Glenn Greenwald: Two-Tier Application of Justice Undermines Legitimacy of American Political System (video)

Greenwald’s thesis: Rule-of-law in America has been radically degraded in a way that was not previously true. This seriously harms the American political system.

Definition of “Rule of Law”: “Rule of Law” means, by consensus, that members of society are all bound on equal terms by a common set of rules. It is also known as equality before the law.

The history of Rule of Law in America: The founders anticipated that there would be all sorts of inequality, but believed that equality before the law would be necessary for legitimacy. In reality the founders breached those principles in many ways, but they consistently maintained it as a principle. America continuously enshrined equality under the law and affirmed it over the following two centuries. In doing so, it became an ideal; it became aspirational. There is a real value in affirming principles even if they are not perfectly applied; those aspirational principles become guides to what progress means and how it is achieved.

Rule of Law in the 20^th Century: The Nuremberg Trials were a high point in America-led pursuit of rule-of-law. American Chief Prosecutor Justice Robert Jackson’s opening statement and closing statement were to be the expression of modern justice. The UK wanted to immediately kill the captured Nazis. But the US insisted on due process.

In the 80’s and 90’s, western institutions like the IMF and World Bank began demanding that countries that were to receive lending comport with the rule of law. They were required to do so, because without rule of law, elites are able to use their superior financial power to co-opt political institutions.

What has changed: What is radically different today is that we no longer even affirm rule-of-law as a principle. In leading opinion-making elite circles, we find express repudiation of that principle.

The abandonment of the rule of law: The downward spiral began with Ford’s pardon of Nixon, continued through the shielding of Iran-Contra criminals, and is now culminating with the Obama administration’s decision to shield all Bush crimes of torture and illegal warrantless eavesdropping, obstruction of justice, the aggressive attack on Iraq, and now the Administration’s decision not to prosecute Wall Street criminals for precipitating a crisis based on systemic financial fraud. The template now is to exempt the most powerful from consequences of their criminal acts. This is radically different from what we previously experienced.

Arguments against adherence to rule of law: In all of the recent cases described above, aggressive and explicit arguments are made that the most powerful political and financial elites in our society are not, and should not, be subject to the rule-of-law because it is too disruptive and too divisive. They argue that it is in our common good – not the good of the elites who are being protected – to exempt the elites from the consequences of their criminal acts.

Elite criminals are not pursued; for everyone else there is a harsh and merciless punishment: Over the past four decades we have, in the name of law and order and being tough-on-crime, built the world’s largest and most sprawling prison state and one of its harshest and most merciless systems of punishment for ordinary Americans. The elite class has vested immunity in themselves while everyone else is subject to merciless punishment.

Richard Nixon personifies the two-tier justice system: Richard Nixon made his political career by becoming the law and order candidate. He built his political career based on a harsh law and order mentality, but when he was caught committing crimes, he was completely shielded from its consequences. That is the personification of this two-tier justice system.

The War on Terror brings an entirely new dimension to a compromised justice system: The War on Terror has brought us new tiers of justice where people accused of terrorism – just accused – can have every right deprived from them – including the right to life – without any legal rights or due process. It is a new class in which there is not even a pretense of due process; it is a persona non grata class, a sub-person class, where the government can do anything without any legal constraints at all. 

A compromised legal system leads to loss of faith in political institutions and in our political system: It is this contrast between the shielding and immunity that the elite class has vested in themselves, versus the extraordinarily unprecedented harsh and merciless punishment system imposed on everyone else, that is the real menace to the rule of law. A legal system that unapologetically exempts elite criminals while wielding merciless punishment on everyone else is the most responsible factor resulting in the loss of faith in our political system and political institutions. There is a widespread and accurate belief that political institutions have lost all remnants of legitimacy and can no longer be used to effectuate change. This is one of the most menacing problems facing America, and one of the most consequential.