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Book Review: Unequal Justice

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With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful by Glenn Greenwald (New York: Metropolitan Books, 2011), 304 pages.

In August, something incredible happened: a three-judge panel of the Seventh Circuit Court of Appeals, in a split decision, allowed a lawsuit seeking monetary damages to proceed against former Defense Secretary Donald Rumsfeld. Largely ignored by the mainstream press, two private American security contractors in Iraq alleged that Rumsfeld created the conditions that led to their indefinite detention and torture at the hands of U.S. military personnel in early 2006. Working for a private Iraqi security firm in Iraq’s “Red Zone,” Donald Vance and Nathan Ertel discovered the company was engaging in illegal activities, such as trading “liquor to American soldiers in exchange for U.S. weapons and ammunition that Shield Group Security then used or sold for a profit.” Following their consciences, they became FBI whistleblowers.

Suspicious of where their loyalties lay, Shield Group Security confiscated their credentials to enter the “Green Zone,” effectively imprisoning them in the company compound. Vance and Ertel alerted their U.S. government contacts of what had occurred and U.S. personnel rescued them. Or so they thought. Instead they were transferred to Iraq’s Camp Cropper and put into solitary confinement in freezing cold, bug-ridden cells smeared with excrement without being charged with a crime. Inside their cells, the lights were never turned off and heavy metal or country music was hellishly pumped in to deprive them of sleep. Ertel and Vance also allege they were physically abused and threatened.

Six weeks later in the case of Ertel and three months later in the case of Vance, they were released without explanation. They suffered all that, they say, because local U.S. officials wanted to figure out what information they had passed to the FBI stateside. But such cruel and unusual punishment could happen, their lawsuit alleges, only because Rumsfeld had created a brutal detention system that their attorney described as “the abyss.”

And to everyone’s surprise a two-justice majority agreed that the lawsuit had merit, allowing it to proceed. “United States law provides a civil damages remedy for aliens who are tortured by their own governments,” wrote Circuit Judge David Hamilton for the majority. “It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens.”

Finally, a Bush administration figure would have to explain to a court his responsibility in carrying out a worldwide torture regime instituted after 9/11. But as quickly as the scales of justice appeared to come eerily into balance, one scale crashed back down to earth, lifting Rumsfeld over Lady Justice’s head. Vacating its split decision in late October after government protest, the full Seventh Circuit now will rehear the entire case before deciding whether Rumsfeld will have to answer Ertel’s and Vance’s complaints against him and thus possibly be held financially accountable for the injuries the two men suffered.

Ertel’s and Vance’s suffering is only one of the latest and increasingly disturbing examples of what constitutional lawyer and Salon.com columnist Glenn Greenwald refers to as America’s two-tiered justice system in his new book, With Liberty and Justice for Some. It’s a system where the rich and powerful exist outside of the law and the poor and powerless get no relief. Indeed equality before the law, one of America’s most hallowed precepts, has deteriorated into a grim fairy tale, argues Greenwald, where political and business elites, often in collusion, get away with serious breaches of American and international law.

From torture to aggression in American foreign policy and warrantless wiretapping to systematic financial fraud domestically, a public-private partnership has formed to immunize American government and corporate elites while they profit from violating the law and American norms. Greenwald isn’t surprised by this situation, which is often marked by the revolving door between government and corporate America, remarking, “The U.S. government and industry interests essentially form one gigantic, amalgamated, inseparable entity — with a public division and a private one.”

Throughout the book, Greenwald oozes bipartisan contempt for the corruption whereby elite criminality has reduced the United States to banana-republic status. He is the perfect writer for the moment, when both left- and right-wingers, represented by Occupy Wall Street and the grassroots of the Tea Party, have each crafted narratives of disaffection and disillusionment with American imperial politics, corporatism, and the corruption both create. Greenwald ranks now as heir apparent to a very much diminished Noam Chomsky as the American Left’s most eloquent and indignant voice against privilege and illegitimate power in all its ideological guises.

The two-tiered legal system

Historically, Greenwald traces America’s two-tiered legal system to one crystallizing moment: Gerald Ford’s pardon of Richard Nixon for his role in the widespread law-breaking associated with the Watergate scandal. “Although there have been episodes of unpunished elite malfeasance throughout American history,” writes Greenwald, “the explicit, systematic embrace of the notion that such malfeasance should be shielded from legal consequences begins with the Watergate scandal — one of the clearest cases of widespread, deliberate criminality at the highest level of the government.”

What was once a shocking display of power over principle has become a given, according to Greenwald, who fires off example after example to destroy any counter-argument. One of the worst was the Iran-Contra scandal, where the Reagan administration traded weapons for hostages with Iran and used the money from the weapons sale to fund the Contras, a guerrilla group attempting to overthrow the Sandanista government in Nicaragua. Although administration officials were indicted for this “clear-cut crime,” Greenwald observes “not a single one of them would serve even a day in prison.” Fast-forward to recent history and you’ll find George W. Bush commuting the 30-month sentence of Dick Cheney’s chief of staff Lawrence “Scooter” Libby to zero for crimes associated with the outing of CIA Agent Valerie Plame.

Greenwald also deftly illuminates the double standards and injustices that warp the American justice system “into a devastating tool used to entrench privilege, entitlement, and unearned wealth.” Nothing exemplifies that better than the massive financial crisis in which Wall Street firms received $700 billion in taxpayer bailouts while America’s plebians got nothing in return but a wrecked economy marked by unprecedented foreclosure rates — a striking example of socializing risk and privatizing gains. “Even the massive recklessness and fraud that in 2008 spawned one of the worst financial crises in modern history has produced very little legal accountability — and almost no criminal liability — for the perpetrators so far, and is quite unlikely to do so in the future,” he writes. And when corporate lawbreaking can be directly tied to government pressure, as when the largest U.S. telecommunications companies cooperated with Bush administration figures to illegally spy on Americans, the solution is simple: Congress crafts and passes legislation that provides retroactive immunity for elite crimes rather than sending the executives and high-level officials to jail. “There is no more compelling example of the death of the rule of law in America than the bipartisan scheme to vest the nation’s largest telecoms with retroactive immunity, both criminal and civil, for the transgressions they committed on a grand scale,” Greenwald observes.

But when examining how financial elites should have been held accountable for their frauds and gross negligence, Greenwald finds a prescription in a curious place — Theodore Roosevelt. “When Roosevelt assumed the presidency, businesses were threatening to destroy the basic principle of equality under the law, just as they have done during the past decade-plus orgy of deregulation,” Greenwald writes. “Yet through sheer force of personality and resolute confidence in the justice of his convictions, Roosevelt persuaded the citizenry and his fellow elected officials to regulate and reduce the power of those who held the most influence.”

Such vaunted treatment of Theodore Rex is perplexing, considering the 26th president’s unabashed jingoism. Progressivism had many faces at the turn of the 20th century; Roosevelt’s was its most monstrous. It’s not a stretch to observe Greenwald would have loathed this war-loving, power-hungry apologist of torture. Indeed, even a cursory glance at either the work of Robert Higgs or Gabriel Kolko should have dissuaded him from crowning an aristocrat such as Teddy Roosevelt as the enemy of corporate power and privilege. That, and a bit of Founding Father hagiography in the introduction, are Greenwald’s main failings in an otherwise essential book for those interested in how elites crawl over the webs that ensnare average Americans.

Draconian law

But the most valuable portion of Greenwald’s book isn’t his examination of elite impunity; it’s how draconian the law has become for the poorest and least powerful Americans. “When ordinary Americans come in contact with the justice system, everything changes. The world we have been examining reverses,” Greenwald argues. “In the United States, the lack of accountability for elites goes hand-in-hand with a lack of mercy for everyone else.”

Greenwald marshals some horrifying statistics to back such a distressing claim. Today, the United States boasts the world’s largest prison population in both absolute and per-capita terms. Twenty-five percent of the world’s prisoners live in cages in the “freest country on earth,” a figure somewhere between 2.2 and 2.4 million people. The next-closest rival in terms of prisoner population is China, at 1.6 million people. China has a population of 1.3 billion people; the United States’s population is around 300 million.

Citing mandatory minimum sentencing and “three strikes and you’re out” laws, Greenwald observes, “Leniency and mercy, once the hallmarks of civilized rule, to say nothing of the great Western religions, have come to be scornfully equated with coddling, weakness, and liberalism.” Today, the book isn’t just thrown at small-time offenders; it’s used to crush them, like pests.

That, however, isn’t merely an indictment of America’s ruling elite, but of us all. “Many Americans acquiesce to the prison state because neither they nor their families nor their friends are at risk,” he writes. “That’s what allows the population to largely tolerate and even cheer for a system that imposes extreme punishments for the pettiest offenses.” We, by and large, have become petit Marquis de Sades, deriving great pleasure from punishing other, lesser Americans, most often of color, for punishment’s sake, particularly for victimless crimes such as drug use, gambling, and prostitution. One of Greenwald’s most egregious examples is the story of Jessica Hall. An unemployed, black, mother of three, Hall was sentenced to two years behind bars in Virginia for throwing a cup full of ice into a car that had just cut her off. “[She] had no prior criminal record,” notes Greenwald. “Nobody was injured in the incident.”

But if compassion and justice can’t inspire Americans to reform their legal system, self-interest should, because the excessive proliferation of laws means you’ve probably violated one not too long ago. The United States’s legal system has become a perverse lottery, where the lucky ones are those whose numbers aren’t called. Relying on the work of criminologists Katherine Beckett and Theodore Sasson, Greenwald notes that police arrested more than two million Americans for consensual or victimless crimes in 2000. For every five arrests made that year, fewer than one was for a serious crime such as murder, rape, assault, or larceny. “It should hardly be controversial,” argues Greenwald, “that a system of criminal law that theoretically renders a substantial portion — if not an outright majority — of the citizenry subject to long prison terms is both excessive and unjust.”

And yet the prison doors continue to close on petty crooks as the war criminals, the eavesdroppers, and the fraudsters breathe fresh air, free to continually create the fairy tales that justify their behavior as indispensable to America’s security and wealth. Ironically, just two months after the book’s publication, Barack Obama signed the National Defense Authorization Act (NDAA), a deliberately vague law that codifies the worst abuses of the war on terror and could allow the indefinite detention of American citizens. Whether you read Greenwald’s incisive and meticulous work online or in print, he demonstrates that 11 years of Bush and Obama have made hyperbole nearly impossible to achieve when criticizing the American justice system and those who preside over it and outside of it.

This article originally appeared in the June 2012 edition of Future of Freedom. Subscribe to the print or email version of Freedom Daily.

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    Matthew Harwood is a writer in Alexandria, Va. He holds an M. Litt. in International Security Studies from the University of St. Andrews. His work has appeared at The American Conservative, The Guardian, Reason, Salon, TomDispatch, The Washington Monthly, among others.