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I was not surprised to read that the Pentagon’s former deputy assistant secretary, Charles Stimson, attacked law firms for representing Guantanamo Bay detainees. (The furor over his remarks resulted in his resignation on Feb. 2.) For years, the government has been trying to control attorneys acting on behalf of terrorism suspects and, if it cannot control them, then to punish them. I speak from experience. I am the very real face of what the Pentagon’s admonition looks like in practice, and I did not even represent an alleged terrorist � I merely gave the U.S. Department of Justice advice seen as favorable to one. I was the DOJ ethics adviser in the case of the so-called “American Taliban,” John Walker Lindh. On Dec. 7, 2001, I received a call from a Criminal Division attorney who wanted to know about the ethical propriety of interrogating Lindh without a lawyer being present. I was told unambiguously that Lindh’s father had retained counsel for his son. I advised that, under the anti-contact rule, Lindh should not be questioned without his lawyer. That was on a Friday. Over the weekend, the FBI interviewed him anyway. At that point, I advised that the interview may need to be sealed and used only for intelligence-gathering or national security purposes, not criminal prosecution. Again, my advice was ignored. Three weeks later, former Attorney General John Ashcroft announced that a criminal complaint had been filed against Lindh. “The subject here is entitled to choose his own lawyer,” he said, “and to our knowledge, has not chosen a lawyer at this time.” I knew that wasn’t true. Three weeks later, Ashcroft announced Lindh’s indictment, saying his rights “have been carefully, scrupulously honored.” Again, I knew that wasn’t true. Two months later, I inadvertently learned that the judge presiding over the Lindh case had ordered that all DOJ correspondence related to Lindh’s interrogation be submitted to the court. There was more. The prosecutor said he had only two of my e-mails when I knew I had written more than a dozen. When I went to check the file, the e-mails containing my assessment that the FBI had committed an ethical violation in Lindh’s interrogation were gone. With the help of technical support, I resurrected the missing e-mails from my computer archives, included them in a memo to my boss and took home a copy in case they “disappeared” again. Then I resigned. Months later, as DOJ continued to assert that it never believed that Lindh had a lawyer at the time of his interrogation, I disclosed the e-mails to the media in accordance with the Whistleblower Protection Act. This unleashed the full force of the entire executive branch. The price: DOJ leaned heavily on my private law firm � New York-based Hawkins Delafield & Wood � to fire me. Hawkins placed me on a “leave of absence sine die” because of “ the need of the clients of Hawkins.” After my involuntary, indefinite and unpaid “leave of absence” stretched into a constructive discharge, DOJ then assisted Hawkins in contesting my award of meager unemployment compensation. Since when does the government orchestrate the firing of a private person and assist a private employer in contesting the employee’s receipt of unemployment benefits? Anonymous government officials branded me a “turncoat” in newspapers, placed me under criminal investigation, put me on the “no-fly” list and referred me to the state bars in which I am licensed. I got the “Guantanamo treatment lite”: I was never told for what I was being criminally investigated, the bar complaint was based on a secret report to which I did not have access, and the government will neither confirm that I’m on the “no-fly” list, nor tell me how to be removed from it. The criminal case was dropped with no charges ever being brought. One of the bar complaints was dismissed, and the other is still pending after three years. The very real consequence of this is that no law firm would hire me because a mere bar referral (even without a finding of misconduct) would increase its malpractice liability insurance rates. One prospective employer, Harris, Wiltshire & Grannis of Washington, told me: “You’re obviously a very capable lawyer . . . .[But] accusations about you, however unfounded, could complicate [your representation of our client]. … [T]he very public nature … would lead to media scrutiny. … The risks here are too great.” I was ultimately hired, although it took more than three years and the fortuity of finding a boss, Alan Grayson, who possesses a healthy skepticism of what the government says about whistle-blowers and was brave enough to hire one. The Pentagon’s words, even if belatedly and breathlessly disavowed, are not an empty threat. I was blacklisted for years. Navy judge advocate general lawyer Charles Swift won a favorable ruling from the U.S. Supreme Court on behalf of a Guantanamo detainee he was appointed to represent, then was denied a promotion that ended his military career. The government threatened to investigate civilian attorney Clive Stafford Smith, making the wild accusation that he suggested that his Guantanamo client commit suicide. And DOJ is forcing out several U.S. attorneys from their jobs for political reasons. I am Exhibit 1 as to what can happen when the government paints the 500 volunteer Guantanamo lawyers, and the firms that employ them, as somehow supporting terrorism. One of the first lessons of law school is that an attorney’s representation of a client does not constitute an endorsement of the client’s political, economic, social or moral views or activities. If it did, then the Bush administration itself would have trouble finding counsel. Jesselyn Radack is the author of “The Canary in the Coalmine: Blowing the Whistle in the Case of ‘American Taliban’ John Walker Lindh” ( 2006), available at patriotictruthteller.net. This article originally appeared in The National Law Journal, a Recorder affiliate based in New York City.

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