Michael Chertoff, who has been nominated to run the Department of Homeland Security, gave the Senate conflicting answers last spring when asked whether a government ethics office had warned against interrogating John Walker Lindh -- an American captured while fighting for the Taliban -- without a defense attorney present.
Chertoff was assistant attorney general in charge of the criminal division at the time. He told Sen. Edward M. Kennedy (D-Mass.) last May that no one on his staff had sought advice from the Justice Department's in-house ethics office, known as the Professional Responsibility Advisory Office.
"I have to say, Senator, I think that the professional responsibility office was not asked for advice in this matter," Chertoff said. "I'm familiar with the matter. I was involved in it."
Kennedy later submitted written questions, along with copies of e-mails from the ethics office that appeared to contradict him. In his written reply then, Chertoff offered a different version.
"I recall that in early 2002 the existence of e-mail traffic . . . came to my attention as an outgrowth of the prosecutors' review of the documents," Chertoff wrote Kennedy, adding that other prosecutors had examined the case and that he did not regard the e-mails in question as the ethics office's "official position."
At Chertoff's confirmation hearing today to lead Homeland Security, Senate staffers say he will face sharp questions about his tenure at Justice, including the decision to order the detention of immigrants and his advice to the CIA on the line between harsh interrogation and tactics that might constitute torture.
The incident with the ethics office reflects what several Justice Department lawyers described as pressure to toe a hard line after the Sept. 11, 2001, attacks. When Jesselyn Radack, a lawyer in the ethics office, gave advice that ran contrary to Chertoff's wishes, she says, her promising career foundered.
She received a terrible evaluation less than a year after getting a merit raise and a bonus. When she leaked her e-mails to a Newsweek reporter and took a job with a private firm, the Justice Department told her employer that she was under investigation. She was forced to leave that job.
"No one contests that Chertoff is a brilliant lawyer," said Radack, who is suing the government, "but I was retaliated against for doing my job."
Newsweek broke the Radack story, and other newspapers and magazines have written about aspects of her situation. A White House spokesman said yesterday that Radack was in a different department and Chertoff had no authority over her.
Lindh was captured while fighting for the Taliban. On Dec. 7, 2001, John F. De Pue, a counterterrorism prosecutor, asked Radack whether the FBI agents could question Lindh without the lawyer his family had hired. Radack consulted with a senior attorney in her office. "We don't think you can have the FBI question [Lindh]," she wrote. "It would be a pre-indictment, custodial overt interview, which is not authorized by law."
The FBI interviewed Lindh anyway. Three days later, Radack wrote to De Pue: "The interview may have to be sealed or only used for national security purposes."
De Pue responded: "Ugh. We are trying to figure out what actually transpired." He filed an affidavit in 2002 noting that the leadership of the criminal division was "disturbed that I had sought [ethics office] advice in this matter."
Lindh attorney James J. Brosnahan said he asked to fly to Afghanistan to meet with Lindh.
"John was not treated well," he said. "He was held 54 days without counsel."
In spring 2002, Lindh's attorneys asked a federal court to toss the FBI interrogation. Radack discovered, she says, that a number of her crucial e-mails were missing from government's file in the Lindh case and raised this with superiors.
Lindh pleaded guilty to aiding and carrying guns for the Taliban and is serving a 20-year prison sentence.