This week the ACLU and the Center for Constitutional Rights filed suit against CIA Director David Petraeus, Secretary of Defense Leon Panetta, and two top special operations forces commanders for "violating the Constitution and international law" in the drone assassination of three American citizens in Yemen, Anwar al-Awlaki, Samir Khan, and al-Awlaki's 16-year-old son Abdulrahman (though no one claims he had anything whatsoever to do with terror campaigns). The suit is based on the Constitution's promise of "due process" ("[N]or shall any person... be deprived of life, liberty, or property, without due process of law"), which to the untutored eye of this non-lawyer clearly seems to involve "law." Attorney General Eric Holder evidently thinks otherwise and has explained his reasoning when it comes to the right of the Obama administration to order such deaths: "The Constitution guarantees due process, not judicial process." If you're not inside the National Security Complex, it may be just a tad hard to grasp how "due process" could mean a secret process of review in the White House presided over by a president with a "kill list" (whose legal justification, laid out by the Justice Department, cannot be made public). And yet that is, as far as we can tell, indeed the claim.
It will be a surprise if this case goes far. The government is almost certain to bring to bear the usual not-quite-state-secrets-act to squelch it, with its lawyers undoubtedly claiming that any such trial could reveal damaging secrets about our expanding drone wars. Of course, U.S. drone strikes in Pakistan, Yemen, and more rarely Somalia are regularly in the news, and have been proudly cited or even boasted about by officials from the president on down, yet they remain somehow "covert" and unmentionable when it suits the administration. And since just about anything the National Security Complex does evidently now qualifies for classified status, secrecy is increasingly the convenient excuse for just about anything.
In the case of our drone wars, "covert" clearly has little to do with secrecy in any normal sense and a lot to do with lack of accountability to anyone not involved in choosing those to be killed or launching the attacks. One thing is clear: whatever the ACLU and others do, we now live in a post-legal America, a world in which no act (other than whistleblowing), however illegal, within the national security state can be successfully prosecuted in court. This has clearly been part of a process by which, since 2001, American liberties have been turned in for "safety." Something did change after 9/11 (when "everything" was supposed to have changed) and in a speech at the University of St. Andrews in Scotland, reproduced below in full, Noam Chomsky backs up a few centuries to lay out a vivid history of just how this happened. (To catch Timothy MacBain's latest Tomcast audio interview in which Chomsky discusses the recent shredding of the principles of the Magna Carta, click here or download it to your iPod here.) Tom
Destroying the Commons:
How the Magna Carta Became a Minor Carta
By Noam Chomsky
Down the road only a few generations, the millennium of Magna Carta, one of the great events in the establishment of civil and human rights, will arrive. Whether it will be celebrated, mourned, or ignored is not at all clear.
That should be a matter of serious immediate concern. What we do right now, or fail to do, will determine what kind of world will greet that event. It is not an attractive prospect if present tendencies persist -- not least, because the Great Charter is being shredded before our eyes.
The first scholarly edition of Magna Carta was published by the eminent jurist William Blackstone. It was not an easy task. There was no good text available. As he wrote, "the body of the charter has been unfortunately gnawn by rats" -- a comment that carries grim symbolism today, as we take up the task the rats left unfinished.
Blackstone's edition actually includes two charters. It was entitled The Great Charter and the Charter of the Forest. The first, the Charter of Liberties, is widely recognized to be the foundation of the fundamental rights of the English-speaking peoples -- or as Winston Churchill put it more expansively, "the charter of every self-respecting man at any time in any land." Churchill was referring specifically to the reaffirmation of the Charter by Parliament in the Petition of Right, imploring King Charles to recognize that the law is sovereign, not the King. Charles agreed briefly, but soon violated his pledge, setting the stage for the murderous Civil War.
After a bitter conflict between King and Parliament, the power of royalty in the person of Charles II was restored. In defeat, Magna Carta was not forgotten. One of the leaders of Parliament, Henry Vane, was beheaded. On the scaffold, he tried to read a speech denouncing the sentence as a violation of Magna Carta, but was drowned out by trumpets to ensure that such scandalous words would not be heard by the cheering crowds. His major crime had been to draft a petition calling the people "the original of all just power" in civil society -- not the King, not even God. That was the position that had been strongly advocated by Roger Williams, the founder of the first free society in what is now the state of Rhode Island. His heretical views influenced Milton and Locke, though Williams went much farther, founding the modern doctrine of separation of church and state, still much contested even in the liberal democracies.
As often is the case, apparent defeat nevertheless carried the struggle for freedom and rights forward. Shortly after Vane's execution, King Charles granted a Royal Charter to the Rhode Island plantations, declaring that "the form of government is Democratical," and furthermore that the government could affirm freedom of conscience for Papists, atheists, Jews, Turks -- even Quakers, one of the most feared and brutalized of the many sects that were appearing in those turbulent days. All of this was astonishing in the climate of the times.
A few years later, the Charter of Liberties was enriched by the Habeas Corpus Act of 1679, formally entitled "an Act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas." The U.S. Constitution, borrowing from English common law, affirms that "the writ of habeas corpus shall not be suspended" except in case of rebellion or invasion. In a unanimous decision, the U.S. Supreme Court held that the rights guaranteed by this Act were "[c]onsidered by the Founders [of the American Republic] as the highest safeguard of liberty." All of these words should resonate today.
The Second Charter and the Commons
The significance of the companion charter, the Charter of the Forest, is no less profound and perhaps even more pertinent today -- as explored in depth by Peter Linebaugh in his richly documented and stimulating history of Magna Carta and its later trajectory. The Charter of the Forest demanded protection of the commons from external power. The commons were the source of sustenance for the general population: their fuel, their food, their construction materials, whatever was essential for life. The forest was no primitive wilderness. It had been carefully developed over generations, maintained in common, its riches available to all, and preserved for future generations -- practices found today primarily in traditional societies that are under threat throughout the world.
The Charter of the Forest imposed limits to privatization. The Robin Hood myths capture the essence of its concerns (and it is not too surprising that the popular TV series of the 1950s, "The Adventures of Robin Hood," was written anonymously by Hollywood screenwriters blacklisted for leftist convictions). By the seventeenth century, however, this Charter had fallen victim to the rise of the commodity economy and capitalist practice and morality.
With the commons no longer protected for cooperative nurturing and use, the rights of the common people were restricted to what could not be privatized, a category that continues to shrink to virtual invisibility. In Bolivia, the attempt to privatize water was, in the end, beaten back by an uprising that brought the indigenous majority to power for the first time in history. The World Bank has just ruled that the mining multinational Pacific Rim can proceed with a case against El Salvador for trying to preserve lands and communities from highly destructive gold mining. Environmental constraints threaten to deprive the company of future profits, a crime that can be punished under the rules of the investor-rights regime mislabeled as "free trade." And this is only a tiny sample of struggles underway over much of the world, some involving extreme violence, as in the Eastern Congo, where millions have been killed in recent years to ensure an ample supply of minerals for cell phones and other uses, and of course ample profits.