According to a complaint published last month, Erez Reuveni, a former immigration lawyer at the Department of Justice, blew the whistle on an extraordinary suggestion that the department would need to consider telling the courts presiding over immigration cases “f**k you” and ignore a judge’s order blocking the hasty and hushed deportation of migrants to El Salvador.
Reuveni’s case hits home because of its parallels to my own. In December 2001, as a legal adviser to the department’s Office of Professional Responsibility, I advised the criminal division that an FBI interrogation of “American Taliban” John Walker Lindh without his lawyer would be unethical. When I was informed three days later that he had been interrogated despite that warning, I advised that the interview might have to be sealed and used only for national security and intelligence-gathering purposes, and not for criminal prosecution. Three weeks later, then-Attorney General John Ashcroft announced that the Justice Department was filing a criminal complaint against Lindh, and in another three weeks, he announced an indictment, insisting that Lindh’s rights “have been carefully, scrupulously honored.”
I had seen photos of Lindh naked, blindfolded and bound to a board with duct tape. It was our first glimpse of torture after 9/11, and no one flinched.
I knew that wasn’t true. I had seen photos of Lindh naked, blindfolded and bound to a board with duct tape. It was our first glimpse of torture after 9/11, and no one flinched.
In Reuveni’s case, he worked for the DOJ’s Office of Immigration Litigation and sought assurances from the Justice Department and the Department of Homeland Security that they would abide by a judge’s order to halt the deportation of more than 130 Venezuelans to El Salvador under the Alien Enemies Act, an ancient, obscure and rarely-used law. As in my case, officials met his requests with vague responses, or none at all, and ultimately concluded that they did not need to comply.
The parallels between our cases are uncanny. Both career civil servants with a string of favorable performance reviews, we were troubled that the department was not complying with a court order. Like Reuveni, I was pushed out of a job I loved because the Justice Department was playing fast and loose with the court in a case where a defendant appeared to have been tortured. I resigned in protest when it became clear I was going to be transferred to office Siberia or forced out. Reuveni was suspended — and then fired — because he admitted, truthfully, that a man sent to a gulag in El Salvador was deported in violation of a court order and that he did not know the legal basis for that decision.
The details of both our cases reached Congress when a high-level Justice Department official was nominated to serve as a federal judge on the Third Circuit Court of Appeals. (In my case the nominee was Michael Chertoff, and in Reuveni’s case, the nominee is Emil Bove.) Despite Chertoff’s grilling by the late Sen. Ted Kennedy about my case, he was ultimately confirmed. I predict Bove will also be confirmed, because if leaky, wobbly Pete Hegseth can become secretary of defense, the bar is so low that anyone can clear it.
I only hope that, at the end of the day, Reuveni comes out unscathed from his whistleblowing journey. In my case, the Justice Department told my new law firm that I was a “criminal” and pressured them to fire me. The department placed me under a pretextual criminal investigation for 16 months; I was never told the reason. The case was closed with no charges ever being brought. They referred me to the state bars in which I was licensed as an attorney, based on a secret report to which I did not have access. After more than a year, the Maryland bar dismissed the charges; the D.C. bar charges remained a Sword of Damocles over my head for another eight years, rendering me both unemployed and unemployable. And if all of this were not punishment enough, I ended up on the “no-fly” list.
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The saving grace is that Reuveni and I both kept receipts. When pivotal emails went missing from the office file in my case, I resurrected them from my computer archives, documented and included them in a memo to my boss, and took home a copy in case they “disappeared” again. Months later, when the Justice Department continued to claim that it had never believed Lindh had to have a lawyer during his interrogation, I disclosed the emails to Newsweek, an action permitted by the Whistleblower Protection Act, because I could not believe that the department would have the temerity to make public statements contradicted by its own court filings. Reuveni had text messages, phone records and emails to back up his claims of the department’s leadership — including federal judicial nominee Bove — pressing subordinates to take serious legal risks, such as misleading a federal court and disregarding a lawful court order.
When wrong things are being done before your eyes, when you’re an unwilling or unwitting participant, when your complaints through internal channels fall on deaf ears and when the agency itself is part of the problem, then a free, independent press and Congress are legally recognized ways to blow the whistle. I’m glad Reuveni went public, though it didn’t take long for the opposition machinery to kick into high gear against him.
Conscientious employees are often stereotyped as disgruntled, mentally ill or troublemakers who are out for fame, profit or revenge. I have not been completely immune from such accusations, but the terms that have been used to describe me are far more incendiary: “Traitor,” “turncoat” and “terrorist sympathizer.” Deputy Attorney General Todd Blanche called Reuveni’s claims “falsehoods purportedly made by a disgruntled former employee and then leaked to the press in violation of ethical obligations.” (The word “purportedly” is doing some heavy lifting, as it implies uncertainty both as to whether Reuveni is disgruntled and whether his claims are false.)
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In reality, as someone who served in the Justice Department’s Office of Professional Responsibility and on the D.C. Bar Legal Ethics Committee, I submit that the people who really need to think seriously about their ethical obligations — including the rules governing the lawyer-client relationship, conflicts of interest, candor to the tribunal and misconduct — are the front offices of the Justice Department, the Pentagon and DHS.This point is a fortiori in light of Judge Paula Xinis’ brutal tongue lashing of the government lawyer in the original civil case stemming from Kilmar Ábrego García’s wrongful deportation: “I’m deeply concerned that if there’s no restraint on you, Mr. Ábrego will be on another plane to another country because that’s what you’ve done in other cases.”
I’ve rarely seen a judge this vexed by the department’s conduct. While I’ve seen judges chastise rogue prosecutors, this was a jurist saying that she couldn’t trust the Justice Department as an institution because of their brazen, consistent and unrelenting bad faith.
One would hope that Xinis’s rebuke would bring the government to heel, but unfortunately she is not an outlier. At least three judges in other deportation cases have accused Justice Department lawyers of flouting their orders or acting in bad faith. That’s the bigger story that is being lost in the government’s egregious, ham-handed attempt to turn Ábrego García into an object lesson. Judges know the difference between a whistleblower and a dog whistle.
