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A federal judge in Washington dismissed a retaliation action filed by the former government lawyer who advised the FBI not to question John Walker Lindh, the so-called “American Taliban,” without his lawyer after his capture in Afghanistan. The government lawyer, Jesselyn A. Radack, passed information to a Newsweek reporter after she had left the U.S. Department of Justice when she suspected that the government had acted illegally. She was counsel to DOJ’s Office of Professional Responsibility. Radack accused DOJ of violating the Administrative Procedure Act when it later referred her alleged misconduct-leaking the story to the media-to bar counsel in Maryland and the District of Columbia. Radack v. U.S. Department of Justice, No. 04-1881 (D.D.C.). But U.S. District Judge Henry H. Kennedy Jr., who had allowed Radack’s October 2004 complaint to survive the government’s first motion to dismiss last August, granted DOJ summary judgment last month. Kennedy ruled that DOJ did not violate its own policy, as Radack alleged, when it sent referral letters to the Maryland and D.C. bars, and that Radack lacked standing to pursue the injunctive relief she had sought against her former employer. “Radack has not alleged anywhere in the record that DOJ is likely to injure her in the future-or even suggested that this is a possibility. Rather, the request for an injunction appears to have a punitive animus or be based on a generalized desire for vindication. Neither basis is sufficient for granting injunctive relief,” Kennedy wrote. Radack claimed that she was forced out of the Justice Department in April 2002 for not going along with a superior’s cover-up of her disregarded advice not to interview Lindh and not passing her advisory e-mails to Lindh’s prosecutor. In June 2002, while a lawyer at the Washington office of New York’s Hawkins Delafield & Wood, Radack heard a news report that led her to suspect that the e-mails had not been produced to the prosecutor or the court. She then disclosed her own copies of her e-mails regarding the Lindh case to a Newsweek reporter. Unknown to Radack, the e-mails in question were the subject of a protective order and filed separately under seal to the judge hearing Lindh’s case. An inspector general’s investigation of the disclosure identified Radack as the source, but DOJ did not indict her. She claimed that DOJ pressured the firm to fire her for refusing to answer an agent’s questions. DOJ later referred her alleged misconduct to Maryland and D.C. bar counsel. In February 2005, the Maryland Court of Appeals dismissed the referral against Radack in Maryland, but the District of Columbia bar investigation is still pending. Radack could not be reached for comment. Her lawyer, Frederick Robinson, in Houston-based Fulbright & Jaworski’s litigation group in its Washington office, did not return several calls for comment.

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