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The Justice Department prosecuted United Swiss Bank (UBS) whistleblower Bradley Birkenfeld despite the fact that Birkenfeld shattered 75 years of Swiss bank secrecy when he approached investigators about a UBS tax evasion scandal and provided unprecedented and voluminous information about UBS’s cross-border and offshore business activities, the UBS offices and private bankers that were directly involved, and the details of 19,000 UBS accounts for its American customers.

In choosing to prosecute Birkenfeld instead of UBS kingpin Martin Liechti and tax cheats, the government missed a huge opportunity to go after the big fish from the minute Birkenfeld brought them the biggest tax evasion scandal in history. A legal malpractice lawsuit Birkenfeld filed yesterday contains more evidence of missed opportunities in the Birkenfeld case, that Birkenfeld handed the Justice Department information about Abdulaziz Abbas,

who was living in Manhattan, had ties to Iraq, and was believed to have used his UBS accounts, valued at hundreds of millions of dollars, to conceal enormous profits made through illegal oils sales involving Saddam Hussein's regime.
While prosecutors do have prosecutorial "discretion," how prosecutors exercise their "discretion" in whistleblower cases reflects a deeply misguided policy. Just as Birkenfeld is the only person to serve prison time in connection with the mutli-billion dollar UBS scandal, Central Intelligence Agency (CIA) whistleblower John Kiriakou will be the only person to go to jail related to the G.W. Bush torture program, and Kiriakou blew the whistle on torture.

While no whistleblower is perfect, the ones being sentenced to prison time are certainly less culpable than the officials who orchestrated illegal schemes.

Here's what happened to the guilty parties after Birkenfeld voluntarily gave the Treasury, Justice Department, IRS, SEC and Senate their entire tax evasion case against UBS:

--UBS kingpin Liechti, who knows where all the bodies are buried, testified before the Senate, took the Fifth, and got released back to Switzerland, where he is living large.

--Three months later, the government indicted Raoul Weil, who ran UBS’ wealth-management business, in a show maneuver, knowing it could not extradite him.

--Lichtenstein banker Mario Staggl returned to Lichtenstein where he lives life as normal.

--Billionaire real estate developer Igor Olenicoff, who evaded U.S. taxes on $200 million in assets hidden offshore, pleaded guilty to filing a false tax return, paid $52 million, and walked.  

--The U.S. settled possible criminal charges against UBS by allowing UBS to pay a $780 million fine and provide information on a couple hundred account-holders (out of more than 50,000) whose names were discovered in the investigation.

--The government then filed a civil lawsuit seeking the names of all U.S. citizens and residents with secret UBS accounts, vowing to settle for nothing less than full disclosure. Despite U.S officials’ insistence that they were going to trial in the civil suit against UBS, the U.S. government settled the case in exchange for the names of about 5,000 U.S. account-holders (a mere fraction of those sought).  The Justice Department let some 45,000 American tax dodgers off the hook.

--Next, while over 35,000 taxpayers participated in an "amnesty" program, which the Justice Department set up, to voluntarily repatriate their illegal offshore accounts, Birkenfeld received no such amnesty. And the amnesty program, as much money as it brought in, left many high-level offshore account holders completely unaccountable.  

Here's what happened to the officials who ordered torture, the lawyers who "authorized" torture, and the CIA officials who did the actual torturing, whose program Kiriakou helped publicly expose:

--torture apologist Jose Rodriguez is wearing his "big boy pants" and promoting his pro-torture manifesto on national television.

--Torture memo author John Yoo is enjoying his tenured professorship at a prestigious law school, and his co-author Jay Bybee is sitting pretty with a lifetime appointment to the federal bench.

--Attorney General Holder has assured all of the anonymous masked brutes who kidnapped, rendered, beat, waterboarded, and deprived prisoners of the most basic of human dignities that they will not be criminally prosecuted.

--The lawyers who refused to prosecute any CIA official for torture even got a Distinguished Service Award from the Attorney General.

When it comes to whistleblowers, the Justice Department has disastrously misused its prosecutorial "discretion" to prosecute whistleblowers, while letting the real wrongdoers off the hook.

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