© Glen Greenwald
How the Legal System Was Deep-Sixed and Occupy Wall Street Swept the LandMark 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.
This book looks interesting
Further, here is an addendum regarding the "rule of law"
Quote... [Link]
The "Rule of Law"
" The precise legal definition of the "rule of law" seems to have been "misplaced" by our "guardians of civilization" and lost in history. Current Judges state: "I am the law", implying that they are the beginning and end of authority, residing in their eminently trustworthy and infallible persons. Enough information is now available to re-construct the "rule of law" from the evidence.
Judges make the claim that they do what they do under authority of the "rule of law". This means that judges admit that the "rule of law" actually exists and further admit they will not tell us what it is, by my lengthy and colossal failure to find a written and legally binding definition of the "rule of law" anywhere.
Judges further claim that their role is to serve as "guardians of civilization", under the "rule of law" which means the law must have some measurable purpose and effect besides fattening the bank accounts of legal "professionals".
The "rule of law", by its very words implies that it is intended to replace or at least control the power of rulers and all of the problems associated with arbitrary rulers and the conflict of competition for the position of "ruler". It also implies that it is not a mere replacement of rulers by another ruler class called "Judge", since this is just a name change and solves no problems. If it means that the law is supreme and Judges are mere interpreters, this is just a shifting of arbitrary rule to those who make the laws. Even if the lawmakers are elected representatives of the people, this still does not solve the problem of the majority enslaving the productive, oppressing minorities and collapsing civilization. Therefore, the "rule of law" cannot be a mere shifting of power to any one group, including the majority, since this solves none of mankind´s organizational problems. The "rule of law" must be something different.
Given the fact that those who wield force under color of law are by definition numerically inferior (but better armed with weapons we have provided to them) to those who must tolerate their actions, the "rule of law", to be useful must have some advantage able to achieve voluntary consent from a broad base of individuals who would otherwise organize to overthrow it like any other oppressive ruler throughout history.
To guard civilization, we must know what civilization actually is. We must know what is required for civilization to function. We must know what civilization should be guarded from. We need to know how success in protecting civilization can be measured.
Civilization is about the way mankind is organized. Since the organization of man is about individuals and groups interacting, we must consider the goals and motivations of the components in order to consider their organization. This is because there is no force in the universe able to enslave man by imposing an organization contrary to free choice. The definition of organization is: "the set of capabilities and boundaries of the parts and the rules governing relationships between the parts".
The greatest threat to civilization is from the competition of individuals and groups trying to achieve dominance over other individuals and groups. This results in total conflict and the collapse of social organization, placing collective survival at risk. Thus, the purpose of the "rule of law" is to reduce conflict. We must understand what creates conflict in order to reduce it. The absence of conflict is peace and cooperation. Therefore civilization and the "rule of law" is about the rules by which we live in peace and cooperate with each other by the minimization of conflict.
The "rule of law" cannot leave any particular group in charge, since this group would ultimately enslave all others, as proven by historical experience. Since control of the law cannot be entrusted to some, it must be entrusted to all. Therefore, the "rule of law" must be a simple philosophical statement of what is justice and not justice easily understood and agreed to by all men. This allows all to see that the law is fair and ensure that justice is done, to guard against injustice. If all have fairness and justice, no honest man will desire conflict. The "rule of law" must also be the glue that ties all of mankind together in common interest, for mutual survival. Since this is the purpose of the "rule of law", it must also be a moral statement that mankind´s overall survival is more important than some natural rights of inherently free men. Given that man´s second highest goal is freedom, the "rule of law" must limit freedom as little as possible, sufficient only to reduce conflict. If this were not the case, conflict would occur in pursuit of freedom.
The defining characteristic of any individual or group is the need to survive. To do so, goals must be achieved. In the seeking of any goal, there are only three possibilities. You can steal by force or fraud or you can trade value for value. There are no other possibilities. Since conflict is a consequence of forceful and fraudulent methods of goal seeking, these methods must be suppressed by law. These methods create conflict because they interfere with the survival of the victims, causing a defensive response. The only peaceful means of goal seeking is thus by mutually agreed trade.
To encourage mutually agreed trade, it must be un-coerced and people must be able to keep the fruits of their labors, or why bother. Trade reduces conflict further by virtue of the parties becoming interdependent and thus having an interest in mutual survival. Peaceful trade requires the law to treat all equally and property rights must be absolute.
The above conflict minimization and goal-seeking considerations results in a precise definition of the "rule of law":
* "the suppression of forceful and fraudulent methods of goal seeking"
* "all are treated equally by the law". This means ALL, including king and judges
* "absolute property rights"
Note that I use equality in the mathematical sense "in all dimensions". The meaning of the key words have been obscured by an assault on language, to destroy the precision required for truth.
The above "rule of law" is what governments, judges and the legal profession have been hiding from us for centuries, while they and their cronies feed off of the conflict and human misery created by their illegal acts and divisive political philosophies. Mankind has long had this knowledge to create a better world for all and it is suppressed, for the profit of some. This suppression of truth is the greatest crime against humanity ever committed. It is an unthinkably evil crime. The unbelievable degree of evil and malice against mankind of this crime is the greatest defense of the perpetrators. These groups hypocritically claim to be acting in mankind´s interest. Unchecked, these crimes will drive mankind to extinction by war, civilizations or ecological collapse. Do not expect the legal profession to judge itself guilty in this or any other matter.
The "rule of law" is the highest law of mankind. All other laws are subservient and cannot contradict the "rule of law". All laws contradicting this including constitutional are an offense to mankind´s collective survival and must be fought and destroyed. This most basic of laws is the highest intellectual achievement of mankind, the result of objective consideration of mankind´s goals, nature, environment, history and survival by the greatest and most objective minds mankind has yet produced. The "rule of law" is a profound truth which allows the most dangerous predator on the planet to live together in peace and harmony, co-operating for mutual self-interest and progress.
The above definition of the "rule of law" is fully consistent with what governments, judges and the legal profession pretend to be guided (but not bound) by. The fact that government and judges do not consider themselves bound by the "rule of law" allows them to remain in control, creating plausible "necessity", "complexity" or "technicalities" of why they and their cronies are special and above the law, free to suck the life out of their fellow men. This allows them to keep all of us fighting each other by refusing true equality and tricking us into blaming and killing each other. They make us slaves to their will by denying our property rights and threatening seizure. This allows them to promise our productivity to others who refuse to choose personal responsibility or accept the consequences of this decision, buying political support at our expense and placing incompetents in democratic control. The chaos of usurped democracy provides confusion and cover while our civilization is looted and destroyed, for the benefit of the unscrupulous.
For their grand finale they are steering civilization to a worldwide conflagration of war that can never, ever end until the human race is extinct. This is for the simple reason that we have been duped into thinking our survival depends on someone else´s exploitation. Our victims have responded by becoming what some call terrorist and I call freedom fighter. When justice is denied, conflict is the only survival option.
The absence of the "rule of law" also prevents serious international cooperation in the critical areas of pollution, global warming, renewable energy, economics and poverty. The most crucial foundation of civilization has been stolen and removed. As a consequence, civilization is toppling.
The "rule of law" is simple and unambiguous, making justice a simple matter with no special exemptions for anyone. Simply put, if any individual or group acts in a manner that creates conflict, then they are guilty and offend all of mankind. Any issue can easily be resolved by process of elimination. If it is not an honest, mutually agreed trade, then it is theft or fraud by definition. Since all are subject to this law, governments must also earn their keep and deal with each other and us in a non-conflictual manner. They will not do this willingly.
There is not a single problem of humanity that is not in some way related to the current and historical suppression of the "rule of law". The fact that the powers that be claim it as a pretext and the sophisticated methods by which they create and profit from conflict is sufficient proof that they understand the behavioral principles involved and their peril if the "rule of law" ever returns.
Under the "rule of law" honest men are in charge, with a simple and precise definition of what they should be doing. Democracy will be prevented from discriminating on any basis, ending divide and conquer politics, forcing voters to consider common interest rather than advantage over others.
The "rule of law" is brilliantly simple, just and well suited to all of mankind. The fact that western democracies once had prosperity, honesty, social unity and a work ethic argues that we once had the "rule of law" to which all honest men agreed, to the detriment of criminals. The fact that these values are under concerted attack by "Social Engineers", creating conflict by pitting viewpoint against viewpoint is proof enough of who is responsible and that they know exactly what they are doing.
The entire legal profession is profoundly wrong and an enemy of mankind.