No Comment, Six Questions — December 16, 2011, 9:51 am

With Liberty and Justice for Some: Six Questions for Glenn Greenwald

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?

glenn-1

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?

bookcover

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.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

December 2017

Destroyer of Worlds

= Subscribers only.
Sign in here.
Subscribe here.

Crossing Guards

= Subscribers only.
Sign in here.
Subscribe here.

“I am Here Only for Working”

= Subscribers only.
Sign in here.
Subscribe here.

Dear Rose

= Subscribers only.
Sign in here.
Subscribe here.

The Year of The Frog

= Subscribers only.
Sign in here.
Subscribe here.

Dead Ball Situation

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Destroyer of Worlds·

= Subscribers only.
Sign in here.
Subscribe here.

In February 1947, Harper’s Magazine published Henry L. Stimson’s “The Decision to Use the Atomic Bomb.” As secretary of war, Stimson had served as the chief military adviser to President Truman, and recommended the attacks on Hiroshima and Nagasaki. The terms of his unrepentant apologia, an excerpt of which appears on page 35, are now familiar to us: the risk of a dud made a demonstration too risky; the human cost of a land invasion would be too high; nothing short of the bomb’s awesome lethality would compel Japan to surrender. The bomb was the only option. Seventy years later, we find his reasoning unconvincing. Entirely aside from the destruction of the blasts themselves, the decision thrust the world irrevocably into a high-stakes arms race — in which, as Stimson took care to warn, the technology would proliferate, evolve, and quite possibly lead to the end of modern civilization. The first half of that forecast has long since come to pass, and the second feels as plausible as ever. Increasingly, the atmosphere seems to reflect the anxious days of the Cold War, albeit with more juvenile insults and more colorful threats. Terms once consigned to the history books — “madman theory,” “brinkmanship” — have returned to the news cycle with frightening regularity. In the pages that follow, seven writers and experts survey the current nuclear landscape. Our hope is to call attention to the bomb’s ever-present menace and point our way toward a world in which it finally ceases to exist.

Illustration by Darrel Rees. Source photographs: Kim Jong-un © ITAR-TASS Photo Agency/Alamy Stock Photo; Donald Trump © Yuri Gripas/Reuters/Newscom
Article
Crossing Guards·

= Subscribers only.
Sign in here.
Subscribe here.

The Ambassador Bridge arcs over the Detroit River, connecting Detroit to Windsor, Ontario, the southernmost city in Canada. Driving in from the Canadian side, where I grew up, is like viewing a panorama of the Motor City’s rise and fall, visible on either side of the bridge’s turquoise steel stanchions. On the right are the tubular glass towers of the Renaissance Center, headquarters of General Motors, and Michigan Central Station, the rail terminal that closed in 1988. On the left is a rusted industrial corridor — fuel tanks, docks, abandoned warehouses. I have taken this route all my life, but one morning this spring, I crossed for the first time in a truck.

Illustration by Richard Mia
Article
“I am Here Only for Working”·

= Subscribers only.
Sign in here.
Subscribe here.

But the exercise of labor is the worker’s own life-activity, the manifestation of his own life. . . . He works in order to live. He does not even reckon labor as part of his life, it is rather a sacrifice of his life.

— Karl Marx

Photograph from the United Arab Emirates by the author. This page: Ruwais Mall
Article
The Year of The Frog·

= Subscribers only.
Sign in here.
Subscribe here.

To look at him, Sweet Macho was a beautiful horse, lean and strong with muscles that twitched beneath his shining black coat. A former racehorse, he carried himself with ceremony, prancing the field behind our house as though it were the winner’s circle. When he approached us that day at the edge of the yard, his eyes shone with what might’ve looked like intelligence but was actually a form of insanity. Not that there was any telling our mother’s boyfriend this — he fancied himself a cowboy.

“Horse 1,” by Nine Francois. Courtesy the artist and AgavePrint, Austin, Texas
Article
Dead Ball Situation·

= Subscribers only.
Sign in here.
Subscribe here.

What We Think About When We Think About Soccer, by Simon Critchley. Penguin Books. 224 pages. $20.

Begin, as Wallace Stevens didn’t quite say, with the idea of it. I so like the idea of Simon Critchley, whose books offer philosophical takes on a variety of subjects: Stevens, David Bowie, suicide, humor, and now football — or soccer, as the US edition has it. (As a matter of principle I shall refer to this sport throughout as football.) “All of us are mysteriously affected by our names,” decides one of Milan Kundera’s characters in Immortality, and I like Critchley because his name would seem to have put him at a vocational disadvantage compared with Martin Heidegger, Søren Kierkegaard, or even, in the Anglophone world, A. J. Ayer or Richard Rorty. (How different philosophy might look today if someone called Nobby Stiles had been appointed as the Wykeham Professor of Logic.)

Tostão, No. 9, and Pelé, No. 10, celebrate Carlos Alberto’s final goal for Brazil in the World Cup final against Italy on June 21, 1970, Mexico City © Heidtmann/picture-alliance/dpa/AP Images

Chances that an American pediatrician has treated a child for a gunshot wound in the last year:

1 in 6

Researchers found that young teens who witness gun violence are more than twice as likely to commit a violent crime themselves.

Brailsford’s lawyer said Shaver was “not a bad person” but that “his actions” had gotten him killed, referring in part to the defendant’s claim that a hand movement of Shaver’s while he was on his knees made it appear as if he might have been reaching for a weapon in the waistband of his basketball shorts, which at that point had fallen down.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today