Mukasey’s accountability doctrine: “It is the system that failed; the perpetrators were just following orders.”
Today he addressed the annual convention of the American Bar Association, and expanded upon what may be known to future generations as
the “Mukasey Doctrine.” This doctrine holds that political appointees in the Justice Department who breach the public trust by using their positions for partisan political purposes face no punishment for their crimes. In the Mukasey view, this is all simple political gamesmanship—“boys will be boys”—and sufficient accountability is provided by exposing their games to the public limelight.
http://harpers.org/archive/2008/08/hbc-90003387here’s what Mukasey has to say:
"Not every wrong, or even every violation of the law, is a crime."http://thehill.com/leading-the-news/mukasey-will-not-prosecute-in-doj-hiring-scandal-2008-08-12.html The conduct described in those reports is disturbing. The mission of the Justice Department is the evenhanded application of the Constitution and the laws enacted under it. That mission has to start with the evenhanded application of the laws within our own Department. Some people at the Department deviated from that strict standard, and the institution failed to stop them.
I want to stress that last point because there is no denying it:
the system failed. The active wrong-doing detailed in the two joint reports was not systemic in that only a few people were directly implicated in it. But the failure was systemic in that the system–the institution–failed to check the behavior of those who did wrong. There was a failure of supervision by senior officials in the Department. And there was a failure on the part of some employees to cry foul when they were aware, or should have been aware, of problems.
http://www.usdoj.gov/ag/speeches/2008/ag-speech-0808121.html"The conduct, then, was in the defendants' scope of employment regardless of whether it was unlawful or contrary to the national security of the United States," - Appeals Court Chief Judge David Sentelle wrote in the opinion.
The defense that didn't work for the Nazis
("only following orders")
worked for the Bush Administration.
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