The Production of Bare Life Under the U.S. Deportation Regime

Endgame Nearing an End:

The Production of Bare Life under the U.S. Deportation Regime

by Konrad Aderer

Professor Robert Smith

Sociology of Immigration and Citizenship, CUNY Graduate Center

Spring 2011

Abstract

The vast expansion of immigration enforcement in Western states in recent decades has been called “the deportation regime,” or the “Homeland Security State” (De Genova 2007). Social theorists have applied Giorgio Agamben’s concept of “bare life” to immigrant detention. This article begins a framework for empirically grounding Agamben’s concept of “bare life” as realized in the deportation regime of the United States over the years following September 11, 2001, a period in which deportations of “illegal aliens” in the United States rose from 165,168 in 2002 to 387,242 in 2010 (CRS Sept 2011). Policy analysis will focus on the ten-year Homeland Security plan known as ENDGAME, set to conclude in 2012.

Introduction

The deportation of migrants has been practiced in Western democracies since at least the mid-18th century, but the immigration enforcement regime created by the United States in the last ten years is unprecedented in scale. In the largest U.S. governmental reorganization since World War 2, the Department of Homeland Security swallowed 22 agencies upon its creation in 2002, including all those responsible for immigration and border control. From FY2002-2010 the budget of the DHS rose 19.5BN-55.3BN, an 184% increase. The civilian workforce of the DHS increased from 182K in 2004 to 230K in 2010, plus 200K estimated contractors (MPI 2011). Immigration and Customs Enforcement (ICE), the DHS agency tasked with immigration enforcement in the interior of the United States, has become the second largest investigative agency in the federal government.

Though the massive increase in the detention of undocumented migrants in the United States began at least five years before the events of September 11, 2001, the ten-year operational plan for detention and removal operations called ENDGAME, announced by the Department of Homeland Security as it began operations in 2003, signaled a bold institutional self-awareness and purposiveness. The 49-page plan, which specifically concerns a sub-agency of ICE, Deportation and Removal Operations (DRO), is notable for its declared goal of “removing all deportable aliens.”

In the same time frame covered by ENDGAME, Italian philosopher Giorgio Agamben’s concept of bare life, set forth in his 1998 book Homo Sacer: Sovereign Power and Bare Life, has emerged as a central theory in scholarship on deportation and detention. The book ties together theories of sovereignty and biopower in homo sacer, an archaic Roman figure of law who is excluded from human life to live a bare life of mere existence.

Using the ENDGAME plan as a discursive frame of reference, this paper analyzes the sociopolitical and sociospatial characteristics of the “bare life” of immigration detention under the Homeland Security state. Focusing on the policies and practices of immigration enforcement that have unfolded under the ten-year ENDGAME plan, this work posits that the bare life produced in the undocumented migrant is not a static condition but a sociospatial continuum. Immigration detention is where the face-value logic of all discourse and terminology about human rights and national security policies is inverted. At the institutional level it is an improvised, draconian welfare space of indefinite incarceration removed not only spatially from body politic but separated in sociopolitical space under the specific conditions which differentiate immigration detention from criminal imprisonment.

A pivotal sociospatial aspect of immigration detention is that the detainees occupy the same facility but a different social space as criminals. More than half of immigrant detainees are housed in state and local jails contracting their space to ICE through inter-governmental service agreements (IGSAs) (Summerill 2007). Unlike criminal incarceration, immigration detention has no sentence, and no guaranteed right to an attorney. The migrant detainee is often literally unlocatable to family and legal counsel. Her advocates on the outside must contend with the opaque bureaucracy of DHS, fractured sovereignties of state governments and private prison operators.

Purpose of inquiry

Claudio Minca asserts that “writing on spaces of exception means inevitably engaging with Agamben” (2005). In the post-9/11 context, the bare life of the homo sacer has also been linked with forms of “exceptional” detention such as the Guantanamo detainee and the enemy combatant. But immigration detention deserves special attention because, I will argue, no form of social exclusion is as embedded in the contemporary state. Unlike other “spaces of indistinction,” it explicitly addresses the state’s territoriality, which has become the effective basis of human rights. In previous research there has been a lack of specificity in interrogating how state institutional practices create different contemporary manifestations of bare life, resulting in a gap between the theory and ethnographic studies of immigration detention.

Nicholas De Genova problematized the concepts embedded in the practice of deportation at length in his 2002 article, “Migrant ‘Illegality’ and Deportability in Everyday Life.” In 2010, with Nathalie Peutz, he co-edited The Deportation Regime, which deportation as a method of state control through a collection of case studies encompassing historical, theoretical and ethnographic approaches. In that volume Sarah S. Willen cautions against “the freewheeling application of Agamben’s concept of homo sacer to an increasingly long list of groups” (Willen 2010: 266).

But rigorous analysis of deportation and detention as institutional practice is equally important, to guard against the teleologies and ascribed motives that can afflict critical discourse. And as De Genova once pointed out, the ethnographic study of undocumented migrants as an empirically delimited group can unwittingly reify governmental logic. To analyze the practice of immigration detention clearly without assigning motives requires earnestly and sometimes guilelessly engaging with the state point of view. William Walters has examined deportation in light of Foucault’s concept of governmentality, the active role the state takes in the management of its population, which has come to include the state’s own mechanisms and metrics of self-evaluation. Tracing the governmentalization of deportation since the 19th century, Walters notes a shift of rationales from the expulsion of enemies of the state to a set of socialized responsibilities that evolved in tandem with welfarist programs (Walters.

Much of the discourse appropriating Foucauldian theory on state power has turned certain moments of his restless examinations of power into truisms. The application of Agamben’s bare life scheme to immigration detention gives an opportunity, by extension, to test and elucidate Foucault’s theories of biopower at the policy level. Stephen J. Collier has suggested that by treating biopower as an “improvised problem space” of governmentality we can begin to correct the persistent fixation in left discourse and critical theory towards centralized, top-down models of power.

To progress from the general idea of a person deprived of rights, reduced to bare life and excluded from political life, to a theoretical scheme with specificity and explanatory power, requires a way of addressing spatial concepts that can critique the territorial thinking of the modern state rather than simply reproducing it. Appropriately several theorists working in the context of sovereignty have suggested a topological approach to state power. Topology is a branch of mathematics that has been analogously incorporated into the social sciences, for studying how elements are organized and connected in spaces. Rather than geometrical properties, topology is focused on the configurational principles of elements in space and the transformations they undergo (Collier 2009, Tellman and Opitz 2009).

The most familiar way of looking at national space is as a topography, a political map of different colored legal territories. The corresponding topographical understanding of law and political territory established by the Westphalian Order of States has deservedly come under increasing critical scrutiny. Understanding exceptional zones requires an approach that can apprehend territorial spaces that are neither inside nor outside (Tellman and Opitz 2009).

A topological approach that engages the governmentality of ICE also allows us to critically unpack the idea that detention and deportation are rational practices whose primary goals are the physical removal of people within a border to a place outside it. Detention is a welfare space within the territorial U.S. that is managed by an institution simultaneously locked in an unending struggle to produce evidence of success. The sphere of discourse is where illegality and the space of detained migrants outside of the political order are legitimized. For ICE is a voluminous producer of discourse, in the form of proposals prioritizing the detention of “criminal aliens” in the ENDGAME document, relentless dissemination of press releases on the capture of noncitizen drug dealers, sex offenders and gang members. In the age of ENDGAME, the spectacle of noncitizen criminality has served as a biopolitical discursive technique, aided by the production of “criminal aliens” under laws designating certain immigration violations as crimes.

Bare Life

“In Western politics, bare life has the peculiar privilege of being that whose exclusion founds the city of men. The fundamental categorial pair of Western politics is not that of friend/enemy but that of bare life/political existence, zoē/bios, exclusion/inclusion.”

-- Agamben (12)

In his 1998 book Homo Sacer: Sovereign Power and Bare Life, Giorgio Agamben mines the equivalencies and gaps in the concept of sovereignty that originated in classical Roman and Greek philosophers and was expanded in the context of the modern democratic state by social theorists, principally Carl Schmitt, Michel Foucault, and Hannah Arendt. Agamben contemplates homo sacer, a figure of ancient Roman law, as the fundamental anchor of sovereign power and biopolitics. Homo sacer is enigmatically defined as a person, sacred yet accursed, who can be “killed but not sacrificed.”

The ancient Greeks did not have a single word for what we understand as “life,” but rather two opposed concepts, zoé and bios. The original political order, the polis or city-state, was founded on the exclusion of zoé, “bare life,” as distinct from bios, political life. This “bare life” is none other than the life of the sacred and accursed homo sacer, who occupies a zone of indistinction between these and other pairs of polarized concepts.

The exclusion of bare life from the political order establishes the sovereign, whose power consists in the creation of law while standing outside of it. Homo sacer, the opposite and double of the sovereign, is a being in whom all figures of exclusion unite. Though the concept of the “sovereign” calls to mind a monarch, Agamben’s scheme emphatically implicates the sovereignty of the modern democratic state.

The social space of bare life is not an indeterminate void; it is a zone of indistinction between opposites: sovereign/homo sacer, sacred/accursed, political life/bare life, inclusion/exclusion, rule/exception, violence and justice. Viewed topologically In the context of the modern state, bare life can be viewed as a social, legal and political space which refers to territoriality but transcends it. Since “the rule lives off the exception alone,” for law to have meaning the sovereign decision, or exception, must determine what is inside the juridical order and what is outside. This sovereign exception is thus the means by which law can include life: law suspends itself through the abandonment of life.

This abandonment, embedded in the sovereign power over life and death, is identical with the pre-modern Germanic concept of the ban. To ban someone is to say that anyone may harm him, a permission echoing homo sacer’s ability to be killed but not sacrificed. The ancient Germanic and Scandinavian brothers of homo sacer were respectively the bandit, a “hybrid of human and animal,” and the wargus, the wolf-man or outlaw. The bandit is more precisely “a passage between animal and man” (Agamben 1998: 63).

Biopolitics

Agamben and other theorists have noted the incompleteness and unannounced shifts in Foucault’s own understanding of biopolitics. The stated purpose of the book Homo Sacer is to bridge two models of power Foucault formulated but never linked: the juridico-institutional and the biopolitical. Juridico-institutional power denotes the political and legal realms, while biopolitics encompasses technologies of the self, or the ways bare life is bound to external forms of power.

To address the distinction between zoe, bare life, and bios, political life, Willem Schinkel suggests that biopolitics be understood in two dimensions: the zoepolitical and the biopolitical. Zoepolitics, externally directed, focuses on the bare life of people outside the state, including Guantanamo detainees and immigration detainees. Biopolitics, directed internally towards people within state’s territory but outside of “society,” focuses on the boundaries of the social body. Citizenship thus functions as a mechanism of population control that enables the exercise of biopower on both dimensions (Schinkel 2010: 19).

Space, both social and physical, is the linchpin of illegality and immigration detention, and we can see that bare life inhabits a social space structured on a polarity of oppositions in the zone of indistinction. Next we will examine how spatial ideas proceed from the figure at the opposite pole from the homo sacer, the sovereign.

Nomos, Space and State Violence

Agamben writes that the sovereign nomos is the principle that joins law and violence to establish the territorial order. The sovereign occupies the point of indistinction between violence and law. In The Production of Space, Henri Lefebvre wrote that sovereignty demarcates a space established and constituted by violence. This violence cannot be separated from a principle of unification that subordinates all social practices. Through its monopolization of violence the state claims to create a space where society is perfected for all, though in fact it is the interests of a minority class that are enforced.

The Westphalian state system, held as a defining element of modernity, established the principle of territorial sovereignty in international law. Galina Cornelisse defines the concept of “territoriality” as the founding of political authority on demarcated territory (Cornelisse 2010). Though the idea of universal human rights emerged after 1945, these rights became inextricably tied to national citizenship and hence state sovereignty. It is this sovereignty that finds itself under attack by globalization, the free movement of labor across borders. Under globalization, the State must fight irrelevancy by reconstituting itself through the production of bare life. This is why, according to Schinkel, deportation and detention are not shortcomings of the state under globalization but its fulfillment (Schinkel 2009).