Saturday, June 27, 2015

With Liberty and Justice for Some by Glenn Greenwald

Greenwald’s thesis in this book--that the United States of America has a two-tiered justice system, one based on the rule of law for common citizens, and another based on the winds of political opinion for the ruling elites--has a lot going for it.

He offers several examples, but few are as illustrative or as clear-cut as the case of President Bush’s warrantless wiretapping in 2002-05.

In a New York Times article published on December 16, 2005, the reporters James Risen and Eric Lichtblau made the situation plain: in early 2002, “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States … without the court-approved warrants required by law. For three years, Risen and Lichtblau revealed, the intelligence agency had illegally monitored and intercepted the “telephone calls and international e-mail messages of hundreds, perhaps thousands, of people in the United States.”

When the spying program was exposed, Bush showed no hint of contrition. Instead, he went on national television and proudly admitted that he had done exactly what the Times had described, and defiantly vowed that he would continue doing it.

Damn straight, a Bush supporter might say. And what’s wrong with that?

That there was a criminal law in place explicitly prohibiting warrantless eavesdropping did not seem to concern him in the slightest.

The dictates of that law--the Foreign Intelligence Surveillance Act--could not have been clearer. FISA specifically barred government officials from intercepting the “electronic communications” of American citizens, and of foreigners on U.S. soil, without first obtaining a warrant from a specially created court.

So he broke some old law, a Bush supporter might continue. One that probably didn’t consider the grave threats that terrorism poses to our nation.

And while some Bush officials attempted to justify their illegal spying on the ground that they were doing it to stop terrorism, FISA’s warrant requirements explicitly applied to surveillance of anyone believed to be “engaged in international terrorism or activities in preparation therefor.”

Okay. But we’re probably talking post-September 11 terrorism here. Just what is this “FISA” law and what was it meant to prevent?

Some background is in order. FISA had been enacted in response to the shocking discoveries made in the mid-1970s by the U.S. Senate’s Church Committee investigation. That investigation, which had been prompted by reports of serious eavesdropping improprieties by the Nixon administration, uncovered decades of surveillance abuses by the executive branch under every president since World War II. For all those years, the government’s eavesdropping power had been publicly justified as necessary to fight communism, but the Church Committee found that those powers were in fact continuously misused to spy on the communications of thousands of American citizens for purely political purposes.

Let me interrupt our Bush supporter here to say that this will be a favorite theme that Greenwald will return to again and again. Lawful or unlawful, political powers are always used for political purposes, regardless of the bogeyman du jour that they are first called into action to address.

Here’s a quick aside to better illustrate that point.

The “state secrets” privilege has a sordid history. It was first created by the Supreme Court in 1953 in the case of United States v. Reynolds, a lawsuit brought against the U.S. government by the widows of three air force pilots who died when their military jet crashed during a training mission. The widows contended that the air force had been negligent in maintaining the jets and that this negligence resulted in their husbands’ deaths. To prove their case, they sought to obtain the maintenance records for the jet their husbands had flown.

The government, however, told the court that disclosing these records would jeopardize national security, as it risked letting America’s enemies learn the secret design of the aircraft. The Supreme Court agreed and ruled that, notwithstanding their obvious relevance, the government could keep these sensitive documents hidden. It was only in 2000, when the maintenance records were obtained via a Freedom of Information Act request filed by one of the pilots’ family members, that it was revealed that the government had blatantly lied to the court. The records in question contained no military secrets at all but were full of information showing that there had indeed been gross negligence in how the plane’s engines had been maintained by the air force.

So, from the very beginning, the new governmental power known as the “state secrets” privilege, was used to cover-up negligence, not protect national security. Just as presidents after World War II used eavesdropping to “fight communism,” and President Bush evidently used warrantless wiretapping to “fight terrorism.”

Let’s get back to our on-going narrative.

The most notable abuse documented by the committee was the FBI’s malicious, years-long eavesdropping on the telephone calls of Martin Luther King Jr., carried out in an attempt to obtain embarrassing personal information with which King could be blackmailed.

The FISA bill was meant to remedy these abuses. It stipulated that before government officials could listen in on private communications, they had to obtain judicial approval in the form of a warrant. That requirement was designed to ensure that government agencies would eavesdrop on Americans only if they first were able to present convincing evidence to a federal judge that the target of the eavesdropping was acting as an agent of a foreign power or a terrorist group. In the face of intense public anger over the abuses revealed by the Church Committee, FISA passed both houses of Congress with large majorities and substantial bipartisan support, and was signed into law in 1978.

In language as clear as English permits, section 1809 of FISA provided that anyone who violates its mandates by eavesdropping without the requisite judicial approval has committed a felony punishable by up to five years in prison and a $10,000 fine for each offense.

Back to our Bush supporter. Okay. But President Bush didn’t do that. Did he?

And there was no question that George W. Bush, Dick Cheney, former NSA and CIA director Michael Hayden, and many other Bush officials had violated FISA’s requirements by spying on Americans without warrants. Not only had the New York Times article exposed that illegality, but Bush himself had confirmed the findings on national television.

Yeah. I guess he did.

But as Greenwald will go on to describe, both in this example and throughout the book, the fact that this was a crime did not matter.

If we were a country that actually lived under the rule of law, the illegal actions would have carried grave consequences for the lawbreakers--just as if they had been caught robbing a bank, embezzling money, or dealing drugs. But since we’re not such a country, it has done nothing of the kind. From the start of the wiretapping scandal, the nation’s media stars and the leaders of both political parties unanimously adhered to the same piety: whatever else one might want to say about the NSA spying program, it was simply wrong--inappropriate, unserious, and reckless--to talk about it as though it were a crime.

Time’s Joe Klein, for example, echoed the rapidly emerging consensus of the Beltway class. In an article titled “How to Stay out of Power,” he sternly warned Democrats not to criticize Bush for his illegal surveillance, let alone demand accountability for it. Conceding the long history of government abuse of surveillance powers when exercised without oversight, and further acknowledging the mountains of public evidence that the Bush administration had transgressed the limits of the law when acting in other areas, Klein nonetheless insisted that “these concerns pale before the importance of the program.” He then ventured this guess: “I suspect that a strong majority would favor the NSA program … if its details were declassified and made known.” He concluded by denouncing what he called “civil-liberties fetishism” as “a hangover from the Vietnam era” and warned, “Until the Democrats make clear that they will err on the side of aggressiveness in the war against al-Qaeda, they will probably not regain the majority in Congress of the country.”

All that mattered, in other words, was the political calculus of the situation. Not what’s right or wrong, but what’s popular and what’s going to keep people in power.

That the eavesdropping was illegal, criminal, a felony under long-standing statutes was not mentioned by Klein at all. It simply did not enter the calculus. Nor did the issue get noted by the overwhelming majority of media figures or, for that matter, by politicians from both parties who commented publicly on this scandal. After all, it was the president who had ordered this program. And as Richard Nixon announced long ago, “When the president does it, that means it is not illegal.” The NSA scandal left no doubt that what was once a strange Nixonian formulation had become unchallenged orthodoxy. It is difficult indeed to find any media figure with a national platform in 2005 who was willing to even refer to Bush’s program as a “crime,” let alone call for legal accountability. The vast majority, with very few exceptions, affirmatively defended it.

I’ve quoted this section at some length because it so aptly summarizes Greenwald’s essential point. And the reference to Nixon is a good reminder that he traces the modern launch of this two-tiered justice system back to Ford’s pardon of Nixon--when elite crimes were dismissed “for the good of the country.” Ever since, Greenwald claims, each presidential administration avoids investigation and prosecution of possible crimes committed by the former. And all, not for legal reasons, but for purely political ones. A more recent example is, of course, when the Obama administration decided not to investigate the allegations of torture committed by the Bush administration.

What’s particularly striking about the decision not to investigate the architects of Bush’s torture regime is that it was manifestly driven by political considerations, not legal ones--precisely the accusation Democrats had lobbed at Alberto Gonzales and the Bush DOJ. Holder himself was remarkably candid about the reasoning behind the White House dicates. As he told GQ in November 2010:

“You only want to look back at a previous administration if you feel you really have to … Because it has a potential chilling effect. If people who work in this administration today think that four years from now, or eight years from now, the decisions they make are going to be examined by a successor administration, you don’t want that to happen. So that’s a political consideration.”

Of course Greenwald knows what this really means.

To make decisions about who should and should not be prosecuted based on “political considerations” is to convert the Justice Department from an independent law enforcement agency into a political arms of the White House.

Which, I think, is pretty much our current state of affairs. Once a nation of laws, the United States is now a nation of political considerations, with major media figures actually arguing for this fearfully irreversible slide towards despotism. Greenwald quotes many examples, including this one from Fred Hiatt, the editorial page editor of the Washington Post, discussing what to do with the torture allegations against the Bush administration.

On the one hand, this is a nation of laws. If torture violates U.S. law--and it does--and if Americans engaged in torture--and they did--that cannot be ignored, forgotten, swept away. When other nations violate human rights, the United States objects and insists on some accounting. It can’t ask less of itself.

So far, so good.

Yet this is also a nation where two political parties compete civilly and alternate power peacefully. Regimes do not seek vengeance, through the courts or otherwise, as they succeed each other. Were Obama to criminally investigate his predecessor for what George W. Bush believed to be decisions made in the national interest, it could trigger a debilitating, unending cycle.

There are so many things wrong with that second paragraph, I don’t even know where to begin. Regimes do not seek vengeance? When did we enter the parallel dimension in which prosecuting criminals is equated with seeking vengeance? Are we seeking vengeance when we prosecute the burglar and make him given back the things he stole?

But the reveal comes in the next sentence, when Hiatt predicts what would happen if "Obama were to investigate Bush." The presumption that underlies that statement illustrates the very nature of the dilemma we’re in. The DOJ is not supposed to be a political arm of the president. It is supposed to have independent authority. As Greenwald says:

One of the central principles of the American justice system is supposed to be that specific decisions about Justice Department prosecutions are to be made by that department itself, independent of all political considerations.

And there was a time, evidently, when this was actually the rule.

That principle is so sacrosanct that its violation, or even suspected violation, has in the past been treated as a political scandal. One of Nixon’s most criticized acts--the trigger for what became known as the Saturday Night Massacre--involved the resignation of Attorney General Elliot Richardson due to his refusal to follow Nixon’s order to fire Watergate Special Prosecutor Archibald Cox. In the 1990s, Attorney General Janet Reno was frequently attacked by the American right for her purported lack of independence in refusing to appoint independent prosecutors to investigate every last one of the Clinton White House’s alleged improprieties. During the Bush years, Attorney General Alberto Gonzales’s habit of collaborating with the White House and making decisions about prosecutions on the basis of political rather than legal considerations was a recurring source of controversy and ultimately helped to drive Gonzales out of office.

But that’s clearly no longer the case. The very idea that a DOJ prosecution of government officials who may have ordered or engaged in torture cannot now be viewed as anything other as “Obama seeking vengeance on Bush,” shows you how much political considerations have come to dominate.

But forget all that. Ask instead if there is any alternative. Prosecute criminals and you “trigger a debilitating, unending cycle” of political vengeance. But if Greenwald’s book attempts to show anything, it attempts to show that when you fail to prosecute in these cases, you get a different kind of debilitating, unending cycle, one in which each administration engages in an escalating series of crimes and attacks on the personal liberty of the citizens and creates this two-tiered justice system. That’s probably what the politicos would prefer, but what about the voters? Are they happy with the debilitating, unending cycle we’re already seeing?

Because, to be honest, that cycle actually isn’t an unending one. That cycle leads to an very specific ending, one that I hope I don’t live to see.

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This post was written by Eric Lanke, an association executive, blogger and author. For more information, visit, follow him on Twitter @ericlanke or contact him at”

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