Saturday, October 29, 2011

Glenn Greenwald On the True Nature of Law, Justice, and Civil Liberties in the United States Today

Glenn Greenwald, author of "With Liberty and Justice for Some" Photo: Wikimedia)

Glenn Greenwald: Why Is the Elite Class Protected Under America's Justice System?
25 October 2011
by Mark Karlin,
Truthout | Interview

Mark Karlin: Although your book, "With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful," is primarily on the increasingly adverse climate for civil liberties at the federal level, needless to say, your title seems made to order for what is happening with Occupy Wall Street. Protesters are getting arrested, while the elite perpetrators of Wall Street malfeasance and fraud go free. Is this a localized application of "how the law is used to destroy equality and protect the powerful"?

Glenn Greenwald: Actually, what is happening with the Occupy Wall Street protests is as perfect an illustration of the book's argument as anything I could have imagined. The book's central theme is that law is no longer what it was intended to be - a set of rules equally binding everyone to ensure that outcome inequalities are at least legitimate - and instead has become the opposite: a tool used by the politically and financially powerful to entrench their own power and control the society. That's how and why the law now destroys equality and protects the powerful.

What we see with the protests demonstrates exactly how that works. The police force - the instrument of law enforcement - is being used to protect powerful criminals who have suffered no consequences for their crimes. It is simultaneously used to coerce and punish the powerless: those who are protesting and who have done nothing wrong, yet are subjected to an array of punishment ranging from arrest to pepper spray and other forms of abuse.

That's what the two-tiered justice system is: elites are immunized for egregious crimes while ordinary Americans are subjected to merciless punishment for trivial transgressions.

MK: In your columns on Salon, you have been a relentless upholder of constitutionally guaranteed civil liberties regardless of what political party is in power. This has put you at odds with both the Bush and Obama administrations. To many progressives, your dissection of the current White House's growing constraint on civil liberties is shocking. To what do you attribute the Obama administration's actions to go further than the Bush administration did in curbing civil liberties?

GG: It's difficult to assess motives, but one major difference between Bush and Obama is that Bush at least had one major political party pretending to find his abuses objectionable. By contrast, Obama has very little opposition: Republicans are being consistent by cheering for limitless executive power and civil liberties abuses carried out in the name of fighting Terrorism, but now, Democrats are either indifferent to those actions or outright supportive because they're now being carried out by their own party's leader. Bush's radicalism was seen as controversial right-wing dogma, but Obama has transformed it into bipartisan consensus, and thus strengthened it.

Part of what is happening is likely political: Democrats have often been accused of being soft on Terror, and if Obama were to abandon Bush's policies - the ones he promised to reverse when campaigning - he'd likely be politically vulnerable if there were another terrorist attack on US soil. Embracing the Bush/Cheney template is a means of immunizing himself from those attacks.

Finally, people convinced of their own Goodness often view restraints on their own power as unnecessary. After all, he's a Good Progressive and well-intentioned - unlike those evil Republicans - and we should therefore trust him to do things in total secrecy, without oversight and accountability. I think that extremely flattering self-image is part of what motivates these actions as well.

MK: There has been much speculation on this, but why do you think the Obama administration did not prosecute Bush officials who violated US and international standards of law?

GG: Both parties - and successive Presidents - benefit from elite immunity. They know that if they protect each other, then they, too, can commit crimes with impunity. A November, 2008 New York Times article was incredibly telling in this regard. It reported on Obama's opposition to investigations into Bush crimes of torture and warrantless eavesdropping - opposition revealed only after he was safely elected - and it explained that "because every President eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor's tenure." As I wrote in the book about this article: "In other words, by letting criminal bygones be bygones within the executive branch, presidents uphold a gentleman's agreement to shield either other from accountability for any crimes they might want to commit in office."

It's the same reason that media elites and others are so opposed to these investigations as well: elites obviously benefit from elite immunity, and so have an interest in not subverting it when other elites commit crimes. I have no doubt that part of Obama's reluctance was political - a belief that applying the rule of law to Bush, Cheney and others would create political turbulence for him - but a significant motivating factor was undoubtedly the desire not to have his own actions investigated once he leaves office if the GOP controls the Executive Branch (and, thus, the Justice Department).

MK: The Iran-contra scandal is an excellent example of how officials at the highest levels of the US government broke the law (although Reagan had the excuse of "not remembering" what he authorized). Special Prosecutor Walsh had a pretty tight case. But ultimately, John Poindexter and Oliver North had their convictions reversed on a questionable legal technicality by partisan GOP judges. The "smoking gun" was found in the Iran-contra case, but still the perpetrators got off. How come?

GG: The Iran-contra travesty was the first time the template of elite immunity - solidified by Ford's pardon of Nixon - was applied to a new case. Basically, just a month before he was to leave office after being defeated by Bill Clinton, George H.W. Bush pardoned his Defense Secretary, Casper Weinberger, and four other defendants, just as they were about to go on trial. What made that so remarkable was not only, as you say, that the case against them was so airtight: Weinberger got caught red-handed telling multiple lies to investigators in order to protect himself and Reagan when a diary he never turned over was found. Far worse was that Bush himself was implicated in many of these crimes, so these pardons were really a way of ending the investigation and thus protecting himself.

But no matter. Most media stars and outlets banded together to praise the pardons. After all, Cap Weinberger was one of them: a member in good standing of Washington's elite class. He did not belong in prison, even if he committed serious crimes. Of course, the fact that they live in a city - Washington, D.C. - where huge numbers of mostly poor and minorities are consigned to prison every day for far less serious infractions (such as minor drug offenses), and they never object to any of that, isn't something that concerned them. That's the two-tiered justice system personified.

The special prosecutor in charge of Iran-contra, life-long Republican Lawrence Walsh, warned that the Weinberger pardon "undermines the principle that no man is above the law" and "demonstrates that powerful people with powerful allies can commit serious crimes in high office." That's exactly the principle this episode entrenched, and our "watchdog press" led the chorus cheering it, just as they did the Nixon pardon.

MK: What role does the Republican domination of so many federal benches play in protecting the political and oligarchical elite from accountability?

GG: In general, those who get appointed to the federal bench, and then get approved by the Senate, are basically establishment-serving conservatives. With some exceptions, that's true whether they are appointed by Democratic or Republican Presidents, though obviously, the GOP appointees are more extreme in this regard.

Many of them have spent their whole careers as lawyers serving power. They are corporate lawyers, or prosecutors, or party activists. So their empathy and understanding is reserved exclusively for those in their circles: the powerful. They also know that their future career aspirations as judges - especially lower court judges looking to advance - depend on their not alienating those in power. That produces high levels of deference to the powerful and an instinct to protect large institutions over powerless individuals. Again, there are some exceptions, but this is largely what the federal judiciary has become, and that is the opposite of what it should be: it was meant to level the playing field by applying blind justice, not exacerbating it through insular, self-regarding socio-economic biases.

MK: Continuing with the issue of the courts, aren't they essential in sanctioning this double standard of justice? Can the 2000 Bush Supreme Court decision be fit into this model?

GG: They are absolutely essential. Courts are supposed to be the last resort to correct injustice. They are supposed to be immunized from political influences - that's why federal judges have life tenure and aren't elected - and thus able freely to vindicate the rights of the powerless over the powerful when the law calls for that. Few institutions have abdicated their institutional duties as much as the federal courts. I see Bush v. Gore more as naked partisanship in a war between two competing power factions (the 2 political parties) than I do as a double standard of justice, but it does reflect how corrupted the judiciary has become and how far astray they are from how they are supposed to function.

MK: In your introduction, you state: "The central principle of America's founding was that the rule of law would be the prime equalizing force, the ultimate guardian of justice." We may be a nation of inequality in other areas of life, but we are supposed to be equal before the law - regardless of wealth or power. When did that concept start to deteriorate in the United States?

GG: It has, of course, always been the case that being rich and powerful bestows advantages in every aspect of American life, including in courts and under the law. The nation was founded steeped in extreme inequality. But even when that was true, we at least affirmed the principle of blind justice - of equality under the law - as an aspiration, even when we violated it. It was affirming that principle which enabled the advances of the last century in terms of legal equality.

What has changed is that we no longer even affirm the principle. It is common to find arguments from political and media elites explicitly arguing that elites should not be subjected to the rule of law. I highlight many examples of that in the book. And the book documents that the genesis of this express repudiation of the rule of law was Ford's pardon of Nixon; that is when the country for the first time explicitly declared that one's status as a political elite meant they should be exempt from the legal precepts and punishments applied to ordinary Americans. That has now spilled over into not only the political class generally, but especially private-sector elites as well.

MK: How did it happen that there were no high-level prosecutions after the most recent near-catastrophic collapse on Wall Street, just a few lower-level targets? In fact, not only were there no high-level prosecutions, these guys are still running a good part of the nation's economy.

GG: Financial elites own and control the government, so it's not surprising that the government they own and control failed to hold them accountable for their crimes. As I say in the book, expecting the government to prosecute their Wall-Street-owners is like expecting a tenant to evict his landlord.

Beyond that, the ethos of elite immunity is that the more important someone is, the more urgent it is that they not be subjected to things like investigations, prosecutions, and especially prison, even if they were caught committing serious crimes. After all, this propaganda teaches, we need Wall Street tycoons (or CIA torturers, or NSA eavsdroppers) for our own security and prosperity, so shielding them from punishment is in the common good. The rationale for elite immunity is really that Orwellian.

Geithner said, just a few days ago, that there were Wall Street prosecutions and that more are coming, "stay tuned." Can he be taken even remotely seriously?

Absolutely not. Periodically, the U.S. Government will commence civil enforcement actions against Wall Street firms, and they almost always end with some absurdly low amount in payments that the firms simply write off as the cost of doing business. This is designed to cast the appearance of accountability, but given the magnitude of the fraud and other crimes, the "penalties" are negligible. The last thing the Obama administration is going to do heading into an election year is meaningfully sanction the industry that played such a key role in funding the President's 2008 campaign and which they want to fund his re-election bid.

MK: If the rule of law is split into two levels - one for the elite and one for the rest of us - doesn't democracy as we know it cease to exist? Doesn't it then become an oligarchy with the veneer of democracy on it to give it credibility?

GG: Absolutely. This is the key point. That's why I began the book highlighting how central was the rule of law in all of the Founders' writing. And by "rule of law," they meant equal application of law to all. Jefferson wrote that the essence of America would be that "the poorest laborer stood on equal ground with the wealthiest millionaire, and generally on a more favored one whenever their rights seem to jar." Benjamin Franklin warned that creating a privileged legal class would produce "total separation of affections, interests, political obligations, and all manner of connections" between rules and those they ruled.

One of their principal grievances against the British King was his power to exempt his cronies from legal obligations. Almost every Founder repeatedly warned that a failure to apply law equally to the politically powerful and the rich would ensure tyranny; in many ways, that is the definition of tyranny. That failure - to apply law equally - has clearly come to define the core of American justice. That's what motivated me to write this book.



Immunity and Impunity in Elite America
26 October 2011
by Glenn Greenwald
TomDispatch | Op-Ed

How the legal system was deep-sixed and Occupy Wall Street swept the land.

As intense protests spawned by Occupy Wall Street continue to grow, it is worth asking: Why now? The answer is not obvious. After all, severe income and wealth inequality have long plagued the United States. In fact, it could reasonably be claimed that this form of inequality is part of the design of the American founding -- indeed, an integral part of it.

Income inequality has worsened over the past several years and is at its highest level since the Great Depression. This is not, however, a new trend. Income inequality has been growing at rapid rates for three decades. As journalist Tim Noah described the process:

“During the late 1980s and the late 1990s, the United States experienced two unprecedentedly long periods of sustained economic growth -- the ‘seven fat years’ and the ‘long boom.’ Yet from 1980 to 2005, more than 80% of total increase in Americans' income went to the top 1%. Economic growth was more sluggish in the aughts, but the decade saw productivity increase by about 20%. Yet virtually none of the increase translated into wage growth at middle and lower incomes, an outcome that left many economists scratching their heads.”

The 2008 financial crisis exacerbated the trend, but not radically: the top 1% of earners in America have been feeding ever more greedily at the trough for decades.

In addition, substantial wealth inequality is so embedded in American political culture that, standing alone, it would not be sufficient to trigger citizen rage of the type we are finally witnessing. The American Founders were clear that they viewed inequality in wealth, power, and prestige as not merely inevitable, but desirable and, for some, even divinely ordained. Jefferson praised “the natural aristocracy” as “the most precious gift of nature” for the “government of society.” John Adams concurred: “It already appears, that there must be in every society of men superiors and inferiors, because God has laid in the… course of nature the foundation of the distinction.”

Not only have the overwhelming majority of Americans long acquiesced to vast income and wealth disparities, but some of those most oppressed by these outcomes have cheered it loudly. Americans have been inculcated not only to accept, but to revere those who are the greatest beneficiaries of this inequality.

In the 1980s, this paradox -- whereby even those most trampled upon come to cheer those responsible for their state -- became more firmly entrenched. That’s because it found a folksy, friendly face, Ronald Reagan, adept at feeding the populace a slew of Orwellian clichés that induced them to defend the interests of the wealthiest. “A rising tide,” as President Reagan put it, “lifts all boats.” The sum of his wisdom being: it is in your interest when the rich get richer.

Implicit in this framework was the claim that inequality was justified and legitimate. The core propagandistic premise was that the rich were rich because they deserved to be. They innovated in industry, invented technologies, discovered cures, created jobs, took risks, and boldly found ways to improve our lives. In other words, they deserved to be enriched. Indeed, it was in our common interest to allow them to fly as high as possible because that would increase their motivation to produce more, bestowing on us ever greater life-improving gifts.

We should not, so the thinking went, begrudge the multimillionaire living behind his 15-foot walls for his success; we should admire him. Corporate bosses deserved not our resentment but our gratitude. It was in our own interest not to demand more in taxes from the wealthiest but less, as their enhanced wealth -- their pocket change -- would trickle down in various ways to all of us.

This is the mentality that enabled massive growth in income and wealth inequality over the past several decades without much at all in the way of citizen protest. And yet something has indeed changed. It’s not that Americans suddenly woke up one day and decided that substantial income and wealth inequality are themselves unfair or intolerable. What changed was the perception of how that wealth was gotten and so of the ensuing inequality as legitimate.

Many Americans who once accepted or even cheered such inequality now see the gains of the richest as ill-gotten, as undeserved, as cheating. Most of all, the legal system that once served as the legitimizing anchor for outcome inequality, the rule of law -- that most basic of American ideals, that a common set of rules are equally applied to all -- has now become irrevocably corrupted and is seen as such.

While the Founders accepted outcome inequality, they emphasized -- over and over -- that its legitimacy hinged on subjecting everyone to the law’s mandates on an equal basis. Jefferson wrote that the essence of America would be that “the poorest laborer stood on equal ground with the wealthiest millionaire, and generally on a more favored one whenever their rights seem to jar.” Benjamin Franklin warned that creating a privileged legal class would produce “total separation of affections, interests, political obligations, and all manner of connections” between rulers and those they ruled. Tom Paine repeatedly railed against “counterfeit nobles,” those whose superior status was grounded not in merit but in unearned legal privilege.

After all, one of their principal grievances against the British King was his power to exempt his cronies from legal obligations. Almost every Founder repeatedly warned that a failure to apply the law equally to the politically powerful and the rich would ensure a warped and unjust society. In many ways, that was their definition of tyranny.

Americans understand this implicitly. If you watch a competition among sprinters, you can accept that whoever crosses the finish line first is the superior runner. But only if all the competitors are bound by the same rules: everyone begins at the same starting line, is penalized for invading the lane of another runner, is barred from making physical contact or using performance-enhancing substances, and so on.

If some of the runners start ahead of others and have relationships with the judges that enable them to receive dispensation for violating the rules as they wish, then viewers understand that the outcome can no longer be considered legitimate. Once the process is seen as not only unfair but utterly corrupted, once it’s obvious that a common set of rules no longer binds all the competitors, the winner will be resented, not heralded.

That catches the mood of America in 2011. It may not explain the Occupy Wall Street movement, but it helps explain why it has spread like wildfire and why so many Americans seem instantly to accept and support it. As was not true in recent decades, the American relationship with wealth inequality is in a state of rapid transformation.

It is now clearly understood that, rather than apply the law equally to all, Wall Street tycoons have engaged in egregious criminality -- acts which destroyed the economic security of millions of people around the world -- without experiencing the slightest legal repercussions. Giant financial institutions were caught red-handed engaging in massive, systematic fraud to foreclose on people’s homes and the reaction of the political class, led by the Obama administration, was to shield them from meaningful consequences. Rather than submit on an equal basis to the rules, through an oligarchical, democracy-subverting control of the political process, they now control the process of writing those rules and how they are applied.

Today, it is glaringly obvious to a wide range of Americans that the wealth of the top 1% is the byproduct not of risk-taking entrepreneurship, but of corrupted control of our legal and political systems. Thanks to this control, they can write laws that have no purpose than to abolish the few limits that still constrain them, as happened during the Wall Street deregulation orgy of the 1990s. They can retroactively immunize themselves for crimes they deliberately committed for profit, as happened when the 2008 Congress shielded the nation’s telecom giants for their role in Bush’s domestic warrantless eavesdropping program.

It is equally obvious that they are using that power not to lift the boats of ordinary Americans but to sink them. In short, Americans are now well aware of what the second-highest-ranking Democrat in the Senate, Illinois’s Dick Durbin, blurted out in 2009 about the body in which he serves: the banks “frankly own the place.”

If you were to assess the state of the union in 2011, you might sum it up this way: rather than being subjected to the rule of law, the nation’s most powerful oligarchs control the law and are so exempt from it; and increasing numbers of Americans understand that and are outraged. At exactly the same time that the nation’s elites enjoy legal immunity even for egregious crimes, ordinary Americans are being subjected to the world's largest and one of its harshest penal states, under which they are unable to secure competent legal counsel and are harshly punished with lengthy prison terms for even trivial infractions.

In lieu of the rule of law -- the equal application of rules to everyone -- what we have now is a two-tiered justice system in which the powerful are immunized while the powerless are punished with increasing mercilessness. As a guarantor of outcomes, the law has, by now, been so completely perverted that it is an incomparably potent weapon for entrenching inequality further, controlling the powerless, and ensuring corrupted outcomes.

The tide that was supposed to lift all ships has, in fact, left startling numbers of Americans underwater. In the process, we lost any sense that a common set of rules applies to everyone, and so there is no longer a legitimizing anchor for the vast income and wealth inequalities that plague the nation.

That is what has changed, and a growing recognition of what it means is fueling rising citizen anger and protest. The inequality under which so many suffer is not only vast, but illegitimate, rooted as it is in lawlessness and corruption. Obscuring that fact has long been the linchpin for inducing Americans to accept vast and growing inequalities. That fact is now too glaring to obscure any longer.

Glenn Greenwald is a former constitutional and civil rights litigator and a current contributing writer at Salon....