Sunday, October 30, 2011

How the Legal System Was Deep-Sixed and Occupy Wall Street Swept the Land (and the Criminalization of Non-Violent Dissent)

How the Legal System Was Deep-Sixed and Occupy Wall Street Swept the Land
Glenn Greenwald

October 25, 2011

Tom Dispatch

As intense protests spawned by Occupy Wall Street continue to grow, it is worth asking: Why now? The answer is not obvious. After all, severe income and wealth inequality have long plagued the United States. In fact, it could reasonably be claimed that this form of inequality is part of the design of the American founding -- indeed, an integral part of it.

Income inequality has worsened over the past several years and is at its highest level since the Great Depression. 
This is not, however, a new trend. Income inequality has been growing at rapid rates for three decades.  As journalist Tim Noah described the process:

“During the late 1980s and the late 1990s, the United States experienced two unprecedentedly long periods of sustained economic growth -- the ‘seven fat years’ and the ‘long boom.’ Yet from 1980 to 2005, more than 80% of total increase in Americans' income went to the top 1%.

Economic growth was more sluggish in the aughts, but the decade saw productivity increase by about 20%. Yet virtually none of the increase translated into wage growth at middle and lower incomes, an outcome that left many economists scratching their heads.”

The 2008 financial crisis exacerbated the trend, but not radically: the top 1% of earners in America have been feeding ever more greedily at the trough for decades.

In addition, substantial wealth inequality is so embedded in American political culture that, standing alone, it would not be sufficient to trigger citizen rage of the type we are finally witnessing. The American Founders were clear that they viewed inequality in wealth, power, and prestige as not merely inevitable, but desirable and, for some, even divinely ordained. Jefferson praised “the natural aristocracy” as “the most precious gift of nature” for the “government of society.” John Adams concurred: “It already appears, that there must be in every society of men superiors and inferiors, because God has laid in the… course of nature the foundation of the distinction.”

Not only have the overwhelming majority of Americans long acquiesced to vast income and wealth disparities, but some of those most oppressed by these outcomes have cheered it loudly. Americans have been inculcated not only to accept, but to revere those who are the greatest beneficiaries of this inequality.

In the 1980s, this paradox -- whereby even those most trampled upon come to cheer those responsible for their state -- became more firmly entrenched. That’s because it found a folksy, friendly face, Ronald Reagan, adept at feeding the populace a slew of Orwellian clichés that induced them to defend the interests of the wealthiest. “A rising tide,” as President Reagan put it, “lifts all boats.” The sum of his wisdom being: it is in your interest when the rich get richer.
Implicit in this framework was the claim that inequality was justified and legitimate. The core propagandistic premise was that the rich were rich because they deserved to be. They innovated in industry, invented technologies, discovered cures, created jobs, took risks, and boldly found ways to improve our lives. In other words, they deserved to be enriched. Indeed, it was in our common interest to allow them to fly as high as possible because that would increase their motivation to produce more, bestowing on us ever greater life-improving gifts.
We should not, so the thinking went, begrudge the multimillionaire living behind his 15-foot walls for his success; we should admire him. Corporate bosses deserved not our resentment but our gratitude. It was in our own interest not to demand more in taxes from the wealthiest but less, as their enhanced wealth -- their pocket change -- would trickle down in various ways to all of us.
This is the mentality that enabled massive growth in income and wealth inequality over the past several decades without much at all in the way of citizen protest. And yet something has indeed changed.  It’s not that Americans suddenly woke up one day and decided that substantial income and wealth inequality are themselves unfair or intolerable. What changed was the perception of how that wealth was gotten and so of the ensuing inequality as legitimate.
Many Americans who once accepted or even cheered such inequality now see the gains of the richest as ill-gotten, as undeserved, as cheating.  Most of all, the legal system that once served as the legitimizing anchor for outcome inequality, the rule of law -- that most basic of American ideals, that a common set of rules are equally applied to all -- has now become irrevocably corrupted and is seen as such.
While the Founders accepted outcome inequality, they emphasized -- over and over -- that its legitimacy hinged on subjecting everyone to the law’s mandates on an equal basis. Jefferson wrote that the essence of America would be that “the poorest laborer stood on equal ground with the wealthiest millionaire, and generally on a more favored one whenever their rights seem to jar.”
Benjamin Franklin warned that creating a privileged legal class would produce “total separation of affections, interests, political obligations, and all manner of connections” between rulers and those they ruled. Tom Paine repeatedly railed against “counterfeit nobles,” those whose superior status was grounded not in merit but in unearned legal privilege. After all, one of their principal grievances against the British King was his power to exempt his cronies from legal obligations.
Almost every Founder repeatedly warned that a failure to apply the law equally to the politically powerful and the rich would ensure a warped and unjust society.  In many ways, that was their definition of tyranny. Americans understand this implicitly.
If you watch a competition among sprinters, you can accept that whoever crosses the finish line first is the superior runner. But only if all the competitors are bound by the same rules: everyone begins at the same starting line, is penalized for invading the lane of another runner, is barred from making physical contact or using performance-enhancing substances, and so on.
If some of the runners start ahead of others and have relationships with the judges that enable them to receive dispensation for violating the rules as they wish, then viewers understand that the outcome can no longer be considered legitimate. Once the process is seen as not only unfair but utterly corrupted, once it’s obvious that a common set of rules no longer binds all the competitors, the winner will be resented, not heralded.
That catches the mood of America in 2011.  It may not explain the Occupy Wall Street movement, but it helps explain why it has spread like wildfire and why so many Americans seem instantly to accept and support it.  As was not true in recent decades, the American relationship with wealth inequality is in a state of rapid transformation.
It is now clearly understood that, rather than apply the law equally to all, Wall Street tycoons have engaged in egregious criminality -- acts which destroyed the economic security of millions of people around the world -- without experiencing the slightest legal repercussions.
Giant financial institutions were caught red-handed engaging in massive, systematic fraud to foreclose on people’s homes and the reaction of the political class, led by the Obama administration, was to shield them from meaningful consequences. Rather than submit on an equal basis to the rules, through an oligarchical, democracy-subverting control of the political process, they now control the process of writing those rules and how they are applied.
Today, it is glaringly obvious to a wide range of Americans that the wealth of the top 1% is the byproduct not of risk-taking entrepreneurship, but of corrupted control of our legal and political systems. Thanks to this control, they can write laws that have no purpose than to abolish the few limits that still constrain them, as happened during the Wall Street deregulation orgy of the 1990s.
They can retroactively immunize themselves for crimes they deliberately committed for profit, as happened when the 2008 Congress shielded the nation’s telecom giants for their role in Bush’s domestic warrantless eavesdropping program.
If you were to assess the state of the union in 2011, you might sum it up this way: rather than being subjected to the rule of law, the nation’s most powerful oligarchs control the law and are so exempt from it; and increasing numbers of Americans understand that and are outraged.  At exactly the same time that the nation’s elites enjoy legal immunity even for egregious crimes, ordinary Americans are being subjected to the world's largest and one of its harshest penal states, under which they are unable to secure competent legal counsel and are harshly punished with lengthy prison terms for even trivial infractions.
In lieu of the rule of law -- the equal application of rules to everyone -- what we have now is a two-tiered justice system in which the powerful are immunized while the powerless are punished with increasing mercilessness. As a guarantor of outcomes, the law has, by now, been so completely perverted that it is an incomparably potent weapon for entrenching inequality further, controlling the powerless, and ensuring corrupted outcomes.
The tide that was supposed to lift all ships has, in fact, left startling numbers of Americans underwater. In the process, we lost any sense that a common set of rules applies to everyone, and so there is no longer a legitimizing anchor for the vast income and wealth inequalities that plague the nation.
That is what has changed, and a growing recognition of what it means is fueling rising citizen anger and protest. The inequality under which so many suffer is not only vast, but illegitimate, rooted as it is in lawlessness and corruption. Obscuring that fact has long been the linchpin for inducing Americans to accept vast and growing inequalities.  That fact is now too glaring to obscure any longer. (Glenn Greenwald is a former constitutional and civil rights litigator and a current contributing writer at

'Semper fi' is all one can say after watching video of Sergeant Shamar Thomas, a marine who indeed seems to proudly recall the oath he took to "support and defend the Constitution of the United States", the rights to peaceful protest contained in it.  In defending Occupy demonstrators, Thomas told NYPD that there was "no honor" in brutalizing unarmed US citizens, and that's a message that's long needed delivery.

Sergeant, I and many more gratefully salute you.

Days ago I watched video of an observer with the National Lawyer's Guild being struck by a New York City police scooter, screaming in obvious agony as his foot was pinned under it, and then actually being arrested.  I watched videos earlier in the protests of Occupy Wall Street's non-violent freedom fighters being pepper video, of four women simultaneously subjected to this torturous punishment, thankfully went global.  But history shows the price of popular change is too often measured in the agony of those pursuing it, and today's efforts, the struggle towards a genuine 'liberty and justice for all', are not proving an exception.

Every day I continue to read of a number of further instances of Occupy's heroes being pepper sprayed and abused, and every day their courage makes it difficult to recall a time that I've been prouder to be an American.  On many occasions, some years ago, I too was pepper sprayed, and I too was perceived by some as having committed 'a crime'...the 'crime' of Non-violent Dissent.

In 2005, a German film emerged that garnered critical acclaim for its examination of such 'criminality', the setting being 1940s Nazi Germany, the name of the film is 'Sophie Scholl - The Final Days'.  It examines how non-violent dissent has indeed sometimes been quite criminalized, sometimes even demanding the ultimate sacrifice.  Sophie, her brother, and a friend were tortured, then tried and executed by guillotine on February 22, 1943.

It might be well for those brutalizing Occupy to see this film, to be reminded of what kind of State uses brutal force against those brave souls with the vision and courage to attempt the righting of grievous wrongs.  It might indeed be well.

In 2006, New York Times film critic Stephen Holden wrote of the film: In a climate of national debate in the United States about the overriding of certain civil liberties to fight terrorism, the movie looks back on a worst possible scenario in which such liberties were taken away. It raises an unspoken question: could it happen here?  And, given the beatings, the abuses, and the pepper sprayings that have occurred, the question of how far from what's left of the Constitution our government might go is a good one, particularly if the Occupy movement continues to succeed and expand as it is. 

As ample video evidence has shown, too many today are far more interested in protecting privilege and property than people or their rights.  And perhaps fear -- a kind of fear that one is afraid to even acknowledge, especially to oneself -- long kept so many of us from strenuously objecting.

As readers may recall, it was only recently that 700 non-violent protesters were arrested on the Brooklyn Bridge under 'questionable circumstances'.  Many protesters claimed they were led onto the bridge's roadway by police, police alleging protesters presence on the bridge roadway was a crime, a 'crime' that allowed police to arrest 700.  However, an October 4th class-action lawsuit filed against New York City -- by a group of these protesters -- essentially labeled that police action 'entrapment'. 

While the mass arrest galvanized support instead of dissipating it, it would seem the fact of the arrest makes a statement as to the course some seeking to suppress dissent are willing to take.  The alleged involvement of a journalist for a right-wing magazine, American Spectator, in the mass pepper spraying by police at Washington's Smithsonian Museum highlights a further concern.

Of course, in a real way it's a measure of Occupy's success that such a 'climate of repression' exists.  However, perhaps the key question is what will the 'climate' facing the courageous become, how far will America's police -- police that are a real part of the victimized 99% -- actually go?

I am old enough to well recall the events of Spring 1970, a moment when the US National Guard opened fire on protesting students at Kent State University, killing four -- the 'Kent State Massacre'.  One such memory in a lifetime is too many.

There was a time when this writer once wrote laws instead of articles.  It was a time when I believed there were limits as to what one might face in a democratic society, even if one was 'rocking the boat'.  And, I did 'rock' things a bit, chairing a police accountability hearing in Connecticut's legislature, a hearing centered upon why an elected Statewide Civilian Oversight Board for police was needed, a board to prevent conduct such as that we are too often now witnessing, and worse. 

The hearing contained testimony from academics, police experts, politicos, activists and victims, with much of it nightmarishly riveting.  The hour long video of excerpts from that hearing tells a story, one of the fallacy that 'limits' to the abuse one may face do exist --  sometimes they don't.  Among many other things, an alleged murder plot upon an activist that made the Hartford Courant was discussed, as was police brutality, alleged rape by police, vandalism of a sitting mayor's own home, and considerably more.

While the video is from a few years back, it is worth watching today more than ever.

The Courant article on the alleged murder plot is titled 'Colchester Officers Accused Of Death Plot', and the opening line reads: A state police informant says he was offered $10,000 by two town police officers to make ''disappear'' a man who had lodged a brutality complaint against the officers.  I'll add that I'm writing this article from Sweden, and that some months after the hearing, life-threatening circumstances forced me to flee The States, my existence being one in exile since.

Fortunately, opportunities for effective protest have changed considerably in the interim, increasing numbers having become sufficiently aware to face the harsh realities that non-violent protest can mean, and thus able to face abuse to their fellows without their own fears leading them into denial of it.  There is safety in numbers, numbers which did not exist until recently, and it is indeed these numbers, these many, that will pave the path to change. 

One can look at instances of change occurring abroad, and indeed hope that 'America's finest' will too realize that they are, in fact, among the many.  It is 'we, the people' that are truly in need of their protection.

It has been far too long since 'we, the people' last came together, and far too long since 'liberty and justice for all' effectively disappeared from everything but the best of a collective memory we share.  But shared memories and dreams can become reality, doing so as each of our consciences points the way.

According to Wikipedia, the Sophie Scholl film contains a scene where a Gestapo interrogator says, "Without law, there is no order. What can we rely on if not the law?"  Of course, the circumstances too many police actions have recently shown do seem to pose questions about just what 'the law' today is.  But regardless, in her own time and place, the film depicts Sophie as simply replying, "Your conscience. Laws change. Conscience doesn't."

We know what is right, those of conscience know what must be done, and we also know the nightmarish price paid by those in a society that failed in doing it.  To borrow from an earlier time, to recall the struggle and success of America's proud Civil Rights movement, and to remind us that justice will be ours, I can only say that 'we, the people, shall overcome!'
Anyone else noticed that the Israelis seem to own YouTube?

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