Too Often, American Justice is Injustice

The Roman philosopher Seneca said that “nothing is more common than for great thieves to ride in triumph while small ones are punished.” 2,000 years later, American justice is proving his point. Elites regularly do things that—if you or I did them—would land us in prison. As journalist Glenn Greenwald writes, “A two-tiered system of justice ensures that the country’s political and financial class is…immune from prosecution, licensed to act without restraint, while the politically powerless are imprisoned with greater ease and in greater numbers than in any other country in the world.”

This state of affairs is worse than intolerable—it’s anti-American. It goes against a pinnacle of American justice, equality before law, facilitating everything from war crimes to torture to domestic spying to a ravenous Wall Street that feeds on the poor. Let’s examine the evidence:

1. Intelligence agencies and telecommunications companies regularly break federal wiretapping laws.

NSA-gate is the latest example, but the blatant law-breaking has gone on for a long time. Not only do telecoms flaunt federal wiretapping laws; they are actively shielded from prosecution by political elites. President Barack Obama—the man who promised “change we can believe in”—has been as complicit as anyone else.

There are countless examples of elite protection of other elites, but the worst occurred in 2008 when Congress (including then-Senator Obama) actually voted to grant retroactive immunity to AT&T and other telecoms that illegally spied on American conversations. This spying was no small thing. As Greenwald writes:

“When the New York Times revealed on 16 December 2005 that the Bush administration was spying on the telephone calls and emails of American citizens without the warrants required by… criminal law, it exposed lawbreaking not only by government officials but also by the nation’s largest telecoms. Multiple laws were in place at the time imposing both criminal and civil liability on telecoms for enabling government spying on the communications of their customers without warrants or other legal authority, and that is exactly what these telecoms did. One former AT&T employee, Mark Klein, publicly described how AT&T had even built a separate room with no purpose but to permit the National Security Agency unfettered access to all of its customers’ communications.”

Pursuant to 18 U.S. Code § 2511, anyone who “intentionally intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication” has committed a crime punishable by jail time. Corporate CEOs and government officials should face the same penalties you or I would face, but in 2008, they didn’t. Indeed, thanks to the 2008 FISA amendment telecoms now have privileges enshrined in law that allow them to do things that George Orwell’s Big Brother could only dream of. In other words, things that are illegal for us to do are now legal for them.

The government sure as hell doesn’t grant retroactive immunity—civil or criminal—to the average Joe. By excusing telecoms, Congress signals that though it’s not okay for one group of citizens—us—to illegally wiretap phone conversations, it is perfectly fine for another group—giant corporations—to do so.

2. Military contractors murder in a legal grey zone created and maintained by U.S. courts.

Too often, military contractors in Iraq and Afghanistan engage in war crimes that reflect terribly on U.S. forces and undermine the “hearts and minds” strategy. A soldier who committed such acts would be subject to court martial or worse; yet military contractors more often than not get off scot free.
Consider the Nisour Square, Baghdad shooting that occurred on September 16, 2007. In a span of 15 minutes, heavy gunfire erupting from four Blackwater vehicles killed 17 people, including a nine-year-old boy. The guards claimed self-defense, yet several witnesses told a different story, with one Blackwater guard calling it “murder in cold blood.” (FBI and military investigators eventually concluded the mercenaries had opened fire “without cause.”)

The shooting and subsequent outrage prompted Blackwater to change its name (currently, “Academi”). It also spawned a debate over extraterritorial criminal jurisdiction that in many ways is not settled to this day. Because it is unsettled, military contractors continue to operate in the sort of legal black hole cited above, which has caused authors and commentators like Jeremy Scahill to express valid concerns over the U.S.’s ability to prosecute war crimes:

“It is a devastating statement on the lack of accountability for criminal contractors that the men who did the shooting have not been successfully prosecuted. This was not an isolated incident…I believe that [Blackwater founder] Erik Prince and other top—now former— Blackwater executives should be brought up on charges for all of the murder and mayhem their forces unleashed on the people of Iraq and Afghanistan.”
After years and years, some Blackwater mercenaries were indeed charged. But this is still a drop in the bucket compared to what an average U.S. soldier would face. Worse, the damage to our country’s reputation has already been done. While we Americans might know the difference between military contractors and U.S. soldiers, the average Iraqi does not.

Alas, this is yet another example of the two-tiered system of American justice. Even in war, it seems, there is one standard for some (the lax one for military contractors who sometimes make more than three times as much as soldiers) and a harsher standard for everyone else.

3. Rampant financial fraud goes unpunished.

In the wake of the 2008 subprime mortgage collapse, most of us grew all too familiar with the expression “too big to fail.” But what the mainstream media didn’t tell the average citizen is that, in the eyes of quite a few U.S. officials, banks are also “too big to jail.”

In 2012, when corollaries of the world’s largest banks (HSBC) were outed for a breathtaking slate of crimes they’d committed over a span of many years (including transferring money for Iran and aiding Mexican drug cartels, among other things), federal authorities decided against indicting them for money-laundering. Why? Because of concerns that charges could destabilize the global financial system. In other words, because the bank’s executives were “too big to jail.”

Again, we see evidence of the two-tiered system of justice. Were you or I to commit financial fraud, especially if that fraud were related to drugs, we’d face the full force of state prosecution. When financial institutions do it, however, they escape with impunity.

None of the above would be so outrageous were it not for the following:

4. All of this is occurring while unprecedented numbers of Americans are going to jail for relatively trivial crimes.

As I wrote in a previous article, the U.S.—”home of the free”—is paradoxically the world’s largest prison state. With nearly 25 percent of the world’s prisoners, we imprison more people than any other nation on this earth. These people are held for longer periods of time than in any other Western nation (and many non-Western ones), and in conditions that other countries’ courts have called barbaric and inhumane. Their transgressions are too often no more serious than trivial drug offenses. Certainly they are usually not more serious than the crimes outlined above. Yet, unlike its treatment of elites, when it deals with the average Joe the U.S. does not hesitate to pursue individual wrongdoing with the full force of the law.

Don’t get me wrong: Equality before the law is indeed a majestic principle. At the time it was enshrined in our Constitution, it was revolutionary, unheard of (or at least unpracticed) anywhere else. But lately we have grown distant from this founding principle. Too distant. Everyday citizens are subject to an incredibly harsh and unforgiving criminal justice system, while elites escape with a slap on the wrist or complete immunity. The hypocrisy threatens to make a laughingstock of the Constitution.

As Justice Lewis Powell said:

“Equal justice under law is not merely a caption on the facade of the Supreme Court building… it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists…it is fundamental that justice should be the same, in substance and availability, without regard to economic status.”

It is time to bring our reality back into sync with our ideals.

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