How the Magna Carta Became a Minor Carta, Part 2
Noam Chomsky, Tom Dispatch
he post-civil war 14th amendment granted the rights of persons to former slaves, though mostly in theory. At the same time, it created a new category of persons with rights: corporations. In fact, almost all the cases brought to the courts under the 14th amendment had to do with corporate rights, and by a century ago, they had determined that these collectivist legal fictions, established and sustained by state power, had the full rights of persons of flesh and blood; in fact, far greater rights, thanks to their scale, immortality, and protections of limited liability. Their rights by now far transcend those of mere humans. Under the "free trade agreements", the Pacific Rim can, for example, sue El Salvador for seeking to protect the environment; individuals cannot do the same. General Motors can claim national rights in Mexico. There is no need to dwell on what would happen if a Mexican demanded national rights in the United States.
Domestically, recent supreme court rulings greatly enhance the already enormous political power of corporations and the super-rich, striking further blows against the tottering relics of functioning political democracy.
Meanwhile Magna Carta is under more direct assault. Recall the Habeas Corpus Act of 1679, which barred "imprisonment beyond the seas", and certainly the far more vicious procedure of imprisonment abroad for the purpose of torture – what is now more politely called "rendition", as when Tony Blair rendered Libyan dissident Abdel Hakim Belhaj, now a leader of the rebellion, to the mercies of Colonel Gaddafi; or when US authorities deported Canadian citizen Maher Arar to his native Syria, for imprisonment and torture, only later conceding that there was never any case against him. And many others, often through Shannon airport, leading to courageous protests in Ireland.
The concept of due process has been extended under the Barack Obama administration's international assassination campaign in a way that renders this core element of the Charter of Liberties (and the Constitution) null and void. The Justice Department explained that the constitutional guarantee of due process, tracing to Magna Carta, is now satisfied by internal deliberations in the executive branch alone. The constitutional lawyer in the White House agreed. King John might have nodded with satisfaction.
The issue arose after the presidentially ordered assassination-by-drone of Anwar al-Awlaki, accused of inciting jihad in speech, writing, and unspecified actions. A headline in the New York Times captured the general elite reaction when he was murdered in a drone attack, along with the usual collateral damage. It read: "The west celebrates a cleric's death." Some eyebrows were lifted, however, because he was an American citizen, which raised questions about due process – considered irrelevant when non-citizens are murdered at the whim of the chief executive. And irrelevant for citizens, too, under Obama administration due-process legal innovations.
Presumption of innocence has also been given a new and useful interpretation. As the New York Times reported: "Mr Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent." So post-assassination determination of innocence maintains the sacred principle of presumption of innocence.
It would be ungracious to recall the Geneva conventions, the foundation of modern humanitarian law: they bar "the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples".
The most famous recent case of executive assassination was Osama bin Laden, murdered after he was apprehended by 79 Navy seals, defenceless, accompanied only by his wife, his body reportedly dumped at sea without autopsy. Whatever one thinks of him, he was a suspect and nothing more than that. Even the FBI agreed.
Celebration in this case was overwhelming, but there were a few questions raised about the bland rejection of the principle of presumption of innocence, particularly when trial was hardly impossible. These were met with harsh condemnations. The most interesting was by a respected left-liberal political commentator, Matthew Yglesias, who explained that "one of the main functions of the international institutional order is precisely to legitimate the use of deadly military force by western powers", so it is "amazingly naïve" to suggest that the US should obey international law or other conditions that we righteously demand of the weak.
Only tactical objections can be raised to aggression, assassination, cyberwar, or other actions that the Holy State undertakes in the service of mankind. If the traditional victims see matters somewhat differently, that merely reveals their moral and intellectual backwardness. And the occasional western critic who fails to comprehend these fundamental truths can be dismissed as "silly", Yglesias explains – incidentally, referring specifically to me, and I cheerfully confess my guilt.
Executive Terrorist Lists
Perhaps the most striking assault on the foundations of traditional liberties is a little-known case brought to the supreme court by the Obama administration, Holder v Humanitarian Law Project. The project was condemned for providing "material assistance" to guerrilla organisation PKK, which has fought for Kurdish rights in Turkey for many years and is listed as a terrorist group by the state executive. The "material assistance" was legal advice. The wording of the ruling would appear to apply quite broadly, for example, to discussions and research inquiry, even advice to the PKK to keep to nonviolent means. Again, there was a marginal fringe of criticism, but even those accepted the legitimacy of the state terrorist list – arbitrary decisions by the executive, with no recourse.
The record of the terrorist list is of some interest. For example, in 1988 the Reagan administration declared Nelson Mandela's African National Congress to be one of the world's "more notorious terrorist groups", so that Reagan could continue his support for the apartheid regime and its murderous depredations in South Africa and in neighbouring countries, as part of his "war on terror". Twenty years later Mandela was finally removed from the terrorist list, and can now travel to the US without a special waiver.
Another interesting case is Saddam Hussein, removed from the terrorist list in 1982 so that the Reagan administration could provide him with support for his invasion of Iran. The support continued well after the war ended. In 1989, President Bush even invited Iraqi nuclear engineers to the US for advanced training in weapons production – more information that must be kept from the eyes of the "ignorant and meddlesome outsiders."
One of the ugliest examples of the use of the terrorist list has to do with the tortured people of Somalia. Immediately after 11 September, the US closed down the Somali charitable network Al-Barakaat on grounds that it was financing terror. This achievement was hailed one of the great successes of the "war on terror". In contrast, Washington's withdrawal of its charges as without merit a year later aroused little notice.
Al-Barakaat was responsible for about half the $500m in remittances to Somalia, "more than it earns from any other economic sector and 10 times the amount of foreign aid [Somalia] receives" a UN review determined. The charity also ran major businesses in Somalia, all destroyed. The leading academic scholar of Bush's "financial war on terror", Ibrahim Warde, concludes that apart from devastating the economy, this frivolous attack on a very fragile society "may have played a role in the rise ... of Islamic fundamentalists" – another familiar consequence of the "war on terror".
The very idea that the state should have the authority to make such judgments is a serious offense against the Charter of Liberties, as is the fact that it is considered uncontentious. If the charter's fall from grace continues on the path of the past few years, the future of rights and liberties looks dim.
Who Will Have the Last Laugh?
A few final words on the fate of the Charter of the Forest. Its goal was to protect the source of sustenance for the population, the commons, from external power – in the early days, royalty; over the years, enclosures and other forms of privatisation by predatory corporations and the state authorities who co-operate with them, have only accelerated and are properly rewarded. The damage is very broad.
If we listen to voices from the south today we can learn that "the conversion of public goods into private property through the privatisation of our otherwise commonly held natural environment is one way neoliberal institutions remove the fragile threads that hold African nations together. Politics today has been reduced to a lucrative venture where one looks out mainly for returns on investment rather than on what one can contribute to rebuild highly degraded environments, communities, and a nation. This is one of the benefits that structural adjustment programmes inflicted on the continent – the enthronement of corruption." I'm quoting Nigerian poet and activist Nnimmo Bassey, chair of Friends of the Earth International, in his searing expose of the ravaging of Africa's wealth, To Cook a Continent, the latest phase of the western torture of Africa.
Torture that has always been planned at the highest level, it should be recognised. At the end of the second world war, the US held a position of unprecedented global power. Not surprisingly, careful and sophisticated plans were developed about how to organise the world. Each region was assigned its "function" by state department planners, headed by the distinguished diplomat George Kennan. He determined that the US had no special interest in Africa, so it should be handed over to Europe to "exploit" – his word – for its reconstruction. In the light of history, one might have imagined a different relation between Europe and Africa, but there is no indication that that was ever considered.
More recently, the US has recognised that it, too, must join the game of exploiting Africa, along with new entries like China, which is busily at work compiling one of the worst records in destruction of the environment and oppression of the hapless victims.
It should be unnecessary to dwell on the extreme dangers posed by one central element of the predatory obsessions that are producing calamities all over the world: the reliance on fossil fuels, which courts global disaster, perhaps in the not-too-distant future. Details may be debated, but there is little serious doubt that the problems are serious, if not awesome, and that the longer we delay in addressing them, the more awful will be the legacy left to generations to come. There are some efforts to face reality, but they are far too minimal. The recent Rio+20 Conference opened with meagre aspirations and derisory outcomes.
Meanwhile, power concentrations are charging in the opposite direction, led by the richest and most powerful country in world history. Congressional Republicans are dismantling the limited environmental protections initiated by Richard Nixon, who would be something of a dangerous radical in today's political scene. The major business lobbies openly announce their propaganda campaigns to convince the public that there is no need for undue concern – with some effect, as polls show.
The media co-operates by not even reporting the increasingly dire forecasts of international agencies and even the US Department of Energy. The standard presentation is a debate between alarmists and sceptics: on one side virtually all qualified scientists, on the other a few holdouts. Not part of the debate are a very large number of experts, including the climate change programme at Massachusetts Institute of Technology among others, who criticise the scientific consensus because it is too conservative and cautious, arguing that the truth when it comes to climate change is far more dire. Not surprisingly, the public is confused.
In his State of the Union speech in January, Obama hailed the bright prospects of a century of energy self-sufficiency, thanks to new technologies that permit extraction of hydrocarbons from Canadian tar sands, shale and other previously inaccessible sources. Others agree. The Financial Times forecasts a century of energy independence for the US The report does mention the destructive local impact of the new methods. Unasked in these optimistic forecasts is the question, what kind of a world will survive the rapacious onslaught?
In the lead in confronting the crisis throughout the world are indigenous communities, those who have always upheld the Charter of the Forests. The strongest stand has been taken by the one country they govern, Bolivia, the poorest country in South America and for centuries a victim of western destruction of the rich resources of one of the most advanced of the developed societies in the hemisphere, pre-Columbus.
After the ignominious collapse of the Copenhagen global climate change summit in 2009, Bolivia organised a People's Summit with 35,000 participants from 140 countries – not just representatives of governments, but also civil society and activists. It produced a People's Agreement, which called for very sharp reduction in emissions, and a Universal Declaration on the Rights of Mother Earth. That is a key demand of indigenous communities all over the world. It is ridiculed by sophisticated westerners, but unless we can acquire some of their sensibility, they are likely to have the last laugh – a laugh of grim despair.