Rule of law or rule by law?

Do we have a choice?

These are questions a reasonable and thus concerned citizen of the United States might ask at this juncture given the abuse of governmental power that is now all-too-common. Glenn Greenwald has often brought to our attention the institutional failures that produce these kinds of abuses. But he truly excels in holding the establishment press accountable for its willing complicity in the commission of these crimes. Most recently the Washington Post, as Greenwald makes plain, joined the Bush and Obama regimes as a defender of the kind and degree of torture 'authorized' by the infamous Bush regime torture memos (.pdf). Should we be surprised that the Post advocates sacrificing the over-aggressive foot soldier that exceeded the limits specified by the Bush regime's torture memos while permitting John Yoo (the principal author of the torture justification), his co-conspirators and the American governmental system as a whole to remain unmolested by the law? No, we should not find this surprising, and I would expect Greenwald also found the Post's position utterly predictable and contemptible. He continues:

That, in a nutshell, is the twisted Washington mentality when it comes to lawbreaking: when political crimes become so blatant and extreme that they can no longer be safely excused (Watergate, Iran-contra, Abu Ghraib), then it's necessary to sacrifice some underlings who carried out the crimes by prosecuting them, but — no matter what else happens — the high-level political officials responsible for the crimes must be shielded from all accountability. In ordinary criminal justice, what typically guides prosecutions is the opposite mindset: namely, a willingness to immunize low-level soldiers in order to ensure that the higher-level criminals suffer the consequences of their crimes. But when it comes to crimes committed by political officials in America's Versailles culture, only the pawns are subjected to the rule of law while the monarchs and their highest royal court aides are immunized.

Greenwald continues by using the rest of his column to debunk the tired rationalization the Post offered to defend those who authorized the whole wretched torture business. He concludes his piece by observing:

If, as appears to be the case, this is the principle by which we're now governed — presidential acts in blatant violation of clear statutes are no longer crimes if a DOJ lawyer justifies it in advance, even using legal reasoning found to be in bad faith — then, by definition, Presidents are literally no longer bound by the rule of law. If the crimes are embarrassing enough, we'll find a Lynndie England — or some obscure, easily demonizable, extra-sadistic CIA interrogator — to scapegoat and punish in order to pacify the citizenry and create the illusion that the rule of law still prevails. But the one thing that remains off-limits in Washington culture above all else is subjecting high-level political officials to the rule of law when they commit crimes. The low-level scapegoating which the Post today endorses is the approach which, by all accounts, Eric Holder is likely to pursue.

The United States — a proud nation, a nation of laws, of a Constitution, of the Constitution. Yet America is not today — if it has ever been — a nation in which every person is equally subject to the law. Rather, the law and the Constitution have mostly been instruments the powerful, the favored and the well-placed used to pursue their peculiar ends. This corruption of the republic is quite evident today. The corruption has lately become so obvious that if the actions of the elite betray their intentions, their sensibilities and their political culture, then it follows that they believe justice is something meant only for the weak.

One might consider this kind of justice an instance of "street justice" — a harsh form of rule originating on Wall Street and K Street.