If you’ve been reading Glenn Greenwald’s columns at Salon (or reading a Greenwald-influenced blog like the Weekly Sift) you won’t be surprised by anything you find in his recent book With Liberty and Justice for Some: How the law is used to destroy equality and protect the powerful.
Still, I found it striking to see so many individual issues laid out together and presented as a progression. It’s easy to get outraged at any one of them — say, that banks are foreclosing homes illegally and yet no bankers are going to jail — and miss the overall point: We are losing the rule of law.
If you are rich enough or powerful enough, you can break American law — either with complete impunity (like, say, Dick Cheney) or maybe paying wrist-slap fines that are a reasonable cost-of-doing-business (like Bank of America). What’s more, if anybody thinks you should be punished the way ordinary people are when they break the law, media pundits from the Right and Left alike will set them straight: Leona Helmsley was right; like taxes, the law is for “little people”.
It’s tempting to think things were always this way, but they really weren’t. This has all happened in living memory. Yes, the rich and powerful have always had better lawyers than the rest of us, and they’ve always gotten a little extra benefit of the doubt from judges and police. But never before has American society so completely accepted in principle that different rules should apply to the elite.
Glenn Greenwald traces this back to a single epochal event: President Ford pardoning Richard Nixon after the Watergate scandal forced him to resign. Nixon had resigned before the Senate could hold an impeachment trial, so Ford’s pardon meant that no Nixon trial would ever be held.
At the time the pardon was hugely unpopular, and is probably why Ford lost his re-election bid to Jimmy Carter in 1976. But looking back, the whole affair is kind of quaint. People at every level of the administration below Nixon went to jail, including Chief of Staff H. R. Haldeman and Attorney General John Mitchell. What’s more, the pardon itself was completely above board: Ford announced it in a national speech, and the presidential power to pardon is explicitly listed in the Constitution. The political price Ford paid in 1976 is exactly how the Founders envisioned keeping the pardoning power under control.
It’s hard to imagine anything like that happening now. The Bush administration broke a long list of laws: torture, spying without warrants, lying to Congress, and many others. No one has even been charged with these crimes, much less tried or punished. Like President Ford, President Obama has covered for his predecessor. But he hasn’t issued explicit pardons on national TV. Instead, he has just quietly let the whole thing drop, and occasionally claimed some dubious version of the state-secrets privilege to shut down court cases. Beyond occasional statements that we must “look forward, not backward”, President Obama has never even attempted to justify this policy to the American people.
And the outcry from the mainstream media has been … non-existent, unless you count the mainstream pundits who periodically scoff at the idea that the law should be enforced.
This didn’t happen all at once, and the successive chapters of Greenwald’s book present the gradual drift away from the rule of law. Watergate was followed by Iran-Contra, where once again pardons were issued. This time, though, it wasn’t just the president (Reagan) who was protected. President Bush the First pardoned high-ranking officials a level or two down from the president (like Defense Secretary Caspar Weinberger). In this way, Bush guaranteed that the accusations would never reach the president (or himself, in his previous role as vice-president).
In the Bush II administration, the pardon was issued by the very president whose administration was under suspicion. Scooter Libby was convicted of perjury and obstruction of justice in the CIA leak scandal, but never served time — and so was never tempted to flip on his boss, Vice President Cheney. (Greenwald points out this important fact about the Plame Affair: It only reached the point it did because another powerful institution — the CIA — insisted on pursuing the matter.)
Today, President Obama’s justification for drone strikes like the one that killed American citizen Anwar Awlaki is still secret, but seems unlikely to stand up to scrutiny. (Read the Wikipedia article on targeted killing and see if the line separating it from assassination makes any sense to you.) Obama is undoubtedly counting on his successor to continue the tradition of letting things drop.
Elite immunity entered the private sector with the telecom immunity bill. Telecom giants like AT&T illegally cooperated with warrantless spying of the Bush administration. Lawsuits against the government had already been closed off by state-secrets claims, which denied victims standing to sue. (If you couldn’t prove you’d been tapped, you couldn’t file suit.) But customer lawsuits against the telecoms were still possible and could have cost the companies billions if they lost — which they would have, because they clearly broke the law. But in 2008 a Democratic Congress passed a bill granting them retroactive immunity.
From there, not prosecuting Wall Street for laws broken during the housing bubble or the banks for foreclosure fraud seemed almost reasonable.
During this whole progression, the arguments have built on the one President Ford made: Whatever has happened, it’s time to put it all behind us. (Greenwald suggests trying that argument the next time you’re pulled over for speeding.) Powerful people let other powerful people off the hook, not for their benefit, but for ours, so that we don’t have to go through the ordeal of watching them be tried and punished. (That would be a good argument to try if your spouse catches you in an affair. Uncovering the truth would be too much of an ordeal for her and the kids. Best to let it all drop.)
But since no one is punished, the problem never gets behind us: Elite disrespect for the law only grows, guaranteeing that more laws will be broken in the future.
By pulling all these issues together, Greenwald is making an important point: Each example by itself is a partisan issue, but elite immunity is bipartisan. The powerful in government, industry, and the media are all coming to see themselves as members of a single privileged class. More and more, they close ranks against any attempt to punish crimes committed by one of their own.