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How the Legal System Favors the 1 Percent

Wall Street tycoons have destroyed the economic security of millions of people around the world—yet they haven't faced the slightest legal repercussions.

| Tue Oct. 25, 2011 1:29 PM EDT

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 percent 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.

It is equally obvious that they are using that power not to lift the boats of ordinary Americans but to sink them. In short, Americans are now well aware of what the second highest ranking Democrat in the Senate, Illinois's Dick Durbin, blurted out in 2009 about the body in which he serves: The banks "frankly own the place."

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 Salon. He is the author of two New York Times bestselling books on the Bush administration's executive power and foreign policy abuses. His just-released book, With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful (Metropolitan Books), is a scathing indictment of America's two-tiered system of justice. He is the recipient of the first annual I.F. Stone Award for Independent Journalism. To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com here.

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