By Glenn Greenwald, Metropolitan Books, Henry Holt and Company, N.Y. $26, 304 pages
John Adams famously said that we are “a nation of laws, not men.” In his fourth and most recent book, “With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful,” liberal blogger, Salon.com columnist and attorney Glenn Greenwald argues that, in recent years, our nation has come to pay mostly lip-service to this bedrock principle when it comes to political and financial elites.
When they violate the law, this class has managed to get off with merely a slap on the wrist, and in many cases is staunchly defended by their peers and the mainstream media. The rule of law, in effect, is reserved for the rest of us, creating a two-tiered justice system.
Greenwald, in this well-researched and intellectually rigorous book, traces the origin of this shift to Ford’s pardon of Nixon for his Watergate offenses in 1974 and sets forth a factual record of how it has continued up to the present day: the pardons of those involved in the Iran-Contra scandal and most recently of Scooter Libby; the immunization of the telecom industry for its involvement in warrantless wiretapping of thousands of U.S. citizens; the failure to prosecute financial elites for the financial crisis of 2008 that devastated large segments of the economy. And the list goes on.
To his credit, unlike many commentators, Greenwald assigns blame to both Democrats and Republicans alike for excusing political leaders and financial elites from the rule of law.
Greenwald perhaps most closely examines the torture of Guantánamo detainees to make his case. The Bush administration, he says, clearly violated the Convention Against Torture, adopted by the United States and thus law under Article VI of the Constitution. General Barry McCaffrey said, “We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the CIA.”
Greenwald shows the failure of those in positions of power to stand up and demand accountability. Although in April 2008, while in a contentious primary battle with Hillary Clinton, Barack Obama said that “nobody is above the law” and that “if crimes have been committed, they should be investigated,” in April 2009, after taking office, the president abruptly changed course by saying that he preferred “to look forward not backward.” This would prove to be a chorus repeated by administration officials.
The media, says Greenwald, were hardly more effective in calling for accountability. He specifically lays blame on those famous, well-paid journalists in the mainstream media who he alleges are part of the same power apparatus and run in the same social circles as political leaders, thus willingly abdicating their role as an adversarial check on power.
Many of these media figures, he points out, enthusiastically approved of the lack of any meaningful investigation or jail time for those responsible for illegal torture. On “Meet the Press,” Rick Stengel, Time magazine’s managing editor, praised Obama by saying that he “is very Mandela-like in the sense that he’s saying let the past be the past and let us move in to the future.”
As Greenwald humorously suggests, try adopting the Obama approach in common judicial proceedings and see how far it gets you. A Housing Court judge, for instance, may not be very receptive to the tenant who is behind in rent and contends that it is time to look forward not backward.
Greenwald astutely recognizes there are limitations to his argument, acknowledging that the Founding Fathers never advocated for social and political equality, nor was equality under the law always observed in practice. “Slavery, the dispossession of Native Americans, the denial of voting rights to women, and the granting of superior legal rights to property owners are a few of the most glaring deviations.”
The difference between then and now, he says—and this makes up the central thesis of his book—is that while the equal application of law was at least aspired to in our nation’s history, it no longer is.
One critique is that Greenwald’s analysis that a major shift occurred in 1974 with the Nixon pardon may be a little too neat. Civil rights leaders in the 1960s may argue, for example, that there was no pretense of, or aspiration to, equality under the law for officials in the south who violated their civil rights and perpetrated violence against them.
Still, it is difficult to deny that the trend cited by Greenwald is for real. Perhaps the most interesting part of the book comes near the end, when he points out that during the same time period, law-and-order has only increased toward regular Americans. More than 2.2 million Americans are incarcerated and America has the highest rate of imprisonment of any nation in the world at 756 people per 100,000 citizens, followed by Russia (629) and Rwanda (604). There are mandatory minimum sentences, harsh drug laws that disproportionately affect minorities, and overworked public defenders represent a large number of criminal defendants.
Adding to this inequity, Greenwald says, is how the unequal distribution of wealth has skyrocketed during that same time-frame.
As a result, a perfect storm is brewing of social, economic and political inequality creating a sharp dividing line between elites and the middle and lower classes. This threatens the very fabric of our democratic society, Greenwald says, and it is hastened by the failure to make and apply the law equally to all citizens.
Eric Dinnocenzo is the principal of the Law Offices of Eric Dinnocenzo located in New York City and New Jersey.