Glenn Greenwald: Actually, what is happening with the Occupy Wall Street protests is as perfect an illustration of the book's argument as anything I could have imagined. The book's central theme is that law is no longer what it was intended to be – a set of rules equally binding everyone to ensure that outcome inequalities are at least legitimate – and instead has become the opposite: a tool used by the politically and financially powerful to entrench their own power and control the society. That's how and why the law now destroys equality and protects the powerful.
What we see with the protests demonstrates exactly how that works. The police force – the instrument of law enforcement – is being used to protect powerful criminals who have suffered no consequences for their crimes. It is simultaneously used to coerce and punish the powerless: those who are protesting and who have done nothing wrong, yet are subjected to an array of punishment ranging from arrest to pepper spray and other forms of abuse.
That's what the two-tiered justice system is: elites are immunized for egregious crimes while ordinary Americans are subjected to merciless punishment for trivial transgressions.
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MK: In your columns on Salon, you have been a relentless upholder of constitutionally guaranteed civil liberties regardless of what political party is in power. This has put you at odds with both the Bush and Obama administrations. To many progressives, your dissection of the current White House's growing constraint on civil liberties is shocking. To what do you attribute the Obama administration's actions to go further than the Bush administration did in curbing civil liberties?
GG: It's difficult to assess motives, but one major difference between Bush and Obama is that Bush at least had one major political party pretending to find his abuses objectionable. By contrast, Obama has very little opposition: Republicans are being consistent by cheering for limitless executive power and civil liberties abuses carried out in the name of fighting Terrorism, but now, Democrats are either indifferent to those actions or outright supportive because they're now being carried out by their own party's leader. Bush's radicalism was seen as controversial right-wing dogma, but Obama has transformed it into bipartisan consensus, and thus strengthened it.
Part of what is happening is likely political: Democrats have often been accused of being soft on Terror, and if Obama were to abandon Bush's policies – the ones he promised to reverse when campaigning – he'd likely be politically vulnerable if there were another terrorist attack on US soil. Embracing the Bush/Cheney template is a means of immunizing himself from those attacks.
Finally, people convinced of their own Goodness often view restraints on their own power as unnecessary. After all, he's a Good Progressive and well-intentioned – unlike those evil Republicans – and we should therefore trust him to do things in total secrecy, without oversight and accountability. I think that extremely flattering self-image is part of what motivates these actions as well.
MK: There has been much speculation on this, but why do you think the Obama administration did not prosecute Bush officials who violated US and international standards of law?
GG: Both parties – and successive Presidents – benefit from elite immunity. They know that if they protect each other, then they, too, can commit crimes with impunity. A November, 2008 New York Times article was incredibly telling in this regard. It reported on Obama's opposition to investigations into Bush crimes of torture and warrantless eavesdropping – opposition revealed only after he was safely elected – and it explained that “because every President eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor's tenure.” As I wrote in the book about this article: “In other words, by letting criminal bygones be bygones within the executive branch, presidents uphold a gentleman's agreement to shield either other from accountability for any crimes they might want to commit in office.”
It's the same reason that media elites and others are so opposed to these investigations as well: elites obviously benefit from elite immunity, and so have an interest in not subverting it when other elites commit crimes. I have no doubt that part of Obama's reluctance was political – a belief that applying the rule of law to Bush, Cheney and others would create political turbulence for him – but a significant motivating factor was undoubtedly the desire not to have his own actions investigated once he leaves office if the GOP controls the Executive Branch (and, thus, the Justice Department).
MK: The Iran-contra scandal is an excellent example of how officials at the highest levels of the US government broke the law (although Reagan had the excuse of “not remembering” what he authorized). Special Prosecutor Walsh had a pretty tight case. But ultimately, John Poindexter and Oliver North had their convictions reversed on a questionable legal technicality by partisan GOP judges. The “smoking gun” was found in the Iran-contra case, but still the perpetrators got off. How come?
GG: The Iran-contra travesty was the first time the template of elite immunity – solidified by Ford's pardon of Nixon – was applied to a new case. Basically, just a month before he was to leave office after being defeated by Bill Clinton, George H.W. Bush pardoned his Defense Secretary, Casper Weinberger, and four other defendants, just as they were about to go on trial. What made that so remarkable was not only, as you say, that the case against them was so airtight: Weinberger got caught red-handed telling multiple lies to investigators in order to protect himself and Reagan when a diary he never turned over was found. Far worse was that Bush himself was implicated in many of these crimes, so these pardons were really a way of ending the investigation and thus protecting himself.
But no matter. Most media stars and outlets banded together to praise the pardons. After all, Cap Weinberger was one of them: a member in good standing of Washington's elite class. He did not belong in prison, even if he committed serious crimes. Of course, the fact that they live in a city – Washington, D.C. – where huge numbers of mostly poor and minorities are consigned to prison every day for far less serious infractions (such as minor drug offenses), and they never object to any of that, isn't something that concerned them. That's the two-tiered justice system personified.
The special prosecutor in charge of Iran-contra, life-long Republican Lawrence Walsh, warned that the Weinberger pardon “undermines the principle that no man is above the law” and “demonstrates that powerful people with powerful allies can commit serious crimes in high office.” That's exactly the principle this episode entrenched, and our “watchdog press” led the chorus cheering it, just as they did the Nixon pardon.
MK: What role does the Republican domination of so many federal benches play in protecting the political and oligarchical elite from accountability?
GG: In general, those who get appointed to the federal bench, and then get approved by the Senate, are basically establishment-serving conservatives. With some exceptions, that's true whether they are appointed by Democratic or Republican Presidents, though obviously, the GOP appointees are more extreme in this regard.
Many of them have spent their whole careers as lawyers serving power. They are corporate lawyers, or prosecutors, or party activists. So their empathy and understanding is reserved exclusively for those in their circles: the powerful. They also know that their future career aspirations as judges – especially lower court judges looking to advance – depend on their not alienating those in power. That produces high levels of deference to the powerful and an instinct to protect large institutions over powerless individuals. Again, there are some exceptions, but this is largely what the federal judiciary has become, and that is the opposite of what it should be: it was meant to level the playing field by applying blind justice, not exacerbating it through insular, self-regarding socio-economic biases.
MK: Continuing with the issue of the courts, aren't they essential in sanctioning this double standard of justice? Can the 2000 Bush Supreme Court decision be fit into this model?
GG: They are absolutely essential. Courts are supposed to be the last resort to correct injustice. They are supposed to be immunized from political influences – that's why federal judges have life tenure and aren't elected – and thus able freely to vindicate the rights of the powerless over the powerful when the law calls for that. Few institutions have abdicated their institutional duties as much as the federal courts. I see Bush v. Gore more as naked partisanship in a war between two competing power factions (the 2 political parties) than I do as a double standard of justice, but it does reflect how corrupted the judiciary has become and how far astray they are from how they are supposed to function.
MK: In your introduction, you state: “The central principle of America's founding was that the rule of law would be the prime equalizing force, the ultimate guardian of justice.” We may be a nation of inequality in other areas of life, but we are supposed to be equal before the law – regardless of wealth or power. When did that concept start to deteriorate in the United States?
GG: It has, of course, always been the case that being rich and powerful bestows advantages in every aspect of American life, including in courts and under the law. The nation was founded steeped in extreme inequality. But even when that was true, we at least affirmed the principle of blind justice – of equality under the law – as an aspiration, even when we violated it. It was affirming that principle which enabled the advances of the last century in terms of legal equality.
What has changed is that we no longer even affirm the principle. It is common to find arguments from political and media elites explicitly arguing that elites should not be subjected to the rule of law. I highlight many examples of that in the book. And the book documents that the genesis of this express repudiation of the rule of law was Ford's pardon of Nixon; that is when the country for the first time explicitly declared that one's status as a political elite meant they should be exempt from the legal precepts and punishments applied to ordinary Americans. That has now spilled over into not only the political class generally, but especially private-sector elites as well.
MK: How did it happen that there were no high-level prosecutions after the most recent near-catastrophic collapse on Wall Street, just a few lower-level targets? In fact, not only were there no high-level prosecutions, these guys are still running a good part of the nation's economy.
GG: Financial elites own and control the government, so it's not surprising that the government they own and control failed to hold them accountable for their crimes. As I say in the book, expecting the government to prosecute their Wall-Street-owners is like expecting a tenant to evict his landlord.
Beyond that, the ethos of elite immunity is that the more important someone is, the more urgent it is that they not be subjected to things like investigations, prosecutions, and especially prison, even if they were caught committing serious crimes. After all, this propaganda teaches, we need Wall Street tycoons (or CIA torturers, or NSA eavsdroppers) for our own security and prosperity, so shielding them from punishment is in the common good. The rationale for elite immunity is really that Orwellian.
Geithner said, just a few days ago, that there were Wall Street prosecutions and that more are coming, “stay tuned.” Can he be taken even remotely seriously?
Absolutely not. Periodically, the U.S. Government will commence civil enforcement actions against Wall Street firms, and they almost always end with some absurdly low amount in payments that the firms simply write off as the cost of doing business. This is designed to cast the appearance of accountability, but given the magnitude of the fraud and other crimes, the “penalties” are negligible. The last thing the Obama administration is going to do heading into an election year is meaningfully sanction the industry that played such a key role in funding the President's 2008 campaign and which they want to fund his re-election bid.
MK: If the rule of law is split into two levels – one for the elite and one for the rest of us – doesn't democracy as we know it cease to exist? Doesn't it then become an oligarchy with the veneer of democracy on it to give it credibility?
GG: Absolutely. This is the key point. That's why I began the book highlighting how central was the rule of law in all of the Founders' writing. And by “rule of law,” they meant equal application of law to all. Jefferson wrote that the essence of America would be that “the poorest laborer stood on equal ground with the wealthiest millionaire, and generally on a more favored one whenever their rights seem to jar.” Benjamin Franklin warned that creating a privileged legal class would produce “total separation of affections, interests, political obligations, and all manner of connections” between rules and those they ruled.
One of their principal grievances against the British King was his power to exempt his cronies from legal obligations. Almost every Founder repeatedly warned that a failure to apply law equally to the politically powerful and the rich would ensure tyranny; in many ways, that is the definition of tyranny. That failure – to apply law equally – has clearly come to define the core of American justice. That's what motivated me to write this book.