A Progressive on the Prairie

Although many consider it little more than a holiday with fireworks, July 4 is meant to celebrate the final approval of the Declaration of Independence and its precepts. One of its key elements is epitomized in the phrase “that all men are created equal.” Granted, there was an inherent contradiction with the existence of slavery in America, but the concept was a bit more specific. As many contend, the phrase stands for the proposition that there was to be no inequality before the law, that the law would be blind to a person’s status or position.

In With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful, Glenn Greenwald argues that the reality is the opposite in today’s justice system. In fact, he says, “like the term rule of law, equality under the law has become merely a platitude.” His contention that different rules apply to the politically and economically powerful isn’t new but the book makes a good case for the claim.

Greenwald focuses on several specific events in making the case. One is a rather detailed look at the revelation of the George W. Bush’s domestic warrantless domestic wiretapping program and the eventual action by Congress to provide full retroactive immunity — both civil and criminal — to giant telecommunications companies for their violations of federal law. He also examines the actions of that administration’s actions in the “war on terror” and, in a chapter called “Too Big to Jail,” the failure — or refusal — of the government to prosecute bank officials and others responsible for the financial crisis beginning in 2008. In so doing, With Liberty and Justice for Some repeats often made criticisms of the current state of affairs, particularly the role of money and lobbyists in government. But one of Greenwald’s main points is the coalescence and almost seamlessness of government and private elites.

He often points to the so-called revolving door between politics and private industry. Yet he argues that there is far less separation between the two than the concept might imply. Instead, whether in telecommunications or the health or financial industries, “the U.S. government and industry interests essentially form one gigantic, amalgamated, inseparable entity — with a public division and a private one.” And rather than simply make these assertions, Greenwald’s examples point to specific instances of this occurring during the last several decades.

Greenwald points to some key phrases that seem to epitomize the situation during that time. Once is Richard Nixon’s statement several years after his resignation that “When the president does it, that means it is not illegal.” There are often subtle echoes of it in most administrations — and entirely unsubtle in the expansive position of the George W. Bush administration on executive power. Another phrase the tends to echo and serve as justification for even egregious activities is that we need to move forward to get past what has occurred, rather than looking back and dwelling on events. As Greenwald points out, though, “given that ‘looking backwards’ is, by definition, what any investigation entails, it [is] a motto of pure lawlessness.”

Some critics might claim Greenwald is largely going after the George W. Bush administration. But With Liberty and Justice for Some doesn’t exempt the Democrats, Barack Obama or his presidential administration for its critiques. The book points out that, contrary to campaign promises, Obama supported the telecom immunity bill, as did most Democrats. Additionally, Obama’s administration has not been afraid to invoke the “need to look forward” mantra in foregoing meaningful investigations of private individuals in the financial crisis or Bush administration officials in its torture and similar policies. The book argues that perhaps the real reason behind not investigating is that doing so would mean finding those responsible.

Greenwald does not limit his analysis and criticisms to political and industry leadership. He believes the established media are part and parcel of the problem. They tend to support the powers that be or to avoid focus on these issues for fear of losing access. Access, after all, is power in the Beltway.

While it might be somewhat easy to argue that Greenwald’s examples are the exception and not the rule, one of his most telling points comes when he explores how the less or least powerful in American society are treated before the law. With various statistics and graphs, With Liberty and Justice for Some points out the increasing prison terms in the United States, some of the reasons behind it and its often disparate impact. In fact, a “Rule of Law Index” published in 2010 designed to measure justice systems from the perspective of the ordinary citizen placed the United States 20th out of the 25 nations surveyed. Among other things, it found that only 40 percent of low-income individual found the justice system fair, while 71 percent of the wealthy respondents did. Not only was it the largest gap among developed nations, it compares to a five percent gap in France and basically no gap in Spain.

Ultimately, the book leaves the impression that the last several decades have seen increased institutionalization of disparate legal treatment. While undoubtedly more fair than repressive regimes, the fact government and private industry have skewed the American justice system unfairly — or at least have created that strong impression — would be considered by those signing the Declaration of Independence as entirely antithetical to that document’s principles.

Glenn Greenwald, With Liberty and Justice for Some