The White House's resistance to having its aides testify openly and under oath is giving me flashbacks to when director of Homeland Security Michael Chertoff testilied about my being fired from the Justice Department for political reasons. It is painful to hear someone perjure themselves into a promotion at your expense. So do I support Bush's "perjury prevention plan" of having his staff speak to Congress only off the record and behind closed doors? No. They should have to testify to Congress openly and under oath. They should just be reminded that lying to Congress is a crime.
On May 7, 2003, Senior Counsel for the Senate Judiciary Committee informed me that Senator Kennedy asked director of Homeland Security Michael Chertoff about the interrogation of "American Taliban" John Walker Lindh and my role in it during Chertoff’s then-nomination hearing to be a federal judge.
Chertoff, incredibly, denied that PRAO ever took a position on the Lindh interrogation, despite the fact that his denial was contradicted by the public record.
“I have to say, Senator, I think that the Professional Responsibility [Advisory] Office was not asked for advice in this matter. I was involved in it," Chertoff said.
He couldn’t stop the embellishment. “Mr. Lindh was Mirandized, and had he requested counsel or requested to invoke his right to silence at the point at which the FBI was involved, they would have honored that request.” This second part was, at best, a gross mischaracterization of what happened and at worst, perjury. As Jane Mayer’s uncontroverted article on Lindh in The New Yorker documented, “[FBI Agent] Reimann read Lindh the Miranda warning. But, when noting the right to counsel, the agent now acknowledges, he ad-libbed, ‘Of course there are no lawyers here.’”
Senator Kennedy asked Chertoff a second time, “[D]o you remember what the Professional Responsibility Advisory Office[’s] . . . position was on this?”
“I was not consulted with respect to this matter,” Chertoff answered. “There are other parts of the Department that generally render opinions in this area of the law and other expertise that was consulted.”
Kennedy persevered. “Well, your statement that the Professional Responsibility Advisory Office did not have an official position on this —”
“I don’t believe they had an official position on this,” Chertoff interrupted.
It seemed so odd to me that Chertoff would deny that the ethics office ever took a position on the Lindh matter in light of stories to the contrary that had appeared in Newsweek and The New Yorker.
Meanwhile, Senator Kennedy submitted written follow-up questions to Chertoff. I was incredulous that, this time around, Chertoff lied in writing, and that he didn’t seize the opportunity to massage, clarify, or revise his earlier answers.
The written questions asked how the e-mails in Newsweek were consistent with Chertoff’s testimony that PRAO never took a position on Lindh’s interrogation.
Chertoff repeated, again, that,
T]hose at the Department responsible for the Lindh matter before and during the time of Lindh’s interrogations did not to my knowledge seek PRAO’s advice. I am not aware that PRAO ever took an official position about the Lindh interrogation or that any views expressed by an individual PRAO attorney were documented, factually and legally substantiated, reviewed and authorized, as I would expect before an official opinion was rendered. The e-mail traffic that you cite appears to be the impressions of a single PRAO attorney, without factual analysis and case law discussion, and therefore would not constitute an official opinion.
Here, Chertoff began to lay the groundwork for dismissing PRAO’s advice. He denied knowledge that PRAO’s advice was sought, but then, apparently as a fallback position, preemptively discounted any advice that came from a “single individual,” saying it would not be “an official position” that comports with his understanding of how “an official opinion” is rendered. He dismissed the e-mail traffic as merely a lone attorney’s unsolicited, legally inadequate, fanciful musings.
I knew it would come to this: a personal attack. And this was only the tip of the iceberg. However, no amount of bracing for a punch can ever really prepare you.
Senator Kennedy next asked about my being forced out of my job for political reasons and having it blamed on performance despite my stellar record (SOUND FAMILIAR?), about the e-mails being withheld from the Court, and about Justice notifying the managing partner of my new law firm that I was the target of a “criminal investigation.” Chertoff conveniently denied having any knowledge about my employment, performance or departure.
“Has any investigation been conducted into the alleged withholding of e-mails from the federal court in the Lindh case?” Kennedy then asked, “Was Claudia J. Flynn, Director of PRAO, investigated in relation to these events? Have any Justice Department employees other than Ms. Radack been reprimanded or disciplined in any way?”
“It would be improper for me to comment on whether Ms. Flynn was investigated,” Chertoff responded. He cited a provision of the U.S. Attorney’s Manual in support of his refusal.
“Is Ms. Radack the target of a criminal investigation by the U.S. Attorney’s Office? For what is she being investigated?” Kennedy followed up.
Chertoff again cited a provision of the U.S. Attorney’s Manual and said that it would be improper for him to comment on whether I was under investigation and, if so, about what my status might be. I found this especially hypocritical because, while Chertoff claimed with a straight face that it would be improper for him to tell the Senate Judiciary Committee whether I was under investigation, the Department of Justice felt perfectly comfortable sharing this sensitive information with my private law firm.
Chertoff’s nomination was held over for another week because Kennedy wanted to submit even more questions.
This time, Chertoff finally came clean. Kennedy tried to nail him down on when and how he became aware of the contact between me and John De Pue.
Chertoff disavowed knowledge that, at the time PRAO was contacted, he knew PRAO was being contacted, or knew of the advice we rendered. He did finally admit, however, that he “first became aware of contacts on this issue between anyone in the Criminal Division and PRAO after Lindh waived his Miranda rights (including his right to counsel) and consented to his December 9 and 10 interviews.”
Chertoff now magically “recalled” – though he did not say what sparked his recovered memory – that the e-mail traffic “came to my attention as an outgrowth of the prosecutors’ review of documents in connection with the Lindh case.”
Kennedy next tried to nail down Chertoff’s contention that PRAO’s advice somehow would not constitute an “official opinion” because it “appears to be the impressions of a single PRAO attorney without factual analysis and case law discussion.” Kennedy pointed out how the e-mail states that I consulted with a senior legal advisor. He also pointed out how the e-mail contains the qualifier that, “This opinion is based on the facts as presented and described above and in our telephone conversation.”
In a non-responsive response, Chertoff claimed that he did not know with whom I consulted or what other facts were discussed in my telephone conversations.
Kennedy also zeroed in on Chertoff’s artificial distinction between “unofficial” and “official” opinions:
Isn’t it customary for PRAO attorneys to provide opinions on professional responsibility matters via e-mail; to base their opinions on the facts presented to them by other Justice Department employees; and not to cite case law unless specifically asked to[,] particularly when the applicable legal authority is already set forth in existing PRAO memoranda [that are available Department-wide] . . . and when the inquiry is time-sensitive? Are there any Justice Department policies or regulations that distinguish between ‘unofficial’ and ‘official’ PRAO opinions, or are you applying your own subjective standard on this issue?
Chertoff’s answer was obtuse. He conveniently disavowed knowledge of PRAO’s customary practice in rendering advice, but admitted that his earlier comments were based on his own “personal beliefs,” “expectations,” and subjective standards. Yet in a Bush-like demonstration of stubbornness and arrogance, he claimed that he still didn’t know whether PRAO had taken an “official position” on the issue of Lindh’s interrogation. He then offered his unsolicited “personal opinion” that, as a legal matter, the interrogation was proper. As an ethics matter, however, in an amazing exhibit of his moral blind spot, Chertoff cited, in support of his opinion, the old federal regulation that was superseded by the McDade law from which PRAO had been created. He also dismissed the opinion as two attorneys merely “exchanging their views.” Finally, he stated erroneously that because a law enforcement agent, not a lawyer, had interrogated Lindh, then no attorney could be implicated.
This faulty reasoning emerged again in the Abu Ghraib scandal, and in again in Chertoff’s confirmation hearing to be Secretary of Homeland Security. The ethics rules governing attorneys state that a lawyer should be held responsible for the conduct and activities of agents or investigators acting on the lawyer’s behalf or who are associated with the lawyer. No wonder Rumsfeld wanted to cut lawyers out of the picture.
The controversy culminated in a contentious Senate Judiciary hearing in which the Committee voted 13-0, with all six Democrats effectively abstaining, to send Chertoff’s nomination to the full Senate for consideration.
Senator Kennedy, in a moving and strongly-worded public statement on the nomination, expressed his dissatisfaction with Chertoff’s elliptical answers:
Last week I expressed my concern about Mr. Chertoff’s failure to provide serious, consistent, and responsive answers to the questions asked by members of this Committee. In particular, his answers to my first set of written questions were non-responsive, evasive, and hyper-technical. They were stingy in substance, avoiding the questions that were asked, and often answering questions that were not asked. . . . At last week’s Committee meeting, I asked my good friend, the Chairman, to hold Mr. Chertoff’s nomination over for another week. . . . Evasive and non-responsive answers will not do – no matter how ‘uncontroversial’ a nomination may otherwise be.
Though it received little play in the press, Kennedy’s statement about Chertoff’s misleading answers said it better than I ever could. Even though Kennedy ultimately supported Chertoff’s nomination, as I knew all along that he would, it was still extremely validating to have Chertoff called out on the carpet.
On June 9, 2003, Chertoff was confirmed.
Lying to Congress is a crime. Chertoff and Gonzales should be fired. And then prosecuted. And while you're at it, feel free to refer them to the state bars in which they're licensed as attorneys and put them on the "no-fly" list, as they did to me.