Book Review: With Liberty and Justice for Some by Glenn Greenwald

This is an infuriating book. There were many times during last weekend when I was reading it that I wanted to hurl it against the wall though I am not by nature prone to such dramatic displays of emotion.

The reason is not the usual one, which is that one hates the book. It is because the story that Greenwald tells, in his typically direct and lawyerly style, about how the US has steadily deteriorated to become a nation to which the labels ‘oligarchy’, ‘plutocracy’, and ‘banana republic’ have become so apropos, was so infuriating. I am old enough and follow politics closely enough that almost all of the individual cases that Greenwald talks about are familiar to me, at least in general terms. But to see it all carefully laid out end to end, to see the steady and deliberate and knowing erosion of the rule of law, to see the corruption and hypocrisy that is at the core of the government-business-media oligarchy that runs the US, to see the cheerleading for this process by the establishment media all the while relentlessly preening themselves on being watchdogs, is to realize how terrible is the current state of affairs.

The subtitle of the book How the Law is Used to Destroy Equality and Protect the Powerful pretty much says it all. He points out that equality before the law is one of the bedrock principles upon which the US was built, and indeed is seen as the basis for any just society, but that ideal has been dramatically undermined in the last four decades. This does not mean that there is, or has ever been, perfect equality in the past. As he writes:

Wealth and power have always conferred substantial advantages, and it is thus unsurprising that throughout history the rich and well-connected have enjoyed superior treatment under the law. In the past, those advantages were broadly seen as failures of justice and ruefully acknowledged as shortcomings of the legal system. Today, however, in a radical and momentous shift, the American political class and its media increasingly repudiate the principle that the law must be equally applied to all. To hear our politicians and our press tell it, the conclusion is inescapable: we’re far better off when political and financial elites-and they alone-are shielded from criminal accountability.

It has become a virtual consensus among the elites that their members are so indispensable to the running of American society that vesting them with immunity from prosecution-even for the most egregious crimes-is not only in their interest but in our interest, too. Prosecutions, courtrooms, and prisons, it’s hinted-and sometimes even explicitly stated-are for the rabble, like the street-side drug peddlers we occasionally glimpse from our car windows, not for the political and financial leaders who manage our nation and fuel our prosperity. (p. 15)

He starts his story with the pardoning of Richard Nixon in 1974, where the novel idea was put forward that ‘for the good of the country’ the president should not be subjected to prosecution for his crimes and that ‘he had suffered enough’ merely because he had to resign and had his reputation damaged. At that time, some of Nixon’s close aides were prosecuted and in fact served jail time. But the circle of immunity was expanded during the Iran-Contra scandal of the Reagan administration when even other officials who committed crimes were pardoned. The pattern of each president not prosecuting the crimes of its predecessor has accelerated right through to Obama and for good reason: that tacit expectation of immunity from their successor gives each president license to break the law as and when they see fit.

The next major erosion of the rule of law occurred in the past decade with the expansion of immunity to the private sector, by the granting of retroactive immunity from prosecution to the giant telecommunications companies for their collusion with the government in the illegal wiretapping of Americans. We recently saw elite immunity under the Obama administration on full display as his administration has engaged in a systematic avoidance of prosecutions in the case of the financial crisis of 2008 and the foreclosure frauds of 2010 (still continuing) where, as Jeff Connaughton describes, not a single senior executive has gone to jail or even been criminally indicted, the only punishments consisting of the occasional levying of fines to companies (without even requiring an admission of wrongdoing) that are trivial to these giant institutions and can simply be written off as the cost of doing business.

Greenwald says that the US has become the very sort of nation that its founders thought that they had escaped.

To be sure, this dynamic has prevailed in imperial capitals for centuries. And it is what explains much of official Washington. The crux of political power (the White House) is the royal court, the most powerful leader (the American president) is the monarch, and his highest and most trusted aides are the gatekeepers. Those who are graced with admission and access to the royal court-including “journalists”-are grateful to those who grant them that privilege. They are equally grateful to the political culture on which their special status, privileges, and wealth depend. Naturally, the journalists’ impulse is to protect those who bestowed such favors on them and to promote the culture that sustains them, even as they sentimentally invoke their supposed role as watchdogs over the powerful-a role that they long ago ceased to perform. (p. 47)

Greenwald says that the revolving door between the government and elite sectors of the private economy ensures that there is continuity in the corruption.

It’s vital to understand how this process truly works. People like [Director of National Intelligence] Mike McConnell don’t really move from public office to the private sector and back again; that implies more separation than actually exists. Rather, the U.S. government and industry interests essentially form one gigantic, amalgamated, inseparable entity-with a public division and a private one. When someone like McConnell goes from a top private sector position to a top government post in the same field, it’s more like an intracorporate reassignment than it is like changing employers. When McConnell serves as DNI he’s simply in one division of this entity, and when he’s at Booz Allen he is in another. It’s precisely the same way that Goldman Sachs officials endlessly move in and out of the Treasury Department and other government positions with financial authority, or the way that health care and oil executives move in and out of government agencies charged with regulating those fields. (p. 75)

Just think about how this cycle works. People like Rubin, Summers, Patterson, and Gensler shuffle back and forth between the public and private sectors, taking turns as needed with their GOP counterparts. When in government, they ensure that laws and regulations are written to redound directly to the benefit of a handful of Wall Street firms, abolishing most regulatory safeguards that keep those behemoths in check. When the electoral tide turns against them, they return to those very firms and collect millions of dollars, profits made possible by the laws and regulations they implemented (or failed to implement) when they were in charge. Then, when their party returns to power, back they go into government, where they use their influence to ensure that the cycle keeps going. (p. 117-118)

The only people who are punished with jail are those who are stupid enough to swindle those of their same class or are more powerful than them (Rod Blagojevich, Bernie Madoff) or those celebrities who can be made an example of (Martha Stewart). It will be interesting to see what happens to Jon Corzine who has an impeccable elite pedigree (former Democratic US Senator and governor of New Jersey and, most importantly, former head of Goldman Sachs, the firm that pretty much controls US financial policy) for his role in the MF Global debacle. Will we be told that he has ‘suffered enough’ and should be free of prosecution or will he be made into a sacrificial lamb, in order to patch up the crumbling facade that no one is above the law?

We have now reached the stage where a small but powerful elite class now feels immune from prosecution for crimes, while at the same time the screws are being increasingly tightened on everyone else with more and more punitive laws stringently applied to those who are not of the elite. It is no accident that increased elite immunity from crimes has run parallel to the rapid growth of incarceration of the powerless. The rest of us are increasingly enmeshed in so many laws that we are all likely felons whether we knowingly commit crimes or not, and thus in danger of a vindictive prosecution if we should step out of line. Prosecuting and jailing the people who merely protest or commit low-level crimes has been a boon for the private prison industry, which has been booming in these hard times.

As Kozinski and Tseytlin note, anyone who has ever misfiled their taxes (even inadvertently), or consumed any illegal drugs (including marijuana), or bet on a sporting event with a bookie, or lied to a government bureaucrat, or even just performed their job poorly (if it’s an occupation regulated by the federal government) has committed a federal offense for which they could be sent to prison-and for which many of their fellow citizens are now actually imprisoned. Similarly, the criminologists Beckett and Sasson report that “in 2000, police arrested more than 2 million individuals for such ‘consensual’ or ‘victimless’ crimes as curfew violations, prostitution, gambling, drug possession, vagrancy, and public drunkenness. Fewer than one in five of all arrests in that year involved people accused of the more serious ‘index’ crimes” such as assault, larceny, rape, or homicide. It should hardly be controversial 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. (p. 234-235)

Observe how zealously the government aids the music and film industry in the prosecution of ‘internet piracy’. Note how the loaded word ‘piracy’ is freely used when dealing with the kinds of people who do this kind of thing on a retail basis while much more benign terms are used to describe the wholesale criminal actions of the elite.

Where, in all this, are our erstwhile watchdogs of democracy, the media? They have long been coopted and are now the running dogs of the oligarchy, faithfully serving their interests in return for the scraps that fall their way. Their role is to provide distraction and entertainment, not news.

In this world, it is perfectly fine to say that a president is inept or even somewhat corrupt. A titillating, tawdry sex scandal, such as the Bill Clinton brouhaha, can be fun, even desirable as a way of keeping entertainment levels high. Such revelations are all just part of the political cycle. But to acknowledge that our highest political officials are felons (which is what people are, by definition, who break our laws) or war criminals (which is what people are, by definition, who violate the laws of war) is to threaten the system of power, and that is unthinkable. Above all else, media figures are desperate to maintain the current power structure, as it is their role within it that provides them with prominence, wealth, and self-esteem. Their prime mandate then becomes protecting and defending Washington, which means attacking anyone who would dare suggest that the government has been criminal at its core.

The members of the political and media establishment do not join forces against the investigations and prosecutions because they believe that nothing bad was done. On the contrary, they resist accountability precisely because they know there was serious wrongdoing-and they know they bear part of the culpability for it. (p. 220-221)

Greenwald shows how people like Joe Klein of Time and Richard Cohen and David Broder of The Washington Post all excuse high-level criminality and vociferously denounce any efforts to apply the law to their friends in high places while simultaneously righteously demanding that justice be strictly applied to ordinary people for petty crimes. And these people are ‘liberal’ journalists, supposedly on the side of the downtrodden. Greenwald (correctly, in my opinion) focuses on the collusion of Democrats in this corruption, thus disabusing us of the notion that it is only the Republicans and conservatives who are the servants of the oligarchy. It is only when people realize that the rot is deep and bipartisan, that the labels that politicians and business leaders and mainstream media pin on each other are meaningless, that we can expect to see real pressure for reform.

How is it that people allow such things to happen? The pattern is always the same:

Indeed, those who abuse state power virtually always follow the same playbook. By initially targeting new abuses at groups that are sufficiently demonized, they guarantee that few will object. But abuses of power rarely, if ever, remain confined to these demonized groups. Rather, degraded principles of justice, once embraced in limited circumstances, in time inevitably come to be applied more broadly. (p. 267)

This kind of oligarchic takeover of a country inevitably leads to greater and greater inequality and injustice and at some point even a passive population like that in the US will be stirred to anger and revolt. A hard reckoning awaits us.

My one quibble with the book is that Greenwald does not provide sources and citations for his information, which is surprising since his blog posts conscientiously link to source material. Providing such citations is a tedious chore for an author but valuable to the reader and if the book goes through another edition I hope he adds them.

This is a book that will make you angry and should make you angry. But it is also a book that must be read widely for the valuable information it provides. I urge you to buy it and read it and encourage others to do so.

Baby Jesus gets company

For fifty years, Loudon County courthouse in Leesburg, VA had just a crèche and a Christmas tree on the grounds.

[I]n 2009, a courthouse-grounds committee, concerned about a growing number of requests to use the public space, decided that Loudoun should ban all unattended displays on the property.

Public outcry was fierce and emotional. Residents poured into the county boardroom wearing Santa hats and religious pins, pleading with county leaders to respect their freedoms of speech and religion. The board ultimately decided to allow up to 10 holiday displays on a first-come, first-served basis. Applicants got in line.

You can imagine what happened. Similar to what happened in Santa Monica when public spaces were allotted by lottery, many people got into the spirit of the season.

Then came the atheists. And the Jedis. And the Church of the Flying Spaghetti Monster — each with its own decorations. A skeleton Santa Claus was mounted on a cross, intended by its creator to portray society’s obsession with consumerism. Nearby, a pine tree stood adorned with atheist testimonials.

Flying Spaghetti Monster devotees are scheduled to put up their contribution this weekend. It’s a banner portraying a Nativity-style scene, but Jesus is nowhere to be found. Instead, the Virgin Mary cradles a stalk-eyed noodle-and-meatball creature, its manger surrounded by an army of pirates, a solemn gnome and barnyard animals. The message proclaims: “Touched by an Angelhair.”

Will Christians fight back next year to regain exclusive rights to put up displays on public property? Stay tuned.

Israel, US, and WikiLeaks

Bradley Manning, alleged Wikileaks leaker, is finally getting his day in court, even if it is just a military court that does not allow for the full exercise of rights that civilian courts have.

One overlooked aspect of the WikiLeaks releases is what it says about US subservience to Israel’s interests. For example, recall the failure of the talks last year between Israel and the Palestinian leadership. M. J. Rosenberg describes how the US government, both the White House and the Congress, is controlled by the Israel lobby led by AIPAC, and says that “here is only one reason that Israeli-Palestinian negotiations collapsed. It is the power of the “pro-Israel lobby” (led by AIPAC) which prevents the United States from saying publicly what it says privately: that resolution of a conflict which is so damaging to US interests is consistently being blocked by the intransigence of the Netanyahu government and its determination to maintain the occupation.”

Israel has shown that it can extort what it wants from the US. Last year, the US requested that there be a moratorium on settlement building in the occupied territories. Israel refused, even rejecting the US offer of a bribe of three billion dollars in return for which Israel would simply have a moratorium on settlement for just 90 days. And despite being publicly humiliated time and again, the US government continues to be servile to Israel.

Apart from being one of the major enablers for these Israeli policies and lavishing the country with huge amounts of aid that enable Israelis to have a high standard of living, the US also provides it with diplomatic cover in the international arena. The US even vetoes UN resolutions on the settlements even when the resolutions are exactly in line with publicly stated US policy. WikiLeaks revealed that the US had secret deal with Israel to expand settlements even as they publicly decry it.

Is there any more glaring indication of the fecklessness of US political leaders and their subservience to Israel? But one notable feature is how few of the leaked WikiLeaks cables deal with Israel. Israel Shamir suggests that this is part of the western government-media subservience to the Israel lobby, which we also saw demonstrated with how they downplayed reports that the US, French, and German leaders view the Israeli prime minister as an incorrigible liar.

The Guardian and the New York Times, Le Monde and Spiegel are quite unable to publish a story unacceptable to Israel. They may pen a moderately embarrassing piece of fluff, or a slightly critical technical analysis in order to convince discerning readers of their objectivity. They may even let an opponent air his or her views every once in a blue moon. But they could never publish a story really damaging to Israel. This is true for all mainstream media.

Furthermore, no American ambassador would ever send a cable really unacceptable to Israel – unless he intended to retire the next month. Yet even supposing this kamikaze ambassador would send the cable, the newspapers would overlook it.

Even with thousands of secret cables about Israel in their hands, the mainstream media delays and prevaricates. They don’t want anyone to yell at them. That is why they have postponed publishing the articles. Once forced by circumstance or competition to publish the contents of the cables, you can bet they’ll twist the revelations into toady headlines and bury the truth in the final paragraph.

Robert Fisk comments on one aspect of Middle East politics gleaned from the few WikiLeaks releases:

It’s not that US diplomats don’t understand the Middle East; it’s just that they’ve lost all sight of injustice. Vast amounts of diplomatic literature prove that the mainstay of Washington’s Middle East policy is alignment with Israel, that its principal aim is to encourage the Arabs to join the American-Israeli alliance against Iran, that the compass point of US policy over years and years is the need to tame/bully/crush/oppress/ ultimately destroy the power of Iran.

There is virtually no talk (so far, at least) of illegal Jewish colonial settlements on the West Bank, of Israeli “outposts”, of extremist Israeli “settlers” whose homes now smallpox the occupied Palestinian West Bank – of the vast illegal system of land theft which lies at the heart of the Israeli-Palestinian war. And incredibly, all kinds of worthy US diplomats grovel and kneel before Israel’s demands – many of them apparently fervent supporters of Israel – as Mossad bosses and Israel military intelligence agents read their wish-list to their benefactors.

As long as the US continues to be subservient to Israeli interests and impervious to justice, there will be no resolution of the Middle East conflict.

Some thoughts on Christopher Hitchens

Christopher Hitchens undoubtedly died well, by which I mean that he faced his terminal illness with dignity, not falling into either one of the common twin traps that snare people who are told they have a serious terminal illness, that of maudlin sentimentality of the ‘why me?’ variety or fake bravado that he would defeat the cancer somehow when all before him had failed. He was above all, a writer, for whom the compulsion to pour words out was unstoppable. Not for him the idea that his last days should be spent in doing those things he had had no time for before. He was apparently working on an essay until the end, even when he was so weak that he could barely drag his IV drip with to the chair and would nod off periodically and could barely hit the keys. One has to admire that.

The only book I read of his was God is Not Great and my review was decidedly mixed. But there was no doubt that his debating skills in favor of the atheist cause were definitely something I welcomed. He had a quick wit, an easy facility with words, was widely read, and seemed to have a prodigious memory, all of which come in handy when engaged in the kinds of polemical battles he seemed to relish.

It must be said, however, that his other politics in the latter part of his life were atrocious. He seemed to have bought the entire neoconservative package, demonstrating an enthusiasm for wars against Muslim countries that was appalling. Critics claimed that he was a social climber, eager to move in elite American political and social circles and that his entry ticket to that world was to join in the jingoistic hysteria that followed the events of September 11, 2001. Recall that in those days, to decry the reaction to lash out at perceived enemies was seen as irrelevant and not serious at best and borderline treasonous at worst.

Since I am not of that world, I am in no position to judge if that charge is accurate, but I thought that this remembrance of him by Alexander Cockburn was worth linking to.

Film review: Hot Coffee

I just saw Hot Coffee, an excellent and disturbing award-winning documentary about the concerted effort by big corporations that, under the banner of ‘tort reform’, seek to deprive people of their right to sue them for the damage they inflict. See the film’s website for more information and for the interview that director Susan Saladoff had with Stephen Colbert, that I also linked to earlier.

Here’s the trailer for the film.

The film takes its title from the famous case in which Stella Liebeck, an elderly woman, sued McDonalds because of the injuries she suffered when she spilled their hot coffee over her legs. A jury awarded her $160,000 in damages and $2.7 million in punitive damages. McDonalds and other big corporations exploited this case to create a vast mythology about ‘jackpot justice’ in which they alleged that people filed frivolous lawsuits against big corporations and doctors in the hope that they would strike it rich, and that the cost of defending against these charges and paying the judgments was passed on to the rest of us. The corporations successfully appealed to the crocodile mentality in people that resents what seems like undeserved good fortune to people who are just like them but in which they do not share, and the case became the punch line for comedians.

The corporations have used that case to steadily encroach on the rights of people by instituting caps on damages, forcing binding arbitration on people so that they cannot sue in court but must have their case decided by an arbitrator who is picked by the very corporation that harmed them, and pouring money into judicial races so that any convictions that people obtain are overturned by higher courts and the laws depriving people of their day in court are ruled constitutional. The film shows how the oligarchy works, creating a pseudo-legal system that is friendly to business and government and conspires against ordinary people.

The documentary starts by exposing the central myths of the hot coffee case, which was that it involved a doddering old woman who spilled coffee on herself while stupidly drinking while driving. In actual fact, Liebeck was an active and robust woman who had just retired a couple of months earlier and was the passenger in the car that was parked in the lot when the event occurred. But what was shocking to me was the scale of the burns suffered by the woman. They were horrendous and required major skin grafts. The photos of the injury were horrifying and I had to turn away. What was worse, McDonalds had received many previous complaints about their hot coffee but had done nothing.

The idea of having some caps on damages seems reasonable to most people because of the perception that juries are emotional idiots who pick some number out of a hat out of excessive sympathy for the victim. The film examines a case in which a child (one of a pair of twins) was born with brain damage because of medical malpractice by a doctor who had had previous problems. The jury award carefully took into account the amount of money the family would need to provide a lifetime of care to their child but this amount was arbitrarily reduced because of the caps laws passed by the state legislature, which means that Medicaid (i.e., taxpayers) will have to foot part of the bill while the doctors and hospitals escape the full consequences.

In the case of the damage caused by binding arbitration, the film looked at the case of a young woman who was gang raped by her fellow Halliburton employees in Iraq and then when she complained was locked in a storage trailer and was released only because her father in the US got their congressman involved. But she could not sue Halliburton for damages because her employment contract had a binding arbitration clause that she was unaware of and she had to fight hard just to get her case heard in court.

The film says that many of the contracts we now enter into, such as with our credit card companies, include such clauses in the fine print, when we originally sign up or in the modifications to our agreements that we get in the mail and which hardly anyone reads. Arbitrators overwhelmingly rule in favor of the companies. It is not hard to see why. The arbitrators are picked and paid by the company and make their living by deciding these cases and those who rule against the companies find that they rarely get asked again. As Upton Sinclair said, “It is difficult to get a man to understand something when his salary depends upon his not understanding it.”

The film also examines the case of how business interests pour money into electing judges who will be sympathetic to them, in particular waging a relentless campaign to defeat a Mississippi Supreme Court judge who was deemed to be not subservient enough.

The filmmakers interviewed some of the jurors in the hot coffee case and they explained how they weighed the evidence and arrived at their verdict and the size of the judgment. Rather than being stupid people who picked a large number at random, they carefully weighed how much blame should be borne by the woman and how much by McDonalds and what punitive damages would be appropriate to send McDonalds the message that they had acted irresponsibly by cavalierly ignoring the warnings about its product. They settled on two days worth of coffee sales revenue.

I have been called for jury duty several times and although I have never been picked for an actual case, I have spent a lot of time in the jury poolroom talking with my fellow potential jurors. These are just ordinary people from all walks of life and for some of whom it was a real hardship to serve on a jury because they lost wages. But I was impressed at how seriously they took their task and they confirmed my belief that I would much rather put my fate in the hands of a jury of my peers than in those of an arbitrator or judge, however well-educated or experienced they are.

Lawrence Lessig on campaign finance reform

The corrupting influence of money on politics in the US is pervasive and entrenched. I had never found any proposed solution that satisfied me. The catch with federally funded campaigns, which is favored by many reformists, is that while it might reduce the influence of lobbyists and big campaign donors, it also tends to favor the two established parties. Until those two parties face a revolt or otherwise genuine threat to their entrenched dominance, there is little incentive for them to not be corrupt.

So I was pleasantly surprised to hear Lawrence Lessig on The Daily Show suggest a reform that might actually work. I have not read his book Republic, Lost: How money corrupts Congress – and a plan to stop it but his idea is that the government would refund the first $50 of people’s taxes to them in the form of a voucher that they could donate to any political campaign. In addition, each person would be allowed to donate up to $100 of their own money.

The catch is that this would require a constitutional amendment since the Supreme Court has ruled that money is a form of speech and steadily removed restrictions on campaign contributions.

The interview is well worth watching. In the first part, Lessig describes how the current system corrupts politics and in the second, he discusses his solution, as well as some other options that modern technology allows.

Part 1:

Part 2:

(This clip appeared on December 13, 2011. To get suggestions on how to view clips of The Daily Show and The Colbert Report outside the US, please see this earlier post.)