liberty & justice for some
by Glenn Greenwald (2011)
the issue isn’t just that those w political influence and financial power have some advantages in our judicial system. it is much worse that that. those w political/financial clout are routinely allowed to break the law with no legal repercussions whatsoever. often they need not even exploit their access to superior lawyers because they don’t see the inside of a courtroom in the first place..
america’s political culture not only provides strategic advantages in the legal system to political and financial elites, but now actually grants them immunity when they knowingly break the law.. this license – awarded by the same political class that created the world’s largest and most merciless prison state for its poorest and most powerless citizens- represents not just a departure from the rule of law but a fundamental repudiation of it..
the central principle of america’s founding was that the rule of law would be the prime equalizing force, the ultimate guardian of justice. the founders considered vase inequality in every other realm to be inevitable and even desirable. some would be rich, and may would be poor. some would acquire great power, and many would live their entire lives virtually powerless. a small number of individuals would be naturally endowed w unique and extraordinary talents, while most people, by definition, would be ordinary. …. american conception of liberty was not only consistent with but premised on the inevitability of outcome inequality –
the one exception was the rule of law.. when it came to the law.. no inequality was tolerable.. law was understood to be the sine qua non ensuring fairness, a level playing field, and a universal set of rules.. it was nonnegotiable prereq that made all other forms of ineq acceptable. only if everyone was bound to the same rules would outcome ineq be justifiable..
.. for that reason.. american political liberty was always inextricably bound to the notion that law reigns supreme
when the law is wielded only against the powerless, it ceases to be a safeguard against injustice and becomes the primary tool of oppression..t
becomes potent means for entrenching/protecting exactly what it is designed to prevent.. t
revealingly, the central function of the constitution as law – the supreme law – was to impose limitations not on the behavior of ordinary citizens but on the federal govt itself. the govt and those who ran it were not placed outside the law, but expressly targeted by it..
the notion of law simply makes no sense, and has no good purpose, unless all are bound by its dictates – hamilton
12 the most crucial challenge in the developing countries, as carothers put it, is that elites ‘must give up the habit of placing themselves above the law’
1 – the origin of elite immunity
this si what makes tth contemp form of ameri lawlessness new and unprecedented. it is now perfectly common, and perfectly acceptable, to openly advocate elite immunity.. the us has become a nation that does not apply the rule of law to its elite class, which is another way of saying.. that the us does not apply the rule of law
ie: top bush officials – torture, warrantless eavesdropping, cia black sites, politicized prosecutions, obstruction of justice – violate the law.. did not lead to calls by politicians or estab press.. instead, nothing happened.. even though us is a party to two separate treaties – the geneva conventions and the convention against torture – that obligate all signatory countries to prosecute any officials who ordered, authorized, or otherwise perpetrated torture…. not only are the radical acts of bush admin illegal, to so, is the ongoing refusal to investigate/prosecute those crimes.
the nixon pardon, and the way it was sold to the country (ford – as patriotism to the max.. saving country from going thru scandal, would create divisiveness, was ‘well-intentioned’ shouldn’t be treated as common criminals), because the template for justifying elite immunity.. public harmony thus trumps the need to enforce the rule of law
of course… all criminal prosecutions are.. (these things).. so creating a license to break the law
ie: iran-contra scandal erupted in 1986.. reagan admin sold arms.. to regime in iran.. 1| to get release of 6 american hostages.. 2\ to get money to fund contras.. cia backed rebel group fighting to overthrow govt in nicaragua
reagan’s approval of a weapons for hostages deal was an astonishing act of hypocrisy.. but the funding of the contras… a guerrilla group responsible for brutal atrocities against civilians.. not just shocking.. a clear-cut crime..
in the end, .. not a single one of them would serve even a day in prison
two key aides – oliver north and john poindexter.. robert macfarlane.. elliott abrams.. caspar wenberger…
bush pardons et al.. similar to ford’s for nixon
what made pardon eve more pernicious.. bush involved in many of the incriminating acts..
tellingly, oliver north, a key figure in the iran-contra, became a beloved folk hero on the right because of how proudly he boasted of lying to congress.. a patriotic thing to do
on presidents always pardoning previous president.. so that their back is covered
2 – immunity in the private sector
nsa scandal.. and q west not allowing.. others allowing was illegal…
reasons for telecom immunity – fear of terrorism and partriotism to protect..bush
retroactive immunity makes complete mockery of the rule of law. the us is not supposed to be a country where private actors are permitted to commit crimes and violate laws whenever the president tells them that they should
michael mcconnell – the face of the private sector immunity
this is a toxic pattern that leads govt officials to try to shield not only themselves but their most favored private corps from any consequences for what they do, no matter how legally dubious
the telecom immunity law was one of the most striking pieces of evidence demonstrating that the royal beltway court and its corp partners placed themselves above/beyond the reach of the law even for the most blatant transgressions. bur more important, it also proved that they no longer cared who knew it. and the vital enabling role the dem party and obama played in those events was a powerful foreshadowing of how – once they consolidate their hold on political power – the dems would not just maintain, but entrench and expand this culture of elite impunity.
3 – too bit to jail
erzinger (hedge fund manager) hit and runs milo near vail co – 2010 – .. da hurlbert: felony conviction shave some pretty serious job implications for someone in mr erzinger’s profession..
in other words, erzinger engages in such vital activity that charging him with a felony would be wrong because it might seriously disrupt his work: managing the money of multimillionaires/billionaires..
once case was publicized by talk radio host david sirota and by colorado newspapers, there was a public uproar.. more than 10 000 signed petitions.. to no avail
2008 .. worst financial crises in modern history.. no criminal liability..
once again told that prosecutions are too disruptive.. that it’s more important to fix the system than to seek retribution for the past.. that because the wrongdoers’ reputation is in tatters, they have already suffered enough; that we need the goodwill of financial titans to ensure our common prosperity; and so on
taibbi: the only thing to remember is that all the ones who got us into this mess – rubin, summers, goldman in general – are now being put in charge of the cleanup by a president who spent most of 18 months on the campaign trail pledging to end the influence of money in politics..
just think about how this cycle works..t
4 – immunity by presidential decree
in fact obama went beyond the nixon pardon, telecom immunity , and even the failure to investigate rampant wall street illegality.. those measure were indeed lawless, but there was at least some legal pretext from the: the constitutions gives presidents the power of granting pardons….. but obama’s wholesale protection of bush-era criminals enjoyed none of those excuses.. instead, his admin , the course of obstructing investigations, explicitly disregarded numerous legal dictates..
entire books have been written documenting the severity of the bush torture regime…
one 46 page memo from olc chief steven bradbury dated 2005 authorized the following acts to be performed on ‘high-value detainees’: forced nudity, dietary manipulation involving mi caloric intake, corrective techniques such as facial/abdominal slapping, water dousing, stress positions designed to induce muscle fatigue, discomfort and sleep deprivation.. ie: made to wear diapers.. because releasing from shackles would interfere with effectiveness of technique..
au 2002 memo by then olc lawyer (an not fed judge) jay bybee, describes waterboarding in excruciating detail, mater of factly noting that the subject’s body responds as if the subject were drowning… amazingly, while ..admitted waterboarding constitutes a threat of imminent death.. they claimed that the procedure was permissible.. because it does not result in prolonged mental harm.. they didi tell white house to perform no more than two sessions.. in an y 24 hr period, even though … the same document mentions that khalid was waterboarded 183 times in march 2003 and abu .. 83 time sin aug 2002
walling – slamming someone into a wall.. cramped confinement .. confined dark space.. coffin like.. insects placed in confinement box..
and it goes on.. worse..
from a legal stand point, torture is unlawful no matter whom it is applied to. but the cia report added an extra layer of moral horror to the situation by noting that many of the detainees were tortured pursuant to assessments that were unsupported by credible intelligence.. meaning there was no actual reason to think they had done anything wrong..
this fact had long been obscured (innocents tortured) because for years the detainees were not allowed any access to the court system..
only in 2008.. after supreme court struck down that provision .. did guantanamo detainees – some of whom had be then been imprisoned for 7 yrs – gain the chance to have their claims of innocence reviewed by a court of law…. since then, the results have been striking.. of the 59 .. who so far have had their habeas cases heard in fed court, 38 have won.. almost 2/3 of cases reviewed.. no evidence to justify the detention..
for bush admin.. keeping innocent people imprisoned was a deliberate policy. in 2009.. lawrence wilkerson,.. staff to colin powell, said that top bush officials realized early on that many of the detainees were innocent of any substantial wrongdoing, .. should be released.. nonetheless they persisted in assuring the country that guantanamo held only the worst o the the worst
bush refused release.. out of concern that once freed they would publicize the abuse they had been subjected to… wilkerson signed affidavit in 2010.. attesting that bush, cheney and rumsfeld covered up that hundreds of innocent men were sent to guantanamo
these are plainly criminal acts whose perpetrators the obama admin has steadfastly shielded from any/all accountability..
obama speaking in/to indonesia and ghana..: need to uphold the rule of law by imposing accountability on most powerful leaders.. can’t go forward w/o looking backwards.. calling on all africans to apply the rule of law by punishing their nations’ past leader for corruption.. then hilary same to kenya..
beyond hypocrisy.. the willingness to impose on other nations precepts of international law from which the us flamboyantly exempts itself is also a form of lawlessness
in this world, it is perfectly fine to say that a president is inept or even somewhat corrupt. a titillating, tawdry sex scandal, such as the bill clinton brouhaha, can be fun, even desirable as a way of keeping entertainment levels high.. such revelations are just part of the political cycle. but to acknowledge that our highest political officials are felons…. or war criminals.. is to threaten the system of power, and that is unthinkable…
members of political and media establishment do not join forces against teh investigations/prosecutions because they believe nothing bad done.. on contrary, they resist accountability precisely because they know there was serious wrongdoing – and they know they bear part of the culpability for it.. the consensus mantra that the only thing that matters is to make sure it never happens again is simply the standard cry of every criminal desperate for escape…
5 – american justice’s second tier
when ordinary americans come in contact with the justice system, everything changes. the world we have been examining reverses..
in the us.. lack of accountability for elites goes hand in hand with lack of mercy for everyone else..
5% of world population 25% of all prisoners..
most significant for growth of american’s penal state was the fed govt’s increased emphasis on the war on drugs
esp 1988 election of george bush
so why do american s tolerate such a draconian legal system, one which imprison exceptionally large numbers of people for no good reasons? the answer is clear: because most people believe – correctly – that they themselves are unlikley to be sucked into its vortex..
by imposing the brunt of criminal punishment on the most powerless and marginalized groups, the legal system ensures that people who suffer the most from its injustices are the ones least able to subvert it.. t
unequal treatment in the american justice system is dictated by class as well as race..
prisons for profit
simply put, incarceration is now big business in the us..
another remarkable disparity has been the wildly divergent treatment of elite criminals as opposed to ‘whistle blowers’ who reveal govt /corp secrets in order to expose high-level corruption/criminality..
while bush admin suggested that it might prosecute whistle blowers.. obama admin .. actually carried thru .. repeatedly/aggressivley.. thomas drake (illegal waste)..james risen (iranian nuc)..leibowitz (fbi lawbreaking)..
obama’s actions against wikileaks.. noen of revelations resulted in any criminal investigations from obama admin
instead.. admin .. launced an all-out wawr on wikileaks itself.. assange
to recap – obama justice .. if you create a worldwide torture regime, illegally spy on americans w/o warrants, abduct people w no legal authority, invade/destroy another country based on false claims, they you are fully protected. but if you expose any of these lawless actions by publishing the truth about what was done, then you are a criminal who deserves the harshest possible prosecution..
it’s true of course that leaking classified info is a crime. that’s what makes whistle blowers and leakers so courageous. and if all wrongdoing, including that of the politically powerful, were always fully punished according to the law, one could accept whistle blower prosecutions. but that’s not the situation that prevails..
assault on whistle blowers not even the worst of ongoing abuses.. since sept 2001.. war on terror had opened up entire dimension in which the rule of law simply vanishes..
w terrorism as rational, the us has proclaimed the power to detain people indefinitely w/o trial..
rigged game of show trials.. making up rules as go along.. only allowing trials of those they can convict..
this is how the multitiered justice system preserves itself: by targeting those with the weakest voices, the smallest constituencies, and the least ability to resist.
thus did pardon of nixon- justified in 74 as a onetime exception .. lay the foundation for elite immunity: a lawbreaking license that spread throughout the political class and then to its partners in the private sector.. in the same way, the degradation of basic legal principles that began in the name of ‘law and order’ gave rise to the ‘war on drugs’ and then the ‘war on terror’ with their ever more severe erosion of due process and constitutional safeguards..
the law which was meant to keep the powerful in check is now used instead to sustain and perpetuate their power..t
like banana republic (notorious for inequality), such derogatory terms ..oligarchy (govt by small dominant class), plutocracy (govt by wealthy).. were once reserved for other nations and it was unthinkable go apply them to us.. ye now.. commonly/causally used by mainstream sources to describe facts of life in contemporary america
such a two tiered setup is simply unsustainable..