Welcome to Radack v. U.S. Department of Justice, a document repository that chronicles a privacy act lawsuit by whistleblower and former DOJ attorney Jesselyn Radack. Radack was an ethics advisor at the DOJ who came to prominence in 2002 after disclosing e-mails to Newsweek, contradicting public statements by Attorney General John Ashcroft that John Walker Lindh, the so-called “American Taliban,” had not chosen counsel during his criminal prosecution.

Radack came under scrutiny by the DOJ and state bar organizations over allegations that she violated attorney-client privilege by going to the media with the e-mails. In her court filings, Radack relied extensively on the Whistleblower Protection Act to defend her release of the e-mails. For example, in her Complaint, Radack said that

Ms. Radack’s disclosure was authorized and protected by the Whistleblower Protection (“WPA”) Act of 1989, 5 U.S.C. § 2302, which provides protection to federal government employees who expose government fraud, waste and abuse. Section 2302(b)(8) prohibits an agency official from taking an adverse personnel action against a former or current employee as a reprisal for: “(A) any disclosure of information by an employee . . . which the employee . . . reasonably believes evidences – (i) a violation of any law, rule or regulation, or (ii) gross mismanagement, . . an abuse of authority, or a substantial and specific danger to public health or safety.” WPA, 5 U.S.C. § 2302(b)(8)(A)(i)-(ii).

The WPA allows a disclosure to anyone inside or outside the agency in which the whistleblower is or was employed, including a reporter, a member of Congress, or an interest group representative. See Senate No. 100-413, at 12-13 (1988) (listing the media as an independent entity, such as Congress, to which disclosures may be made).

Moreover, such a disclosure is consonant with the District of Columbia Rules of Professional Conduct, which allow a government lawyer to reveal client confidences or secrets “when permitted or authorized by law.” Rule 1.6(d)(2)(B) (emphasis added). In other words, disclosures permitted by the WPA, even those that are not compelled, do not violate the rules of ethics for government attorneys.

However, the DOJ took issue with that characterization, noting that

The WPA, in any event, did not authorize plaintiff’s disclosure of the privileged emails to Newsweek. In fact, the WPA does not authorize the disclosure of any information. Rather, it simply prohibits government employers from taking or failing to take personnel actions with respect to an employee because of the employee’s disclosure of certain protected information. See 5 U.S.C. § 2302(b)(8). Moreover, a disclosure is protected by the WPA only if “not specifically prohibited by law.” Id. Here, the disclosure of attorney-client privileged information is specifically prohibited by Rule 1.6 of the D.C. and Maryland Rules of Professional Conduct.

Blowing the whistle is not without risk, as critical decisions are often made without access to relevant information. For instance, Radack’s apparent motivation for submitting the e-mails to Newsweek stems from the fact that she believed they were wrongfully suppressed when, in fact, they were submitted to the court three months before, where they were then placed under protective order:

Aug. 09, 2005 Court Opinion:

In June 2002, Radack heard a broadcast on National Public Radio stating that DOJ claimed it ‘never’ took the position that Lindh was entitled to counsel while in custody in Afghanistan. Compl.  ¶ 27. The broadcast led Radack to believe that Flynn never disclosed her emails to Bellows or the court ‘because [she] did not believe the Department would have the temerity to make public statements contradicted by its own court filings.’ Id. Still unaware that the emails had been turned over and were subject to a protective order, Radack disclosed her emails to Newsweek magazine where they appeared in the online version of the magazine on June 15, 2002.

July 17, 2006 Court Opinion

Radack eventually came to believe that the e-mails she collected were not produced in their entirety. Radack, however, was unaware that a number of the e-mails she suspected were withheld were in fact submitted to the court, ex parte and under seal, for an in camera inspection in connection with the government’s motion for a protective order. On April 1, 2002, the court granted the government’s motion for a protective order and prohibited disclosure of the PRAO emails.

Nevertheless, persons finding themselves in similar moral dilemmas should take note that middle-ground options exist between betraying one’s conscience by remaining silent and risking one’s livelihood by going to the media. The WPA protects disclosures that are classified or “specifically prohibited by law” when made by current and former federal employees who disclose information to the Office of Special Counsel, an independent federal investigative and prosecutorial agency whose primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.

Radack is currently the National Security & Human Rights Director for the Government Accountability Project, a Washington, D.C.-based non-profit that was instrumental in passing the WPA and other whistleblower protection legislation.

The documents on this site may be authenticated through PACER.gov, the federal judiciary’s electronic public access service.

Radack v. U.S. Department of Justice is a project of MSPB Watch.