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2 Destroying the commons: How the
Magna Carta became a Minor
Carta By Noam Chomsky
principles remain up to very recent years.
Until a Supreme Court decision of 1975, women did
not even have a legal right to serve on juries.
They were not peers. Just two weeks ago,
Republican opposition blocked the Fairness
Paycheck Act guaranteeing women equal pay for
equal work. And it goes far beyond.
Slaves, of course, were not persons. They
were in fact three-fifths human under the
constitution, so as to grant their owners greater
voting power. Protection of slavery was no slight
concern to the founders: It was one factor leading
to the American Revolution. In the 1772 Somerset
case, Lord Mansfield determined that slavery
is so "odious" that it cannot
be tolerated in England, though it continued in
British possessions for many years. American
slave-owners could see the handwriting on the wall
if the colonies remained under British rule. And
it should be recalled that the slave states,
including Virginia, had the greatest power and
influence in the colonies. One can easily
appreciate Dr Johnson's famous quip that "we hear
the loudest yelps for liberty among the drivers of
negroes".
Amendments after the American
Civil War extended the concept "person" to
African-Americans, ending slavery. In theory, at
least. After about a decade of relative freedom, a
condition akin to slavery was reintroduced by a
North-South compact permitting the effective
criminalization of black life. A black male
standing on a street corner could be arrested for
vagrancy, or for attempted rape if accused of
looking at a white woman the wrong way. And once
imprisoned, he had few chances of ever escaping
the system of "slavery by another name", the term
used by then-Wall Street Journal bureau chief
Douglas Blackmon in an arresting study.
This new version of the "peculiar
institution" provided much of the basis for the US
industrial revolution, with a perfect workforce
for the steel industry and mining, along with
agricultural production in the famous chain gangs:
docile, obedient, no strikes, and no need for
employers even to sustain their workers, an
improvement over slavery. The system lasted in
large measure until World War II, when free labor
was needed for war production.
The postwar
boom offered employment. A black man could get a
job in a unionized auto plant, earn a decent
salary, buy a house, and maybe send his children
to college or university. That lasted for about 20
years, until the 1970s, when the US economy was
radically redesigned on newly dominant neo-liberal
principles, with rapid growth of financialization
and the offshoring of production. The black
population, now largely superfluous, has been
re-criminalized.
Until Ronald Reagan's
presidency, incarceration in the US was within the
spectrum of industrial societies. By now it is far
beyond others. It targets primarily black males,
increasingly also black women and Hispanics,
largely guilty of victimless crimes under the
fraudulent "drug wars". Meanwhile, the wealth of
black American families has been virtually
obliterated by the latest financial crisis, in no
small measure thanks to criminal behavior of
financial institutions, with impunity for the
perpetrators, now richer than ever.
Looking over the history of black
Americans from the first arrival of slaves almost
500 years ago to the present, they have enjoyed
the status of authentic persons for only a few
decades. There is a long way to go to realize the
promise of Magna Carta.
Sacred persons
and undone process The post-Civil War
Fourteenth Amendment of the US constitution
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 Fourteenth
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", 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 US
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 Muammar 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 Obama
administration's international assassination
campaign in a way that renders this core element
of the Charter of Liberties (and the US
constitution) null and void. The US Justice
Department explained that the constitutional
guarantee of due process, tracing to Magna Carta,
was 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 a US 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 recognized as
indispensable by civilized peoples."
The
most famous recent case of executive assassination
was Osama bin Laden, murdered after he was
apprehended by 79 Navy SEALs, defenseless,
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 US Federal Bureau of Investigation
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 naive" 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 US Supreme Court
by the Obama administration, Holder vs
Humanitarian Law Project. The project was
condemned for providing "material assistance" to
the guerrilla organization PKK (Kurdistan Workers
Party), 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 non-violent
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
neighboring 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 George H W 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 September 11, 2001, the United
States 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 US$500 million in remittances to
Somalia, "more than it earns from any other
economic sector and 10 times the amount of foreign
aid [Somalia] receives", a United Nations review
determined. The charity also ran major businesses
in Somalia, all destroyed. The leading academic
scholar of George W 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 privatization by
predatory corporations and the state authorities
who cooperate 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 privatization of
our otherwise commonly held natural environment
is one way neo-liberal 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
programs inflicted on the continent - the
enthronement of corruption.
I'm
quoting Nigerian poet and activist Nnimmo Bassey,
chairman 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 recognized. At the
end of World War II, the US held a position of
unprecedented global power. Not surprisingly,
careful and sophisticated plans were developed
about how to organize 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 recognized 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 meager 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 great concern - with some effect, as
polls show.
The media cooperate 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 skeptics: 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 program at the Massachusetts Institute of
Technology among others, who criticize 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, President 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 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-Christopher Columbus.
After the
ignominious collapse of the Copenhagen global
climate change summit in 2009, Bolivia organized 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.
Noam Chomsky is Institute
Professor Emeritus in the Massachusetts Institute
of Technology department of linguistics and
philosophy and the author of numerous best-selling
political works including, most recently,
Hopes and Prospects, Making the Future, and
Occupy. This is the full text of a speech he
gave recently at the University of St Andrews in
Scotland. His website is chomsky.info.
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