Who Rules the World? (14 page)

Popular struggles to bring about a freer and more just society have been resisted by violence and repression and massive efforts to control opinion and attitudes. Over time, however, they have met with considerable success, even though there is a long way to go and there is often regression.

The most famous part of the Charter of Liberties is Article 39, which declares that “no free man” shall be punished in any way, “nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.”

Through many years of struggle, the principle has come to hold more broadly. The U.S. Constitution provides that no “person [shall] be deprived of life, liberty, or property, without due process of law [and] a speedy and public trial” by peers. The basic principle is “presumption of innocence”—what legal historians describe as “the seed of contemporary Anglo-American freedom,” referring to Article 39 and, with the Nuremberg tribunal in mind, a “particularly American brand of legalism: punishment only for those who could be proved to be guilty through a fair trial with a panoply of procedural protections”—even if their guilt for some of the worst crimes in history is not in doubt.
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The founders, of course, did not intend the term “person” to apply to all persons: Native Americans were not persons. Their rights were virtually nil. Women were scarcely persons; wives were understood to be “covered” under the civil identity of their husbands in much the same way as children were subject to their parents. Blackstone’s principles held that “the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.”
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Women are thus the property of their fathers or husbands. This principle remains in force 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.

Slaves, of course, were not persons. They were three-fifths human under the Constitution, so as to grant their owners greater voting power. The protection of slavery was no slight concern to the founders: it was one factor that led to the American Revolution. In the 1772 Somerset case, Lord Mansfield determined that slavery is so “odious” that it could not be tolerated in England, though it continued in British possessions for many years.
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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.”
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Post–Civil War amendments extended the concept of personhood 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.
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This new version of the “peculiar institution” provided much of the basis for the American industrial revolution, creating a perfect workforce for the steel industry and mining, along with agricultural production in the famous chain gangs: docile, obedient, disinclined to strike, and with no demand for employers even to sustain their workers, an improvement over the slavery system. The new 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. That lasted for about twenty years, until the 1970s, when the economy was radically redesigned on newly dominant neoliberal principles, with the rapid growth of financialization and the offshoring of production. The black population, now largely superfluous, has been recriminalized.

Until Ronald Reagan’s presidency, incarceration in the United States was within the spectrum of other industrial societies. By now it is far beyond. It targets primarily black males, but increasingly also black women and Latinos, largely guilty of victimless crimes in the fraudulent “drug wars.” Meanwhile, the wealth of African-American families was virtually obliterated by the latest financial crisis, in no small measure thanks to the criminal behavior of financial institutions, enacted with impunity for the perpetrators, now richer than ever.

Looking over the history of African-Americans from the first arrival of slaves four hundred years ago to the present, it is evident 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 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 subsequently brought to the courts under the Fourteenth Amendment had to do with corporate rights, and by a century ago, the courts 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, their immortality, and the protections of limited liability. The rights of corporations by now far transcend those of mere humans. Under the “free-trade agreements,” the mining company Pacific Rim can, for example, sue El Salvador for seeking to protect its 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 person demanded national rights in the United States.

Domestically, recent Supreme Court rulings greatly enhance the already enormous political power of corporations and the superrich, 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 to the mercies of Muammar al-Qaddafi; or when U.S. 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.
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The same has happened to many others, often transported through Shannon Airport, leading to courageous protests in Ireland.

The concept of due process has been extended under the Obama administration’s international drone assassination campaign in a way that makes 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.
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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, in part: “The West Celebrates a Cleric’s Death.”
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Some eyebrows were lifted, however, because Awlaki was an American citizen, which raised questions about due process—considered irrelevant when noncitizens are murdered at the whim of the chief executive. And now irrelevant for citizens, too, under the Obama administration’s due-process legal innovations.

Presumption of innocence has also been given a new and useful interpretation. As the
New York Times
later 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.”
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So post-assassination determination of innocence maintains the sacred principle of presumption of innocence.

It would be ungracious to recall (as the
Times
avoids doing in its report) 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.”
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The most famous recent case of executive assassination was that of Osama bin Laden, murdered after he was apprehended by seventy-nine Navy SEALs, defenseless and accompanied only by his wife. Whatever one thinks of him, he was a suspect and nothing more than that. Even the FBI agreed on this point.

The celebrations in the United States were 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 that of 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 United States should obey international law or other conditions that we righteously demand of the weak.
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Only tactical objections, it seems, 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, he is 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 the guerrilla organization Kurdistan Workers’ Party (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 to advice to the PKK to keep to nonviolent means. Again, there was a marginal fringe of criticism, but even those critiques generally accepted the legitimacy of the state terrorist list—of, that is, arbitrary decisions by the executive, with no legal recourse.
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The record of the terrorist list is of some interest. One of the ugliest examples of the use of the terrorist list has to do with the tortured people of Somalia. Immediately after 9/11, the United States closed down the Somali charitable network Al-Barakaat on grounds that it was financing terror.
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This achievement was hailed as 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 $500 million in remittances sent back to Somalia annually, “more than [Somalia] earns from any other economic sector and 10 times the amount of foreign aid it receives,” a UN review determined.
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The charity also ran major businesses in Somalia, all of which were 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.”
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The very idea that the state should have the authority to make such judgments unchecked 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, from royalty, over the years, from enclosures and other forms of privatization by predatory corporations and the state authorities who cooperate with them, which have only accelerated and are properly rewarded. The damage is very broad.

If we listen to voices from the global 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 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 exposé of the ravaging of Africa’s wealth,
To Cook a Continent
, which examines the latest phase of the Western torture of Africa.
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