SIGN IN to access Harper’s Magazine
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
In the wake of September 11, Glenn Greenwald emerged as the nation’s premier chronicler of the war that U.S. officials waged on the nation’s civil liberties under the pretext of battling terrorists. Persistent and technically skilled, he played a key role in unmasking shameless betrayals by government attorneys of their oath to uphold the law—exposing those who enabled the torture of prisoners, the introduction of a massive warrantless surveillance system, and the merciless war against loyal Americans who attempted to blow the whistle on such abuses. I put six questions to Greenwald about his new book, With Liberty and Justice for Some, which examines the emerging doctrine of impunity for politically powerful elites in the United States:
1. You start your account of the doctrine of elite immunity in the United States with Gerald Ford’s decision to pardon Richard Nixon. How did this one decision, among the numerous incidents you describe, provide a point of rupture in the nation’s rule-of-law tradition?
American history is suffused with violations of equality before the law. The country was steeped in such violations at its founding. But even when this principle was being violated, its supremacy was also being affirmed: resoundingly and unanimously in the case of the founders. That the rule of law—not the rule of men—would reign supreme was one of the few real points of agreement among all the founders. Arguably it was the primary one.
There’s an obvious element of hypocrisy in this fact; espousing a principle that one simultaneously breaches in action is hypocrisy’s defining attribute. But there’s also a more positive side: the country’s vigorous embrace of the principle of equality before law enshrined it as aspiration. It became the guiding precept for how “progress” was understood, for how the union would be perfected.
And the most significant episodes of progress over the next two centuries—the emancipation of slaves, the ending of Jim Crow, the enfranchisement and liberation of women, vastly improved treatment for Native Americans and gay Americans—were animated by this ideal. That happened because “blind justice”—equality before law—was orthodoxy in American political culture. The principle was sacrosanct even when it was imperfectly applied.
The Ford pardon of Nixon changed that, radically and permanently. When President Ford went on national television to explain to an angry, skeptical citizenry why the most powerful political actor would be fully immunized for the felonies he got caught committing, Ford expressly rejected the rule of law. He paid lip service to its core principle—the “law is no respecter of persons”—but then tacked on a newly concocted amendment designed to gut that principle: “but the law is a respecter of reality.”
In other words, if—in the judgment of political leaders—it’s sufficiently disruptive, divisive, or distracting to hold powerful political officials accountable under the law on equal terms with ordinary Americans, then they should be exempt and the rule of law suspended, all in the name of political harmony, of “moving on.” But of course, it will always be divisive and distracting, by definition, to prosecute the most powerful political leaders, so Ford’s rationale, predictably, created a template for elite immunity.
The rationale for Ford’s pardon of Nixon was subsequently legitimized, and it created a precedent for shielding the most powerful elites from the consequences of their lawbreaking. The arguments Ford offered are the same ones now hauled out over and over whenever it is time to argue why the most powerful among us should not be held accountable: It’s not just for the good of the immunized criminal, but in the common good, to Look Forward, Not Backward. This direct assault on the rule of law was pioneered by the pardon of Richard Nixon.
2. ProPublica released, just last week, a study of the pardons process showing that a wealthy, politically connected white person may very well get a presidential pardon, but that blacks don’t get pardons, period. Is this more fodder for your thesis?
It’s almost impossible to write a book and not have something like this happen: one of the best pieces of evidence imaginable for your thesis emerges only after the book’s publication. That’s how I see the superb ProPublica study: as indescribably compelling support for the central argument of the book.
It would be one thing if the lawbreaking license I just described were available to everyone regardless of power or position. If ordinary Americans could avail themselves of this same line of reasoning when they get caught committing crimes—Officer, isn’t it better that we concentrate on the future rather than wallowing in recriminations over the past?—one could have debates about the virtues of leniency as a criminal-justice policy, but at least it wouldn’t implicate rule-of-law concerns. Everyone would be subjected to the same set of rules.
But that’s not what happens. The exact opposite takes place. The flip side of elite immunity is that ordinary Americans are subjected to the world’s largest and among its most merciless penal states. The U.S. imprisons more of its citizens by far than any other country on the planet, and for longer periods, for more trivial transgressions, and with less forgiveness than any country in the Western world. Many of these oppressive penal policies are racist in effect if not in design: particularly the drug war, which results in vastly disproportionate imprisonment rates for African-Americans and Latinos.
Pardons were designed to be a last resort for correcting grave injustices produced by the justice system. Instead, as the ProPublica study documents, they mirror and exacerbate those injustices. Even at that stage, how one is treated depends far more on who one is rather than what one has done. That is the precise antithesis of what the rule of law was designed to ensure.
3. Whistleblowers in the era of Bush and Obama have been fired, harassed, and prosecuted under statutes like the Espionage Act with a hitherto-unknown vigor, especially when their disclosures suggested that government officials committed serious crimes. Is this prosecutorial zeal driven by the same factors that have created elite immunity?
Unquestionably. Take the case of the NSA eavesdropping scandal, the clearest-cut case of criminality during the Bush years. So egregious was the wrongdoing that James Risen and Eric Lichtblau won the Pulitzer Prize for exposing it in the New York Times. Bush officials were caught behaving in the exact way the law criminalized: eavesdropping on Americans’ communications without warrants. And the statute imposed a penalty of five years in prison and/or a $10,000 fine for each offense.
Yet not a single Bush official responsible for those crimes was ever investigated, let alone prosecuted. The nation’s telecom giants, which independently broke laws written specifically to bar telecom–government cooperation in illegal spying, were retroactively immunized for their crimes by an act of Congress.
Nobody paid a price for the NSA scandal, except one person: Thomas Tamm, the mid-level DOJ lawyer who learned of the illegal program and, in an act of conscience, picked up the phone, called Lichtblau, and told him what he had learned. Unlike the criminals themselves, Tamm was investigated, harassed, rendered unemployed, forced to hire a lawyer, and ultimately driven into bankruptcy and serious psychological distress. The only person to suffer from the NSA scandal was the person who blew the whistle on it.
We see this over and over, and it’s what the Obama war on whistleblowers is all about. The only real, cognizable crime—the only one the Obama DOJ displays any real interest in punishing—is committed by those who expose elite criminality, not those who commit it. The attempt to prosecute WikiLeaks is driven by this same mindset.
4. In a speech he delivered recently in Osawatomie, Kansas, President Obama used Theodore Roosevelt’s concept of New Nationalism as a rhetorical foil. Do you agree that Roosevelt’s vision of a nation dedicated to “real democracy” sets the right tone for an age suffering from elitist triumphalism? And do you think Obama is likely, in a second term, to take any meaningful steps against the problems you describe in your book—particularly relating to accountability?
Many of the themes sounded in Obama’s Kansas speech were valid and appropriate, but that matters little. Obama is in campaign mode, and what he has convincingly demonstrated is that the inspiring, passionate speeches he delivers have little relationship to his actions.
There is zero basis for believing that Obama will change course on any of these matters in his second term. There is always another election ahead that apologists can cite to justify bad acts (You have to understand: it’s vital that Democrats win the 2014 midterms). And Obama has displayed no interest whatsoever in holding elites accountable for criminality: not just political actors, but financial elites as well.
If anything, it’s even more unlikely that he would hold elites accountable in his second term. In November, 2008, the New York Times explained why presidents have an incentive to shield their predecessors from prosecution: “Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor’s tenure.” In other words, by shielding those who came before him, Obama ensures that he can commit crimes with impunity as well. That’s why all elites—political, financial, media—are motivated to defend and preserve this lawbreaking license for their class.
5. While you argue that political elites are very rarely held to account, the U.S. Attorneys scandal and a host of botched prosecutions that came to light around the same time—such as the cases of former Alaska senator Ted Stevens and former Alabama governor Don Siegelman—suggest that “public integrity” prosecutions often reflect careerism and political score-settling more than concern for public corruption. Does this suggest that the Justice Department has been used to enhance political power, and that elites that stand in the way may also become victims?
Yes. In the book, I discuss two general categories of exceptions for when elites are held accountable: first, when their victims are other elites; and second, when their corruption is so egregious and over-the-top that they jeopardize the preservation of elite lawbreaking license. Lewis Libby falls into the first category (the CIA demanded a DOJ investigation because they were furious that Valerie Plame had been outed) as does Bernie Madoff. Madoff also falls into the second category, along with people like Rod Blagojevich.
These are trends, not absolute rules. So of course one can find exceptions. Sometimes poor and marginalized people do receive real justice (rarely, but it happens). Other times, truly powerful people are targeted by ambitious or even noble prosecutors, or when others in power can benefit from seeing them punished (Siegelman).
But in general, overwhelmingly, being politically or financially powerful doesn’t merely mean you have advantages in the justice system. It typically means—with increasing frequency—that you won’t be brought into the justice system at all even when you’re caught committing egregious crimes.
6. Conservative legal scholar William J. Stuntz raised in his final book many of the same criticisms you do about access to justice. But he also faulted liberals for putting too much emphasis on procedural as opposed to substantive aspects of justice—for pointing out that many of the current problems result from hypercorrection of perceived (though often wrongly perceived) weaknesses in the justice system. Is Stuntz right about this?
This is a complicated issue. It is true that an obsessive fixation on procedure can lead to inhumane, overly bureaucratized justice. But ultimately, adherence to procedural regularities—to a common set of rules—is the optimal way to bracket out human corruption. Adams’s “empire of laws, and not of men” really is a dichotomy: it’s one or the other. And if we’re not ensuring that a set of clearly defined, universally applicable rules govern how justice is dispensed, then we are, by definition, ensuring that the arbitrary will of individuals prevails instead.
More from Scott Horton:
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
No Comment — March 28, 2014, 12:32 pm
On CIA secrecy, torture, and war-making powers
Average number of sitcom laughs an American hears during a prime-time season:
Nielsen Media Research (N.Y.C.)/Jim Drake, Night Court (Tarzana, Calif.)/Harper's research
Czech and German deer still do not cross the Iron Curtain.
British economists correlated the happiness of a country’s population with its genetic resemblance to Danes.
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
“I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.”