“Traitor,” A Whistleblower’s Tale

Jesselyn Radack’s memoir “Traitor: The Whistleblower and the American Taliban” presents the moving story of a young attorney’s unexpected encounter with official misconduct, and the excruciating ordeal that ensued when she decided to challenge it.

In 2001, Ms. Radack was a Justice Department attorney and specialist in legal ethics.  In response to an official inquiry, she advised that the newly captured John Walker Lindh, the so-called “American Taliban,” should not be interrogated without an attorney present — which he then was anyway.  When Department officials publicly denied having received any such legal advice, and even destroyed evidence to the contrary, she exposed the deception.

Ms. Radack was not looking for a fight, but only to do the right thing. For her trouble, she was forced out of her Justice Department position, put under criminal investigation, fired from her subsequent job, reported to the state bar, and put on the “no fly” list.

“Traitor” is the story of a young professional whose career is derailed because her ethical compass will not let her be silent in the face of offical dishonesty.  It is also the story of a political system that is seemingly incapable of tolerating honorable dissenting views within the government workforce.

While a handful of “whistleblowers” become figures of popular acclaim, or heroes of movies such as The Insider or Erin Brockovich, they are the exception rather the rule, Ms. Radack writes.

“The media glorifies those who risk everything to expose corruption and illegal activity and rightly so; these lionized individuals deserve every ounce of praise they receive.  But their happy outcomes are not typical– for every success story, there are a hundred stories of professional martyrdom.  Mine is one of them.”

Ms. Radack eventually found a measure of redemption as an attorney with the Government Accountability Project where she has turned her own experience to advantage in promoting whistleblower rights.  She was among the most stalwart and effective defenders of Thomas Drake, the former NSA official and whistleblower whose dubious prosecution under the Espionage Act ended with the dismissal of all felony charges against him.

The Bush administration (in which she worked) was hostile to whistleblowers, according to Ms. Radack, but the Obama administration is even worse.

“The Bush administration harassed whistleblowers unmercifully,” she writes.  “But it took the Obama administration to actually prosecute them.”

I don’t think it is true, however, that the prosecution of Thomas Drake “was a test case for the Justice Department to try a novel legal theory… that the Espionage Act could be used to prosecute leakers” (p. 159).

Far from being novel, the use of Espionage Act to prosecute unauthorized disclosures of classified information predates the Drake case by decades.  At least since the conviction of Samuel L. Morison in the 1980s for providing classified intelligence imagery to Jane’s Defence Weekly — and the Supreme Court’s refusal to review the case — this application of the Espionage Act has been seemingly well established.

And there is some ambiguity about who qualifies for the appellation “whistleblower.”  It is a loaded term both because it presumes the pure intention of the individual challenger, and because it takes for granted the corruption of his target.  These need to be demonstrated, not simply asserted.  It cannot be the case that a strong sense of personal conviction, untethered from legal or ethical constraints, is enough to entitle anyone to be called a whistleblower.  If that were so, then Jonathan Pollard and other disreputable figures could claim the title.

Ms. Radack states twice that the Obama Administration has prosecuted leakers “who more often than not were whistleblowers” (p. 69, 92).  This suggests that she thinks at least some of the six leak defendants to have been prosecuted by the Administration may not have been whistleblowers.  But if so, she does not specify which ones they were, or why she came to that conclusion.

I would say that “whistleblowers” are not a separate category of people in any essential sense.  Anyone can act with integrity under some circumstances.  The whistleblowers that we honor are people who act with integrity under extreme duress and sometimes at great cost.  Jesselyn Radack’s memoir is an eloquent account of one such case.

2 thoughts on ““Traitor,” A Whistleblower’s Tale

  1. I think the distinction most of us who have been whistleblowers would make is that it is one thing to make disclosures to another branch of government that has direct oversight responsibility for the executive branch (i.e., Congress). It’s another thing entirely for someone like Pollard—who took an oath to preserve, protect & defend the Constitution of the United States, against all enemies, foreign and domestic—to commit an act of espionage against his own nation. I think I can safely speak for both myself, Radack, Drake and probably several others when I say that what we did was pursuant to the oath that we took, and I think most attorneys who’ve represented federal whistleblowers would agree with that distinction.

  2. The thing about the Pollard case is that we have no idea what Pollard actually did because it’s still a secret.

    We know he “aided” Israel, which is a US ally. That is only a crime because part of the Espionage Act includes a phrase to the effect of “[to harm the US or aid a foreign power]“. Thanks to Gorin V US (1941) and other cases, the courts have upheld this. IE, theoretically, if you gave sensitive information to the UK or Canada you could be guilty of violating the act. . . because after all, we might wake up tomorrow and be invaded by Canada. Or the UK. (Even though the entire existence of our CIA is owed directly to the British, who basically forced us to create it so that WWII wouldn’t be a complete Allied disaster. See Wedge by Mark Riebling).

    The problem with Pollard’s case is that he got life in prison and we still don’t know why. Then, the guy whose Victim Impact Statement was instrumental in putting him away for so long, Secretary of Defense Caspar Weinberger , didn’t even mention any of this in his memoirs. Think about it, in Cap’s Victim Statement he goes on and on about how Pollard has nearly destroyed America, this leak is amongst the worst ever, etc etc etc. But Cap doesn’t even mention it in the book that is supposed to be the story of his life.

    You can read about this by googling around for the articles that Edwin Black, David Zwiebel, and others have written about the case.

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