For Pacifica Radio, I'm Scott Horton.
This is Anti-War Radio.
And thanks everybody for tuning in tonight.
It's Anti-War Radio here on Pacifica.
I'm Scott Horton.
All my interview archives can be found at antiwar.com/radio.
And I'm happy to welcome tonight's guest to the show.
It's the great Glenn Greenwald.
America's best blogger at salon.com/opinion/Greenwald.
He's the author of the books How Would a Patriot Act, A Tragic Legacy, and Great American Hypocrite.
And the latest, already a New York Times bestseller, With Liberty and Justice for Some, How the Law is Used to Destroy Equality and Protect the Powerful.
Welcome to the show, Glenn.
How are you?
Great, Scott, and always great to be with you.
Well, I'm very happy to have you back on the show.
And I really like this book.
I killed it off in two short sittings.
No problem, five quick chapters, but packed full of insight.
Again, it's With Liberty and Justice for Some.
It's big and yellow, and it's on the shelf everywhere you can buy books, including on the internet, where I think you'll notice it is heavily discounted at amazon.com.
Due to the fact that they have sold so many of them, it's already a New York Times bestseller, correct?
That is true.
Congratulations on that.
This is really a great piece of work here.
So let's dive right into it.
The origin of elite immunity.
You draw a major line in American history at President Gerald Ford's pardon of former President Richard Nixon.
There had been some semblance of equality under the law before that, you argue, but that was the big watershed when everything changed.
How's that?
Right.
I wouldn't so much say that that was the watershed in terms of things changing about whether we are equal before the law.
Of course, ever since the American founding, we've had very violent breaches of the principle that we're all equal before the law and that justice is fine.
Of course, the country was founded and drenched in violations of that principle, and that was pretty much true for the next two and a half centuries.
So it isn't that there was some idealized time where we all lived in accordance with this shining principle and now suddenly we've stopped.
The difference, though, is that even when we were violating that principle in the past, we were continuously affirming its premise.
So if you look, for example, at the founders who agreed on very little and argued vehemently about most things, the one thing that they all unanimously agreed upon, literally, even while they were violating the principle, was that the core prerequisite to having a just republic was living as a nation of laws, of subjecting everyone on equal terms to the same set of rules and constraints.
And as Adams put it, there's only two choices, being a nation of men or a nation of laws.
And Thomas Paine answered that question by saying, for he who asks where is the king in America, let a crown be placed on the head of law and have it be declared that in America law is king.
So this was really the principle that even when we violated became the kind of aspirational guideline for how we progressed as a nation, how we understood progress, how we worked toward a more perfect union.
And if you look at the progress over the next two centuries, including the elimination of the sort of sins in which America was born, the elimination of slavery and the abolition of Jim Crow, the franchisement of women, and other instances of progress like that, better treatment for Native Americans and gay Americans, what you find is that it really was animated almost in every instance by this principle that we kept affirming even when we were violating.
And ultimately we codified it in the 14th Amendment, the idea that we are entitled and guaranteed to equal protection under the law.
And we've learned it through various cliches, that justice is blind.
And it was really embedded in the American political landscape.
What would change with the Ford pardon of Nixon is that this was really the first time that you heard elites going in any widespread way and explicitly repudiating the rule of law, renouncing it as a principle.
And so Gerald Ford, when he went on national television to explain to an angry and skeptical nation why it was that Richard Nixon, the most powerful political figure in the country, would be completely shielded from all consequences when he got caught committing major felonies, he pointed out, he argued, he said, of course, I believe in the rule of law, and the law is no respecter of persons, which is sort of the crux of this principle.
But he then said, but, and he added this newly concocted principle designed to completely gut the principle that he just invoked, which says the law is a respecter of reality, meaning that if it's sufficiently divisive or disruptive or distracting to hold the most politically powerful and important people accountable under the rule of law, then the idea of the rule of law means that we suspend it in that instance, not for the good of the criminal only, but for our common good, that when someone's sufficiently powerful, then sometimes prosecuting them is too disruptive for all of us, and it's just better for all of us if we simply heal and move forward, and leave bygones, criminal bygones of the past.
And this is the first time that those arguments were expressly made, and that really became the template, it became normalized, for how we treat first politically powerful officials who get caught breaking the law, and now private sector elites who do as well.
That became the template that we applied to immunize this sliver of people from the consequences of law.
Well, and you bring up in, I guess, the prologue or the first chapter, somewhere right in there, the Teapot Dome scandal as a counterexample of how the law actually, in the past, there are times when it has applied to the very most powerful people, and Teapot Dome, the only thing I remembered about it when you brought it up, was that that was the scandal that I didn't understand when they taught it to me in 6th grade.
Right.
Well, what's interesting about the Teapot Dome scandal is that the improprieties were discovered basically almost a decade after they were committed by high-level cabinet officials.
And it was already a new administration, and arguments had been made, well, why don't we just go ahead and overlook this?
Why ruin these people's reputation for a crime that was committed so long ago by a different administration?
And it was typical bribery and corruption, Halliburton, no big contract kind of stuff, right?
Right.
It was pure, pure corruption of the kind that actually now would pale in comparison to the sorts of things that are rampant.
But back then, it was considered to be that if something was a crime, it was considered to be wrong, even when committed by politically powerful officials, even when it was, quote, in the past.
And they went ahead and investigated and prosecuted, and a high-level ranking Interior Department cabinet member went to prison and retroactively indicted a whole bunch of people in the past and pursued it until the very end.
I think more impressively is that when Teddy Roosevelt was inaugurated, the first thing he did was target the two then-largest corporations in America, J.P. Morgan and Standard Oil, and broke them up into small pieces on antitrust and monopolistic grounds.
And probably even more interestingly is that the whole Tammany Hall-Boss Tweed candle that brought down Boss Tweed, who exercised untrammeled political power, was so corrupt that he had become one of the richest men in America through this corruption.
And he was brought down by this sort of working consortium between the Republican Party, prosecutors, cartoonists, and journalists, something that is inconceivable to even consider today.
And so you really did have this notion that a lot of times, not only were people who were in power to be held accountable on equal terms, you had people who were very aggressive in ensuring that that happened and pursuing it even at the cost of their own political careers or their own self-interest.
And it's just the kind of thing that we almost never see these days, except in the rarest and most aberrational of circumstances.
Well, now, when I was a kid, I remember noticing that Nixon was not about to be impeached and removed from office, was not forced to resign over a secret illegal war in Cambodia.
It was the cover-up and the hush money and the persecution of Daniel Ellsberg and all these things surrounding some third-rate burglaries.
And I wonder, does that count as the same kind of immunity where we just look the other way when it comes to killing millions of Laotians, for example?
That doesn't count as illegal, even when it is illegal.
Well, the amazing thing to me, and you're absolutely right, is that that kind of lawlessness has been permitted in America for a long time.
Basically, in my view, this kind of multi-tiered justice system that I'm describing, that's been applied domestically, where you're treated differently according to different precepts of justice based upon not what you've done, but who you are, was really pioneered in the foreign relations context.
I mean, to me, the most amazing episode is if you go and read what the United States said at the Nuremberg trials after World War II, when we tried Nazi war criminals instead of just summarily dumping bullets into their skull and then dumping them into the ocean like we did now.
Like we do now, we put them on trial, and what we said, if you go and read the opening tribunal statement from Robert Jackson, the lead prosecutor at Nuremberg, the former Attorney General under President Truman, it's amazing to read.
I recommend it so highly, both the opening and the closing statements.
And what he said was that this tribunal will have validity only if the principles that we are applying apply not only to these Nazi defendants, but to all of the nations here assembled, meaning to the United States and its allies.
What he particularly emphasized was that the kingpin crime, as he called it, of the Nazi regime and the Nazi war defendants was not genocide or erecting concentration camps or ethnically cleansing huge parts of Europe.
Those were obviously bad crimes, heinous crimes.
But the kingpin crime, the crime that tied them all together, he said, was the crime of aggressive war, that this is the crime that renders inevitable all other worse abuses, and this is the crime that we have to sanction most aggressively or that we punish forever.
And it was very specifically defined what aggressive war meant.
And the bringing it principle that came out of Nuremberg was that guilty war criminals are those who launch aggressive wars.
Now, obviously, the United States has launched multiple aggressive wars since then, probably the most egregious of which being the war in Iraq, just because of how unprovoked that was, of how the false pretenses on which it was based.
Obviously, we've killed more people than we killed in Iraq, including in Vietnam.
But it was just so grotesque in terms of its sheer aggression.
It wasn't a creeping war where we first sent advisers and it just kind of escalated.
It was an all-out invasion and attack, and we knew it was that.
And yet, the idea, if you were to go on almost any show, except in the ones like this, and argue that applying the principles of Nuremberg, those responsible for the aggressive attack on Iraq should be punished under the Nuremberg principles, you would be laughed at and rendered marginalized simply for making that argument.
In other words, the argument now, we are so lawless in terms of how we view our political leaders, that what is radical is the Nuremberg principles themselves, rather than those who want to do away with them.
And that's just how far we've come in terms of allowing our political leaders to act lawlessly in the foreign relations realm.
And that is what has seeped into the domestic realm and domestic crimes as well.
Well, now, and in your book, you go and you talk a lot about the different private interests that have gained immunity.
It's not just the government giving themselves immunity, as they virtually always do, but they've kind of handed this out to their friends, and that includes, of course, the bankers on Wall Street, and all their fraud of the financial crisis, and also the telecoms, in terms of their immunity for participating in George Bush's illegal wiretapping program.
I'd like to talk about both of those, too.
But first, I wanted to bring up this story that I had missed completely that's in your book about some hedge fund manager who was involved in a hit-and-run accident, and how the local authorities basically said, he's too rich to prosecute.
Not he's so rich he has a team of lawyers and we can't touch him, but just we like him better than the guy that he ran over, basically.
Yeah, I mean, this is a story that I included simply because it's just so illustrative.
I mean, it's not the most consequential story, but it just is so oozing and brazen.
And it's in how glaring that this two-tiered justice system is that I just included it in the chapter beginning, entitled, Too Big to Fail, because it really just describes very well how far we've sort of descended.
Essentially, there was this hedge fund manager who managed the fund of the country's billionaires.
His name is Martin Joel Erzinger.
And in 2010, in Colorado, he was driving his BMW and he hit, from behind, a bicyclist who was completely in the legal lane and doing nothing wrong.
And this cyclist suffered very severe injuries.
They were life-threatening.
Fortunately, he didn't die, but he had multiple surgeries.
And what the hedge fund manager did was, instead of doing what any decent person would do and what the law requires, which is stop and call the police and call the ambulance, he fled the scene.
And when he finally did stop, he actually called not the ambulance to report that he had just basically run somebody over, but his Mercedes dealer.
It was a Mercedes he was driving, not a BMW, to try and ask that his car be towed and fixed.
Now, hit and run is a felony in Colorado, and so is leaving the scene of a crime.
Those are both felonies.
People are charged with felonies, not frequently, but almost automatically when they do something like that.
And yet, in this case, the district attorney whose jurisdiction the crime took place in announced that he would only be charged with a misdemeanor.
And what he said was, and I'm quoting actually, he said, felony convictions have some pretty serious implications for someone in Mr. Erzinger's profession, meaning that if he were charged with a felony, he could lose his license to manage other people's money, and that because that was just too much of a disruption to his important career, and because he had offered to compensate the victim and pay his medical bills, that both of those militated strongly in favor of charging him only with a misdemeanor because it would just be too disproportionate for someone like him, as opposed to you or me or any other ordinary American, to be charged with a felony, even though felony charges would be automatically applied in every other instance.
And that's what too big to jail is.
It means that when somebody is sufficiently important, we simply believe that it's almost unfair to them to apply the law like we do to everybody else.
Well, and in many cases it might be completely unfair in any individual case, and that's your final chapter in the book, is the police state, this relentless prosecutorial drive against the American people, whether they're guilty or not, I mean that whole Matlock scenario where the prosecutor says, ah, you got me, your honor, I move to dismiss all charges.
Apparently I was wrong.
That just doesn't happen.
I think I probably told you this one back on the radio show years ago.
I met an assistant district attorney from Harris County, that's Houston, Texas, who told me that everyone but her was guilty of this at the district attorney's office.
Their slogan was, if they really didn't do it, they'll get out on appeal.
But other than that, anyone the cops bring them, they relentlessly prosecute with no regard to the defendant's humanity or even guilt whatsoever.
Well, here's the issue, Scott, for me, which is, if this extreme leniency and law-breaking license and forgiveness were extended across the board to everybody, then you could have a reasonable debate about whether leniency were the correct and advisable criminal justice approach.
There are countries which are extremely lenient as just a general approach to criminal justice.
If you commit a crime, you're going to serve way less time than you're actually sentenced to.
You're not going to go to jail unless you commit an extremely violent crime.
So if we had a country like that, then there would be no rule of law issue.
You could have a debate about whether that was a smart thing to do, but at least everybody would be treated equally.
So, for example, the example I give is, if you went and robbed a bank tomorrow, and three months later the police knocked on your door and said, we have an arrest warrant for you because we have evidence that you committed this bank robbery, if you were able to say to the policeman, look officer, you caught me, I think we all know I did it, but that's in the past.
Do we really want to get caught up with the criminations and finger-pointing of the past?
Isn't it better to look to the future and figure out how as a community we can avoid these things again?
If you were able to invoke that kind of rationale and get away with it, then there would be no rule of law issue, but of course that rationale is only available to Casper Weinberger and Richard Nixon and Dick Cheney and Donald Rumsfeld and invoked on behalf of them by the Obama administration or Goldman Sachs CEOs and Citigroup officials.
Yeah, they can rob their own banks if they already have a couple billion each.
Right, exactly, for infinitely more money than the people who are sitting in prison for bank robbery rob.
And that is the issue, is that at the same exact time that we've imposed this law-breaking license, invested this law-breaking license in the elite, the same elites who have given that to themselves have imposed the world's largest and one of its harshest penal states on everybody else.
So we imprison more citizens than any other country in the world by far.
The statistic that your readers and listeners are probably aware of already, but that's so striking, is that the U.S. accounts for 5% of the world's population, just under 5%, and yet 25% of prisoners worldwide are on American soil.
One out of every four prisoners on the planet is in an American jail.
We imprison more of our citizens for longer periods of time for more trivial transgressions with less opportunity for release and parole and with less leniency than any Western nation by far and almost every nation in the world.
And that's really what's so offensive to the rule of law principle, is that it's a completely different universe if you are someone who exercises political and financial power and you get caught committing crimes as opposed to somebody who's an ordinary American.
And one other point just relating to what you said about Houston, if you are an ordinary American and you are charged with a crime that you didn't commit, that you did not commit, there's a very good chance you're going to end up going to prison anyway.
Because for one thing, if you can't afford a lawyer, which a lot of people can't, and you're indigent, you get assigned a public defender who these days is so overworked that they can basically spend in some counties an average of seven minutes talking to you about your case.
So you're charged with felonies that could put you in prison for decades, and your lawyer is going to be able to spend a total of seven minutes figuring out what defense to offer, what you should do.
But even worse than that, we have this built-in punishment scheme where if you do contest the charges and declare your innocence and make the state prove your guilt and you are convicted, you're going to be punished with a much, much, much, much harsher sentence than if you simply plea bargain and admit you did it, even if you didn't.
And so we have this incredibly perverse system where if you're rich and powerful and everybody knows you're guilty, you're never going to see the inside of a courtroom.
But if you're an ordinary American or worse, someone who's a racial minority, someone who's poor or worse still, someone accused of terrorism, then there's almost an inevitability that you're going to be punished severely, have your liberty deprived, even if you've done nothing wrong.
It's as severe a reversal of what it was supposed to be as one can imagine.
Well, and on the incentives to go ahead and accept that plea bargain, they'll also, even if it's just a minor charge or a single legit felony, an assault charge or something, they'll put 15 other charges on it, too.
And they'll find a way to just pile on charge after charge.
After all, these guys have been writing laws for 200 and a half years nonstop here, and there's a million things they can charge you with.
So if you just plead guilty to these two charges and take your few years, don't you think that'd be a better choice than going into court and trying to prove yourself innocent of this entire pile of accusations?
Well, and the worst weapon that the state wields in that regard is the drug war.
I had this debate, I don't know if you saw it, but it was really quite amazing with the drug czar under the Bush administration, John Walters, who was the drug czar for the full eight years.
I debated him at Brown about drug legalization.
And one of the things he kept saying in response to my argument that it was simply cruel and disgusting to put people in a cage for using drugs was, you know, inciting statistics about how many people are in prison for possession.
He kept saying that no one really goes to prison just for possession, that usually what happens is the police catch you committing some other crime, and they don't want to convict you of that or can't convict you of that.
And so if they find some cocaine on you in the course of arresting you, they'll just go ahead and charge you with that and punish you for that because it's easier for the state to do that.
So what he's really saying is there are, you know, hundreds of thousands or tens of thousands of people in prison who are there on possession, but the possession is just a pretext.
That's why the state wants to keep criminalizing drugs, because it allows them to put into cages whomever it wants, even if they can't prove that they did other crimes, simply because there's so many people who break the law and do drugs, that it basically lets the state put people in prison at their whim.
It's a way of ensuring the state wins even when they can't prove that the real crime that they've accused you of is one that you actually did.
Well, I did see that debate, and it was great.
I hope everyone will go look at salon.com/opinion/Greenwald and take a look at it, our lawyer in recovery here, Glenn Greenwald, versus the former drug czar.
And I think for the most part what he did was just ignore the case you made, because he wouldn't have been able to justify his points in contrast, so he really just sort of left out your arguments.
And I'm sorry for jumping around, but there's so much great stuff packed into this book, and we're running really short on time here.
I wanted to give you a chance to talk quickly about torture and telecom spying, and not just how the Bush administration got away with it, and we all know that, including torturing at least 100 people to death, but how Obama let them all get away with it, simply with his own press secretary's announcement, basically.
Well, here's what's so interesting about that is, there's two things that are interesting about that.
One is, when Obama was running, when Obama was in the Senate, he frequently denounced what the Bush administration was doing as illegal and criminal.
He even opposed the nomination of General Hayden as CIA director, because General Hayden had been the director of the NSA when Bush implemented the warrantless eavesdropping program, and Obama said the rule of law requires that he oppose General Hayden's confirmation to the CIA, because he basically oversaw this illegal program.
He said torture was illegal, and he was frequently asked whether he would investigate these crimes to determine if prosecutions were warranted, and each time he was asked that, he said the same thing, which was, absolutely, nobody is above the rule of law, nobody is above the law, that's what the rule of law is, and if crimes were committed, then they should be prosecuted like anybody else, and I'll have my attorney general review the evidence, and determine if crimes were committed.
Before he was even inaugurated in December of 2008, he made clear that he had no intention of following through on that promise, that he opposed all investigations, and this article in the New York Times basically said, the reason is that presidents are incentivized not to prosecute prior administrations and to shield them from the consequences of their lawbreaking, so that those presidents know that if they commit crimes in office, they too will have this lawbreaking license available to them.
But what's even more amazing is that it isn't just that Obama blocked all Justice Department investigations through what Democrats during the Bush years were saying was so improper, which is the White House exercising influence and pressure on the Justice Department for political reasons.
That's exactly what Democrats were upset when Carl Rove was doing with Alberto Gonzalez dictating who should be prosecuted and who shouldn't be based on political motives.
That's exactly what the Obama White House did with the Justice Department.
But it's even worse, they not only prevented criminal investigations, they went into court, and in every instance where Bush officials were sued by the victims of their torture and illegal detention and rendition, they vehemently defended Bush officials and demanded that the case be dismissed before it was even heard on secrecy and immunity grounds.
So not a single victim of the War on Terror, including people that the government admits itself were completely innocent, has even had the day in court, has even had their claims adjudicated because of the Obama administration.
They protected them civilly as well, and then even worse, they ensured that other countries that were considering proceeding with prosecution because their citizens had been subjected to torture and illegal detention, like Spain and Germany, WikiLeaks cables revealed that the Obama administration exerted extreme amounts of coercion and pressure and influence to block these other countries from investigating as well.
So on every front, they ensured that there was zero accountability and they even blocked congressional investigations, which just would have been fact-finding missions, by exerting pressure on the leaders of the Democratic Party not to investigate.
Of course, a lot of Democrats were complicit in many of these programs.
That's certainly one reason why they didn't want any investigations.
But a big part of it is that elites have an interest to preserve this idea that they can commit crimes with total impunity because when they commit crimes, they'll want to avail themselves of that same license.
And that's certainly why Obama has been so protective of what he himself argued for years was not bad policy, but were actual crime.
Well, and which is why the vast majority of Republican candidates for president right now can say, yeah, I'll reinstitute waterboarding without having to consider for a moment that they might go to jail if they were to do such a thing.
Right.
It's why Dick Cheney and Condoleezza Rice and Don Rumsfeld and George Bush tour the country and are treated like elder statesmen and are making huge amounts of money writing books about their torture and their other crimes.
It's because Obama, by shielding them from all forms of accountability, normalized what they did and ensured, in essence, that any leader in the future that wants to torture or illegally detain will be free to do so with impunity.
And, of course, Obama has legally detained huge numbers of people.
There's no evidence that he's ordered those techniques of torture, but there's lots of evidence that allies of the United States, tyrannical allies, have done so at our behest.
Well, and Obama actually has been using sleep deprivation and temperature manipulation and some of the lesser tortures at the JSOC prison at Bagram, according to...
Exactly.
It's all legal now, though, because they rewrote the Army Field Manual to allow these tortures.
Precisely.
And there was lots of pretty inhumane treatment of the accused whistleblower, Bradley Manning, as well.
So, you know, the differences are much more modest than Obama supporters will say.
But even in that realm, what he's done is ensured that this behavior has become legalized, that it's not criminal, that it's just a policy difference.
So the next time he or another president decides they want to do it, there's really no impediment to that will stop.
All right.
Well, I'm sorry to ask you such a big question with so little time, just a little bit more than a minute to go here.
But, you know, there are rules and there are exceptions to rules.
And it seems like really the point of this book is that we've made this exception way too long in a row in way too many different circumstances, where now it's really becoming no longer true that government employees, people who, you know, control banks worth billions of dollars, etc., are citizens just like the rest of us.
They're not.
They're citizens just like something else than us.
They reside beyond and above the law, which is exactly, if you read the founders, what they feared the most.
And, you know, I mean, as a civil libertarian, someone who works in civil liberties and writes about it, the argument you always try and make is, look, even if you believe in this first instance that you're comfortable with how this new power is being applied because you think the person to whom it's being applied is evil or it's justifiable, what you're doing is you're embracing a principle that will be applied far beyond the original application.
And that's exactly what we've done with this lawlessness.
So even people who are well-intentioned to believe that it was time to move beyond Richard Nixon ended up embracing a mindset, a template, that said that if you're sufficiently powerful, politically and now financially, the rule of law doesn't apply to you.
And there's few things that a country can do more disastrous or leading to tyranny than that.
Thank you very much for your time on the show tonight.
Thanks for having me, Scott.
I really appreciate it.
Everybody, that is the great Glenn Greenwald.
He keeps a blog at salon.com/opinion/Greenwald.
And you'll love this new book with liberty and justice for some.
How the law is used to destroy equality and protect the powerful.
That's it for the show.
Thanks very much for listening.
We'll be back next Friday 630 to 7 here on KPFK.
Interview archives are available at antiwar.com/radio.
I'm Scott Horton.
Thanks for listening.
