With Liberty and Justice for Some by Glenn Greenwald

their lobbyists call for a new law that has no purpose other than to declare that the old laws do not apply to them. That is the living, breathing embodiment of our two-tiered justice system—a lawless Wild West for elites in which anything goes. Examining how the telecoms pursued the amazing feat of getting full immunity for their systematic lawbreaking highlights how and why the rule of law is so easily discarded in the United States.
    The very idea of retroactive immunity for lawbreaking corporations is so antithetical to the most basic principles of the rule of law that I have been able to find only one other such attempt in recent history. That case involved the efforts by some in Congress in 1965 to enact a law retroactively legalizing the mergers of six large banks—mergers which, as a federal court found, were clearly illegal under antitrust laws.
    The banks knew when they merged that they were almost certainly violating antitrust regulations. But they did it anyway, assuming that once the mergers were effectuated it would be impossible to undo them. And when, postmerger, courts began ruling that their behavior was indeed illegal, the banks ran to Congress to demand that a law be passed granting them amnesty, claiming that the consequences would be ruinous if they were held accountable under the law.
    In 1965, this brazen demand met with stiff resistance. Senator Robert Kennedy pointed out that if retroactive immunity were granted to the banks, it might equally well be applied to “murder or any other crime.” And Attorney General Nicholas Katzenbach was equally appalled. An August 22, 1965, article in the New York Times described his response as “one of the most sternly-worded statements ever delivered by a Cabinet-rank official.” The attorney general denounced as “outrageous” the very idea that Congress might retroactively immunize clearly illegal corporate behavior, and condemned the proposal as “nothing more or less than a private relief bill for the banks” that “can in no way be justified.” Such fervent objections had their effect. While disentangling the illegally merged banks ultimately proved to be impossible from a practical standpoint, the opposition did succeed in imposing substantial limits on the banks’ ability to act anticompetitively.
    Kennedy and Katzenbach stood up eloquently and aggressively for the rule of law—even when the nation’s wealthiest bankers claimed that undoing their mergers would cripple the economy—but our political class today is bound by no such principles. Instead, leading Democratic members of Congress spent months in secret discussions with Dick Cheney, looking for ways to protect lawbreaking telecoms from the court battles that they were losing, and trying to save the telecoms from the consequences of their criminal conduct. That steeply downward fall—from Robert Kennedy and his emphatic insistence on equality under the law to the Cheney/Democratic telecom amnesty scheme—illustrates much about what has happened to our country and its rule of law.
    The public campaign for retroactive telecom immunity relied on two main arguments. On one hand, there was the familiar fearmongering about terrorism: the idea that if we do not immunize them, telecoms might no longer cooperate with the government’s eavesdropping programs and we will thus be unable to detect terrorist plots. At the same time, immunity advocates proclaimed that the telecoms had been motivated only by feelings of patriotic duty to the nation and should therefore not be punished for their actions.
    Both of those claims were patently false. Telecoms are already required by law to assist the government with any legal requests for eavesdropping (that is, requests accompanied by a judicial warrant) and thus do not have the option to refuse to cooperate. And whatever the claims to patriotism by the telecoms, their cooperation resulted in massive profits. (Of course, breaking the law is not