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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.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
Hours per day that a death-row inmate in China wears hand and ankle restraints:
A multidisciplinary team detected cardiac arrhythmia in the works of Beethoven.
There was a run on cases of 5.56mm M855 green-tip rifle bullets, after the White House moved to ban their manufacture and sale because they can pierce police armor.
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“He could be one of a million beach-bound, black-socked Florida retirees, not the man who, by some odd happenstance of life, possesses the brain of Albert Einstein — literally cut it out of the dead scientist's head.”