Disappeared by the State: What Tuesday’s Supreme Court Decision on Indefinite Detention Means for Immigrants

Protesters gather in front of the Supreme Court to voice opposition to Donald Trump's executive order barring immigrants from certain countries entry into the US, January 30, 2017. (Photo: Tom Williams / CQ Roll Call)Protesters gather in front of the Supreme Court to voice opposition to Donald Trump’s executive order barring immigrants from certain countries entry into the US, January 30, 2017. (Photo: Tom Williams / CQ Roll Call)

On Tuesday, the Supreme Court ruled that US immigration officials can detain immigrants within the US indefinitely, without offering periodic bond hearings. Immigrants with permanent legal status and those seeking asylum would not be exempt from this policy. In 2015, the 9th Circuit Court of Appeals ruled that immigrants must be given a bond hearing every six months, so long as they are not deemed a flight risk or a threat to national security. The Supreme Court’s decision to reverse the lower court’s ruling and remand the case for reconsideration by the Circuit Court marks yet another victory in the Trump administration’s xenophobic crusade against immigrants.

Being “disappeared” by the state is hardly a new concept amongst undocumented people. Alejandro Rodriguez, the lead plaintiff in Tuesday’s case, is a legal permanent resident who lingered in detention for three years, without access to a bond hearing, due to a misdemeanor drug offense. The ACLU ultimately took up Rodriguez’s case, scoring a victory in the circuit court, wherein the court ruled that immigrant detainees were entitled to bond hearings every six months. The Obama administration appealed that ruling, arguing that the United States government has the right to detain “criminal and terrorist aliens,” and the Trump administration predictably opted to continue the case. But while the case and controversy predate the Trump administration, this decision comes at a particularly frightening time for undocumented immigrants, who are already living in the crosshairs of the Trump administration.

It is hard to overstate the disturbing nature of Trump’s attacks on immigrant communities. The administration’s propaganda campaign, which includes Trump’s absurdist inflation of MS-13 as a national threat, paired with the idea that immigrants have become an impediment to the prosperity of “real Americans” has fostered an alarmist, nativist environment, in which violent public policy and white vigilantism are to be expected. In this aggressively racist climate, grassroots immigrant rights activists have been targeted for deportation, creating a climate of fear and hypervigilance around their defensive political work. “I have spent the past few weeks in late night conversations with countless undocumented folks sharing with me their fears, trauma and constant struggles with basic mental health,” Aly Wane, an organizer who serves on the Steering Committee of the Black Immigration Network, told Truthout in an interview. “I spoke with two undocumented immigrants in particular who expressed suicidal ideation just in the past three weeks.”

Another weapon in Trump’s propaganda war is the controversial VOICE project — an effort to catalog alleged crimes supposedly committed by immigrants. The project is a tool to demonize and dehumanize immigrants, emphasizing their “other” status. Then there are the attacks on visa programs, the horrendous commentary, the raids, the threats against sanctuary cities, the pending collapse of DACA and Trump’s endless pursuit of a “big, beautiful” wall. But as easy as it would be to attribute Tuesday’s egregious Supreme Court decision to the climate the Trump administration has cultivated, to do so would be a dangerous mistake — one that overlooks an ongoing political project that was expanding its reach, and grinding immigrants and others under its wheels long before Trump’s rise to television stardom.

A Long-Term Project

What we are witnessing, in this fraught political moment, is the furtherance of the larger project of American militarization. While this particular ruling pertains to incarceration, militarism and the carceral state are grounded in the same histories, and in similar violent practices. American policing, in all its forms, and American military violence are both rooted in colonial violence, in the dehumanization of Indigenous peoples, and the forced exploitation of Black people. American militarization is not new, and it has been experienced by some communities for as long as any form of US militarization has existed. But in a global climate, we see the sins of colonialism reiterated in imperialism, and the violence of imperialism repackaged, shipped home, and wielded against marginalized communities in the United States.

The status of “enemy combatant,” born of the “war on terror,” created an official category for people who existed outside the realm of human rights — which simultaneously buttressed Islamophobic policies and attitudes within the United States itself. “Enemy combatant” introduced a categorization of “other” that took due process off the table, and allowed people to be tossed into carceral oblivion indefinitely, or even killed. We have seen manifestations of that idea — one that has always existed in US practice, but that undeniably went mainstream under the administration of George W. Bush — conjured with abandon when it comes to people in foreign countries, whose confinement, or deaths, we are not meant to question, because they have been duly categorized. They are “enemy combatants,” existing outside our scope of concern or, often, awareness. Whether they are disappeared into black sites or by drones, the daily routines of people living in the United States are rarely affected, and the movements led in the names of such victims score few headlines in the United States.

We have repeatedly seen the specter of terrorism used as a justification for the dehumanization, abandonment and betrayal of immigrants and refugees. But with our eyes wide open, we should also realize that we are witnessing an even greater broadening of the enemy combatant construct — much of which is happening on US soil. The vilification of Black activists, some of whom have now been deemed “Black Identity Extremists” (another official category), sets the stage for the FBI, and other agents of law enforcement, to treat Black activists as terrorists, and act accordingly. The abuse of Native people in Standing Rock, and elsewhere, reveals how quickly the trappings of military occupation can be turned upon Native protesters in the United States — just as the first military mobilizations in US history sought to remove Native people, by any means necessary, for the sake of acquiring land and resource. A desire for Indigenous resources, was in fact, the only moral justification that the first formations of the US military required, and the hoarding of that land, those resources, and any opportunities attached to them have likewise been the product of glorified racism and avarice. That origin of military purpose and intent has never been confronted, socially or historically, in the United States, and thus, there has never been a significant departure from our country’s original, immoral compass.

It has become increasingly clear that safety, in the United States, and abroad, is only a governmental priority when white lives or liberty are at stake. From our nation’s disparate reactions to terrorist attacks in white European nations and those that occur in African nations, to the striking contrast between our reactions to the bulk of gun violence in the United States and the mass school shootings that tend to occur in mostly white spaces (and make up a tiny fraction of overall US gun violence), we have been conditioned for this. The normalization of violence against those outside the dominant culture is so extreme that the military prison at Guantanamo Bay has all but fallen from public conversation. When discussing political standoffs with countries like North Korea, Americans will often refer to the United States as potentially “going to war” — forgetting in real time that the United States is already at war, and has been for over 16 years.

It is also worth noting that while the US eventually ceased to acknowledge most of its military conflicts as “wars,” it has steadily continued to wage them.

The surveillance of Water Protectors, both in and outside of Standing Rock, and the violence waged for the sake of the Dakota Access pipeline, serve as a stark reminder of how easily this country reenacts its true origin stories, and how quickly militarization can be deployed against dehumanized peoples. The fact that TigerSwan — a private company that markets its ability to “anticipate, manage and mitigate” supposed militant threats abroad — worked in concert with law enforcement in Standing Rock, is evidence of the political and cultural connection between imperialism, colonialism, the surveillance state and the criminalization of Indigenous and Black peoples in the United States. Many US immigrants have an Indigenous connection to the lands the United States has drawn borders around, which makes their displacement another reflection of our country’s original sins, which have never been reconciled. But unlike the United States itself, US militarism knows no borders, and our willingness to allow any immigrant to be othered, in blatant terms, coded language or in policy itself, only lends more power to the militaristic authoritarianism we currently face.

The state, and those who function in its service, draw no dividing lines between oppressed people who live within its borders and those who do not. In their view, we are all peoples in the margins, which means we are living on the edge of literal disposability.

In a time of dizzying right-wing attacks on marginalized people, observers may feel torn between issues, overwhelmed by whether to pay attention to Native issues, anti-Black state violence, immigration crises or foreign wars. Such questions are thematically simplified when we embrace the truth of the American political project: There is a singular death-making mechanism waging war against all who it would deem disposable. That realization may be a difficult one for some people — that the character of their country, that the origins of their much-idealized military and police, are at the heart of America’s liberty-crushing practices — but so long as we refuse to grab the problem by its roots, we will be, at best, fighting skirmishes, while the other side commits itself to an endless war against us.

The divisions between these fronts of struggle are as imaginary as the borders Trump seeks to defend. As Aly Wane told me after Tuesday’s verdict, “The war on terror uses race as a way to hide the neocolonialist nature of the current US empire, to cleanse it of its sins. This is why many of us who are undocumented and Black are skeptical that even access to paperwork will save us from the brutality of this system.”

Moreover, as climate catastrophe worsens, and refugee crises and wars over resources escalate, we can expect the cycle of American militarism to continue at the expense of the “others,” with the tightening of borders and the seizure of more foreign resources. It is, after all, the American way. US military mechanisms are well poised to continue recreating the cycle of American violence as needed for the sake of US dominance. Manifest Destiny will see new iterations, on a global scale, in potentially apocalyptic times. The dehumanization such conquest will require is already in the works, and at work, here amongst us.

It is in this context that undocumented people saw an escalation in their terrorization by the US government on Tuesday. In Wane’s words, “The logics are baked into the system.”