselyn Radack, today an attorney for the Government Accountability Project. Now, the White House disagrees with her statement about Edward Snowden. The government has charged him with unauthorized disclosures, and theft of government property. Meanwhile, the Obama administration, and members of Congress from both parties, have maintained that the NSA's surveillance programs are all legal.

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