No Comment — June 23, 2009, 10:13 am

Lawyers’ Opinions and Crime

Remember when former Attorney General Michael B. Mukasey insisted—in response to Congressional calls for accountability for the torture lawyers–that the notion that attorneys could be criminalized for writing a legal opinion was “absurd”? Of course, those who seriously tracked the issue recognized that Mukasey’s remarks were not serious. The Justice Department in fact regularly prosecuted lawyers for writing opinions, when it reckoned that the opinions were part of a larger conspiracy to commit a crime. Why would that same reasoning not apply to the case of the torture lawyers? In fact it would, and in fact, Congress expressly created a crime—conspiracy to torture—which covers it. The New York Times has reported on another recent case in which a group of tax lawyers and accountants and a foreign bank conspired to introduce a tax shelter product that they offered to their clients. The lawyers participated by issuing legal opinions, as the Justice Department stresses in its own press release covering the matter. So why is this not a perfect precedent justifying the criminal prosecution of the torture team? Major distinctions between the cases—torture is a vastly more serious crime than games with tax shelters, and the tax shelter case turns on issues of tax law as to which reasonable minds might differ, unlike the torture case—cut in favor of a prosecution of the torture lawyers. The decisive difference may simply be that the United States Department of Justice holds its own attorneys to a far lower standard of accountability than it holds ordinary attorneys. Ask the lawyers who head the Department’s own Public Integrity Section. They’re now the targets of a special prosecutor investigating their criminal misconduct. It’s revealing that the criminal probe into the misconduct of federal prosecutors in political cases occurred by special action of a federal court, not as a result of any internal action of the Justice Department itself. When complaints were brought to the attention of the Justice Department it consistently reacted the same way, sweeping them under the carpet. Often enough, we have to ask on which side of the law enforcement divide the Justice Department stands. The answer often disappoints.

Share
Single Page

More from Scott Horton:

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

From the June 2014 issue

The Guantánamo “Suicides,” Revisited

A missing document suggests a possible CIA cover-up

Get access to 164 years of
Harper’s for only $39.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2015

The War of the World

= Subscribers only.
Sign in here.
Subscribe here.

The Sharp Edge of Life

= Subscribers only.
Sign in here.
Subscribe here.

The Great Republican Land Heist

= Subscribers only.
Sign in here.
Subscribe here.

Captive Market

= Subscribers only.
Sign in here.
Subscribe here.

The Day of the Sea

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
The Great Republican Land Heist·

= Subscribers only.
Sign in here.
Subscribe here.

“The wholesale transfer of public lands to state control may never be achieved. But the goal might be more subtle: to attack the value of public lands.”
Photograph by Chad Ress
Article
The Sharp Edge of Life·

= Subscribers only.
Sign in here.
Subscribe here.

“The struggle of the novelist has been to establish a measure, a view of human nature, and usually, though not always, as large a view as belief and imagination can wring from observable facts.”
Photo by Eddie Adams/Associated Press
Article
Captive Market·

= Subscribers only.
Sign in here.
Subscribe here.

"Fear of random violence lives on, but the reality is that violent-crime rates have dropped to levels not seen since the early Seventies."
Photograph by Richard Ross
Article
The Day of the Sea·

= Subscribers only.
Sign in here.
Subscribe here.

“Fifteen judges will then sit together in a wood-paneled room, in a city thousands of miles from the Andes, and decide whether the ocean Bolivia claims as its right will at last be returned to it.”
Photo by Fabio Cuttica/Contrasto/Redux
Post
Introducing the February Issue·

= Subscribers only.
Sign in here.
Subscribe here.

The Ruin of the West
Christopher Ketcham investigates Cliven Bundy’s years-long battle with the BLM, Annie Murphy reflects on Bolivia’s lost coast, and more
Painting by Richard Prince, whose work was on view in October at Gagosian Gallery in New York City © The artist. Courtesy Gagosian Gallery

Percentage increase in the annual number of polio cases in Pakistan since 2005:

857

A bowl of 4,000-year-old noodles was found in northwestern China; and a spokesman for the Chinese Academy of Sciences said that “this is the earliest empirical evidence of noodles ever found.”

A federal judge sentenced the journalist Barrett Brown to 63 months in prison for sharing a link to information stolen from the private-intelligence firm Stratfor by a hacker in 2011. “Good news!” Brown said in a statement. “They’re now going to send me to investigate the prison-industrial complex.”

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

In Praise of Idleness

By

I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.

Subscribe Today