Happy Katrina Anniversary! Chertoff’s Sworn 2003 Testimony Contradicted By Subordinate’sLong before he was internationally infamous as the Homeland Security secretary who dithered while New Orleans drowned, Michael Chertoff helmed the Justice Department’s Criminal Division, placing him at the top of all federal criminal prosecutions. He left the position in 2003 to take a federal judgeship — but not before severely misconstruing, under oath, a chain of events in the 2001 interrogation of “American Taliban” John Walker Lindh. As it turns out, a sworn statement, made by an attorney in the division’s Terrorism and Violent Crime Section, John De Pue, contradicts Chertoff’s testimony to Congress, something that can’t bode well for his rumored nomination for attorney general.
Chertoff, in 2003, testified that he was unaware of internal dissent over a decision by the FBI to interview Lindh without the presence of his family-retained lawyer. “I have to say, Senator,” he told Sen. Ted Kennedy (D-MA), “that the Professional Responsibility [Advisory] Office was not asked for advice in this matter. I’m familiar with the matter. I was involved in it.”
An account given by De Pue in 2002 casts serious doubt on Chertoff’s statement. You can read his statement here.
Lindh, famously, was apprehended by CIA operatives in November 2001 in the Taliban stronghold of Mazar-e-Sharif. The FBI, learning that an American citizen was in custody in Afghanistan, sought to interview him, but questions quickly arose as to what legal protections Lindh needed to be afforded. De Pue, uncertain about what information taken from Lindh could be admissible in court, asked DOJ’s Professional Responsibility Advisory Office for its input. In early December a PRAO attorney named Jesselyn Radack advised De Pue that Lindh couldn’t be interviewed by the FBI for the purposes of any prospective criminal prosecution unless the lawyer retained for him by his parents, James Brosnahan, was present.
When De Pue sent Radack’s advice to his superiors, he learned within hours that the FBI had already interviewed Lindh without counsel, potentially jeopardizing any prosecution of him. According to a 2002 sworn statement De Pue made to the department’s Inspector General, De Pue’s boss, Jim Reynolds, told him in January 2002 “that the Criminal Division’s leadership was disturbed that I had sought” Radack’s advice. The division “leadership” — that is, Chertoff — wanted Lindh prosecuted, despite the flagrant inadmissibility of the FBI interview, which proved to be the cornerstone of the government’s case. (Radack was fired soon thereafter, although she had received sterling performance evaluations in the past.)
De Pue’s comments have been described before, but to our knowledge, this is the first time they’ve been published.
In a written response to questions for the record on the Lindh case, Chertoff in 2003 shifted his description of what he knew about Radack’s advice. Sure, he had said initially that PRAO “was not asked for advice” about Lindh’s case, which was false. For the record, however, he said that he knew in early 2002 that an “individual PRAO attorney” had indeed considered the FBI interview out of bounds for prosecution, but, nevertheless, Radack’s perspective didn’t represent PRAO’s “official position” — bizarre, since Radack was the only PRAO attorney De Pue consulted.
In light of De Pue’s account, Chertoff’s 2003 testimony appears misleading at best. If De Pue is to believed, Chertoff dissembled about both Radack’s advice and De Pue’s decision to seek PRAO’s perspective in the first place, all to insulate himself from a botched investigation. It provides something of a prelude to Chertoff’s tenure at DHS — and doesn’t exactly bode well for a return to the rule of law at DOJ if President Bush taps Chertoff to become attorney general.
