Thursday, January 13, 2005

Nomination May Revisit Case of Citizen Seized in Afghanistan

Nomination May Revisit Case of Citizen Seized in Afghanistan:
“Newly disclosed documents in the John Walker Lindh case appear to conflict with assertions made to Congress by Michael Chertoff, nominated this week as homeland security secretary, about the Justice Department's handling of ethics concerns in the high-profile prosecution.

The conviction in 2002 of Mr. Lindh, an American who admitted joining the Taliban in Afghanistan, represented one of Mr. Chertoff's biggest triumphs as head of the criminal division in the department. But the case resurfaced in Senate confirmation hearings after Mr. Chertoff was nominated to be a federal appellate judge in 2003.

At that time, Senate Democrats questioned him extensively about concerns in the department that the F.B.I. might have improperly questioned Mr. Lindh in Afghanistan even though his family had hired a lawyer for him. The questioning yielded potentially damaging admissions from Mr. Lindh that factored into his decision in July 2002 to plead guilty to felony charges, resulting in his 20-year prison sentence.

Mr. Chertoff, chosen this week by President Bush to succeed Tom Ridge as homeland security secretary, earned strong endorsements from important lawmakers in both parties and appears quite likely to be confirmed. Some Senate Democrats said they wanted to examine his counterterrorism record at the Justice Department closely before voting to confirm, and he is likely to face fresh scrutiny over the Lindh case then.

At his confirmation hearing in 2003, Mr. Chertoff said he and his deputies in the criminal division did not have an active role in discussions about ethics warnings in the case from lawyers elsewhere in the department.

But in previously undisclosed department documents, provided to The New York Times by a person involved in the case who insisted on anonymity, a longtime lawyer in the division who worked under Mr. Chertoff detailed numerous contacts he had with lawyers inside and outside the division on Mr. Lindh's questioning.”

The lawyer, John De Pue, cautioned in one e-mail message that questioning a suspect represented by a lawyer could be perceived as "an ethical violation." Mr. De Pue told investigators from the inspector general's office of the department that his superiors were upset that he had sought the advice of the department's Professional Responsibility Advisory Office, or P.R.A.O., about Mr. Lindh's questioning.

A supervisor "informed me that the criminal division's leadership was disturbed that I had sought P.R.A.O.'s advice in this matter," Mr. De Pue said in his statement, which was included in an inspector general's investigation into a leak in the case. The supervisor also asked him to search his e-mail "trash" files to determine what internal discussions had occurred on the issue, he said.

Mr. De Pue said on Wednesday that the inspector general's report had accurately quoted his concerns.

"The front office was unhappy with the fact that I had gone to P.R.A.O. with my inquiry," he said. "I was more or less told that I was out of line in making that inquiry. It was not a popular thing to do, but I thought at the time it was the reasonable thing to do. We'd been told time after time that if an ethics issue arose, the people in that office were the ones to see."

A supervisor in the counterterrorism section of the criminal division who expressed the division's displeasure "did not use Chertoff's name, but I certainly inferred from what he said that the unhappiness was coming from Chertoff" and his top deputy, Mr. De Pue said.

At his confirmation hearing for the appellate judgeship, Mr. Chertoff said he was not aware of the dissent among department lawyers on the case, including an opinion from an ethics lawyer, Jesselyn Radack, saying an F.B.I. interview of Mr. Lindh would not be authorized under the law.

Mr. Chertoff said, "I was not consulted with respect to this matter," and he said he was unaware that the office that handled ethics issues had given an official opinion on interviewing Mr. Lindh without his lawyer.…
con·cept: Nomination May Revisit Case of Citizen Seized in Afghanistan