With Liberty and Justice for Some (30 page)

It’s true, of course, that leaking classified information is a crime. That’s what makes whistle-blowers and leakers so courageous. And if all wrongdoing, including that of the politically powerful, were always fully punished according to the law, one could accept whistle-blower prosecutions. But that’s not the situation that prevails. Instead, there are no prosecutions in sight for years of war crimes, torture, and illegal spying, as well as the greatest financial theft in American history. There, we are told to “look forward, not backward.” But when anyone dares to expose the overweening corruption and illegality of the national security state, the full weight of the “justice system” is brought mercilessly crashing down upon that person.

And the assault on whistle-blowers is not even the worst of the ongoing abuses of the legal system. Since September 2001, the “war on terror” has opened up an entire dimension in which the rule of law simply vanishes. For those who are accused of being “terrorists”—even if they are never charged with any crime—there is now a limbo world in which there exists not even the pretense of due process, let alone equality. Those who have the misfortune to find themselves there are not merely unequal but essentially
nonpersons
as far as the American legal system is concerned. Anything and everything are fair game.

With terrorism as its rationale, the United States has proclaimed the power to detain people indefinitely without a trial—a power that extends equally to Americans arrested on U.S. soil and foreign citizens seized anywhere in the world. Thousands of people have been imprisoned by the U.S. government over the last decade without any legal recourse, all based exclusively on the executive branch’s unilateral, unreviewable accusation that the prisoner is a terrorist. And brand-new “military commissions” have been established which deprive the defendants of crucial rights that they are supposed to possess under American law.

That the majority of the detainees subjected to this newly concocted system have been imprisoned without any credible evidence against them has had little effect on its proliferation. As detailed in the prior chapter, the U.S. government has lost 65 percent of the habeas corpus cases brought by Guantánamo detainees. Colin Powell’s former chief of staff, Colonel Lawrence Wilkerson, has openly acknowledged that many Guantánamo detainees were innocent and that the Bush administration knew they were innocent. Yet the Obama administration not only has left Guantánamo open but has aggressively sought to expand its ability to keep people imprisoned without any due process.

Indeed, while as a candidate Obama had lavishly praised the Supreme Court’s 2008
Boumediene
ruling, which established that Guantánamo detainees are entitled to habeas review, the Obama DOJ has argued that detainees who are shipped to a “war zone”—such as the U.S. prison in Bagram, Afghanistan—have no rights of any kind. Although this theory was rejected by a district court judge, it has been accepted by an appellate court, which means that the habeas right established by
Boumediene
can be nullified through the simple expedient of substituting Bagram for Guantánamo. And let’s not forget Obama’s claimed right to target American citizens far from any battlefield for assassination, based solely on the president’s unilateral, unchallengeable decree that the individual is a terrorist. What could be more lawless than that?

Perhaps most perversely, the Obama administration has now resorted to making up rules as it goes along, based solely on its assessment about what is most likely to ensure victory for the government. In November 2009, Attorney General Holder announced that five Guantánamo detainees, including the alleged 9/11 mastermind Khalid Sheikh Mohammed, would be granted civilian trials in a real American court. Others, however—such as the detainee accused of staging the 2000 attack on the USS
Cole
, as well as the first “child soldier” to be tried for war crimes in American history—would be sent to military tribunals at Guantánamo. And still others, Holder later made clear, will be denied all due process and simply held indefinitely.

Thus, in Obama’s multitiered justice system, only certain detainees are entitled to real trials: namely, those whom the government is sure it can convict. Others, for whom conviction is less certain, will be accorded fewer rights and tried by military commission. And those whom the government believes it can’t convict in either forum will simply be held indefinitely with no charges, a power the Obama administration announced it intends to preserve. (Echoing legal theories adopted by Bush/Cheney, Obama’s lawyers argue that this boundless detention is permitted by “the laws of war,” and that the president’s role as commander in chief of the armed forces entitles him to make such decisions unilaterally and without any oversight from courts.) But a system of justice that accords varying levels of due process based on the defendant’s likelihood of being convicted isn’t a justice system at all. It’s a rigged game of show trials.

The former air force lawyer Morris Davis was the chief prosecutor of the Guantánamo military commissions system during the Bush years and resigned in protest in 2008 to become one of the system’s leading critics. In the
Wall Street Journal
, he laid bare the corrupt essence of the new approach, noting that “the standard of justice for each detainee will depend in large part upon the government’s assessment of how high the prosecution’s evidence can jump and which evidentiary bar it can clear.”

But the fact that this perverse situation is tolerated should not be surprising. Such fundamental violations of the core precept of the rule of law—whereby the most powerless are subjected to explicitly different rules and degrees of punishment than the elites—are now commonplace in the American justice system; indeed they have become one of its defining features. America’s poor and racial minorities are so marginalized that their vastly different treatment provokes few objections. Those accused of being terrorists, particularly when they are Muslims, are more marginalized still, and therefore their plight triggers even less controversy.

This is how the multitiered justice system preserves itself: by targeting those with the weakest voices, the smallest constituencies, and the least ability to resist. 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.

Thus did the pardon of Richard Nixon—justified in 1974 as a onetime exception necessitated by unique circumstances—lay the foundation for elite immunity: a lawbreaking license that spread throughout the political class and then to its partners in the private sector. In the same way, the degradation of basic legal principles that began in the name of “law and order” gave rise to the “war on drugs” and then the “war on terror,” with their ever-more-severe erosion of due process and constitutional safeguards.

The result is a “justice system” in name only, one in which outcomes are determined by the status of the parties rather than the merits of their positions. The proclamation of John Adams that we are “a nation of laws, not men,” now rings hollow, as does Jefferson’s insistence that the essence of America is that “the poorest laborer stands on equal ground with the wealthiest millionaire, and generally on a more favored one whenever their rights seem to jar.” And Madison’s proud declaration in
Federalist 57
that America’s political class, by definition, “can make no law which will not have its full operation on themselves and their friends, as well as the great mass of society,” now seems to describe a country entirely other than our own.

The founders envisioned the law as the bedrock foundation on which American society would be built, the essential guarantor of fairness and justice. But the multitiered justice system of today’s America guarantees nothing of the kind. Indeed, the blatantly unequal legal treatment that we’ve seen throughout this book accomplishes precisely the opposite: it warps the law into a devastating tool used to entrench privilege, entitlement, and unearned wealth.

When political and financial elites are shielded from any consequences for their actions, they are no longer subject to the law. Instead, they become the law’s masters, using the legal system for their own purposes: to safeguard and expand their perquisites; to ensure that their cheating and corruption are not punished but rather rewarded; and to keep any outsiders from challenging their superior status. The law, which was meant to keep the powerful in check, is now used instead to sustain and perpetuate their power.

The degradation of the rule of law as an equalizing force in the United States is both a
cause
and an
effect
of rapidly intensifying inequality in other areas of American life. The greater the disparities in wealth and power become, the more unequal the law becomes—and the more unequal the law is, the more opportunities it creates for the wealthy and powerful to reinforce their advantages. Eventually, favorable treatment in the justice system becomes nothing more than another commodity distributed in accordance with wealth and power. And once the disparities in wealth and power become too great, they overwhelm the law along with everything else. That dynamic—legal inequality and wealth inequality feeding each other in a vicious cycle—is exactly what we see in today’s United States.

When a privileged few are able to do whatever they wish while all others are bound by ever-harsher constraints, the former group will naturally win more and more from the latter. It is no surprise, then, that after four decades of growing legal inequality America also finds itself saddled with economic inequality that is reaching crisis proportions. Even mainstream sources are now speaking of the U.S. economy in terms that until recently would have been unthinkable. Nicholas Kristof, the longtime
New York Times
columnist, has argued that when it comes to income distribution, the United States increasingly resembles the world’s most corrupt and unbalanced regimes. In a November 2010 column, he described the situation bluntly.

Kristof reviewed a litany of depressingly familiar statistics to demonstrate how stark this economic inequality has become. The richest 1 percent of Americans now take home almost 24 percent of the nation’s income, up from less than 9 percent in 1976. From 1980 to 2005, more than four-fifths of the total increase in American incomes went to that richest one-hundredth of all Americans. Citing Timothy Noah’s detailed 2010
Slate
series on inequality, Kristof noted that “the United States now arguably has a more unequal distribution of wealth than traditional banana republics like Nicaragua, Venezuela and Guyana.”

As a chart compiled by the University of Arizona professor Lane Kenworthy demonstrates, income levels for the top 1 percent of America’s earners have quadrupled since 1979 while remaining almost completely stagnant for everyone else.

In the face of such massive financial inequality, the notion of equal legal treatment for everyone has crumbled away completely. And this decline of the founding American ideal is not just a matter of isolated incidents and outrageous news headlines; it can be measured in objective numbers, such as those provided by the 2010 “Rule of Law Index” from the World Justice Project. The WJP employs a large team of international experts to gauge the extent to which the rule of law prevails in countries across the globe, and its findings leave no room for doubt: when it comes to fairness and justice, the United States now ranks near the bottom of the Western world.

The fundamental principles promoted by the WJP are uncontroversial. The rule of law prevails, they say, when laws are “clear, publicized, stable, and fair, and protect fundamental rights”; when they are enacted through an “accessible, fair, and efficient” process; when “competent, independent, and ethical adjudicators” are available in sufficient numbers and have adequate resources; and when “the government and its officials and agents are accountable under the law.” To evaluate adherence to these principles, WJP’s 2010 report gathered information from each country in nine overall categories.

• Limited government powers
  
• Absence of corruption
  
• Order and security
  
• Fundamental rights
  
• Open government
  
• Regulatory enforcement
  
• Access to civil justice
  
• Effective criminal justice
  
• Informal justice
  

These broad categories were divided into numerous subcategories, resulting in more than seven hundred variables, and the WJP ran its detailed evaluation in thirty-five representative countries spread out across all continents. To ensure that the comparisons were matching up nations with relatively similar cultural, historical, and legal backgrounds, the report split up the countries into geographic groupings. The United States, Canada, Spain, Sweden, the Netherlands, Austria, and France were all classed under the “Western Europe & North America” heading.

To say that the United States underperformed its peers would be putting it mildly. In four out of the nine overall categories that were studied by the WJP, the United States placed dead last in its group. In two more categories, it only managed a second-to-last finish. Aside from “open government,” where the United States was third in its group, there was not a single category where the U.S. ranking was anywhere in the top half of the Western nations.

What’s more, the study’s methodology might have actually made the United States look far better than it actually is. As the civil liberties writer David Swanson pointed out, the launching of aggressive wars was not counted by the WJP as a “rule of law” violation, even though such wars are clearly illegal under international standards. Similarly, Swanson notes that while the WJP report gave U.S. government officials fairly high marks for not taking bribes, it overlooked the fact that many campaign contributions are little more than bribes in a different guise.

Even with those helpful biases, the WJP report paints a grim picture indeed. And it is telling that one of the categories in which the United States finished last among Western nations was “Limited Government Powers”—which measures, as the report put it, “the extent to which those who govern are subject to law.” Included under that rubric were such basic questions as whether “government officials are sanctioned for misconduct” and whether “government powers are effectively limited by the fundamental law, the legislature, and the judiciary.” These sorts of restrictions on government authority were at the core of the American founding, yet they are clearly nowhere to be found in our country today.

Of course, high-level politicians have not been the only ones to benefit from this lack of legal checks and balances on their activity. Those at the top of the wealth pyramid have also reaped the rewards. Again, while disparities of wealth have always been tolerated in the United States, and even endorsed by the founders, the crucial difference is that these days financial power has become easily convertible into political power—and political power, in turn, is being exploited to repeatedly rewrite the laws to the advantage of the very rich, making them richer and more powerful still. In other words, the United States has taken on the classic attributes of
oligarchy
(government by a small dominant class) and
plutocracy
(government by the wealthy). Like
banana republic
, such derogatory terms were once reserved for other nations, and it was unthinkable to apply them to the United States; yet now they are being commonly, even casually, used by mainstream sources to describe the facts of life in contemporary America.

Given these developments, the dystopic future toward which the United States is inexorably heading is not difficult to imagine. Even the most slothful and slumbering citizenry, trained to accept political impotence, has its limits. At some point, serious social unrest is the inevitable result when a population is forced to suffer mass joblessness and deprivations of every kind while it sees a tiny sliver of elites enjoying gilded prosperity; when ordinary people are threatened with imprisonment for petty offenses while they see elites illegally spying, invading, torturing, and plundering with nearly total impunity. Such a two-tiered setup is simply unsustainable.

The American elites have, to be sure, gained tremendous short-term benefits from the pervasive corruption that shields the powerful from legal scrutiny. But in the long run, eviscerating the rule of law is likely to prove their undoing. The United States was founded on the notion that the law must apply equally to everyone, and it is now clear that this principle is not just a matter of basic fairness. If a privileged few are exempt from the rule of law, ever-greater inequality will result, and the inevitable discord that such inequality provokes will come to threaten the country itself. Only as a nation of laws, not men, can America hope to endure.