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Book reviews

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

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Glenn Greenwald (2011) With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful. New York, NY: Metropolitan Books, Henry Holt and Company, 304 pp. (h/b).

The U.S. is in the midst of one of the most significant crime waves in history, one in which serious and repeat offenders run afoul of the law with little fear of being caught or punished. While police have failed to investigate these crimes, politicians, particularly those with an affinity for law-and-order policies, have turned a blind eye, preferring to enact laws that prevent offenders from being held to account. What is more, the majority of American citizens appear unconcerned about the situation, mostly unaware of their own victimization. All of this begs the question: has the U.S. become a “lawless” society?

This latest book by U.S. political commentator and former federal litigator, Glenn Greenwald, provides much needed insight into America’s crime problem. However, this is not a book about street thugs, gun crimes, violent dogs or the use of CCTV in the ‘war’ on crime – issues that dominate media headlines, political agendas and criminological research – but about the culture of immunity enjoyed by America’s political and economic elite.

Motivated by an endless list of crimes committed by those in positions of power that have gone unpunished – the George W. Bush administration’s post 9/11 illegal eavesdropping of U. S. citizens and torturing of terror suspects and the massive corporate frauds associated with the 2008 financial crisis are featured in the book – Greenwald explores how the wealthy and powerful frequently excuse themselves from legal accountability, thumbing their noses at the rule of law while brimming with confidence that their crimes will go unpunished.

Greenwald argues that, despite the fact that the rule of law and equality before the law constitute the foundations of the U.S. legal system, it is “reserved for ordinary Americans” who are routinely punished for the “pettiest of offence,” not for the country’s elite (2011: 2). While Greenwald recognizes that the rule of law has always been more an aspiration than reality, he laments its virtual abandonment when it comes to crimes of the powerful; a troubling trend that erodes any semblance of good governance.

For Greenwald, the ascendancy of elite immunity has its roots in the blatant self-protection of powerful political actors from criminal responsibility. In chapter 1, Greenwald suggests that, over the past several decades, the political elite have successfully cemented the idea that they are too important to be subject to the same type of justice as everyone else. Beginning with President Ford’s 1974 pardon of President Nixon for his role in the Watergate scandal – a decision Ford deemed necessary to avoid dragging such an ‘esteemed’ individual through the criminal justice mud and causing unnecessary political acrimony – the author notes a gradual and steady increase in elite immunity.

Since Nixon’s pardon, Greenwald argues, politicians have used the same clichés time and time again to excuse themselves and their political friends from legal scrutiny (2011: 22). Whether it was the Reagan administration’s illegal actions during the Iran-Contra scandal, the Bush administration’s illegal wiretapping and torture programs, or the refusal of both Democrat and Republican presidents to investigate the crimes of previous administrations, it has become increasingly acceptable for politicians to “openly advocate for elite immunity” (2011: 16). According to Greenwald, this trend has produced a culture of “elite lawlessness,” and anyone who claims that politicians should be held to account for their illegal acts is quickly dismissed as “unpatriotic” or, even worse (gasp!), a left-wing radical.

In chapter 2, Greenwald outlines how powerful political actors have extended elite immunity to their wealthy private sector friends. This chapter echoes the corporate crime scholarship that documents the ways in which the close relationships between the political and corporate worlds have shielded many captains of industry from legal responsibility for their wrongful acts (see Glasbeek 2002). Although insider status has never assured immunity for those in the corporate world – the state is relatively autonomous – there’s no denying that membership in the political and economic elite has its privileges. For Greenwald, this privilege has become an unassailable right for those with deep pockets to contribute to election campaigns and lobby for laws that protect the interests of business.

As an example of this elite immunity, the author outlines the government’s response to the public revelation that some of the country’s largest telecommunications companies had willingly helped the Bush administration carry out its illegal eavesdropping program. Despite federal legislation prohibiting warrantless eavesdropping (the Foreign Intelligence Surveillance Act makes each offence punishable by a maximum of 5 years and prison and a $10,000 fine), and regardless that there is no legal defence of ‘the president made me do it’, almost without exception U.S. telecommunications companies supplied the government with access to their “customers’ communications” without a proper warrant (2011: 58). And when U.S. courts ruled in favour of customers who sued these companies for facilitating the illegal spying, the telecommunications industry spent millions of dollars lobbying Congress to reform the law to shield them retroactively from liability, literally buying their immunity (2011: 62-63).

As Greenwald argues (2011: 72), in granting immunity to the telecommunications industry, therein making a “mockery of the rule of law”, politicians not only protected their powerful friends but also prevented any undue scrutiny by the courts into the Bush administration’s role in the illegal eavesdropping.

Chapter 3 examines the most recent example of elite immunity: the “2008 financial crisis and 2010 mortgage fraud scandal” (2011: 104). As Greenwald notes, those responsible for these massive corporate frauds – he refers to the financial industry as a glorified Ponzi scheme and decries the Obama administration’s failure to protect Americans from illegal home foreclosures – have avoided legal accountability, despite causing the greatest economic downturn since the Great Depression. While millions of Americans have suffered, and continue to suffer, dire economic consequences as a result of the crisis, the government’s most significant reaction has been to write a $700 billion bailout cheque to the financial industry to rescue them from their crimes. No strings attached, no criminal prosecutions to worry about, just the generous contributions of American taxpayers and the government’s best wishes in returning to profitability.

According to Greenwald, elite immunity in the financial crisis was aided by the fact that Washington was (and is) “so dominated by financial elites,” rendering it unfathomable that any corporate executive would be held to account. In fact, the author argues, the financial industry’s infiltration of the state has become so extensive that “the U.S. government and industry interests essentially form one gigantic, amalgamated, inseparable entity.” And while elite lawlessness has not always existed in Washington – for example, at the turn of the last century President Roosevelt cautioned against corporate greed and argued that the nation’s elite were not above the law (2011: 149-50) – today’s financial elite routinely break the law with the knowledge that their friends in government will help to shield them from legal accountability.

In chapter 4, Greenwald explores the reproduction of elite immunity by different presidents, with each president granting immunity to the previous administration for the crimes that they committed. The story begins with president Obama’s failed election promise to investigate the crimes of the Bush administration. Not to worry that Bush illegally spied on his own citizens or that UN conventions clearly define torture as illegal, Obama reasoned that it was time to move on, to accept that the administration faced tough decisions and should therefore not be held to account. Of particular concern for Greenwald are the Obama administration’s efforts to block any investigation of these crimes by the U.S. Department of Justice (which is supposed to be free from political interference) and foreign governments. For instance, Greenwald documents the US government’s threat to withhold all future security intelligence from the UK government if they followed a British High Court ruling to release information to the courts regarding Binyam Mohamed, a British resident who was held without charge and tortured at Guantanamo Bay.

Making matters worse, according to Greenwald, blatant examples of elite immunity are ignored by most media commentators – those responsible for holding politicians accountable for their decisions. While media pundits present themselves as the voice of the people, the author argues that they have simply agreed with the political elite, thereby helping to downplay the rule of law and ignore the opportunity to deter future crimes by investigating and punishing elite criminals.  

Chapter 5 exposes the two-tiered nature of the U.S. justice system, juxtaposing the endless list of legal privileges extended to the wealthy and powerful with the ruthless and punitive brand of justice inflicted upon America’s most vulnerable individuals. As Greenwald notes, over the past thirty years politicians at both ends of the political spectrum have adopted law-and-order stances to street crimes and drug offences and, as a result, have imprisoned staggering numbers of American citizens, particularly black and Hispanic men. Suspected terrorists and whistleblowers who attempt to expose crimes of the powerful (e.g., WikiLeaks) are the latest targets of this punitive gaze, according to Greenwald. Moreover, now that prisons have become a private, profit-making industry, corporations have used their “insider” status to ensure a steady flow of “criminals” and, thus, profitability.

Greenwald is highly critical of the inequalities of the U.S. justice system – buttressing Jeffrey Reiman’s (2003) argument, first made more than thirty years ago, that the rich get richer while the poor get prison – particularly in that this situation has become the accepted status quo in American society.

Greenwald concludes that the rule of law no longer applies (even theoretically) to every American equally. In particular, instead of keeping the powerful “in check”, the law is being used “to sustain and perpetuate their power” (2011: 268). For Greenwald the increasing wealth and power in American society has created a cycle of abuse in which the politically and economically powerful continually degrade the law, claiming that it does not apply to them, while at the same time using the law to (re-)secure their privileged status. As he argues, “the greater the disparities in wealth and power become, the more unequal the law becomes – and the more unequal law is, the more opportunities it creates for the wealthy and powerful to reinforce their advantages” (2011: 269).

At the same time, however, Greenwald does see this power as absolute – an issue he could have given more attention to – arguing that, “at some point social unrest is inevitable when a population is forced to suffer mass joblessness and depravations of every kind while it sees a tiny sliver of elites enjoying gilded prosperity.” Greenwald believes that there’s no way for the elite to keep “eviscerating the rule of law” and creating so much inequality without the American public eventually taking notice and demanding change.

There is much to admire in Greenwald’s well-written and timely exposé of elite immunity. First, unlike most criminologists and sociology of law and deviance scholars, he questions the immunity enjoyed by politicians and corporate executives who break the law, refusing to take for granted “official” definitions of crime that fixate on the actions of some of the most marginalized individuals in society.

A second and related contribution is Greenwald’s critical examination of the state in reinforcing and reproducing elite immunity. As Steve Tombs (2012) argues, states and corporations are involved in “(increasingly) symbiotic relationships”, making it more and more difficult for states to discipline powerful corporate actors. Finally, unlike most crime and deviance scholars who ignore issues of class in favour of analysing power primarily (if not solely) in pluralistic terms – a decentred form of power that is beyond the state (Coleman et. al 2009) – Greenwald describes elite immunity as a forms of “class-based self-interest”. It is hard to imagine a clearer example of class interests in action, with the rich and powerful blatantly and unapologetically using the law to protect their well-being while holding the rest of the country to a completely different, and much more punitive, standard of justice.

As good of a job as Greenwald does in revealing the nature and extent of elite immunity, readers searching for a critical analysis of state-corporate crime will be left wanting. For instance, Greenwald does not address the argument that the modern corporation is legally constructed as “site of irresponsibility” (Glasbeek 2002: 142), where operating within the confines of the law can and does take a back seat to the pursuit of profits. Moreover, the author fails to consider from his many examples of crimes by the political and economic elite whether there is something fundamentally rotten with the capitalist system, not just whether the political and economic elite should be held to account for their crimes.

Although Greenwald does acknowledge, for example, that some of the underlying causes of the financial crisis remain intact – unreal executive compensation, financial institutions that are “too big to fail” and inadequate regulations (2011: 134-5) – he stops short of questioning whether it is time to contemplate a less harmful, more democratic way to organize the economy (Wolff 2012). These limitations aside, Greenwald’s book is must read for those interested in understanding how the political and economic elite manage to avoid legal responsibility for the serious crimes that they commit.  

References

Coleman, R., J. Sim, S. Tombs and D. Whyte (eds.) (2009) State, Power Crime. London, UK: Sage Publications, pp. 278.

Glasbeek, H. (2002) Wealth by Stealth: Corporate Crime, Corporate Law, and the Perversion of Democracy. Toronto: Between the Lines, pp. 384.

Reiman, J. (2003) The Rich Get Richer and the Poor Get Prison: Ideology, Class and Criminal Justice, 7th Edition. London, UK: Pearson Publishing.

Tombs, S. (2012) “State-Corporate Symbiosis in the Production of Crime and Harm”, State Crime, 1(2), October, (in press).

Wolff, R. (2012) Occupy the Economy: Challenging Capitalism. San Francisco, CA: City Lights Publishers.

Steven BittleAssistant Professor, Department of Criminology, University of Ottawa.

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