American children are taught about the Magna Carta Liberatum (“the Great Charter of the Liberties”) and how this document was a fore bearer that brought into existence our current – “most perfect” – system of legal justice. It’s likely they are taught that the Magna Carta granted civil liberties, like habeaus corpus, and that it holds the governing to account on the same laws as the governed. It’s probable that the story is taught as if autocracy voluntarily relieved itself of power and enshrined, under the charter, an equality-based classless system of free society.
Probably, since it isn’t Federally mandated reading material, it isn’t taught that those civil liberties have nothing to do with the Magna Carta, were never even in the document, the few rights written into it were not for common people and that the document was repealed before even a year had passed – and that it was filed back into law only after it was stripped of the few rights it ever held. A writ to sue for involuntary detainment first arrived, in a very limited form, in the Habeas Corpus Act of 1679 more than 450 years later.
The Magna Carta dealt primarily with how and at what amounts barons rented land from the land-owning royal crown and what the rates and processes there were for taking loans from bankers under royal protection – it did not give any rights or even mention rights of the working serfs. Disagreements over these banking terms ultimately led to what’s called the First Baron’s War, of which there were several as the name implies, and had local lords rebel against the crown.
Americans are taught incorrectly that the Magna Carta established rights such as habeus corpus and sovereign legal accountability. This misunderstanding may have come from a particular judge in Medieval Britain who used the Magna Carta as a political tool. In 1627 Cook supported arguments that involuntary detention in the case of unpaid rent to the crown was not explicitly authorized by the Magna Carta and therefore not legal. The court system disagreed, as the Magna Carta was never intended to enumerate in full the rights of the state.
As a historical equivalent to modern polemicists who politicize The Constitution and claim its Articles say far more than they do, Cook’s arguments were not only lost in the British court system – he was eventually arrested for treason and the book he had published on his interpretation of the Magna Carta were removed from circulation. Today, Sir Edward Cook is criticized by modern historians for ‘”misconstruing” the original charter “anachronistically and uncritically”, and taking a “very selective” approach to his analysis.’
This of course was inevitably magnified by a Henry Care who, functioning as a payed propagandist, deliberately spread misinformation about the Magna Carta and its presumed continuity of law in Britian and her new American colony in an anti-Catholic political revolution. Eventually convicted, and his pamphlets censored by the British crown, Care’s work did inspire American Whig revolutionaries such as William Penn, who took to reprinting the Magna Carta and circulating it through the 13 Colonies.
Similar to the Magna Carta, American cultural impression of their law also gives it independent claims to lineage from mythological versions of the Code of Hammurabi, the Roman 12 Tables, Hellenic Democracy, the laws of both the Left and Right from Post-Revolutionary France, and “Enlightenment Thinkers” – each of which are told in the same story format of autocracy voluntarily relieving itself of power to giving way to equality-based, classless society.
It has remained a part of United States cultural narrative not entirely on accident. Tracing continuity of rule – be it through blue blood, legal inheritance, divine right, or doctrinal privilege – is a mainstay of Western, and possibly much of Eastern, culture. Just as Germany had in the 1940’s attempted to establish a line of legitimate rule back to both the Aramaic and Indo-European people and a relationship to the Holy Roman Empire – and just as any political revolution in America would necessarily argue its close relationship to The Constitution – drawing fictitious connections between American law to ancient laws helps establish what seems to be just rule in a line of continuous, legitimate, succession.
While the historical accuracy of these cultural myths is easy to factually disprove, a more interesting challenge presents itself. The principles of ‘just’ power, although only presumed through folklore to have come from ancient rule in a traceable form to our current government, are themselves enumerable and are in some real measures manifest in society. While the stories of origin may be fabricated, to what degree does the ‘social contract’ imagined by those stories, in which civil liberties are first principles, exist in a real form today?
Justice Against Sponsors of Terrorism Act
This bill amends the federal judicial code to narrow the scope of foreign sovereign immunity by authorizing U.S. courts to hear cases involving claims against a foreign state for injuries, death, or damages that occur inside the United States as a result of a tort, including an act of terrorism, committed anywhere by a foreign state or official.
It amends the federal criminal code to permit civil claims against a foreign state or official for injuries, death, or damages from an act of international terrorism. Additionally, the bill authorizes federal courts to exercise personal jurisdiction over and impose liability on a person who commits, or aids, abets, or conspires to commit, an act of international terrorism against a U.S. national.
S.2040 – or JASTA “Justice Against Sponsors of Terrorism Act” by name, just passed the United States Senate and will make its way first through the 114th Congress and then be signed into law by the current seated president Barack Obama – unless it is vetoed, which the White House has promised to do unless Congress weakens the language of the bill.
The Obama administration has been particularly careful about using its veto power, only choosing to do so when it is considered a very high priority for the administration. As such, Mr. President Obama has only cast 9 vetos during his entire stay at the top of the Executive Branch. As such, the veto promise underscores the importance to our Executive Branch that JASTA not be made law.
Covered in the domestic media as “Senate passes bill allowing 9/11 victims to sue Saudi Arabia“, the actual stipulations of the law do not mention Saudi Arabia and are on the whole very narrow. It forces the US Justice Department to hear trials against foreign government officials on charges that the support, arming, funding or training of terrorists has caused damages – mortal or monetary – against US persons and property specifically inside of the country’s physical boundaries.
The surprising thing for many people in America is that this isn’t already possible. They had thought not only that justice against sponsors of terrorism was something the US Justice system was able and willing to take on – they thought it had actually been done: mass domestic propaganda campaigns convinced the public of the righteousness of the Bush Administration’s version of ‘justice for sponsors of terrorism’, which involved invading a country not in any way connected to the September 11 attacks.
Furthermore in the War on Iraq the United States followed an operating manual called the Wolfowitz Doctrine (online copy), whose recommendations included destroying Iraq completely, so as to strike fear in in the minds of countries around the world. Americans don’t remember that the carnage was so bad, and so one sided, that the full force of the international community called for the Americans to remove themselves from Iraq.
Compare the legality of lawsuits over terrorism when the charges are against Iran. In 2012 the Justice Department upheld its choice to pursue economic reimbursement for American losses to Iranian proxy forces.
Whereas minor financial compensation seems a small price to pay for “the day that changed the world,” it would by normal measures be criminal since the funds from any successful suit are virtually guaranteed to come from Saudi civilians’ taxes and national budgets rather than the officials themselves. This is only if you’re first willing to agree that financial compensation – rather than a prison sentence – should be the punishment for funders and provocateurs behind heinous actions like the 9/11 terror attacks. For the royal family in Saudi Arabia and their enormous wealth, it would seem to suggest that they can afford to sponsor a great deal more terrorism – provided they budget in the legal expenses necessary to cover any following lawsuits.
Compare the “justice” in Iraq to the reaction of the United States government to potential of lawsuits that could reach the actual support networks of the attacks. Not only is financial litigation so controversial for the Executive Branch that they’ve promised to veto it – but the kind of physical retaliation knowingly visited on the wrong suspect (Iraq) isn’t even on the table for discussion for the real purpetrator (Saudi Arabia).
This leads us to ask: why is this such an important priority for the Obama Administration? Josh Earnest, Secretary for the Press out of the White House, explained the official position after the Senate passed the bill:
“I know that the advocates of this legislation have suggested that they have taken into account our concerns by more narrowly tailoring the legislation. But, unfortunately, their efforts were not sufficient to prevent the longer-term, unintended consequences that we are concerned about. This legislation would change longstanding international law regarding sovereign immunity. And the President of the United States continues to harbor serious concerns that this legislation would make the United States vulnerable in other court systems around the world.
There’s also a concern that hasn’t gotten as much attention about the potential vulnerability that is created for some of our allies and partners in U.S. courts. And the concern is related to the fact that sovereign immunity is a principle that is critical to our national security. The United States is more engaged in activities in other countries than any other country in the world. Typically, those are actually activities that other countries benefit from significantly. These are peacekeeping activities, or humanitarian relief activities, or other activities in which the United States is supporting the national security activities of other countries, and the national security of other countries is enhanced by the involvement of the United States.
But out involvement in those activities is made more complicated by the chance that the principle of sovereign immunity could be eroded. So the administration strongly continues to oppose this legislation. And we’re obviously going to begin conversations with the House about it.”
Josh Earnest, 5/17/2016 White House Press Briefing
By the official account, the White House is concerned about the legislation for several reasons. First, the United States government holds sovereign immunity as a principle of law, and considers it critical to National Security. The United States, as per its own law, is immune from legal repercussions unless it specifically consents to be accountable, as it has done (for example) for very narrow cases in the Tucker Act.
The White House Spokesperson continues to explain that the United States is engaged in “activities” around the world for which a weakened international standards concerning sovereign immunity would cause problems for the United States. He helpfully volunteers “peacebuilding” and “relief” activities before listing “National Security activities” and supporting the National Security activities of other countries – which active listeners understand to mean activities intended to incite civil wars, topple governments, change regimes, incite public discord, or isolate governments by supporting regional terrorist forces.
Second, Josh Earnest explains that the United States is worried about what the law would entail for the security of many of its important allies, Saudi Arabia remaining unnamed, as the law could similarly problematize their ability to sponsor terrorism.
Let’s put aside this episode of America internally debating between its branches of government how to craft legislation that balances appearing tough on support networks of terrorists and reluctance to pursue justice for fear of reprisal for its own international activities.
Here we have our government quite clearly expressing their support for the principle of sovereign immunity – the principle that governments, officials and royal family should be above the law, held to lower standards than that of citizens around the world. This principle, so enshrined, the spokesperson for the White House says from the platform, is considered critical to National Security.
While journalists and pundits haven’t batted an eye at these remarks and while the media surges with the reports about Saudi dialogue with the US over the bill – citizens who had once thought that habeus corpus, sovereign accountability and jurisprudence existed as principles over National Security and State Power may take a sharp breath and bother to do their homework.