Migrant “Illegality” and the Metaphysics of Antiterrorism: “Immigrants’ Rights” in the Aftermath of the Homeland Security State
Published on: Jul 28, 2006

Nicholas De Genova is assistant professor of anthropology and Latina/o studies at Columbia University. His most recent book is Working the Boundaries: Race, Space, and "Illegality" in Mexican Chicago (Durham, NC: Duke University Press, 2005).

The mass protest mobilizations in defense of the rights of immigrants, and especially the undocumented, took the United States by storm during the spring of 2006, with half a million marching in Chicago on March 10 (reportedly the largest single demonstration on record in the city’s history), at least a million in Los Angeles on March 25 (in addition to several smaller protests that week), hundreds of thousands in New York City at various rallies in early April, as well as tens of thousands each in numerous other cities, and culminating in millions nationally with the “Day Without an Immigrant” one-day general strike and boycott on May 1. These protests forcefully galvanized widespread public awareness of the U.S. Senate’s ongoing deliberations in response to the single most expansively punitive immigration legislation in U.S. history, the Border Protection, Antiterrorism and Illegal Immigration Control Act [HR 4437]—the “Sensenbrenner bill” passed on December 16, 2005, by the House of Representatives. And on April 20 (following the largest workplace enforcement raid operation against undocumented workers in recent memory, earlier that same week), evidently in response to this audacious upsurge in migrant labor and community organizing and as an intimidation tactic in anticipation of the May 1 rallies, the Department of Homeland Security announced a new “aggressive” and “hard-hitting” campaign of raids and deportations to “[reverse] the growing tolerance for . . . illegal immigration” (U.S. ICE 2006b), and to ensure that undocumented workers “not be allowed to think they [are] safe once they [are] inside the country” (BBC News 2006; emphasis added). Immigration authorities arrested 1,187 employees of a single company across 26 states, as an explicit warning to put “employers and workers alike . . . on notice that the status quo has changed” (ICE 2006a; emphasis added). Numerous raids have followed in locales across the country. As I have argued in considerable detail elsewhere (De Genova 2002; 2005), however, U.S. immigration authorities have almost never even pretended to try to achieve the presumed goal of a mass deportation of all undocumented migrants. On the contrary, it is deportability, and not deportation as such, that ensures that some are deported in order that most may remain (un-deported) as workers, whose pronounced and protracted legal vulnerability may thus be sustained indefinitely.

In the aftermath of the events of September 11, 2001, nonetheless, migrant “illegality” and deportability have been dramatically reconfigured by the implementation of draconian police powers domestically that I call the Homeland Security State. The practical ramifications of the virtually instantaneous hegemony of a metaphysics of antiterrorism for all migrations and migrant transnationalism are already profound—above all evidenced by the complete subsumption of the now-defunct Immigration and Naturalization Service (INS) into the new Department of Homeland Security—and may become still more dramatic. Indeed, amidst the recent flurry of controversy over new immigration proposals, KBR, a Halliburton subsidiary, was quietly awarded on January 24, 2006 a $385 million contingency contract that provides for the creation of new detention facilities “in the event of an emergency influx of immigrants into the U.S., or to support the rapid development of new programs.” Those prospective “new programs” that might require mass detentions, predictably, are shrouded in an ominous ambiguity. But “detentions,” which is to say, indefinite imprisonment without formal charges or any semblance of due process or law, have indeed been the hallmark of the Homeland Security State.

Since September 11, 2001, 80,000 male foreign nationals visiting the U.S. from 25 designated countries of origin (of which 24 were predominantly Arab and/or Muslim) were required to register with authorities and be photographed and fingerprinted; 8,000 Arab or other Muslim migrants or visitors were sought out for FBI interviews; and more than 5,000 have been subjected to detentions (culminating in deportations for 515) as a result of the purported anti-“terrorism” dragnet. The vast majority of these presumed “enemies,” notably, have overwhelmingly been citizens of states that are ostensibly allies of the United States. Yet, out of these 93,000 Arab and other Muslim non-citizens variously subjected to registration, interrogation, indefinite imprisonment, and casual brutality, literally not one person has ever been convicted of anything remotely resembling a terrorist crime (Cole 2006:17; cf. Cole 2003). In retrospect, it ought to be painfully—torturously—clear that the production of these de facto “enemy aliens” within the United States, the demonological construction of them as terrorism “suspects,” and their flagrant relegation to an astounding state of exception bereft of even the most elementary protections of the law through secretive and extra-legal procedures of “preventative” detention and political disappearance—truly the domestic complement to the Bush administration’s avowed doctrine of “preemptive” war (National Security Council, 2002:13-16)—have served above all to render still more vulnerable and precarious the great mass of labor migrants. And predictably, as the circle of increasingly authoritarian law enforcement has defiled any meager pretense of the sacrosanct rule of law and due process, the production of utterly rights-less denizens reveals itself to be a permanent menace to the presumed security and stability of the putative rights of citizens.

While undocumented Mexican and other Latino migrants are clearly not the primary object of the sorts of racial profiling that distinguish the new nativism of antiterrorism, which have been overwhelmingly targeted against Arab and other Muslims, the practical ramifications for all migrations and manifestations of migrant transnationalism, as the current debate makes abundantly clear, have already been substantial. After all, the very title of the House legislation explicitly couples “Antiterrorism and Illegal Immigration.” Indeed, inasmuch as the figure of the “illegal alien” has long been rendered synonymous with a corrosion of law and order, the porosity of the U.S.-Mexico border, and a supposed crisis of national sovereignty itself, one common and remarkably virulent strain of the post-9/11 nativism boldly declares all undocumented migrants, in effect, to be potential terrorists. One need only consider, for example, Michelle Malkin’s nativist diatribe Invasion: How America Still Welcomes Terrorists, Criminals, and Other Foreign Menaces to Our Shores (2002), the first chapter of which declares: “When we assess the security of our borders, our immigration laws, and our tourism policies … we must ask at every turn: What would Mohamed do?” (2002:3). Referring literally to 9/11 hijacker Mohamed Atta, but transparently insinuating the more generic and thus iconic figure of a racialized Arab/Muslim menace by implication, Malkin contends that “illegal immigration through Canada and Mexico is the passageway of countless terrorist brethren” (8), and that al-Q’aeda operatives can readily enter the U.S. from Mexico undetected “alongside hundreds of thousands of undocumented workers” (9). The juxtaposition of “countless terrorist[s]” and “hundreds of thousands of undocumented workers,” of course, operates rhetorically to strategically blur any distinction between “illegal aliens” and “enemy aliens.”

Given many U.S. employers’ deeply entrenched historical dependency on the abundant availability of legally vulnerable undocumented migrant labor, however, and in spite of the pervasive rhetoric of “securing” borders, it hardly comes as a surprise that on January 7, 2004, the Bush administration proposed a new scheme for the emphatically “temporary” regularization of undocumented workers’ “illegal” status and for the expansion of a Bracero-style migrant labor contracting system orchestrated directly by the U.S. state (Bush 2004; cf. Calavita 1992; Papademetriou 2002). Notably, Bush’s original immigration “reform” proposal expressly precluded any prospective eligibility for permanent residence or citizenship, and merely sought to devise a more congenial formula by which to sustain the permanent availability of disposable (and still deportable) migrant labor, but under conditions of dramatically enhanced (“legal”) regimentation and control. According to such a formula, the state would, in effect, operate as a broker of virtually indentured laborers whose continued presence in the United States was conditioned by their faithful servitude to designated employers. Confronted with an unanticipated insurgency of immigrant rights protests, however, on May 15, 2006, Bush revised his formulation of “reform.” While declaring that “illegal immigration … brings crime to our communities” and more generally reaffirming the criminalization of undocumented migrants as law-breakers, pledging to deploy 6,000 National Guard troops to the U.S.-Mexico border to assist the Border Patrol, and taking great pains to appear to repudiate anything that might be characterized as an “amnesty” for undocumented workers, Bush nevertheless defended an eventual eligibility for naturalization for some undocumented migrants who have been in the United States for several years and could meet multiple other requirements (Bush 2006). Notably, those undocumented migrants who could qualify for such an “adjustment of status” would be subjected to several additional years of heightened vulnerability and continued deportability as they sought to satisfy all of these requirements, while those who do not qualify would be immediately subject to deportation and, at best, might merely be invited to join the ranks of the new mass of eminently disposable guestworkers. Those who could finally naturalize as U.S. citizens, moreover, would ultimately have served a very long and arduous apprenticeship in “illegality” and subsequent subjection to considerable scrutiny, surveillance, and discipline as the precondition for their “legalization.” This is truly what Bush means when he depicts this plan as “a way for those who have broken the law to pay their debt to society, and demonstrate the character that makes a good citizen” (2006).

Amidst the storm of competing proposals that have animated the immigration debate (symptomatically manifest in the more than 800 pages that comprise the draft currently circulating in the Senate), there is nonetheless a resounding (indeed, rather explicit) consensus from both conservatives and liberals that supplies the shared premise for their otherwise apparently opposed positions: both sides in this argument concur that the immigration system is “broken.” One is therefore invited to contemplate what exactly may be at stake in that avowed will to “fix” it. In general, the implied if not overt claim is that the millions of undocumented migrants currently living and working in the United States represent a dire “problem” that is presumed to be evidence that somehow the state has “lost control” over its borders. Furthermore, for those who argue in favor of one or another guestworker initiative and “legalization” scheme, the further contention is that the current provisions for “legal” migration have simply been inadequate to meet the labor demands of U.S. employers. In short, they suggest, there is a kind of systematic “mismatch” between what U.S. immigration law permits and what happens inexorably as a result of the voracious appetite for relatively tractable labor of that amorphous force of nature called “the market.” Hence, the scramble to “fix” a system that seems only to generate more and more of the “illegality” that it is supposedly intended to remedy. Quite a paradox, or so it would appear.

Part of the explanation for this puzzle is already given in the terms of the proposed guestworker schemes, which, in order to ensure the ample availability of a mass of highly vulnerable and hence very probably tractable “temporary” workers for employers, must also actively recruit migrant workers, thereby sustaining and expanding existing migration networks. This would enhance and intensify the mutually constituted dependency of migrant workers on their employment prospects in the United States and the dependency of their employers, not only on the virtual indentured servants who would be contracted through the state’s guestworker arrangements but also on those same migrant workers whose subordination as labor might be still more effectively ensured under conditions of even greater legal vulnerability. This is, after all, precisely what happened during the last large-scale experiment with a guestworker program in the United States. Employers quickly came to prefer undocumented workers, because they could evade the bond and contracting fees, minimum employment periods, fixed wages and other safeguards required in employing braceros (Galarza 1964). Through the development of a migration infrastructure combined with employers’ encouragement of braceros to overstay the limited tenure of their contracts, the Bracero Program thus facilitated undocumented migration at levels that far surpassed the numbers of “legal” braceros. It is estimated that there were four undocumented workers for every legally contracted bracero. Approximately 4.8 million contracts were issued to Mexican workers for employment as braceros over the course of the program’s 22 years, and during that same period there were more than 5 million apprehensions of undocumented Mexican migrants (Samora 1971). It is a matter of speculation, of course, how many undocumented migrants succeeded for each of those caught. Both of these figures, furthermore, include redundancies, and thus are not indicative of absolute numbers in any case; they are revealing nonetheless of the more general complementarity between contracted and undocumented migration flows.

The second part of the explanation may be discerned in the history that followed. The termination of the Bracero Program in 1964, coupled with the unprecedented introduction of numerical quotas to restrict “legal” migration from Western Hemisphere countries in 1965 and again in 1976, were literally tantamount to a mass illegalization of workers already deeply involved in transnational migration to the United States (with Mexicans in particular being singularly and inordinately affected; cf. De Genova 2005:213-49). The susceptibility of undocumented migrants to deportation, therefore, is an effect of the more fundamental and longstanding fact of their robust and enthusiastic importation as labor, on the terms most advantageous for the purposes of capital accumulation.

Thus, from the standpoint of capital, the system that is decried as “broken” has been working astoundingly well, indeed. The U.S. immigration system has rather routinely and predictably ensured that U.S. employers have had at their disposal an eminently flexible, relatively pliable, and highly exploitable mass of labor migrants, whose “illegality”—itself produced by U.S. immigration lawmaking and enforcement practices—has relegated them to a condition of enduring vulnerability. Subjected to excessive and extraordinary forms of policing, denied fundamental human rights, and thus consigned to an always uncertain social predicament, often with little or no recourse to any semblance of protection from the law, undocumented migrant labor-power has increasingly become the commodity of choice for employers in an ever-expanding range of industries and enterprises. But if it is so, it is only because, and to the extent that, it may continue to be subjugated under the stigma of “illegality.” The more profitable it is to exploit undocumented labor, the more bellicose and fanatical must be the sanctimonious political denigration of “illegal aliens.” Hence, undocumented migration must be perennially produced as a “problem”: as an invasive and incorrigibly “foreign” menace to national sovereignty, as a racialized contagion that undermines the presumed national “culture,” and as a recalcitrant “criminal” affront to national security.

In the aftermath of antiterrorism and the Homeland Security State, when the very notion of national security has been elevated to the status of a kind of metaphysical redemption in a putatively limitless war of bombastic righteousness against nefarious transnational networks of “evildoers,” the fateful equation of “illegal aliens” with nation-state borders perceived to be deplorably “out of control” conjures the phantasmatic hallucination of a nation prostrate before the predations of “terrorist” interlopers of nightmarish proportions. In an antiterrorism regime that has assiduously relegated its suspected internal enemies—namely, Arab and other Muslim migrants utterly innocent of anything remotely resembling “terrorism”—to the abject condition of rightslessness in indefinite detentions, undocumented migrants need not be branded as actual “terrorists.” Indeed, given that they are absolutely desired and demanded for their labor, to do so would be counter-productive in the extreme. Rather, it is sufficient to mobilize the metaphysics of antiterrorism to do the crucial work of continually and more exquisitely stripping these “illegal” workers of even the most pathetic vestiges of legal personhood, such that their own quite laborious predicament of rightslessness may be further amplified and disciplined. If some undocumented migrants may be rendered eligible for “amnesty” and eventual citizenship, and thus exempted from these severities, it is only as part of the larger functioning of a highly calculated and predictable machinery that will relegate a far greater number of present—and future—“illegal aliens” to their respective assignments of protracted servitude. Fortunately for them, however, as the mass mobilizations that forcefully reinstated May 1 as International Workers’ Day eloquently established, migrants need not look to the state like beggars in search of “legal” entitlements, as they finally have only those rights that they dare to take and are prepared to fight to defend. In the face of all the depredations against their ostensible “rights” as “immigrants” that may be concocted by nativist politicians and perpetrated by the state’s immigration system, the productive power and creative capacities of migrant working people, finally, are the only genuine source of their potential political prerogative and social dignity.


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