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Unequal Justice

Under America's two-tiered justice system, the crimes of elites go unpunished.

Glenn Greenwald is an old-fashioned liberal. That is, he indicts the present and fears the future. In this book on our two-tiered justice system, he explicitly harkens back to an era in which the brazenly unequal application of justice was unthinkable.

Although elites, including the very wealthy, have always enjoyed advantages in the legal realm, Greenwald points out that “the principle that all citizens are accountable under law was applied in the past with great force and determination. Throughout the eighteenth, nineteenth, and the early twentieth centuries, even the most influential men in America were kept in check by the legal system.” If the executive and/or Congress failed to root out elite corruption, then “an adversarial mass media served as a crucial backstop against elite lawlessness.”

Boss Tweed, whose name is today a byword for political corruption, was exposed by the media, pilloried by cartoonist Thomas Nast, and pursued by reformers until he was impeached and jailed. When he escaped from prison and fled to Spain, he was immediately recognized on account of Nast’s Harper’s caricatures and hauled back to America in chains. On the other hand, Lloyd Blankfein, whose financial manipulations as the head of Goldman Sachs played a major role in bringing on the Crash of ’08, and who profited beyond the dreams of avarice from that disaster, is not only a free man but one with unfettered access to the corridors of power.

As for the adversarial media—forget it. This is one of Greenwald’s pet peeves, a theme that pervades his widely read column for Salon as well as this book: the coziness of the mainstream media and the power elite, with the former acting as a journalistic Praetorian Guard for the perks and privileges of the political class.

Wielding a relentless precision and marshalling exhaustive evidence, Greenwald makes the case that it isn’t just a question of the rich having better lawyers: “It is much worse than that,” he writes:

Those with political and 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—not even when they get caught in the most egregious criminality. The criminal justice system is now reserved almost exclusively for ordinary Americans, who are routinely subjected to harsh punishments even for the pettiest of offenses.

Greenwald details the crimes of the American elites over the past decade, “extraordinary crimes that brought the United States political disgrace and financial ruin”: George W. Bush’s torture regime, the bankster-driven crash and bailout of ’08, the Scooter Libby affair, the “robo-signers” foreclosure fraud, and—worst of all, in my view—the creation of phony “intelligence” designed to lie us into war with Iraq. The perpetrators of these crimes are well known, yet none has ever been brought to justice. The reason is that we have repudiated the concept of equal justice and ushered in a two-tiered legal system: one for the political and financial elites—which grants them immunity from prosecution for the most brazenly illegal acts—and another quite draconian one for the rest of us peons, who are routinely thrown in the hoosegaw, often for years, for holding small amounts of illegal drugs.

Torture is illegal under U.S. law, and, as Greenwald notes, “international law” as well. Readers may care less about the latter than I do, but the hypocrisy of committing the very acts for which we prosecuted German and Japanese war criminals should be readily apparent to even the most hardbitten apologist for American exceptionalism. When the facts came out—the “black sites,” the waterboarding, the secret flights, the high proportion of innocents scooped up and sent to Guantanamo—there were no calls for criminal investigations, let alone prosecution. Quite the opposite occurred: the political class united to protect their own, and the Washington pundits were out in force, inveighing against “divisive” prosecutions and demanding that we “look forward, not back.” As Greenwald points out, however, when it comes to ordinary Americans, the legal justice system is all about looking back and not forward—looking back at the evidence of a crime and making sure the perpetrator pays.

Elite immunity was justified on the grounds that the military and intelligence personnel implementing the torture policy were simply acting in good faith and should not be punished for following orders—a variation on the argument of the defendants at Nuremberg, which wasn’t quite so popular when they first made it. As Greenwald notes, however, this evaded the central issue: why not prosecute the policymakers? This question was studiously avoided: even to suggest it placed one outside the bounds of permissible opinion.

The pattern of elite immunity from the legal—and moral—norms imposed on the rest of us has been a recurring theme of the past few decades, and Greenwald traces its evolution back to the Nixon pardon. Although outside the Beltway the American people were enraged by the Nixon pardon, inside the Imperial City the media mandarins and pontificating politicos unanimously praised the wisdom of “forgiveness.” An important precedent was set: “The Nixon pardon,” avers Greenwald, “and the way it was sold to the country, became the template for justifying elite immunity. Nowaways, with only rare exceptions, each time top members of the nation’s political class are caught committing a crime, the same reasons are hauled out to get them off the hook.” The criminal element in the political class is “well-intentioned” and prosecution would amount to “criminalizing policy disputes.” We don’t want to be “divisive,” and besides, our elite crooks “have already suffered enough.”

Funny, but nobody—or hardly anybody—asks if a three-time loser addict up on drug charges under California’s “three strikes” law has “already suffered enough.” They just lock him or her up and throw away the key.  That’s the core injustice of a society where the rule of law—the animating principle of the Founders and the basis of our system of constitutional government—has been repudiated in favor of oligarchy. This is what fuels Greenwald’s outrage and creates the narrative momentum that makes this book hard to put down.

Greenwald’s liberalism veers into libertarian territory when he surveys the economic crimes of our politically-connected business elite. He details the interaction of “free enterprise” and government, the revolving door between regulating agencies and business lobbyists, and notes how financial giants that were “too big to fail” were enjoying record profits shortly after their government-financed resurrection. In his analysis of Wall Streets crimes, he assembles all the pieces, but—being a liberal, albeit an old-fashioned one, and not quite a libertarian—he fails to put them together. That’s because he leaves out the most important piece of the puzzle, the apotheosis of government-business collusion, and the cause of the ’08 meltdown in the first place: the Federal Reserve. Without the Fed, the ultimate cartel, neither the bailout nor the crash would have been possible.

I’ll throttle my inner ideologue and refrain from taking Glenn to task for failing to apply the insights of Austrian economics: he’s not there yet, and may never get there. Where he is, however, is more than halfway on the libertarian side of the barricades in the fight against a regnant elite that has overstepped its bounds. Greenwald believes the rule of the oligarchs is unsustainable—that a popular rebellion is in the offing, if I get his meaning in the epilogue.

On that score, I have my doubts: the habit of acquiescence, once acquired, is hard to break. If society rots like a fish, from the head down, then we are long past the point of putrescence. On the other hand, Greenwald’s book, in tandem with the Ron Paul campaign and the growing libertarian youth movement, is yet another sign that the fighting spirit of the Old Republic isn’t dead, even on the ostensible left. This is a book that has something for everyone: conservatives will love it for its sincere reverence for the Founders and the author’s merciless dissection of Barack Obama’s blatant hypocrisy on the “state secrets” question.

Liberals will love it for its searing indictment of the inequity that has corrupted our legal system and victimized the poor and racial minorities, creating a “prison state” in which more citizens are imprisoned than in China’s sprawling gulag. I have a lot of underlined passages in my copy, but one stands out: a discussion of the State Department’s 2006 report on Russia, which condemned Putin’s administration for carrying out surveillance on private communications without getting permission from a judge, in violation of Russian law. “Worse,” notes Greenwald, “the State Department complained, ‘there were no reports of government action against officials who violated these safeguards.’ Behold, Russian tyranny as condemned by the US State Department.”

I guess that’s what they mean by “globalization.”

Case in point: the wiretapping scandal of 2005. When the New York Times revealed that Bush administration officials were spying on American citizens in their own country, eavesdropping on their phone conversations and reading their emails, it was the Times that came under fire and threat of prosecution, not the lawbreakers in government.

Justin Raimondo is editorial director of Antiwar.com and author of An Enemy of the State: The Life of Murray N. Rothbard.