With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful Kindle Edition

I am a long time reader of Glenn's at his blog on salon.com. He's written a book that basically tracks his last few years of blogging, but in a longer format. Starting with Ford's pardon of Nixon, Glenn documents the various ways that political and financial elites have developed a two-tiered justice system with the elites generally immune to the laws and the rest of us harshly punished for even the most minor crime.

The best section, for me at least, was the final chapter on the second and third tiers of the justice system. America's prison state is appalling, and most of this section's material was brand new to me.

If I had one criticism it would be that if you've followed his blog as closely as I have, almost none of this--the last chapter partially excepted--is going to be new to you. But Glenn has published many thousands of words over the past three or four years, if you haven't read them all you'll find Glenn's aggressive style refreshing. He pulls no punches, names names, and doesn't necessarily play nice with the Beltway establishment. But that's what makes his voice so unique and needed--even if you disagree, you won't say that Glenn is pandering to anyone.

Glenn Greenwald's With Liberty and Justice for Some is an extremely important book. I don't exaggerate when I say it's a book everyone in the United States should read, something I don't normally say about even my favorite books.

Greenwald makes the case in the United States today, rule of law is disappearing. Instead, we have what he calls "The Principle of Elite Immunity,"-the idea that political and business elites are never to be punished for their crimes, except perhaps if their crimes harm other elites. Greenwald blames the current mindset on Ford for pardoning Nixon and justifying the pardon on the grounds that prosecuting Nixon would be too divisive.

Now, personally, I don't think the pardon of Nixon would have been such a bad thing if it had been a one-time thing and the country had gotten back on course afterwards. However, Greenwald convincingly argues that the Nixon pardon was the beginning of a pattern of bad excuses for forgiving any and all high-level wrong doing in this country. Thus, we get pardons for Iran-Contra criminals, Bill Clinton suppressing inquiry into Regan and Bush's illegally providing of weapons to Iraq in spite of having promised investigations, and Obama's failure to prosecute the crimes of the Bush administration.

It's important to stress that the excuses really are ridiculous-read the book for the full recitation, but here's one especially bad example, both in terms of the flimsiness of the rationale and the fact that it was given by a member of our government's alleged watchdog, the media. When Bush pardoned Defense Secretary Caspar Weinberger for multiple felony counts of perjury and obstruction of justice in connection with Iran-Contra, Richard Cohen, on the grounds that Cohen had run into Weinberger quite a few times at Safeway, and he seemed like an OK guy to Cohen.

One of the strongest sections of the book is the coverage of the NSA wiretapping scandal and the decision to grant telecoms immunity for breaking the law on behalf of the Bush administration. Previously, I had known about the scandal, but had simply filed it away in my brain as one of the lesser crimes of the Bush administration. However, Greenwald explains how by granting the telecoms retroactive immunity for breaking the law, Democrats (and Congress was controlled by Democrats at the time) passed on a rare opportunity to get an actual investigation into Bush's crimes.

Several other things stick out about the telecom immunity story. First, Congress' actions can't be defended on the grounds that the telecoms thought what they were doing was legal, because under the original law that was a valid defense. Second, the telecom immunity bill was written with heavy influence from corporate lobbyists, a troubling example of how, in Greenwald's words, "major corporations literally write our nation's laws." Third, as a senator Obama went back on an initial promise to help block telecom immunity. Had I known that fact when Obama was elected, his other lapses in office would have surprised me less.

By comparison, the discussion of lawbreaking in relation to the 2008 financial crisis was a bit weak. It includes quotes from a number of authorities, including Alan Greenspan saying that much of what happened was "just plain fraud," and cites one case where a former CEO was found to have committed fraud but was allowed to settle his case with a fine of $67, a fraction of the half-billion dollars he made while the fraud was going on. However, unlike most parts of the book, the laws that were supposedly broken are never explained clearly.

In fairness to Greenwald, part of his point is that the financial crisis was never thoroughly investigated, making it hard to know what crimes were or were not committed. Still, given all the anger at Wall Street right now, the book could have benefited a lot from more clarity on that point. Also, Greenwald's focus on lawbreaking means that his mention of how lobbyists managed to get important regulations repealed doesn't have a clear place in his narrative, and I wonder if that wasn't the bigger problem (though it would still be a sign of how corrupt our government is).

Anyway, With Liberty and Justice for Some is an excellent book in spite of this complaint, and telecom immunity and the financial crisis are only two examples of the problems Greenwald covers. So go buy the book, even if you think you know all about these problems. Looking at any one incident in isolation, it's tempting to say, "Okay, that was bad, but I'm sure it won't happen again." Greenwald, however, makes clear that we suffer from a recurring pattern of elites committing serious crimes and getting de facto immunity for doing so, a pattern that will likely continue until we do something to stop it.

When I say fantastic, I mean of or relating to fantasy. And that fantasy is the idea that the "law" or the "state" ever equally represented people, that it was ever not a tool ultimately under the control of the economically powerful, that it ever functioned to provide liberty and justice for ALL.

As he does on his blog, Glenn fills his book with example after example of the legal double standards in the United States. It is in pointing out these double standards that he's at his most impassioned and readable. But just as his strengths carry over from his blog to the book, so do his weaknesses. The biggest one is that Glenn never really gets beyond the listing of grievances to offer a compelling explanation of why injustice has grown in recent decades (although, to Glenn's credit, he notes it has coincided with a massively growing economic gap). In other words, Glenn describes well, but explains poorly.

His attempt to provide an over arching framework is to cite the pardon of Nixon as a watershed moment, as if the pardon was a consciousness raising moment for political elites who were then emboldened to break the law with impunity. The problem with this historical narrative isn't that Nixon's pardon wasn't exceptional. It was indeed exceptional, but for a completely different reason. It symbolized a brief moment in U.S. history where grassroots pressure resulted in the exposure of crimes at the highest level of government. It was the exposure of the crimes, crimes which LBJ, JFK, and so many other previous presidents (of both parties) engaged in, that was remarkable. Not the fact that political leaders were getting away with the crimes, not the fact that political leaders began to expect to get away with their misdeeds.

Glenn fails to offer any decent explanatory foundation for the problem he identifies because he doesn't grasp enough of the history of power and how it has operated in the United States. An unfortunate consequence of this is the implication that we need to get back to some kind of legal garden of eden that Glenn seems to think we have fallen away from after Gerald Ford bit the forbidden fruit. It appears Greenwald hasn't read Howard Zinn, or has any familiarity with the fact that the powerful have always believed that their political and legal domination are the equivalent of justice for all, even when that "justice" has excluded women, Native Americans, African Americans, etc. Today is no different. There is injustice and inequality that benefit the people who think society and its application of laws are just and equal. The only notable change has been in how the elites reconcile their domination with the myth of equality.

The problem with Glenn's failure to construct an adequate explanatory frame is that it leaves him confused about where to go politically. Because Glenn keeps looking back to a paradisical time when capitalism supposedly rewarded the hard-working and punished the slothful, because he mistakes a presidential pardon with the underlying roots of inequality and injustice, he is left in a situation where he senses that roots of injustice run deep but where he is still implicitly wedded to the notion of "reclaiming" the democratic party. As if the party was ever not dominated by the powerful, who have only occasionally had to make concessions in periods of intense popular upheaval.

After hundreds of pages, the reader is left convinced that the law is indeed largely formulated by and at the behest of the powerful. But this observation is hardly new. Crack open any text by Marx or Bakunin, and you'll get a much more compelling expose, one that links up with an explanatory map capable of guiding activists who want to change the world for the better.