“When the law is wielded only against the powerless, it ceases to be a safeguard against injustice and becomes the primary tool of oppression.” – Glenn Greenwald
America was build upon the foundation of the rule of law: ultimately, the Constitution, and the principle that law is the great equalizer.
“Let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the Law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” – Thomas Paine
John Adams, in the same year, would go on to write, “The very definition of a republic is ‘an empire of laws, and not of men.'”
The ultimate principle, as Jefferson wrote two-decades later, was 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.”
However, over the past several decades in particular, the “elite” sector of our society, namely high-ranking political officials and wealthy bankers on Wall Street, have begun to revolt against and even repudiate this foundation of law, with little to no accountability forthcoming.
And without the great equalizer that is the U.S. Constitution and the rule of law, society inevitably descends into a form of tyranny, a government by the few who are above the law and who are free to impose their will on the weak.
Glenn Greenwald, in his book With Liberty and Justice for Some, analyzes this descent, sparing no one from the criticism they undoubtedly deserve.
Greenwald’s basic contention is that the American justice system is two-tiered: the top tier is reserved for the financial and political elites, and the bottom tier is reserved for everyone else. The benefits enjoyed by those in the top tier are unprecedented, and repugnant.
“…the country’s most powerful political and financial elites are virtually immunized from the rule of law, empowered to commit felonies with full-scale impunity and to act without any constraints, while the politically powerless are imprisoned with greater ease and in far greater numbers than in any other country on the planet.”
“…precisely what the founders most feared has come to exist: a two tiered system of justice in which outcomes are determined not by the law itself but by the status wealth, and power of the lawbreaker.”
Lawlessness has always, in some way, been a part of America, and indeed any country in the world. Completely ameliorating criminals from society is impossible.
The goal of the Founders was to ensure, by setting the foundation in the Constitution, that those who commit crimes face the consequences, regardless of their status.
To say that we have drifted from this foundation would be an understatement of unimaginable proportions.
Setting the Precedent: Nixon, Watergate, and Blatant Hypocrisy
Richard Nixon was one of the first presidents to spark the “tough on crime” movement, and tough on those who used illegal drugs, in particular. Eventually, this led to what is now known as the “War on Drugs,” which has of course proven to be a complete disaster.
With all of his insistence that individuals should face the consequences of their actions, Nixon himself felt that he was under no such restraints.
The most famous instance of his characteristic lawlessness came in the Watergate scandal, which entailed members of the Nixon administration orchestrating and carrying out a break-in at the Democratic National Committee.
An investigation was launched, and while many members of the Nixon administration were convicted of perjury and obstruction of justice, Nixon himself was spared.
Facing inevitable impeachment, Nixon resigned, leaving then Vice President Gerald Ford to take over.
Ford went on to pardon Nixon, relieving him of all accountability for his actions in office, and this sets the precedent for elite lawlessness: you can commit crimes, as long as you ensure that you have a buddy in the background waiting to save the day.
Ford’s justifications for the pardon became, as Greenwald put it, “the standard clichés our political class uses to justify immunity.”
The defenses of blatant law breaking used by Ford would be laughable if they expressed by a less powerful American citizen. He claimed that he pardoned Nixon because, “I cannot prolong the bad dreams that continue to reopen until the chapter is closed.”
Essentially, we have to look to the future, and ignore all of the wrongdoings of the past.
This is, of course, absurd. The only way to ensure that crimes such as the Watergate scandal don’t happen in the future is to guarantee that those who commit crimes will face the consequences under the law.
“Ford explicitly pointed to Nixon’s lofty status as a reason to exempt him from the accountability applied to ordinary Americans – a complete reversal and rejection of the central covenant of the American Founding.
Ford’s signature line – ‘Our long national nightmare is over’ – put a heroic spin on the betrayal of the rule of law: we end the ‘nightmare’ of high-level criminality by sweeping it under the rug, protecting the wrongdoers, and pretending their crimes never happened.”
“Needless to say, the empathy Ford expressed for Nixon is rarely invoked as a means of arguing for leniency, let alone immunity, for ordinary Americans. That’s because Ford’s call for ’empathy’ is merely disguised aristocratic privilege.”
By using fluffy rhetoric and appealing to emotion, Ford ensured that Nixon would not face any consequences for his wrongdoings, and thus he opened the door for elite political figures to break the law without accountability in the future.
Of course, one cannot forget the Iran-Contra Affair under the Reagan Administration, Iraqgate under Reagan and H.W. Bush, and then, in recent years, the unabashed lawlessness of the Bush Administration.
George Bush and his Great Indefatigable Shield, Barack Obama
“My general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed to looking at what we got wrong in the past.” – Barack Obama
By now there is no doubt that members of the Bush administration, and Bush himself, engaged in illegal activities that would have landed an “average” American citizen in prison, and for quite a long time.
From the authorization of illegal interrogation tactics (torture) to warrantless wiretapping to lying about various facts relating to the Iraq War, George Bush and his administration would appear, to an objective outsider, to be in some serious trouble.
Of course, given the fact that elite immunity has become embedded in American politics, Bush (along with his administration and the telecom corporations involved with the illegal spying program) was shielded from any accountability.
Bush constantly evoked national security as a rationalization for illegal activity. But, as Greenwald points out, “breaking the law is not permitted even if patriotic motives are involved.”
But, fear not, the great agent of change, Barack Obama would surely save the day. As an article in GQ observed:
“No other issue defined Barack Obama like his promise to restore America’s commitment to international law.”
He has done nothing of the sort.
Although he ran on the core principle that all should be held accountable under the law, once he entered office, he quickly backpedaled toward the vapid rhetoric used by many others to promote elite immunity: “We need to look forward, not backward.” Greenwald observes:
“And given that ‘looking backwards’ is, by definition, what any investigation entails, it was a motto of pure lawlessness.”
Instead of investigating the crimes committed by the previous administration, Obama:
“…passionately devoted himself to blocking and suppressing all investigations of the Bush administration, whether carried out by the DOJ or by Congress, by U.S. courts or by judges overseas.”
This is why individuals such as George Bush and Dick Cheney are able to boast about how they violated domestic and international law and tortured supposed terrorist threats: they know that they will never be pursued or punished.
Greenwald also points out that much of the mainstream media was satisfied, if not elated, by this justification.
This was a sign of Obama’s forgiving, patient nature, they said, and they promoted the idea that it would be foolish to constantly look to punish those of a previous administration for committing egregious crimes.
But, as Alexander Hamilton warned:
This is what laws have become to the political elites in this country: mere recommendations to be followed only if they fit their interests, and they may be broken whenever it is deemed “necessary” for the greater good of the country.
We will, of course, be quick to call for the punishment of officials of other nations for breaking the law, but when it comes to our own officials, they are somehow exempt from equal treatment.
Elites Prevail, the Public Suffers: The Second Tier of the Justice System
“By imposing the brunt of criminal punishment on the most powerless and marginalized groups, the legal system ensures that people who suffer most from its injustices are the ones least able to subvert it.” – Glenn Greenwald
While the top tier of the America basks in the comfort granted to them by this insidious trend of elite immunity, the general public (the poor and middle class) are facing a more strict justice crackdown than ever before.
The statistics are unnerving:
“The United States has only 5 percent of the world’s population, yet nearly 25 percent of all prisoners in the world are on American soil.”
“In 1970, fewer than 190,000 people were incarcerated in the United States; since then, we have seen more than a tenfold increase. In 2008, when Pew released a comprehensive report on America’s prison state, it reported that ‘for the first time in history more than one in every 100 adults in American are in jail or prison.'”
And this startling increase is not due to increased crime rates.
According to the JFA Institute, “prison populations have been growing steadily for a generation, although the crime rate is today about what it was in 1973 when the prison boom started.”
This indicates, according to Greenwald, that “the growth in prison populations is not a response to national circumstances. What it represents, rather, is a deliberate choice by the political class to lock up more and more people for longer periods and for ever more trivial offenses.”
So, the elites are free to break the law when it fits their interests, and anyone who suggests that they should be prosecuted is seen as a radical. But ordinary Americans? They should be punished severely. Sounds more like an oligarchical government than a democratic one, to me.
The justice system is also riddled with what Greenwald repeatedly calls “draconian” policies regarding drugs and mandatory minimum sentencing which serve to inflict further punishment on petty crimes which aren’t punished anywhere near as severely in other countries.
We can’t forget, also, the privilege of top-notch legal representation for the elites, while the poor and middle class are often stuck with sub-par, usually horribly overworked, lawyers.
Add onto this the fact that prisons have now essentially become an industry with the rise of privatized prisons, so there is incentives for powerful individuals to promote laws which lock up Americans at a much higher rate, because that means more money in their pockets.
“…incarceration is now big business in the United States.”
The Boston Phoenix observed a terrifying fact arising from the confines of the prison-industrial complex:
“[The industry] regularly lobbies against criminal-punishment reforms, and for the creation of new criminal statutes and overly harsh prison sentences. While these efforts are cloaked as calls for public safety, they are essentially creating more business for themselves.”
Anyone who observes this system objectively must come away with the same conclusion as Greenwald: There is an insidious double-standard at work, and the rule of law has become a tool of oppression instead of a tool for equality.
Yet another unsettling fact about the two-tiered justice system is the fact that anyone who dares to expose the crimes of high-ranking political officials are called traitors and are threatened with severe, absurd punishments.
Greenwald puts it bluntly:
“…powerful criminals are protected, while those who expose their crimes are persecuted.”
“…there are no prosecutions in sight for years of war crimes, torture, and illegal spying, as well as the greatest financial theft in American history. There, we are told to ‘look forward, not backward.’ But when anyone dares to expose the overweening corruption and illegality of the national security state, the full weight of the ‘justice system’ is brought mercilessly crashing down upon that person.”
It appears that one has all the reasons one needs to be utterly pessimistic about the future of justice in the United States. As the government continues to trot out its righteous-sounding rhetoric of returning to the principles that built this country, they simultaneously do all they can to subvert the system and use it to their own advantage.
What can we do about it?
Outside of systemic change, there doesn’t appear to be much we can do as the powerless general public. Transformation of the system will have to involve people within the system working to change the policies and tactics which have benefited them and their peers, and I don’t see this happening anytime soon.
Greenwald paints a bleak picture about the future of this political culture of elite immunity and ruthless punishment of the average citizens, but perhaps some can derive some hope for a potential revolution.
“The American elites have, to be sure, gained tremendous short-term benefits from the pervasive corruption that shields the powerful from legal scrutiny.
But in the long run, eviscerating the rule of law is likely to prove their undoing. The United States was founded on the notion that the law must apply equally to everyone, and it is now clear that this principle is not just a matter of basic fairness.
If a privileged few are exempt from the rule of law, ever-greater inequality will result, and the inevitable discord that such inequality provokes will come to threaten the county itself. Only as a nation of laws, not men, can America hope to endure.”
With Liberty and Justice for Some should be required reading for all who wish to be informed about the current state of the justice system in the United States.
But I’ll offer a brief warning: If you have a blind faith in the benevolence and innocence of the U.S. government and you badly wish to maintain this faith, do not read this book.