by Gordon Hull
On Wednesday night, the Trump administration implemented as much of its long promised Muslim Ban as it thought the Supreme Court would allow. Travelers from a list of six countries who did not have a “bona fide” connection or “close familial relationship” to someone in the U.S. would be banned. The administration interpreted the Supreme Court’s ruling as restrictively as possible – the Court said that a mother-in-law would be an example of a close familial relationship, but didn’t mention grandparents – so having a grandparent here (or being a grandparent there) isn’t a close familial relationship. The ruling smacks of arbitrariness and was rolled out as secretly as possible, and it’s not even clear that it actually does much at all. Then again, the original ban also was a poorly-worded, arbitrary mockery of the rule of law. For example, the “policy” began with zero warning, leaving travelers stranded in airports with no legal options. So too, the six countries were allegedly named because of their propensity to breed terrorists, but no one from any of them has committed a terrorist act in the U.S. since 2001. Countries from which terrorists have come – Saudi Arabia – are not on the list. Some of the countries have no functioning governments, but Iran does. And so it goes. That’s what happens when you promise to get rid of Muslims and then realize that you can’t get away with just making that so by campaign promise.
In Homo Sacer, Agamben declares that the camp (the paradigmatic case of which is the Nazi concentration camp) is the archetype of modern power, suggesting that “the camp as dislocating localization is the hidden matrix of the politics in which we are still living” (175). He proposes that the model of the camp can be seen in all sorts of institutions: the stadium at Bari where the Italians herded Albanian immigrants, the track where the Vichy herded the Jews before deporting them, and the halls at airports where foreigners asking for refugee status are detained, “all equally [are] camps” (174). As someone who has read a lot of Adorno, I found this assimilation of airport waiting halls and the Holocaust somewhere between uncomfortable and offensive. I am still uncomfortable with the comparison, but I do think some of the logic that Agamben is identifying is at work here. That logic is one in which “the normal order is de facto suspended and in which whether or not atrocities are committed depends not on law but on the civility and ethical sense of the police who temporarily act as sovereign” (174).
Not that he has any knowledge of this fact (to my knowledge, no one has ever discussed it on “Fox and Friends”), but Trump views himself as a Schmittian sovereign, as someone who has the absolute power to decide to whom and where and how the law applies. He also views himself, at least in that specific sense, as above the law. Evidence of this is in not only his flagrant disregard of conflict of interest problems, but also in the string of arbitrary executive orders around the national border: the travel ban, the wall with Mexico, and the apparent green light for ICE Agents to detain and deport more or less anybody without papers with no rational assessment of that person’s relative risk to anyone else.
As a border, the airport is a place of precarity. Reports of the initial travel ban included numerous accounts of border control agents who had literally no choice but to act arbitrarily, because they had been issued no guidance in how to enforce the poorly and vaguely worded ban. In the broader context of a biopolitics that has devolved into state racism (per Foucault’s warning in Society must be Defended), it was Judith Butler (I think) who first made the connection between the administrative policies characteristic of biopolitical regimes and the arbitrary violence administered by the agents of those regimes. Her context was the indefinite detention policies of the Bush administration:
“If the chronology of modern power that Foucault relays and disputes in his essay ‘Governmentality’ [which is part of the Security, Territory, Population lectures – GH] implies that sovereignty is for the most part supplanted by governmentality, then the current configuration of power forces us to rethink the chronology that underwrites that distinction, as he also suggested we must do. Moreover, if state power now seeks to instate a sovereign form for itself through the suspension of the rule of law, it does not follow that the state ceases to manufacture law. On the contrary, it means only that the law it manufactures, in the form of new military tribunals, is widely considered illegitimate by national and international critics alike. So it is not simply that governmentality becomes a new site for the elaboration of sovereignty, or that the new courts become fully lawless, but that sovereignty trumps established law, and the unaccountable subjects become invested with the task of the discretionary fabrication of law” (Precarious Life, 92-93).
She continues that “governmentality becomes the field in which resurgent sovereignty can rear its anachronistic head, for sovereignty is also ungrounded in law.” Thus, “the new war prison literally manages populations, and thus functions as an operation of governmentality. At the same time, however, it exploits the extra-legal dimension of governmentality to assert a lawless sovereign power over life and death” (94-5). We need to be careful here; Gitmo and the airport are not the same, and the endpoint of this is absolutely not the production of homo sacer, as Butler herself demonstrated in Frames of War when she discussed resistant poetry emerging from Gitmo. But Butler frames an important question:
“For us, then, the question is how does the production of a space for unaccountable prerogatory power function as part of the general tactics of governmentality? In other words, under what conditions does governmentality produce a lawless sovereignty as part of its own operation of power” (Precarious Life, 96)?
Here one wants to say something about the farcical images of Trump sitting at his little desk signing executive orders that he may not even have read, making “policy:” this is an attempt to mask lawless sovereignty in the guise of governmentality.
As I suggested, the airport is also a very precarious place, specifically a place of differential precarity. Shoshana Magnet and Tara Rodgers already demonstrated the ways that airport imaging software outs those with non-normative bodies: the trans, those with prosthetics, those with implants, and so forth. In Dark Matters, Simone Browne details the ways that blackness functions at airports – even under “normal” circumstances – to pre-emptively dump precarity on people of color. For example, apparently afros are considered suspicious, because agents use their authority to demand searches of them for weapons or contraband. Brown also cites a 2000 GAO report according to which black women were 9 times as likely as white women to be x-rayed after being frisked or patted down, while being less than half as likely to be carrying contraband as white women.
Browne also relates the staggering case of Suaad Hagi Mohamud, a Somali born Canadian citizen. In early May, 2009, Mohamud was questioned by a KLM agent in Nairobi, who decided that she did not look sufficiently like her passport photo (“Mohamud was told by airline authorities that her lips were different than those observed in her four-year-old passport photo,” 140), and so was denied permission to board her flight home. She appealed to Canadian authorities in Nairobi, producing a stack of documents including her travel documents, drivers’ license, Canadian citizenship, social insurance card, her Canadian-born son’s social insurance card, and a Visa card. The Canadian officials also decided she wasn’t who she said she was, and gave her passport to the Kenyans to prosecute her. She sat in various Kenyan jails even after her employer in Canada vouched for her identity and having granted her time off to make the trip. An email obtained through a free information act included a case management officer channeling her inner Schmitt:
“At the end of the day, Canada decides who enters Canada, and if the MIO and Consular (for Passport) have determined that this person is inadmissible, then she is inadmissible. What they do with her is their issue as she was detained in Kenya – we do want the passport back … She is free to sue the Gov. of Canada for negligence, prejudice, etc. …. All we should have to say is that after close examination, we are not satisfied that she is who she claims to be or something of the sort …. The onus is on her to prove her identity and citizenship and she has not proven it” (qt. 141-2).
That is, despite Mohamud having produced official Canadian documents that Canadian law specifies identifies citizens of Canada, those officials had the arbitrary power to exclude her from Canada. The case was not resolved until August – when a DNA test confirmed that her Canadian-born son (who was still in Canada) was in fact her son. Finally allowed to return home, she in fact sued the Canadian government, which settled for an undisclosed amount.
As Browne suggests:
“The Mohamud case makes known that although identification documents function as a key technology in the contemporary management of state-sanctioned human mobility, the discretionary power exercised by the border guard or customs inspector, and increasingly by the airline official acting as proxy customs inspector, is a power that makes it plain that, as David Lyon explains, ‘all technologies are human activities.’ Meaning that these technologies of border control (passports, biometrics, airport preboarding passenger screening zones) are developed within, put to use, and often replicate existing inequalities” (143).
All the evidence says that the Mohamud case presents Trump’s worldview in a nutshell: “law” is a farce designed to hide the raw exercise of a sovereign power that is rightfully his or the agents he deputizes to exercise in as arbitrary a manner as they can get away with. As we know, however, the distribution of precarity isn’t arbitrary, as Falguni Sheth and Alexander Weheliye both point out in criticism of Agamben’s formalist leanings: it tends to fall on those who already have the least power, which in the United States - especially under Trump - means those who are non-White, and/or Muslim. A non-trivial number of Trump’s business farces have ended in litigation – think Trump University – and one can only hope that his forays here end as badly for him as that case did, or as the Mohamud case did for Canadian authorities. But it would be naïve to think that such legal losses would have any deterrent effect on his attempts to exercise sovereign power, or to think that those exercises do not come with an indefensible human cost.
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