Islands of Sovereignty: Haitian Migration and the Borders of Empire [Paperback ed.] 022658741X, 9780226587417

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Islands of Sovereignty

The Chicago Series in Law and Society Edited by John M. Conley and Lynn Mather Also in the series: Building the Prison State: Race and the Politics of Mass Incarceration by Heather Schoenfeld Navigating Conflict: How Youth Handle Trouble in a High-­Poverty School by Calvin Morrill and Michael Musheno The Sit-­Ins: Protest and Legal Change in the Civil Rights Era by Christopher W. Schmidt Working Law: Courts, Corporations, and Symbolic Civil Rights by Lauren B. Edelman The Myth of the Litigious Society: Why We Don’t Sue by David M. Engel Policing Immigrants: Local Law Enforcement on the Front Lines by Doris Marie Provine, Monica W. Varsanyi, Paul G. Lewis, and Scott H. Decker The Seductions of Quantification: Measuring Human Rights, Gender Violence, and Sex Trafficking by Sally Engle Merry

Invitation to Law and Society: An Introduction to the Study of Real Law, Second Edition by Kitty Calavita Pulled Over: How Police Stops Define Race and Citizenship by Charles R. Epp, Steven Maynard-­Moody, and Donald Haider-­Markel The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design by Mitu Gulati and Robert E. Scott This Is Not Civil Rights: Discovering Rights Talk in 1939 America by George I. Lovell Failing Law Schools by Brian Z. Tamanaha Everyday Law on the Street: City Governance in an Age of Diversity by Mariana Valverde Additional series titles follow index

Islands of Sovereignty Haitian Migration and the Borders of Empire

Jeffrey S. Kahn

The University of Chicago Press C h i c a g o & L o n d o n

The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2019 by The University of Chicago All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637. Published 2019 Printed in the United States of America 28 27 26 25 24 23 22 21 20 19  1 2 3 4 5 ISBN-­13: 978-­0 -­226-­58738-­7 (cloth) ISBN-­13: 978-­0 -­226-­58741-­7 (paper) ISBN-­13: 978-­0 -­226-­58755-­4 (e-­book) DOI: https://doi.org  / 10.7208/chicago/ 9780226587554.001.0001 Library of Congress Cataloging-in-Publication Data Names: Kahn, Jeffrey S., author. Title: Islands of sovereignty : Haitian migration and the borders of empire / Jeffrey S. Kahn. Other titles: Chicago series in law and society. Description: Chicago ; London : The University of Chicago Press, 2019. | Series: The Chicago series in law and society | Includes bibliographical references and index. Identifiers: LCCN 2018029660 | ISBN 9780226587387 (cloth : alk. paper) | ISBN 9780226587417 (pbk. : alk. paper) | ISBN 9780226587554 (e-book) Subjects: LCSH: United States—Emigration and immigration—Government policy. | United States—Emigration and immigration. | Emigration and immigration law— United States. | Coastal surveillance—United States. | Refugees—Legal status, laws, etc.—United States. | Refugees—Haiti. | Haiti—Emigration and immigration. | Border security—United States. Classification: LCC JV6483 .K35 2019 | DDC 325.73097294—dc23 LC record available at https:// lccn.loc.gov/2018029660 ♾ This paper meets the requirements of ANSI/NISO Z39.48-­1992 (Permanence of Paper).

Contents

Acknowledgments vii List of Abbreviations xiii Introduction 1 1 • The Political and the Economic 27 2 • Border Laboratories 55 3 • Contagion and the Sovereign Body 99 4 • Screening’s Architecture 135 5 • The Jurisdictional Imagination 185 6 • Interdiction Adrift 215 Afterword 247 Notes 257 Archival Sources 303 Works Cited 305 Index 337

Acknowledgments

The interdisciplinary nature of this book made it a risky endeavor from the start. Looking back now, I cannot help but be amazed at the patience of those who opened so many doors along the way, encouraging what others might have seen as ill-­advised meanderings. Without them, my efforts would have stalled long ago. This book was in many ways born from conversations in Haiti during the summer of 2000. I had traveled to the north of the country as an undergraduate to study the effects of rural-­to-­urban migration on Vodou ritual networks, a topic that, as is often the case, turned into something entirely different in the field. On more than one occasion, an acquaintance of mine would steer our conversations to stories of their sea voyages and sojourns at Guantánamo as asylum seekers. At the time, these episodes were part of their recent memory, and, in retrospect, I must admit I was not as quick as I would have liked to pick up on these cues and the fascinating corridors they might have illuminated. Still, for years they lingered in my mind and, eventually, set me on the trail that led here. The opportunity to begin fieldwork so early in my career has proved invaluable, however clumsy I was in the initial execution. For that, I owe a debt of gratitude to my undergraduate mentors in the Department of Anthropology at Dartmouth College, John Watanabe and Hoyt Alverson, who guided me through my first bumbling attempts at ethnography in ways that still shape how I see the craft today. After graduating, I landed in the ambit of other anthropologists concerned with Haiti, this time at the Boston offices of Partners in Health (PIH), an orga-

viii  Acknowledgments

nization no doubt familiar to many. Cycling through various roles, I eventually came to work as a “community health promoter,” charged with a portfolio of several Haitian HIV-­positive patients. Once again, Guantánamo came up in the course of things—at least one of our “clients” had passed through the base—as did the HIV exclusion in US immigration law, a provision of which I had been entirely, and embarrassingly, ignorant. Back then I had very little sense of how HIV and offshore detention would intersect in my own work. Still, in PIH’s dynamic and heady atmosphere, I came to see a different set of possibilities for research, and I would be remiss if I didn’t thank Joyce Millen for bringing me into that world and for drawing my attention to new (for me, that is) questions of method and meaningful scholarship. Heidi Behforouz also welcomed me into the fold of her incredible projects at PIH, a vote of confidence for which I am grateful. When the research for this book began in earnest, I was blessed with a group of academic mentors whose creativity and omnivorous tastes helped to pave the way forward when the constraints of disciplinary norms might have otherwise left me sputtering at the gate. Jean and John Comaroff ’s ability to see the conceptual and ethnographic significance through the murk of incipient fieldwork and their infectious intellectual energy helped carry me onward. They, along with Stephan Palmié and Joe Masco, offered a healthy mix of skepticism and optimism when faced with the circuitous route I proposed, one that would take me not just to Haiti and Haitian communities throughout the United States but to the halls of Yale Law School and the chambers of the DC Circuit. Michael Silverstein went out of his way to offer additional insights and provocations. Together they nudged me in the right directions at key moments and with results that, I hope, made the journey worthy of their time. I am grateful for their many kindnesses. In Haiti, New York, and Miami, I have been humbled by the welcome I received. For reasons of confidentiality, I cannot name many of those who moved the work forward with their willingness to share stories of their past and present, particularly members of the Haitian community who wish to remain anonymous. Fortunately, there are those I can recognize. I am grateful to Dr. Marie Carmel Pierre-­Louis, the late Henri Frank, and my other colleagues at the Haitian Centers Council Inc. for providing me an institutional base in the beginning moments of my research and for facilitating a good deal of the work in New York. Jocelyne Mayas shared her insights about Haiti and the diaspora, correcting my many mistakes and misconceptions over the years. Loune Viaud and Ninaj Raoul generously provided some of the initial introductions. Carol Halebian and Victoria Sharp shared their collection

Acknowledgments ix

of artwork produced by Haitians at Guantánamo (both images of the works and the works themselves). In Haiti, Marie Bewley helped open the door to a new field site at a moment of political instability when research there seemed daunting. Cheryl Little, Antoine Isma, Kelleen Corrigan, and the rest of the crew at the Florida Immigrant Advocacy Center introduced me to the work of public interest immigration lawyers in Miami. Cheryl, along with Sharon Ginter, also provided me access to the institutional records from the later years of the Haitian Refugee Center along with other organizations, including those related to Cheryl’s own work with Haitians at Guantánamo during the 1990s. Ira Kurzban shared his recollections as well as his unparalleled collection of documents dating back to the early 1970s—certainly the most comprehensive archive in existence of papers from the various institutions working on the question of Haitian migration. Ellen Powers introduced me to a network of former Peace Corps volunteers who had become State Department employees at Guantánamo following the 1991 coup. Betty Williams provided me with access to her own collection of documents in addition to negotiating introductions that greatly enriched the project. With regard to later research at Guantánamo and an embed with a Coast Guard cutter interdiction patrol, I owe much to Jona Hansen, Carol Rosenberg, and Geoff Gagnier, all of whom provided much-­needed advice and context. Additionally, there have been many government officials willing to share their memories of direct participation in the events chronicled in this book, including those who once held positions in the top echelons of the various agencies and military branches involved in interdiction and asylum processing at Guantánamo. Many agreed to speak on the condition that they not be identified in the text, requests I have honored here. I can say, however, that their firsthand accounts have added a depth of perspective it would have been impossible to garner through archival research alone. At Yale Law School, Oona Hathaway, Paul Kahn, Jean Koh Peters, Jim Silk, and Mike Wishnie all shaped my apprenticeship in the world of legal thought and action. Mike Wishnie, Brandt Goldstein, and Rodger Citron also arranged my access to the full case file of the two Haitian Centers Council Inc. lawsuits, then housed at Touro Law School. During my clerkship, Judge Rogers was kind enough to engage with and humor my research all while putting me through my paces, an experience for which I am deeply grateful. The Harvard Academy provided a stimulating environment in which to write. Naor Ben-­Yehoyada, Yael Berda, Lina Britto, Arunabh Ghosh, Sheena Greitens, Yukiko Koga, Noora Lori, Pascal Menoret, Ameet Morjaria, Simeon Nichter, Timothy Nunan, Raul Sanchez de la Sierra, Carly Schus-

x  Acknowledgments

ter, Katherine Schwartz, Nazanin Shahrokni, and Benjamin Siegel made the Academy a remarkable place to work and think. I am also grateful to Steve Caton and Ajantha Subramanian for their mentorship during my time at Harvard. Bruce Jackan, Larry Winnie, and Kathleen Hoover offered engaging conversation and superb administrative support, making the Academy feel like a second home. I must also thank the Academy for the funding necessary to hire my research assistant, Aleks Jaesche, who helped me to work through and create the visualizations contained throughout the book. Many individuals read or commented on portions of the manuscript in its multiple incarnations. Thomas Blom Hansen, Samuel Moyn, Kate Ramsey, Justin Richland, and Ajantha Subramanian offered detailed and thoughtful comments as part of a book conference hosted by the Harvard Academy. Anya Bernstein, Carolle Charles, Jean Comaroff, John Comaroff, Jane Dailey, Alex Dupuy, Bonnie Honig, Chelsey Kivland, Joe Masco, Sally Merry, Marina Mikhaylova, Zhanara Nauruzbayeva, Stephan Palmié, Jonathan Rosa, participants in various workshops at the University of Chicago, participants in Harvard’s Political Anthropology Working Group, participants in the Berkeley Geography Colloquium, and others I am certainly forgetting have also commented on various versions of the text. Lily Chumley has long broadened my intellectual horizons with her insights and friendship. At the University of California, Davis, I have found an engaging and welcoming group of colleagues. It has been a wonderful environment in which to teach and write. I owe a special thanks to the series editors, John Conley and Lynn Mather, and to Chuck Myers, my editor at Chicago. I’m grateful for the time and care they’ve taken transforming this manuscript into a book. I am also thankful for the feedback from the anonymous reviewers whose comments have greatly improved the work. This research has been made possible by generous funding support from the National Science Foundation; the American Society for Legal History; the Robina Foundation and Mary McCarthy Public Interest Fellowships at Yale Law School; the University of Chicago’s Center for Latin American Studies Field Research Grant, its Leiffer Fellowship, and its Orin Williams Fund grant; the Harvard Academy for International and Area Studies; and the University of California, Davis. I am also grateful to the Coast Guard Motion Picture Office and the Coast Guard District 7 Public Affairs Office for arranging my embed and visit to Guantánamo; to the Public Affairs Office at the US Naval Station Guantánamo Bay for facilitating my research there; and to the archivists at the Coast Guard Historian’s Office, the Marine Corps Historical Center, the US Navy History and Heritage Command, the Tamiment Library

Acknowledgments xi

and Robert F. Wagner Labor Archives at New York University, the New York Public Library’s Schomburg Center for Research in Black Culture, and the National Archives offices in Manhattan and College Park, Maryland, for their helpful assistance. Finally, it is with great joy that I thank my family, without whom none of this would have been possible. Grandma Judy, Mom, Ian, and Lizzie have seen this project unfold from the start. I wish my late grandfather, Jack, who cultivated my curiosity from an early age, could have seen the book in print. Theo and Sammy’s arrival has given me unfathomable joy and a good dose of perspective. My wife, Shannon, has been my constant companion throughout, my confidante, and my dearest friend. It is to her that I dedicate this book.

Abbreviations

ACLU

American Civil Liberties Union

ACPFB

American Committee for Protection of Foreign Born

APA

Administrative Procedure Act

BIA

Board of Immigration Appeals

CCR

Center for Constitutional Rights

CCSA

Christian Community Service Agency

DOS

Department of State

DHS

Department of Homeland Security

EEZ

Exclusive Economic Zone

FIAC

Florida Immigrant Advocacy Center Inc.

HCC

Haitian Centers Council Inc.

HMIO

Haitian Migrant Interdiction Operations

HRC

Haitian Refugee Center Inc.

INA

Immigration and Nationality Act

INS

Immigration and Naturalization Service

JTF

Joint Task Force

MOC

Migrant Operations Center

NCC

National Council of Churches of Christ

NECLC

National Emergency Civil Liberties Committee

NCHR

National Coalition for Haitian Refugees / Rights

USAID

United States Agency for International Development

VSN

Volontaires de la Sécurité Nationale

Bimini

Bahamas The United States

Miami

Haiti Nassau

Turks and Caicos (UK) Dominican Republic

Cuba

0

100

200 miles

Jamaica

The northern Caribbean.

Old Ba ha ma Ch an ne l

Turks and Caicos (UK)

Bahamas Great Inagua

Playa Santa Lucía

Cuba

Môle St. Nicolas

Point Maisí

Pa

s sa

Port-de-Paix La Tortue

Fort-Liberté

G

Guantánamo

W i nd

wa

r

d

Jean-Rabel ge

of la Gonâv e ulf

Haiti

Jérémie Cape Dame Marie

Jamaica Aux Cayes

Port-au-Prince

The Windward Passage and surrounding areas.

Dominican Republic

Introduction

On the afternoon of August 21, 1979, a “small Haitian sail boat” appeared off the shore of the Guantánamo Bay Naval Station, which, at the time, was a relatively sleepy outpost in a largely forgotten corner of American empire.1 One of the station’s patrol boats was dispatched to investigate and returned shortly thereafter, escorting the Haitian craft and its passengers ashore. There were nine Haitians onboard, seven men and two women, and all, according to the “situation report” filed after the encounter, appeared in “good health and spirit.” The vessel itself was described in this same report as being “in excellent condition and seaworthy.” Soon enough, it would be underway once again, sailing toward its original destination—the Florida coast. Before allowing the boat to depart, the military personnel at the base attempted to verbally dissuade the voyagers from continuing to Miami. But when the Haitians insisted they must move on, base officials did not detain them. Instead, they provided them with a hot meal, rations, water, and details regarding the route northward, including the weather they would face ahead. Less than three hours after being escorted into the protected waters of the harbor, this small group of Haitians sailed out to sea, beneficiaries of a peculiar hospitality that was common practice at the station during that time.2 This “humanitarian assistance,” to use the report author’s own description of the encounter, may strike readers as peculiar, in the sense of being unsettling or out of place.3 As I write this introduction, Guantánamo remains the most visible remnant of an earlier globe-­spanning carceral archipelago that embodied the very antithesis of an imagined American hospitality—the torture of racialized others in the global “war on terror” (Danner 2004; Mayer

2  Introduction

2008). The welcoming atmosphere of the late 1970s, not to mention the literal, physical openness of the base at that time, appear eerily incongruous at Guantánamo given what we currently know about the facility. The naval station has become iconic of a contemporary geography of securitized space, with its “exceptional” terrain, its ties to larger shadowy worlds of counterinsurgency, and, for many, its physical instantiation of America’s moral failures. The hospitable domesticity of warm greetings, the provision of food and material assistance, and the use of such gestures to facilitate a circuit of unauthorized mobility suggest a different Guantánamo than the one we know today. There is another, although far more obscure and in many ways more interesting, reason this hospitality should strike readers as peculiar. It is safe to say that the small group of Haitians who ended up in the naval station harbor in August 1979 had not intended to anchor there. They were part of a wave of Haitian boat migration that had begun in the early 1970s.4 Most of these vessels bypassed the naval station entirely, concluding their journeys, sometimes after weeks at sea, in the Keys, Miami, Pompano Beach, and other sites across the South Florida littoral. Unlike at Guantánamo, the reception they received on US soil was far from welcoming. Those who arrived in South Florida faced detention at the hands of the Immigration and Naturalization Service (INS) and the wardens of local jails. Others were later shipped to Port Isabel, Texas, far away from the political and litigation networks on which they had begun to depend as they pursued their asylum claims.5 A March 4, 1977, letter penned by the spokesperson of a group of thirty-­three Haitians detained in Immokalee, a rural agricultural community to the northwest of Miami, conveyed the dismay of these imprisoned asylum seekers: We, the Haitian refugees, detained at the Stockade Detention Center, . . . left our native country and came here to sollicit [sic] the political asylum because of the injustices we encountered with the brutal police corps of Duvalier, the tontons-­macoutes. . . . When we try to protest, we have been punched and beaten with sticks or they even put us in those small cells (dungeon), where we cannot move. . . . We know that if we have to face those unfair treatments, that’s because the Haitian Government cannot guarantee our rights. But, we want you to know that our live [sic] in this jail will remain for each of us a unique souvenir during our terrible sojourn in the United States.6

This was a situation in which “hospitality,” the chosen term of one of the Haitian activists lamenting its absence in US policy toward the asylum seekers,

Introduction 3

was substituted with incarceration.7 At Guantánamo, many of these ocean travelers were welcomed with food and other forms of assistance, but on US soil, they were locked away under a then nascent administrative system of carceral warehousing, the metastasization of which has become all too familiar since the draconian immigration reforms of the late 1990s.8 Although the disparity between the welcome offered at the naval station and the treatment meted out in South Florida is certainly striking, it is necessary to look to a later moment in the evolution of this border landscape—the launch of maritime migrant interdiction operations in 1981 and its expansion in the 1990s—to recognize just how unexpected this archival trace of Guantánamo hospitality is when viewed from the present. In the tumultuous decade that followed the arrival of the “small Haitian sail boat” at the base harbor in 1979, Jean-­Claude Duvalier, Haiti’s notorious president-­for-­life, was driven from power, and Jean-­Bertrand Aristide, a former Roman Catholic priest, rose up on a wave of popular support as Haiti’s first democratically elected president, only to be ousted by the Haitian military in September 1991, just seven months into his first term. In the aftermath of the coup, tens of thousands of Haitians took to the seas in what was to become the largest single outpouring of asylum seekers from Haiti up to that time. The “crisis” would also become a crucible for the then ten-­year-­old effort to remake the South Florida border by pushing it out into the liquid terrain of Caribbean straits and channels as part of a program of offshore interdiction and processing of Haitian migration vessels.9 Jean Étienne, a young activist who had cut his political teeth organizing provincial anti-­Duvalier protests in the mid-­1980s, was among the new wave of Haitian ocean voyagers fleeing the postcoup violence. Forced into hiding not long after Aristide’s departure, Étienne later fled the southern city of Aux Cayes by sail. His journey was difficult and the details too intricate, and compelling in their own right, to give adequate attention to here. What is key for our purposes is that when Étienne rounded Cape Dame Marie on Haiti’s southwestern peninsula and headed northward into the Windward Passage, he was not entering the same body of water that had existed during that August afternoon more than a decade prior when nine Haitian men and women sailed unmolested into Guantánamo harbor and left hours later on a course to Miami. In the intervening years, the Straits of Florida, the Old Bahama Channel, the Windward Passage, the Gulf of la Gonâve, and other unnamed bodies of water surrounding Haiti had been absorbed into a vast US-­Haitian maritime border unprecedented in the history of American migration policing. At its center was the offshore migrant interdiction program mentioned earlier,

4  Introduction

initially given the official title Haitian Migrant Interdiction Operations, or HMIO, by those who oversaw it. As I will detail in the chapters to come, Reagan administration officials designed this form of border enforcement as a method of jurisdictional arbitrage that would allow the INS to process Haitian asylum seekers aboard Coast Guard cutters with the discretionary flexibility afforded by their position in international and foreign waters. With interdiction, new policing interventions—crafted to evade judicial review— erupted into these spaces as punctuated expressions of sovereign power beyond territory and its fixed, earthbound core. Although interdiction began in 1981, Étienne’s attempt to traverse this militarized seascape intersected with a transitional moment in its securitization and, as I will show later, its juridical routinization: by the time he and his fellow passengers reached the Windward Passage, officials in the George H. W. Bush administration had augmented interdiction’s array of border sentinels from one or two cutters and supporting aircraft to include one high-­endurance cutter, nine medium-­endurance cutters, one oceangoing buoy tender, two HC-­ 130 long-­range search aircraft, three HH-­65 helicopters, seven patrol boats, and at least one mobile aerostat (a tethered, dirigible precursor to today’s surveillance drones), all of which were tasked with monitoring the waters in and around Haiti at an estimated daily operating cost of $665,000.10 At the same time, a joint task force under the command of Brigadier General George H. Walls Jr. was transforming Guantánamo into a vast prison camp, complete with razor-­wire barriers, guard towers, and administrative segregation facilities designed to contain the growing refugee population within a terrestrial extension of what over the prior decade had become an extraterritorial network of floating detention sites.11 As Étienne made his way out into the tumultuous seas of the Windward Passage, one of these surveillance aircraft detected his boat; a Coast Guard boarding team brought him onto the decks of a cutter and transported him to Guantánamo; INS officers interviewed him; Public Health Service personnel tested him for HIV; and, after he tested positive, military police confined him in an HIV quarantine facility, Camp Bulkeley, on a remote former training facility in the southeastern corner of the base. The assemblage of currents, winds, steel, wood, graphic texts, viruses, and humans, to name only a few of its elements, within which Étienne became ensnared amounted to a northern Caribbean remade through a host of manipulations at the intersection of the material and the imagined. Its impact was staggering.12 Islands of Sovereignty tells the story of the creation of this new, offshore border and the unexpected twists and turns of its evolution. It answers the

Introduction 5

question of how a Guantánamo of hospitality gave way to a Guantánamo of detention and what happened to the seas of the northern Caribbean and the land borders of the southeastern United States in the process. It is a history that posits neither a progressive nor a dystopian historical linearity—without giving away too much, many of this formation’s ends were in its beginnings, including a less hospitable dimension of the Guantánamo of the 1970s than the one depicted above (see chapter 2). It is also a history that is largely unwritten, and its telling has become all the more imperative given that this border has emerged as an entity of world-­historical significance over the past two decades, itself migrating across the global North as a modular paradigm for extraterritorial migration control.13 This book is also more than a mere chronicle of the rise of maritime migrant interdiction and its wider entanglements. It is a journey into the American legal imagination and the spatial practices that animate it. As I proceed, I will dwell in the literal peripheries of national space and the metaphoric fringes of the cosmologies that infuse such frontiers, revealing that neither is peripheral nor fringe. Rather, in these spaces of border policing and political demonology (more on the latter in chapter 3), I will explore one of the central animating dynamics of liberal constitutionalism—the tension between a foundational submission to constraining legalities and the yearning for a sovereign flexibility by which such fetters may be thrown aside. The interplay of the desire for legal self-­binding and its evasion is one of modernity’s great divides (cf. Latour 1993; Comaroff and Comaroff 1997, 372)—the rending of personhood between reason and will—elevated to the level of statecraft. As we will see, this vision of modern subjectivity writ large has infused the architecture of American legal codes and its mythologies of exceptional revolutionary origins. It lies at the heart of what Paul Kahn has called the “culture of law’s rule” (1999, 1) and its fetishization of the juridical as a, if not the, agent of legitimate governance. One of the overarching arguments of the book is that one must understand the valorization of law’s reign and the simultaneous desire for its evasion as two forces that have produced a potential dynamism within liberal sovereignty. That dynamism, having been activated through the historical conjuncture of Haitian migration, has reconfigured the spatiality of one of modernity’s core political forms—the nation-­state itself. The goal is not to identify and typologize illiberal accretions on liberal political forms (R. Smith 1997) or to reveal the centrality of empire to American republicanism (Rana 2010) but to examine how the dialectics of the liberal rule of law continue to produce new geographies into the present.14 In this sense, the book is not just

6  Introduction

a dissection of liberal cosmology but a revelation of a liberal cosmogony of a kind by which state forms have been partially re-­created as valued entities, both aesthetic and instrumental. Interdiction emerged initially as a search for spaces of flexible bureaucratic intervention unburdened by the dense layers of proceduralism iconic of law’s rule. But what accounted for this urgent turn to the relative freedom of the seas? When Haitians began arriving in South Florida in the early 1970s, they encountered what was then an embryonic asylum-­processing regime that granted INS frontline screeners and district directors nearly unreviewable discretion to dispose of Haitian claims, which were, in almost every instance, denied as being merely “economic” in nature. The litigation and political organizing that emerged out of these early cases developed into a coalition of Haitian exiles, leftist activists, mainstream religious networks, and tenacious civil rights attorneys who would, through an unprecedented process of what I call “siege litigation” (chapter 2), effectively shut down the INS’s capacity to expel Haitians from South Florida for the better part of a decade. A space-­ producing dynamic would soon emerge around an energetic polarity of opposing litigation camps, each focused in different ways on the dilemma of what in government circles had by that time already become known as “the Haitian problem.” This book examines the ways new geographies were fashioned in these contests and what such space-­making processes can reveal about existing cosmologies of law’s rule, including their shifting aesthetic and moral geographies. As the nascent Haitian rights movement began to crest, a feeling of crisis was taking hold on the US southeastern border, itself peaking during the 1980 mass exodus of Cubans from the port of Mariel and the smaller, but still significant, surge in Haitian boat arrivals that played out alongside it. In response to the vertiginous atmosphere provoked by the Cuban and Haitian influx, which Illinois congressman Robert McClory denounced as an “affront to the right of a sovereign country to control entry,” the INS stumbled to recapture a countervailing sense of sovereign feeling—an atmosphere of insulated security—that had once prevailed in a country long walled off from refugee flows of this magnitude.15 The INS strategy was to attempt to bring back the modes of agile, largely unfettered discretion that the agency had lost in the legal and political battles of the prior decade. This renewed search for sovereign control and liberated bureaucracy drove the asylum-­screening apparatus outward into a space-­time of relative oceanic freedom, a laboratory of sorts in which new forms of border governance would be tested, contested, and routinized over the years to come.16

Introduction 7

Not long after the launch of interdiction, Florida Republican senator Paula Hawkins characterized the program’s raison d’être with the remarkable candor for which she was well known, proclaiming simply that “since judges are ruling against the administration [with regard to Haitian asylum cases], we are going to stop [the Haitians] before they get here.”17 Here was a frank acknowledgment that interdiction was at its core a technique of jurisdictional arbitrage—a search for the legally advantageous spaces of a landscape fractured by regimes of land and sea. Buried in the matter-­of-­fact realism of Hawkins’s comment, however, lies something more profound: an expression of sovereign will attempting to break free from the constraining legalities of reasoned, judicial interpretation more often touted as its condition of legitimacy than its stumbling block within public narrations of the liberal rule of law. This tension between reason and will already mentioned is foundational to American liberal constitutionalism and its kin in what Elizabeth Povinelli has called the wider “liberal diaspora” (2002, 6).18 It has long provided the material for rarefied philosophy and folk theorizations alike, appearing in both discursive genres as an enduring war between two variants of interest—one enlightened by self-­discipline and the other self-­referential and impelled by more personal whims and preferences. In the public domain of politics, the opposition manifests as a contrast between a will submitted to legal constraint and another granted unfettered discretion. In The Federalist, a collection of founding-­era essays urging ratification of the US Constitution, Alexander Hamilton characterized the duality as one of “judgment” versus “will,” the former designating the stability of erudite but disinterested interpretation and the latter the vagaries of individual “pleasure” (Cooke 1961 [Hamilton 1788 essay], 526, 528).19 The opposition between reason and will (Hussain 2003, 7; P. Kahn 1999) has held great power as a classifying framework, in this instance one that posits a particular philosophy of human and state motivations. It is this framing capacity and the modes of action it makes possible that interest me, not its denotational accuracy—the correspondence of the concepts with the reality of existing motivations and tendencies. Inherent within the narration of reason and will as conflicting modes of engaging the world is an implicit notion of a lapsed humanity (cf. M. Sahlins 1996), both theological and secular in type, that is itself characterized by an abiding sense of the “ordinary depravity of human nature” (Cooke 1961 [Hamilton 1788 essay], 529–30). This anthropology of human drives, so to speak, has been built into the very architecture of American governance. Through its separation of powers, its formal equalities, and its fetishized proceduralism—in short, all the trappings of the rule

8  Introduction

of law in its Madisonian guise (Dahl 2006; Hirschman [1977] 1997)—liberal constitutionalism has attempted to transcend the paradoxes of modern selfhood and contain its baser predispositions. It has done so through an enduring legal form, designed, or “framed,” to use the preferred terminology of the American founding, to both preserve sovereign expression while channeling it through the encumbrances of legal self-­binding (Holmes 1995; Ackerman 1991). The Constitution, at once the supreme, fundamental law and the inscribed trace of what Bonnie Honig has called the “phantom agency of the ‘people’ ” (2007, 2), continues to be the ultimate expression of this precommitment (Holmes 1995). And yet interdiction and its move seaward offered an escape from this idyll of American legal culture and a passageway into a geography that was dramatically different in its pragmatic possibilities and its symbolic value. As the previously quoted statement of Senator Hawkins makes clear, the INS had grown weary of the constant litigation that its policies toward Haitians had provoked. The agency had come out of these contests bruised and began to seek innovative ways to exempt its frontline screeners from the type of scrutiny that the Haitian rights movement and the courts had directed their way over the previous years. Transplanting the asylum adjudication regime to an oceanic jurisdiction offered a new set of possibilities, the most important perhaps being the absence, aspirationally at first, of judicially enforceable restrictions on how they could handle the claims of the Haitians. Heading out to sea shifted the very architecture of the asylum bureaucracy, delinking the adjudication of Haitian claims from agency tribunals and federal courts in more dramatic ways than had existed in earlier incarnations of its land-­based counterparts and predecessors. This meant that ocean-­based screeners would carry on over the next decade as if they had no one to answer to but their own superiors within the executive branch who in turn were largely permitted to police themselves. In practice, the harmonization of attitudes across the INS and the Department of State toward the illegitimacy of Haitian claims—the sense that these were all economic migrants and thus unworthy of protection—meant that the interdiction officers could handle their interviews and issue their decisions as they pleased, so long as the tally of those brought to US soil for actual asylum hearings remained de minimis. For a decade, this was the status quo of oceanic refugee processing aboard the cutters. With an eye to the fragmented nature of existing jurisdictional cartographies, the INS had been set free at the southeastern border, unleashed as a mobile oceangoing bureaucracy integrated into a new surveillance and polic-

Introduction 9

ing regime, all beyond US sovereign territory. Its concentration of enforcement and adjudicatory functions within a small number of agencies of the executive branch would appear at first glance to be anathema to the structural separation of powers sacralized in the Constitution and the body of texts that accompanied its birth, including the aforementioned Federalist papers as well as the debates of the drafting convention. In many ways, the architecture of interdiction would seem to embody the more generalized fears that had been directed at the perceived dictatorial aspects of public administration since its rapid expansion during the Progressive era of the early twentieth century (Witt 2007). The common trope of the bureaucrat as petty tyrant and the fascist aesthetic of the apparatuses of administration (Scheuerman 1994; Karl 1987, 29) have long troubled American publics steeped in the mythology of these purportedly alien forms of “unconstrained authority” (Witt 2007, 290). With regard to interdiction, this was all the more acute, as the network of Haitian asylum seekers, litigators, and others who had done battle over the terrestrial INS programs throughout the 1970s foresaw the dark possibilities that lay in store once the frontline screeners, long willing to do away with the Haitian claims, were set adrift in a jurisdiction selected for its exceptional, fluid characteristics. The foreboding that this new landscape of authority triggered in the activists of the Haitian rights movement recapitulated a deeply American preoccupation with the dangers of what Cass Sunstein has called “untrammeled discretion” (Sunstein 1995, 960; see also Weber 1946, 219–20). Always looming in the background of the mythologized “rational objectivity of administration” (Weber 1946, 219–20) is the phantom of discretion as decisionism—the potential eruption of power with little or no binding constraints often held up as the opposite of the diffused authority so central to the rule of law’s apotheosis of proceduralized deliberation (Benhabib 1994). The term decisionism has, of course, deep associations with the writings of Carl Schmitt, one-­time jurist to the Third Reich and committed arch critic of liberal constitutionalism ( Jay 1984; Bendersky 1983). It is no accident then that contemporary legal theorists of various political inclinations have turned to Schmitt’s critiques of the liberal rule of law in the wake of September 11 and the Great Recession of the late aughts to illuminate what they see as an intensification of the decisionism that has long been present in the structure of American public administration (Dyzenhaus 2006; Vermeule 2009). As Bonnie Honig has remarked, “within the rule-­of-­law settings that Schmitt contrasts with decisionism, something like the decisionism that Schmitt approvingly identifies with a dictator goes by the name of discretion and is identified (approvingly

10  Introduction

or disapprovingly) with administrators and with administrative governance” (2009, 67). Schmitt, the anticipatory theorist and later active participant in Nazi bureaucratic practice, itself envisioned by some as the dark mirror of US experiments with the administrative state, has been resurrected to provide a window into the “crisis” bureaucracy of the new millennium. But what of interdiction’s bureaucrats, geographically and jurisdictionally insulated from the mechanisms that might shape, slow, and revisit their pronouncements aboard the patrolling cutters? What does decisionism and its specters have to do with a handful of INS officials grinding out refugee screening denials in the waters of the northern Caribbean? The forces that brought interdiction into being and later solidified it as a juridical edifice combined two aspects often present in scholarly discussions of decisionism: the centralized suspension of legal constraints on sovereign will that so occupied Schmitt and the production of pockets of bureaucratic discretion—in this case, the authority of the interdiction officers aboard the cutters—that others have seen as microcosmic echoes of sovereign power’s self-­referential nature. I will be looking into the technical details of how these features were built into interdiction in the chapters ahead as I attempt to articulate an anthropology of legal infrastructures and its registers of jurisdictional space. For now it is sufficient to note that the screenings of the new offshore border involved more than the mundane bureaucratic freedom that has long concerned critics of the administrative state. Interdiction necessitated something more akin to the disruptive emergency powers Clinton Rossiter (1948) has identified with the potential for what he called “constitutional dictatorship” within the liberal democracies of the “West” and what Arthur Schlesinger Jr. has referred to as the “imperial presidency” (1973, viii). In this vein, the flexibility the INS sought at sea involved a suspension of “normal” (more on this characterization in a moment) legal constraints through a geographic transposition, itself made possible by a then thirty-­year-­old statutory delegation of authority to the president to block entry of broad categories of “aliens” from entering US territory—the very same statutory delegation on which the Trump administration based the unveiling of its “travel ban” in 2017. In a sense, both the Haitians and the INS were fleeing to the oceans, the former as a means of escaping conditions in Haiti and the latter as an attempt to liberate itself from an institutional landscape that would parcel out, rather than concentrate, adjudicatory power across a wide and complicated institutional landscape. In oceanic space, however, the interdiction officers stood in many ways like bureaucratic islands in an isolated archipelago, detached from more earthbound architectures of re-

Introduction 11

view and deliberation central to the American rule of law imaginaries from which they drew their legitimacy. These islands of sovereign-­like power—a spatial metaphor from which the book’s title is drawn—that emerge within administration have been constituted out of what Sally Falk Moore once referred to as formally structured “monopolies of jurisdiction and discretion” (2000, 30). Jurisdiction, the power to speak the law (Benveniste 1973, 391–92; Dorsett and McVeigh 2007, 3; Richland 2013, 213), and its role in setting the limits of official power will occupy much of my attention in the pages ahead. As both an object of inquiry and an angle, or perspective, from which to inquire, jurisdiction demands that one pay attention to the mundane technicalities of how such “monopolies” are crafted and expressed in moments both quotidian and monumental (Riles 2005). A jurisdictional turn away from the majesty of the sovereign, conceived of in terms of the glory and terror of transcendent authority, redirects one toward the banal particulars of the when and the where of which institutions get to say what about what, as well as the presuppositions and entailments such a saying rests on in its self-­constitution (Richland 2013). To put it another way, jurisdiction draws one away from an exclusive fixation on centralized pomp and splendor (cf. Geertz 1983, 143) and into the concrete discourses and artifacts produced in the “emplacement” (Chu 2010, 105) of institutional power—that is, a cultivated sense of where authority belongs.20 Judicial opinions, organizational charts—with their spatialized visualizations of substantive spheres of authority—regulatory provisions, guidance documents, memoranda, and bureaucratic notations begin to take on new significance in this light as sometime traces of a larger cosmological order.21 Cosmology, as I use it throughout the book, refers to a set of “encompassing,” although neither complete nor fully stable, ways of imagining “arrangements of things and persons” (Tambiah 1985, 3). Without objectifying some monolithic American culture, one can still identify a multiplicity of constellations of this sort, which are sometimes overtly, sometimes implicitly, presupposed in ways that shape the contours of the “thinkable” (Merry 1990, 9) and its emergence in social action. The Manichean opposition of reason and will, of course, is one such feature of one such cosmological framing, but the orderings these arrangements entail extend into other, grander domains as well. Perhaps nowhere is this more apparent than in what James Ferguson and Akhil Gupta call “state spatialization” (2002, 982)—that is, the processes by which nation-­states take on, give value to, and naturalize their own formal properties, which are themselves built on an intricate “scaffolding of legalities” (Comaroff and Comaroff 2006, 22). The making of jurisdictional

12  Introduction

cartographies, I argue, plays an important part in generating the spatiotemporal orders and aesthetic value of such forms and their surrounds, producing them as sensuous things-­in-­the-­world while linking up the banality of juridical technicalities to the sacred grandeur of sovereign bodies. This brings me back to the question lurking in the background of the preceding exposition: how was interdiction able to take root as an aspirationally legitimate object within the culture of law’s rule? The eventual stabilization of the new maritime border as an accepted juridico-­political form—as well as its later expansion into land-­based detention at Guantánamo—begins to make sense when one examines it as an iteration of an existing but shifting political cosmology, which, although it did much to re-­create the seascapes of the northern Caribbean, did not do so ex nihilo. Its genesis was only a partial remaking, one that drew on and inevitably was haunted by the histories that would facilitate and impinge on its potential as a living assemblage. Writing in a cosmographic register, Veena Das and Deborah Poole have argued the modern nation-­state has always been conjured up in opposition to an imagined “wilderness, lawlessness, and savagery that . . . lies outside its jurisdiction” (2004, 7). This has certainly often been the case in the American context where a sense of anarchic exteriority has developed within an explicit jurisprudence of foreign affairs, appearing in The Federalist, already mentioned above, as a prompt for “energy” in the executive—conceived of in terms of “[d]ecision, activity, dispatch, and secrecy” (Cooke 1961 [Hamilton 1788 essay], 472)—but also in Supreme Court doctrine concerning executive power operating in the “vast external realm” at or beyond the border.22 In such spaces, something akin to decisionism rises up as desired technique. Interstitial imperial sites—Guantánamo among them—have also long existed in an intermediate zone within such legal geographies, neither fully domesticated nor fully alien within official discourses. All of these spaces convey a sense that jurisdictional outsides also become times of perpetual emergency within a spatiotemporal poetics (de Certeau 1984) of domestic insularity and foreign anomie. As such, the offshore, a term with its own connotations of both maritime distinction and the rise of flexible capital (Appel 2012; Harvey 1990), affords the opportunity for jurisdictional arbitrage as a zone within which domestically unthinkable configurations of sovereign will and reasoned constraint become not only merely possible but valorized within the differentially marked space-­time of the foreign.23 With the development of interdiction, contested techniques suddenly became ethically plausible under a dual rhetoric of sovereign exigency and moral humanitarianism—that is, the branding of the interception of Haitian ves-

Introduction 13

sels and the warehousing of Haitian asylum seekers at Guantánamo as acts of both border policing and benevolent rescue.24 Liberal sovereignty, riddled at its core by the cohabitation of modulated restraint and energetic action, offered the framing orientation within which the motivated escalation of litigation battles over the nature of discretionary power in this border apparatus unfolded, as did the symbolic geography of exterior wildness through which certain jurisdictions were imagined as more or less fitting sites for the manifestation of sovereign will. The disputes over the treatment of the Haitians took shape within this terrain of liberal double vision. By moving seaward while grasping for liberated decision, the architects of interdiction were able to generate a “spatial fix” (Harvey 2001, 24) to the aporia at hand—namely, how to engineer a space of decisionism without rendering the rule of law an open fiction. The repositioning of border policing in a sphere of oceanic exceptionalism—a move that drew on longue durée imaginaries of maritime freedom while making them anew—served to mediate the tensions of sovereign paradox by redirecting the expression of a less constrained will into the outsides of a fractured landscape of law’s rule.25 The discretion sought by the INS could be reclaimed, albeit in an exterior space, conceived of as exceptional by both its architects and its critics alike.26 As will become clear in the analysis to come, this vision of exception is not one of the spatialization of law’s suspension—the creation of a legal or normative void, so to speak (cf. Agamben 2005). There is far too much law at work here for that. And yet, it is also not about the proliferation of mere variations in “normal” law (cf. Benton 2010). Rather, this particular incarnation of exception is not susceptible to a normalization by which its anomalous characteristics transform into a new status quo under the weight of resignation and habituation (cf. Benjamin 1968, 257), at least not in its offshore manifestations. This is not because its existence is too episodic to prevent its infiltration of the collective conscience as some unspoken orthodoxy. To the contrary, its value to those who make use of it is in the durability of its conflation of space and deed, a durability that still radiates a sense of deviation vis-­à-­vis the regnant legal norms of another geography marked as interior to the nation-­ state, a geography that would in the twenty-­first century come to be known as “the homeland” in popular and official discourse alike (see chapter 6). Interdiction, in other words, has depended since its inception on a manifest aura of anomaly: its legitimacy rests on an existing repertoire of imagining that profits from the jurisdictional alterity of exterior seascapes—as well as landscapes, in the case of Guantánamo—which are saturated by a temporality of crisis, itself without temporal limits. Certainly interdiction underwent a process of

14  Introduction

normalization, in the sense that it became a taken-­for-­granted aspect of the US border control tool kit, and yet, at the same time, its exceptional qualities were coded within a semiotic order as enduring, not transient. One of this book’s primary contributions is to identify the geography-­producing force of this spatial fix and to explore the mechanics of how its offshoring of South Florida’s asylum-­screening apparatus drew on existing classifications of such seascapes, instrumentalizing their deviation—their status as exception—in the process. The careful manipulation of jurisdictional maps, themselves rooted in all-­too-­often suppressed histories of American empire, speaks volumes with regard to this structural mediation of cognitive dissonance. The dynamics of liberal paradox are, in this telling, space- and world-­ making. This point is central to the theoretical intervention at hand. At the same time, I do not posit the dynamic itself as the instigating force in this historical unfolding, nor do I offer it up as an idealist alternative to materialist causality. To be world-­making is not always to be world-­determining. Indeed, my approach often eschews a concern with causality in exchange for attention to cosmological framings, which create their own impediments and affordances (Kockelman 2013, 30–32) out of “[s]chemes of thought and perception” (Bourdieu 1977, 164). Lest this sound too idealistic, such schemes are equally bound up with the sensuous world, which in its often intransigent materiality facilitates certain practices and imaginings, including the fusion of the physical and juridical apartness of maritime interdiction, which would have required far more revolutionary interventions to achieve within, say, the terrestrial deserts of the US-­Mexico divide than it did in the Florida Straits and Windward Passage. As I trace the pragmatic weaving together of texts, speech acts, humans, and nonhumans as potent assemblages in the chapters that follow, the stubbornness of certain aspects of these land and seascapes will become clear. Specific material forms also become, as Claude Lévi-­Strauss pointed out long ago, good to think with (1962, 89), and the crisis feeling that helped drive the border dialectics I will be exploring became all the more acute as a result of the biological happenings and idioms through which it was thought. The turn toward emergency, even when embodied in an enduring spatiotemporal construction like the “vast external realm” mentioned previously, requires a plausible sense of threatening disorder, which, in the Haitian case emerged as racialized pathologization—that is, the portrayal of Haitians as not only socially and biomedically deviant but also as living indexical-­icons (signs that both point to and resemble their objects) of the “rotten world” (Povinelli

Introduction 15

2006, 27) that Haiti had become within American imaginaries of spatialized contagion.27 The antithesis to this image of decay and rupture was a putatively normative, sovereign entity, selectively sealed off to the menace of infections, metaphorical and actual, that threatened to slip through the weakened skins of an imagined American body politic. AIDS was central to the “affective recruitments” (Masco 2014, 7) through which multiscalar visions of pathology and robust health were made palpable during the 1980s, and Haitians played a key role in the unfolding social drama of the era: “Haitian,” for instance, was the only ethnic group singled out by the US Centers for Disease Control as a risk factor for the disease at a time when “no microbe had been isolated” and “risk designation was, in effect, synonymous with carrier status” (Farmer 1992, 211; see also Galarneau 2010). The stigmatization of Haitian bodies and the pathologization of Haitian sociality in the West’s imaginings of its unreasoning others (Trouillot 2001; Buck-­Morss 2000) has deeper roots, however, than the more recent era of “emerging infections” (Garrett 1994) and migration scares, as will become clear in chapter 3. Nonetheless, the conjuncture of the apocalyptic cadences of a little-­ understood sexualized and racialized epidemic; the growing demonization of parasitic welfare dependency, itself iconic of the budding neoliberalism of the early Reagan years; and the opening of an unprecedented era of direct refugee flows into the United States from Latin America and the Caribbean made for a powerful combination. It is not difficult to see how this cauldron of anxiety could have given shape not only to an agenda of containment and revitalized sovereignty but also to a racially informed oppositional politics intent on preventing the rollback of the civil rights victories of the previous twenty years on the backs of black refugees. I argue that this collision, when refracted through liberal constitutionalism’s paradoxes and geographies, transformed the very form of the American nation-­state—its actual contours as a juridico-­political entity—and the seascapes of the northern Caribbean in the process. Although medicalized borders and the use of exclusion categories as biolegal filters have long been a feature of American practices of self-­definition (Fairchild 2003; Kraut 1994; Ngai 2004; Shah 2001; Stern 2005), the historical confluence in which the Haiti case emerged, its harnessing of existing narratives of Haitian alterity, and the ferocity of the litigation battles it spawned on both sides, converted what might have been merely a paradigmatic token of a longer durée historical type into something else—a world-­historical shift in the way borders are policed, migrant populations are managed, and the aes-

16  Introduction

thetics of nation-­state spatiality are imagined.28 Part of that story is a forgotten moment in the rise of a “neoliberal penality”—the tremendous investment in carceral discipline as a means of fostering the “natural order” of the market (Harcourt 2011, 35)—that would generate the rudimentary models for a host of off- and onshore detention regimes in the years to come, including the rebirth of the US migrant prison complex with the mass confinement of Haitian asylum seekers in the early 1980s. This inquiry links up these shifts in administrative incarceration with an experimental, postmodern statecraft that combined a nostalgia for older illusions of sovereign insularity with an openness to novel forms of disaggregated (Sassen 2006; Mezzadra and Neilson 2013), or what I call pointillist, borders (chapter 6), characterized more by mobile, aquatic, eruptions of power than fixed, earthbound, Maginot Line visions of a robust sovereignty at the edge of territory.29 Such flexible arrangements between land- and sea-­based institutions, I argue, emerged as particular, and later replicable, configurations, at once innovative elaborations of webs of texts, currents, and peoples as well as embodiments of a new socioaesthetic (Munn 2013) of state spatialization in the making. As I have mentioned, this maritime border took shape in the crucible of hard-­fought litigation battles—the “caldron of the courts,” to borrow Lawrence Rosen’s apt phrase (1989, 2)—that unfolded across the last three decades of the twentieth century. This space’s birth in legal warfare is one of the reasons it is so compelling as an object of inquiry. This was a border forged in law, not in the sense of an object erected on the intercalation of legal texts and built environments, though it was that, but in the sense that it was produced dynamically in the agonistic struggle of legal interpretation and legal violence both in the courts and in their shadow.30 I can think of no other US border quite like it. To insist on this border’s uniqueness, however, would be to miss the point. Invention is always in some sense repetition. Here, the reinvention of Caribbean waterways, South Florida borders, and imperial sites like Guantánamo repurposed existing forms while laying the groundwork for their varied generalization as a modular, modifiable paradigm amid “crises” in mobility governance presently engrossing other regimes of the wider liberal diaspora.31 Besides, an argument for peculiarity can only carry one so far. The canalization of these agonistic forces through liberal constitutionalism’s sovereign paradoxes and geographic imaginaries gets one further. In order to appreciate the full implications of this argument, however, one must go beyond an examination of the made object—the phantasmagoric “effect” of state coherence

Introduction 17

(T. Mitchell 1999, 78; see also Trouillot 2001)—and conceptualize the how of its making across a wide array of scales and sites.32 This book is an examination of the pragmatics of world-­making in one corner of the liberal diaspora, oriented, in particular, toward the fabrication of its juridical infrastructure and the types of encounters, geographies, and forms it makes possible. But what of these structures—infra or otherwise— I have alluded to so frequently in the preceding pages? Certainly they are not the cognitive filters of a Lévi-­Straussian theory of mind, nor are they quite as ingrained as the jural norms of British social anthropology. Instead, they have more in common with Julia Elyachar’s notion of “social infrastructure” as constructed positions and relations—“nodes” and “channels of connectivity” (2010, 459). Legal infrastructures—or architectures and cartographies, as I will be calling them as well, for reasons that will become clear— are both durable and manipulable, expressive and instrumental.33 Moreover, as this characterization suggests, they are made and unmade. The how of their making and its effects will occupy a good deal of my time. Getting into the infrastructural craft will require that I delve into the symbolic richness of legal technicalities (Riles 2005), from the forging and mobilization of citational networks to the fashioning of jurisdictional palimpsests and disjunctures. I will do so while drawing in part from semiotic perspectives that have focused on the pragmatic dimensions of language use—the ways in which discourse does not just function through literal reference alone but by signaling (indexing) contextual frames via unfolding chains of presupposition and entailment (Conley and O’Barr 2005, 147–56; Mertz 1996, 1998; Richland 2013, 213; Silverstein 1993; Silverstein 1976; Silverstein and Urban 1996). This perspective will show how laws marked as instantiations of a certain type (for example, regulations subject to notice and comment rulemaking) point to both a literal referent (such as a prohibited action) but also a wider set of relations, hierarchies, stances, and values implicit in the method of their production. In other words, it allows one to see the interaction of legal discourse, legal infrastructure, and legal cosmology as simultaneously grounds for and objects of transformation within a dialectics of liberal paradox. The task of tracking the pragmatics of space- and world-­making concerns both the grand and the tedious. To be clear, this book is not merely an exercise in descriptive cataloguing—an enumeration of the contents, rules of recognition (Hart [1961] 1994), and grammar (Balkin and Levinson 1994) of positive law. Nor is it a project of abstract normative philosophizing. It is, rather, an empirically grounded effort to discern and theorize through disciplined

18  Introduction

interpretation (Kleinman 1995, 76). To grasp the possibility of interdiction’s reformatting of northern Caribbean seascapes as lived spaces of mobility and stasis, one must scrutinize the minutia of INS memoranda, the ritualized pronouncements of oracular justices, and the oceanic routes charted by Haitian sloops and Coast Guard cutters alike. The legal edifices built and left to ruin in this process, the geographies they elaborate, and the temporalities they construct have much to teach about the culture of liberal sovereignty as something more than a set of precepts and rules to be debated in the search for desired ends. By eschewing a prescriptive approach, whether deontological or utilitarian, one can look to how the material environments, spatial forms, and aestheticized interventions of the experienced world emerge from this political cosmology. Or, more accurately, one can begin to see how each is inseparably part of the other. To do so is to explore how a floating, oceanic border regime was manufactured, and, in the process, itself re-­created the spatial vision of the American nation-­state and its surrounds, an endeavor that should interest anthropologists and legal theorists alike. At the same time, it is a conceptual journey into the cosmogonic dynamics of liberalism’s internal tensions, which have here, by rearticulating the political forms of the modern world, remade it. * Now, a bit on where this book came from—its own making, as it were. My purpose here is to give some hints regarding not only the biography of the text itself but also some direction on how it should be read. I begin with a comment on how to approach the relation between text and notes and then move on to methodological considerations. The empirical material I pre­sent is enmeshed with a wide range of conceptual questions not limited to the introduction, although the density of this relation varies from chapter to chapter. At the same time as I have worked to make the book conceptually as well as empirically engaging, I have also attempted to avoid burdening the reader with certain theoretical debates, which, although they illuminate the discussion at hand and clarify the text’s position with regard to wider conversations, also risk diverting attention from the material I wish to foreground. This decision to background certain theoretical questions is all the more important given the book’s interdisciplinary audience. Rather than remove these second-­order framings entirely, I have included them in the endnotes, leaving it to readers to pursue them based on their own interests. Suffice it say that the notes are meant to be substantive

Introduction 19

and serious attempts to enrich the text for those who wish to grapple further with the book’s conceptual implications. With regard to method, it should be apparent that there is a disciplinary restlessness to the book, which is a product of purposeful wanderings. It is of and in a series of linked assemblages. As such, it is in keeping with the ways anthropology’s grounding in the local has shifted over the last few decades to a more unwieldy attempt at maintaining the phenomenological richness of proximate encounters while permitting an unmooring of sorts suitable to the time-­space compression the discipline has felt so acutely. Older scalar orientations have become quaint. Mobility has become not just a phenomenon to be studied but a methodological quality (Chumley and Harkness 2013) to be cultivated. Fearing irrelevance, we have unleashed ourselves within wider networks and valorized such perambulations in the process. This aspirationally flexible anthropology yields its own anxieties. Inquiry always unfolds across a series of disciplinarily defined routes, and as they expand, there is a risk that a view that becomes at once from everywhere in its sprawl also becomes a view from nowhere, not in the sense of manufactured objectivity, but in the sense of an absence of interpretive purchase and adequate local knowledge. I share this concern, and the research endeavors out of which this book has emerged are deeply rooted not only in places but also in discursive worlds and communities of practice. Historical anthropology must, as John and Jean Comaroff have argued, “begin by constructing its own archive” (1992, 34) in order to engage in an ethnography of that archive (Merry 2002), but in instances where, as here, much of the archive is recent, the traces one may seek take on different forms than those available to even the most creative excavations of distant pasts. The relevant interpretive publics may still exist and embodied techniques may still be operative, whether they be the crafting of sailing vessels or the crafting of legal memoranda. The historical anthropological project involves more than piecing together imaginative archives; it requires that one settle on an itinerary of immersion most relevant to that archive’s interpretative demands. Participation and observation, within this project, then become tasks of blending the value of “being there”—the ways and the whats of seeing that presence affords—with other aims, including access to dispersed archival fragments as likely to be in a cataloged Library of Congress file series as a storage bin in Flatbush. The goal of embedding oneself in a Haitian-­run, community-­based social service organization in Brooklyn, New York, for example, need not be the writing of its institutional ethnography. Access to people, knowledge, and graphic artifacts come with this social situatedness—

20  Introduction

depending, of course on how it is approached—and self-­positioning of this kind may provide the keys that open a door onto other, un- or imperfectly known vistas. Instrumentalizing rapport—however blunt and unromantic it may sound—to achieve these more distant ends pulls one into uncertainty, of course, but the yields, however contingent, are potentially equal to the surprise of other ethnographic encounters, trained, as they have long been, on more spatially and temporally proximate exchanges. This, in the end, is the point, regardless of operative scale—that is, learning the questions one would never have thought to ask in the first instance. The sites of this project are many and its execution long in coming. In part, this is because its objects only began to take shape within the iterative process of inquiry itself, a feature common to most anthropological research, whether historical or not. This book explores only a portion of the worlds into which I traveled. It is a first volume—an opening. Before getting to its twin, the vision for which has shaped the writing of this book, I must first look to the pathways that led me here, to this text. In its early phase, I imagined the work as an account of the creation of the migrant detention camps at Guantánamo Bay as juridical artifacts and sites of robust political ferment. Haitian narratives of camp life and death—with particular emphasis on the HIV detention facility, Camp Bulkeley—would accompany detailed accounts of the legal battles over its constitution. In order to take both dimensions seriously, I first arranged for a year of fieldwork in New York and Haiti. Prior to attending graduate school, I had worked for Partners in Health, a medical nonprofit cofounded by anthropologist-­physicians Paul Farmer and Jim Yong Kim, as an HIV case manager in one of their now-­ discontinued Boston-­based community health projects. I offered the skills I had developed with PIH to the Haitian Centers Council Inc. (HCC), a Brooklyn-­based, Haitian-­run organization that was the named plaintiff in the suit that litigators had brought to challenge both the legality of detention at Guantánamo and the screening processes deployed in interdiction.34 In the wake of the lawsuits and the parole of the detained HIV-­positive Haitians into the United States, HCC, along with other organizations, had provided case management and housing services to many of the camp’s former detainees and continued to do so through 2006, when I took on the role of a full-­time case worker for approximately six months. Several of my clients, as well as those of my HCC colleagues, had been held at the base because of their HIV status, and although my work with them was not intended to become the foundation of the ethnography, it facilitated my entry into the fragmented networks of the survivors, which, with the exception of their connection to

Introduction 21

HCC, were largely isolated from one another. My service with HCC also offered a sense of not only the then-­current topography of the fractured diaspora community in New York, but of the diasporic landscape as it existed in years prior. It was an entry point into a world to which many hypothesized I would never gain access given the stigmatization of HIV within the Haitian community at that time, and the associations of detention at Guantánamo with modes of travel, and thus, metonymically, with subjectivities, marked as inferior within the diaspora’s class hierarchies. After laying this groundwork in New York, I then turned to Haiti, where I had begun fieldwork the previous year in the country’s remote southwestern peninsula, known by the US Coast Guard officials who patrolled off its shores as the “southern claw.”35 Tens of thousands of Haitians had passed through Guantánamo during the 1990s, and, in contrast to those who joined the diaspora, the fact of transit through the base often crystallized in Haiti as picaresque modes of self-­narration—there was adventure to it and the bittersweet taste of a destiny nearly transformed, but never shame. Between 2005 and 2016, I would visit coastal communities across the peninsula and in the northwest on six separate occasions, eliciting hundreds of accounts of not only detention at Guantánamo but also of decades of migration voyages, referred to in Haitian Creole as kanntè.36 One seaside urban community known for its artisanal fishermen and stevedores became a mooring point of sorts over a decade of visits. It was there that I immersed myself in the material practices of boat craftsmanship, the repertoires of maritime lore, and the local cosmographies of mobility, luck, and wealth. The knowledge gleaned from this participation in daily life informed the ways I both interpreted and elicited not only migration tales recounted in coastal villages in Haiti but also the documentary traces of these same voyages that Coast Guard officers were inscribing aboard the cutters and circulating throughout a wider constellation of institutional nodes. Although these more traditional ethnographic materials are not foregrounded in this volume, they inform its hermeneutics and its structure. Moreover they are at the center of the next book, which turns its attention toward a different set of Haitian spatial narratives of the northern Caribbean—those forged out of the practices of mobility, the material infrastructures, and the land- and sea-­based economies operative within an array of land and seascapes increasingly saturated by the projects of containment and securitization examined in this text. The two volumes are complementary, although each stands alone. The experiences and practices of the Haitian detainees were meant to constitute only one element of the story I had hoped to tell. I also intended to

22  Introduction

explore the legal framing of this space of detention in order to discern the complex and, what I imagined to be, contingent dialectics that had evolved between forms of life taking shape in the camps—including its overt politics—and the juridical maneuvers that were both its condition of possibility and its potential unmaking. After my first year of fieldwork in New York and Haiti, I matriculated at Yale Law School to pursue a professional doctorate as an ethnographic experiment of sorts—an “initiation into” the “particular linguistic and textual tradition” commonly described as “lawyerly ‘thinking’ ” (Mertz 2007, 4). My intent was not to produce an ethnography of legal education but to submit to a process of socialization into the profession’s modes of textual analysis and its writing and speech genres. If I could not be present during the litigation battles of the early 1990s myself, I could approach their archives steeped in the epistemological assumptions that provided the frames for plausible argumentation, fact production, and combative maneuvering within which they unfolded. Undergoing this process at Yale was all the more poignant because the litigation that led to the closure of Camp Bulkeley and challenged the legality of interdiction, unsuccessful though it was, had been handled in part by the school’s legal clinics—the equivalent of small-­scale, often subject-­specific, law practices responsible for a form of experiential legal education in which students pursue actual cases under the supervision of practicing attorneys. As a clinical student, I handled asylum and Convention against Torture cases before various administrative tribunals (immigration courts and the Board of Immigration Appeals), drafted briefs and memoranda, sifted through discovery documents, assembled evidentiary materials, elicited and inscribed testimony, and argued dispositive motions in federal court, frequently under the direct and indirect guidance of attorneys who had themselves participated in the Guantánamo- and interdiction-­related lawsuits of the early 1990s. My fieldwork in Haiti and New York and my formal legal training had inspired a shift in focus away from the exclusive confines of Guantánamo and its lawsuits toward a wider geographic and temporal scale that would reveal the base’s entanglements with a deeper history of border imaginings, legal activism, and as I will show in chapter 2, an emergent antipolitics of human rights. Broadening the scope, of course, was not about adding more history—more “context”—but, in this instance, about opening a dynamic to interrogation and, in the process, making it visible where it otherwise would have remained occluded. The expansion in focus became possible after I began working in Miami for a public interest law firm, known at the time as the Florida Immigrant Advocacy Center (FIAC), which operated in some ways as the legacy

Introduction 23

institution of the by then dissolved Haitian Refugee Center Inc. (HRC), a community-­based organization that had served as the locus for much of the litigation, advocacy, and community organizing among Miami Haitians in years past.37 While working at FIAC, I began to enter a new world of elite and popular networks that lingered on as remnants from the older coalitions that had begun to take shape back in the early 1970s around the question of Haitian asylum seeker treatment. The credibility conferred by the kind of service work I had been engaged in also led to an opening of privately held archives containing the records of institutions central to the siege litigation that would evolve into escalating battles over the years. Equally important, these collections also contained within them massive, concentrated troves of discovery production—the disclosure of materials relevant to issues under litigation— deposition testimony, trial testimony, and affidavits that offered an unparalleled view into the workings of the border regime.38 The information gleaned from these litigation files would be difficult, if not impossible, to replicate through research in traditional archives today given formal policies that required purges of many of these court documents from the National Archives, the inevitable dispersion of others across countless institutions, and the limits on access likely to be imposed on documents of such recent vintage. Additionally, as one litigator involved in the suits of the late 1970s remarked to me, one simply can no longer gain access through Freedom of Information Act (FOIA) requests or discovery motions to the documentation of high-­level deliberations disclosed at that time. My own experiences with discovery, FOIA, and mandatory declassification review requests bear this out. Access to these archives also often came hand in hand with access to the litigators and activists involved in the events that spurred their creation, each providing additional means of engaging with the other in an iterative process of dense triangulation. The groundwork for many of the archival and ethnographic explorations already noted were laid prior to or during my legal training but in many ways came to fruition only after I left Yale. It was then that I embarked on another year of fieldwork divided, as before, between Haiti and the United States. I was able to augment the corpus of interviews with Haitian seafarers, developing a better sense of the landscape of coup-­era violence, among other topics, and, in the United States, to bring a wider array of archival sources into the growing collection of my own creation. In the years that followed, I also enriched my understanding of the government bureaucracy itself through a series of interviews with high- and low-­level officials involved in the formulation of the interdiction policy, the screening of Haitians at Guantánamo and

24  Introduction

aboard the cutters, and the management of asylum processing at the base, among other topics. As is the practice in anthropology, and to honor requests for confidentiality, nearly all of these and other interlocutors remain unnamed in the text. Further legal socialization occurred during a year clerking for the United States Court of Appeals for the DC Circuit, an institution specialized in the esoteric domain of administrative law and its elaborate doctrinal structuring of bureaucratic discretion across the federal government’s vast administrative regimes, both topics of central importance to my analysis. The work of drafting bench memoranda and opinions in this context provided another window into one instantiation of a more general type of legal craft—the technique of appellate judging and its embodiment in the smithing of legal language imbued with the force of law. The final piece of fieldwork consisted of my own entry into some of the offshore sites through which the maritime border continues to be enacted in the present—the mobile platform of a Coast Guard cutter patrolling off Haiti’s northern shores and the terrain of Guantánamo itself. These spaces continue to be bound up with one another as interlocking infrastructures in relations of mutual extension and dependency—Guantánamo as node in a wider supply chain network into which the cutters are plugged during port calls and through helicopter operations, and the cutter as the linkage between the encounter of interdiction and the potential holding zones of Guantánamo’s still-­ existing Migrant Operations Center and Mass Migration Complex. I return to these contemporary instantiations of the maritime border in the afterword. Michel-­Rolph Trouillot once observed that anthropologists must tailor their conceptualizations so as to frame their “object of study in ways that open it to investigation,” an insight premised on the idea that “[t]he object of study cannot be the object of observation” (2003, 95–96). Method and theory in this formulation are mutually constituted in the task of perceiving that which exceeds the revelations of a naive ethnographic empiricism. In order to bring the sprawling, mutating assemblage that is of interest here into focus for purposes of investigation one must shuttle between the political theology of centers (Geertz 1983, 143) and the “mundane spectacle” ( J. S. Kahn 2017, 18) of margins (Das and Poole 2004, 8), cosmogonic flourishes of sovereign foundings and banal (Trouillot 2003, 95) encounters of everyday “bureaucratic labor” (Herzfeld 1992, 10).39 The “object” that emerges in the searching and the telling—an object that is both conceptual and empirical—is more than the sum of individual encounters, yet it remains grounded within them across a host of scales.40

Introduction 25

* This book is divided into six chapters. Chapter 1 examines the bipolar framing of Haitian migration’s causes as either political or economic, that schism’s relation to distinctions central to capitalist modernity’s sense of the economic as a realm apart, and the forms of intervention the economic account seemed to demand in the form of market-­based and policing-­centric remedies. Chapter 2 traces the contours of the escalating siege litigation dynamics mentioned earlier and the transformations they wrought in the form of a series of space-­ rending border disjunctures. Chapter 3 turns to the racialized pathologization of Haitian subjectivity, its various iterations in American projects of occupation, development, and containment, and its role in giving shape to the affective dimensions underlying the sense of the exceptional in the Haitian refugee “crisis.” Chapter 4 explores the pragmatics of asylum screening—on and offshore—by looking at bureaucratic practice, the fabrication of citational architectures within which these practices are embedded, and the making of a novel oceanic exceptionalism. Chapter 5 offers a new conceptualization of legal spatiality and its importance within American cosmologies of liberal empire. Chapter 6 concludes with an account of different modes of space-­ making in the northern Caribbean and the multilayered seascapes they have created. The afterword offers a firsthand account of the offshore border— Guantánamo and cutter patrols included—as it exists today.

Chapter 1

The Political and the Economic

In the spring of 2007, I was traveling aboard a fifteen-­foot wooden sloop along the northern coast of Haiti’s southwestern peninsula with Bernard, a skilled mariner and twice over “guest” of the joint task forces that operated the asylum-­screening camps at Guantánamo during the early 1990s. We had left the provincial capital of Jérémie and were heading to a cluster of small seaside towns to conduct interviews with residents who, like Bernard, had been repatriated from Guantánamo during the previous decade. Bernard had selected an old fishing companion, Luc, as the lone crewman for the voyage. The three of us worked the sheets and, when the wind died, the oars of the small craft, conversing as we made our way toward the Cayemite peninsula. Despite being of different generations—Luc was in his sixties and Bernard half that—the two had long fished the deepwater “channel” just offshore in vessels nearly identical to the one that was carrying us eastward. Not far from Jérémie, our conversation unexpectedly turned toward Luc’s time as a member of François “Papa Doc” Duvalier’s militia, known as the tonton makout, a reference to the bogeyman of Haitian lore who, the stories went, had a nasty penchant for carrying away naughty children in his straw basket.1 Upon hearing Luc had served as a makout, I was filled with an admittedly morbid curiosity: Jérémie’s miliciens, as they were also called, were notorious for having slaughtered dozens of the town’s mulâtre population during the late summer and early autumn of 1964 in partial retaliation for an invasion by a small group of predominantly light-­skinned rebels (as I will show, the detail of skin color is relevant) operating under the name Jeune Haiti (Diederich and

28  Chapter One

Burt 1991, 299).2 The massacre, widely known as the vespers of Jérémie, was one of the most brutal of the early Duvalier years. Coverage of the killings was de rigueur in the many journalistic accounts of Papa Doc’s consolidation of power following his ascension to the national palace in 1957. Personally, I had recalled how Elizabeth Abbott’s gruesome version of the tale—bordering on the pornographic in its detail—had featured the makout Saint-­Ange Bontemps as one of the more sinister players involved in the killings. Per Abbott’s (1988) reporting, Bontemps was particularly notable for his hatred of the town’s mulâtres and for the relish with which he took to purging them as retaliation for the actions of the Jeune Haiti guerrillas, some of whom were related to the targeted families while others simply shared a similar phenotype and social class. I asked Luc if he knew Bontemps, and he replied without hesitation that he had been his “good friend.” Bernard appeared a bit surprised and asked if it was true that Bontemps and his band of makout had thrown “mulatto” children in the air and skewered them on bayonets, something he had heard about in his youth, though he himself was born nearly a decade after the murders. Luc responded with a “yes” and a nod. Disgusted, Bernard called Bontemps a criminal, and with that the conversation ended. Years later Luc would boast to me that he had once been stationed at Fort Dimanche, the makout-­ run political prison in Port-­au-­Prince that was synonymous with torture and political executions during the reign of Papa Doc and his son, Jean-­Claude, who ruled Haiti in succession between 1957 and 1986. Hidden beneath Luc’s warm exterior was a darker history of, at the very least, direct complicity in some of the atrocities of the Duvalier dynasty. Luc’s recollections were a reminder of how deeply Haitian lives had once been shaped by the sometimes banal, sometimes spectacular repression of the Duvalier security apparatus. It was also an eruption of a very particular moment of the Haitian past into its present—a part of the mythologized canon of makout brutality that earlier generations of Haitians had known so well and that had begun to fade in the public imagination. In this offhand allusion to the reign of the militia and, after my own prompting, the vespers with which they had become associated in Jérémie, one can see a crystallization of the reach of Papa Doc’s networks and the excessive nature of his style of retaliation (the victims had little to do with the invasion beyond kinship and color). Bernard, decades younger than Luc, had been born after the Papa Doc years, coming of age under his son, Jean-­Claude, and the succession of military governments that followed in the wake of his 1986 ouster. He too had a story of state-­sanctioned violence—one that I had heard many times, though

The Political and the Economic 29

he would not recount it on this particular voyage. Bernard’s tale focused on the upheaval following the overthrow of President Jean-­Bertrand Aristide in 1991, a period when the military and former makout were unleashed on the population once again. Rather than confirming the horrors of the Duvalier years or the widespread cruelty of the junta that ruled Haiti following Aristide’s forced exile, however, Bernard’s story represented a different, albeit no less canonical, narrative of Haiti’s political drama—the stereotype of the “economic migrant” seeking asylum with false tales of persecution. The aspect of Bernard’s tale that is of interest here involved a voyage known as a kanntè baz—a type of migration by sea that emerged in the early 1990s in which the goal was not to evade Coast Guard patrols but to be intercepted by them in hopes of being taken to Guantánamo (the “base” to which the aforementioned Creole word baz refers) for an interview and, possibly, eventual resettlement in the United States (see chapter 6). Bernard had indeed supported Aristide, like many other young men and women; however, he had not been actively involved in politics, nor did he actually imagine himself a high-­priority target in the days following Aristide’s ouster. At Guantánamo, though, he told the INS asylum prescreening interviewers that his father, whom he falsely described as a security guard at one of Aristide’s political headquarters, had been killed in the bout of score settling that had followed the 1991 coup.3 When the news reached Bernard of his father’s death, the story went, he fled to the waterfront of his small town and stowed away in a large sailing vessel that would eventually carry him into the arms of the Coast Guard and, later, to Guantánamo. Bernard’s account was a fabrication. He had fled Haiti not because his father had been assassinated and paramilitary goons were on his trail but for a chance at a better life, lavi miyò in Creole. In short, Bernard was the quintessential “economic migrant” bemoaned by American politicians and bureaucrats alike since Haitians began arriving consistently on US shores in the early 1970s. As I will show in the pages ahead, much of the legal and political maneuvering over the question of Haitian migration that would unfold from the 1970s through the 2000s cohered around two causal explanations implicit in the two narratives recounted above—one asserting the dominance of political persecution and the other the primacy of economic push factors in the grinding exodus from Haiti’s impoverished urban slums and rural backwaters. Discourses regarding the morally legitimate and legally mandated response to Haitian migration crystallized around this bipolar structure. The vespers supported the legitimacy of the political explanation: Haiti faced a form of widespread political violence that could become all-­encompassing, pulling even

30  Chapter One

those with little involvement in actual political subversion—like the family members of the Jeune Haiti rebels—into the crosshairs of state repression. Bernard’s false story, on the other hand, embodied the truth of a more cynical version of events in Haiti: the “boat people” were not refugees; they were economic migrants, selling the lie of political persecution to secure a ticket to a more prosperous existence. Throughout the remainder of the chapter, I argue that the Manichean tendency that has undergirded narrations of Haitian migration is rooted in a long-­standing divide within international law, US law, and capitalist modernity itself between the political and the economic qua categories of social action and experience. Through the lens of this divide, I will begin to examine the emergent moral geographies that governed US responses to Haitian migration. Part of that endeavor requires that one look to the types of interventions—from massive policing programs to market-­oriented development schemes—this polarity authorized within the institutional worlds of the various agencies working on the question of how these Haitian asylum seekers were to be treated. This account is meant to provide the lineaments of that type of event history that all books require as the communicative conditions of possibility for the conversation they hope to open, though it does more than that. It also aims to illuminate the constraints (and affordances) provided by the aforementioned scales of legal terrain on the dueling representations of Duvalierism that arose during the latter half of the twentieth century, something that has gone largely unnoticed in the literature on this period. I also have taken care to mold the historical exposition with an eye to demonstrating the ways US transnational interventions in governing Haitian mobility trouble theorizations of the dissonant interplay between free markets and coercive state power within neoliberal ideologies, a contribution that will emerge into clearer focus as the chapter proceeds.

The Political and the Economic The exaggerated dichotomy of politics versus economics as explanatory models of Haitian migration does not merely point to divergent understandings of the on-­the-­ground facts of persecution (or lack thereof ) in Haiti; it indexes a deeper juridico-­moral stance vis-­à-­vis Haitian mobility and migrant mobility more generally. The opposition itself and its implications for an ethics of American hospitality are rooted in the very structure of international refugee law and its domestic (or, in the European argot, municipal) codifications. In US law, for example, the refugee and asylee definitions (the

The Political and the Economic 31

former referring to individuals processed overseas and the latter to individuals applying for relief within the United States) are taken almost verbatim from the 1951 Convention Relating to the Status of Refugees, which has been interpreted to extend its protections to those facing persecution on account of race, religion, nationality, membership in a particular social group, or political opinion while excluding those forced to flee for economic reasons.4 Although the status “economic migrant” does not appear within the treaty or statutory language, it exists as a residual category that more often than not encompasses those excluded by the narrow criteria of the persecution definition. The underlying split between the violence of the vespers and the economic motivations behind Bernard’s asylum plea is, in other words, etched into US law as an abstract duality that has long ordered ways of perceiving the Haitian political landscape and hypostasized the narratives meant to depict it. This is not to say that the warring accounts of the influence of political repression versus economic degradation on Haitian mobility are epiphenomenal to the international refugee definition’s exclusive emphasis on state persecution. To the contrary, existing accounts of the Duvalier dynasty as a politicoeconomic system were also inflected by the strategies of exile political movements, the preferences of media editorial staff (including a racialized taste for the “primitive” and salacious [A. Wilentz 1989, 22–23]), and even the nature of debates within the academy over how exactly to characterize Duvalierism, as the mode of governance associated with the father-­son dynasty came to be known. Nonetheless, the classificatory structure provided by US refugee and asylum law remained consequential because it set the contours of state duties and constraints, thereby establishing an orienting framework for particular actors interested in harnessing state power for institutional ends. This might include, for instance, efforts by various factions of the Haitian democratic movement in exile to destabilize the Duvalier regime through US court-­sanctioned acknowledgments of its brutality, or it might consist of the decision on the part of the top echelons of the Department of State and other institutions within the executive to implicitly authorize the INS bureaucracy to foreclose asylum claims filed by applicants fleeing American Cold War allies (more on this in chapter 2). The salience of the political and the economic as categories (explicit and implicitly residual, respectively) within US asylum law meant that those wishing to work the levers of state power needed to orient their rhetorical labor accordingly. The opposition of the political and the economic, of course, runs deeper than the particularities of this highly specialized area of the US legal code. At its broadest, it is a quintessentially modern divide, evinced in the very

32  Chapter One

notion of economy and society, as opposed to economy in society, and the disembeddedness of the market as a sphere apart that the conjunction connotes (Polanyi 1957).5 In the context of an American capitalist modernity, the separation has endured, albeit to varying degrees, through the Lochner era’s apotheosis of the freedom of contract (Ackerman 1991; Amar 2012), the overlapping Progressive era’s more technocratic interventions, the New Deal era’s quasi-­managerial planning, and the postwar period’s individualistic, consumer driven Keynesianism (Moyn 2018).6 It has grown particularly acute, however, with classical economic liberalism’s rebirth in the 1970s, often referred to within academic circles under the broad category of “neoliberalism” and exemplified by the Chicago School of Economics’ market fundamentalism, the deregulatory agenda that intensified during the Reagan years, and the emergence of the Washington Consensus’s faith in market liberalization as a cure-­all development strategy for the woes of the “third world” (Comaroff and Comaroff 2001; Harvey 2005; Harcourt 2011).7 Most important, for our purposes, is the return to certain spheres of common sense of the notion that the economic exists as an autonomous, natural domain, which, if it is to function according to its own laws, should be left to self-­regulate (Harcourt 2011). This stance has undergirded, although not always in such extreme terms, the ostensible logic of Cold War dispute, with its own bipolarity revolving around the distinction between those states that recognized this divide between the political and the economic (to a sufficient degree) and those that did not. More than just a rubric for categorizing the Cold War geographies of friend and foe along an axis of openness to market penetration, the notion of the economy as an autonomous sphere, an always imperfectly realized distinction in actuality, also gave greater heft to the sorting of legitimate political refugees and undeserving economic migrants. To recognize the latter under the conditions of American state welfarism of the 1970s, however weak it may have been in comparison to its European cousins, would have been tantamount to endorsing a universal vision of the social and economic rights US delegations had so opposed in the negotiations over the postwar human rights instruments (Kirkup and Evans 2009). Not only that, it would have placed the United States in the position of guarantor of such rights on a global scale by opening the nation’s gates to the world’s poor in the midst of a Cold War aimed at eradicating such ideologies of entitlement. The continued purchase of the separation of political and economic push factors was certainly a matter of pragmatic calculation—an effort to prevent the massive population movements that such a global orientation to equality, or even minimum subsistence, would provoke. But the staying power of the

The Political and the Economic 33

duality was also a matter of ideological coherence and implicit Cold War political messaging with regard to the nature of the economy as a private arena driven by private choices that had little to do with the public rights of refugee law (Ramji-­Nogales 2014). That is, the economic remained private except insofar as leftist regimes abrogated the distinction themselves with their own ostensible commitment to central planning. The engulfing of the economic by the political entailed in the command economies of the Soviet sphere of influence—however spurious this method of distinguishing the capitalist “first world” from the socialist “second” may have been—could transform the economic into a matter of politics and thereby open the door to those who would seek to escape the despotism that this collapse of categories supposedly created. A defector from Lithuania or a raft of Cubans would qualify, almost automatically, as “political” under this rubric. The Haitians who suffered under the authoritarianism of the Duvaliers, however, would not, due to the regime’s efforts to display an openness to “free” markets and foreign capital, so long as the ruling clique received its cut of the proceeds. Throughout the rest of this chapter, I will be examining two types of accounts of the nature of state-­sponsored violence under the Duvaliers and their successors. Each is pegged to the core duality of US refugee law: the recognition of claims based on political persecution and the rejection of claims based on other grounds, which, more often than not, were attributed to economic causes. The first type of narrative emphasizes the reality of political persecution during the reign of the Duvaliers, and, by sometimes explicit, sometimes implicit extension, its instigating role in the migration “crises” of the 1970s, 1980s, and 1990s. The second type of narrative paints the reign of Baby Doc, as Jean-­Claude was derisively called, in rosier tones and attributes migration following the death of Papa Doc almost exclusively to economic causes, which required economic solutions—preferably ones that would make Haiti’s low-­ cost labor available to American corporations flexible enough to subcontract assembly operations to offshore firms in and around Port-­au-­Prince. While the recognition of widespread repression in Haiti tended to support an ethico-­spatial vision in which Haitian movement across the seas might be recognized as legitimate within US asylum law, the arguments for an economic etiology to the migration flows supported a different geography—one of containment. Although geared toward keeping Haitians within Haiti, this more restrictive mode of producing space was not about engineering a sedentary Haitian population. Instead, it was about cultivating new, desirable patterns of human mobility internal to Haiti, ones that involved palliative modes of rural-­urban labor migration meant to feed an incipient manufacturing sec-

34  Chapter One

tor in the capital, Port-­au-­Prince, and to reorient the balance of agricultural production from small-­scale subsistence farming toward export-­oriented agribusiness. By tracing out these contrasting causal narratives of political persecution and economic underdevelopment, I begin the task of examining the geographic imaginaries that helped shape the ways in which American jurisdictional cartographies of land and sea developed over the latter decades of the twentieth century. In this instance, a closer look at the competing narratives of the political and economic roots of Haitian migration and their articulation with legal and philosophical classifications foundational to capitalist modernity will illuminate some of the orienting frames for the spatial schisms that emerged over the decades to come.

D u va l i e r i s m In order to understand the warring accounts of the causes of Haitian migration, one has to look to the divergent logics undergirding the arguments that activists, lawyers, journalists, and government bureaucrats put forward concerning the relation between the regimes of François Duvalier and his son, Jean-­Claude. In the choice of how to describe the dynasty of père and fils, one finds an isomorphism between the decision to focus on continuity or rupture and the characterization of the “Haitian problem”—as the INS would come to refer to the presence of these asylum seekers in South Florida—as political or economic in nature. The fate of thousands of Haitians hinged on the relative plausibility of these dueling narrations (again, one focused on continuity and the other on rupture between regimes) and their articulation with the dichotomous frames of US refugee law and capitalist modernity more generally.8 Beginning in the early 1960s, François Duvalier’s name, as well as that of his makout militia, became synonymous with brutality in the international press, feeding an appetite for racialized voyeurism that has long been a staple of much of the foreign media’s reportage on Haiti (a theme I will return to in chapter 3). For anyone with even the shallowest grasp of US Cold War realpolitik, it should be unsurprising that despite Duvalier’s unsavory international reputation, he was able to maintain relatively cordial relations with Washington during the late 1950s and much of the 1960s, a time when his regime was working diligently to eliminate even the most insignificant expressions of domestic opposition—not even the Boy Scouts would survive the Duvalierization of Haitian civil society (Trouillot 1994b). However un-

The Political and the Economic 35

palatable his tactics, Papa Doc remained a preferable alternative to a second Castro-­style regime in the Caribbean and proved, with some exceptions, a pliant ally in such collaborative endeavors as the US-­backed expulsion of Cuba from the Inter-­American System in 1961 (Pierre-­Charles 1973; Trouillot 1990a). Duvalier’s amenability to US foreign policy aims and his eagerness to attract American capital ensured that the aid money would continue to flow during the Eisenhower, Johnson, and Nixon presidencies, interrupted by only a short, two-­year hiatus that went into effect under President Kennedy, but not before his administration had already agreed to fund the construction of the international airport in Port-­au-­Prince (Trouillot 1990a, 202–3; Pierre-­Charles 1973, 200). Aid resumed after Kennedy’s assassination, although the rapprochement came with some logistical twists that included a decision to channel funds through nongovernmental organizations for a time with the hope of tempering the bad optics engendered by Papa Doc’s increasingly widespread reputation for violence. Despite these hiccups, a sufficient amount of resources streamed into the Haitian treasury during the 1960s to keep the new regime afloat at a crucial stage in its early development. At the same time as the various US administrations were directing funds to Duvalier, the INS also adopted a mostly benign attitude toward the growing exile community that had settled in the United States, primarily in New York (Basch, Schiller, and Blanc 1994; Loescher and Scanlan 1986, 79). The Haitian diaspora in the United States was minuscule prior to Duvalier’s ascendance but started to swell when politically active Haitians began to flee following the 1957 elections, heading to the Bahamas, France, and the United States (including Puerto Rico). This group of expatriates continued to grow in size as the regime solidified its position during the mid-­1960s, at which point middle-­class (and even lower-­class) shopkeepers, teachers, and petty government bureaucrats began to join their more well-­to-­do brethren abroad (Schiller et al. 1987; Buchanan 1980). Because there was little effort to deport these Haitians, many of whom had arrived legally and overstayed their visas, there was no public fight in the courts over the legitimacy of the persecution they had faced in Haiti. They were a largely invisible population. This would change over the course of the following decade when lower-­ class urban and rural Haitians began setting sail from Jean-­Claude’s Haiti in greater and greater numbers and the INS pivoted to a hardline approach vis-­ à-­vis this new wave of class-­stigmatized migrants. As INS agents ramped up deportation efforts in the face of consistent boat arrivals from Haiti during the 1970s, the issue of whether Haitians deserved political asylum became acute.

36  Chapter One

The looming question was no longer whether past repression under Papa Doc was real but whether the paroxysms of violence that marked the early years of his regime were a temporary overcorrection that had given way to the more benign dictatorship of Baby Doc, who took power in 1971. For some, including, as I will show, many in the INS and the Department of State, the break between the rule of the father and the son was clear. For others, including the Haitian exiles whose political movement I will turn to in chapter 2, Papa Doc had established something new and lasting, a revised politicoeconomic structure that could not be shaken off so easily with the dynastic transition or, later, with the post–­Baby Doc succession of military juntas whose tactics would later come to be known as “Duvalierism without Duvalier” (Hooper 1986). By the late 1960s and into the 1970s, a body of literature had begun to develop concerning the nature of Duvalierism. On the one hand, there were the works of exiled Haitian intellectuals like Gérard Pierre-­Charles ([1969] 1973), Leslie Manigat (1971), and, later, sociologist Laënnec Hurbon (1979), all writing primarily in French and Spanish. Many of these authors viewed the new regime as a form of “creole” or “underdeveloped” fascism, although they differed on the specifics of what exactly this “fascist” reorganization of Haitian political and economic life meant. Perhaps more directly influential insofar as the American imagination was concerned were the accounts of journalists like Bernard Diederich and Al Burt ([1970] 1991), scholars like Robert Rotberg (1971), and the novelist Graham Greene, whose bestselling work of fiction The Comedians was likely to be the only window into the world of the tonton makout Anglophone nonspecialist readers would encounter. The substance and style of the latter group were saturated with what Michel-­Rolph Trouillot (1990b) would later lament as the seductive and facile idea of “Haitian exceptionalism”—a fetishistic and obscurantist attraction to Haiti based on a sense of the nation’s bizarre singularity and alluring deviance. Still, in spite of the differences between these authors, all of them joined in presenting an image of Haiti in which the tonton makout, and by extension Papa Doc himself, maintained a tight and often violent grip on both political and economic power. When lawyers and Haitian activists began to mobilize on behalf of Haitian asylum seekers in South Florida during the 1970s, a basic archetype of Duvalierism had already emerged that included a sense of continuity between the regime of Papa Doc—who had died in 1971—and that of his son. When the attorneys labored to assemble the predicate facts of this continuity to support their clients’ asylum claims, they supplemented the statements of the asylum seekers themselves with accounts of former tonton makout, political

The Political and the Economic 37

exiles, and Haitian intellectuals living in the diaspora—some of whom were undoubtedly already steeped in the aforementioned literature—to bolster their arguments of ongoing persecution. I will turn to how these information-­ gathering campaigns were organized in chapter 2. What is important here is how the substantive thrust of these evidentiary narratives hinged on a sense that a set of shared tactics and ideology spanned the presidencies of the ­Duvaliers. A pair of affidavits submitted as litigation exhibits in the early 1970s provide a case in point. The first affidavit, prepared by Raymond Joseph, a political exile, a staff reporter for the Wall Street Journal, and an editor of the conservative diaspora newspaper Haïti Observateur, drew attention to the Organization of American States Human Rights Commission’s recent determination that “the Jean-­Claude Duvalier dictatorship in Haiti [was] an extension of his father’s.”9 The document also noted that Amnesty International had reached the “same conclusion,” findings Joseph himself supplemented with a list of recent arbitrary arrests and disappearances.10 Similarly, Fr. Antoine Adrien, a liberation theology–­inspired Spiritain priest expelled from Haiti in the late 1960s, submitted an affidavit that called attention to an editorial from the mainline Protestant magazine Christian Century, which proclaimed that “[n]o appreciable change has come about in Haiti since dictator François (‘Papa Doc’) Duvalier died in 1971 and was succeeded by his playboy son, Jean-­ Claude,” despite the “good marks” some journalists had given the new regime for its “cosmetic” changes.11 Both affiants provided a message of continuity meant to counter claims of reform made by Jean-­Claude apologists in the State Department and INS eager to discredit Haitians fighting deportation and to justify aid disbursements to the new, supposedly liberalizing regime. The substance of the argued continuity between the regimes focused on the practices of the tonton makout and their role as extensions of the Duvalier body politic, which, in the Haitian political theology cultivated by Papa Doc, was not destroyed with the corporeal body of the “leader” but passed instead to the son following the death of the father. Part of this mystique involved the equation of Duvalier with the state and, in particular, its repressive apparatuses, the makout and Volontaires de la Sécurité Nationale (VSN). Papa Doc crafted this quasi-­mystical synonymy through the public display of slogans in neon lights throughout Port-­au-­Prince—“I am the Haitian Flag, One and Indivisible” (Trouillot 1990a, 196)—and even by sanctioning a version of the Lord’s prayer that began “Our Doc, who art in the National Palace for life, hallowed be Thy name . . .” (quoted in Nicholls [1979] 1996, 233). The makout themselves pledged absolute loyalty to the president-­for-­life and served as

38  Chapter One

the relays through which the regime’s mythology circulated among the wider populace (Hurbon 1979, 87). Duvalier’s militia was born out of an astute sense of Haitian political history and the vulnerability of past presidents to the whims of the army. Seeking to avoid the fate of his predecessors, who rarely left office of their own volition, Papa Doc wasted little time following his 1957 election in establishing the makout as a force loyal to him alone. Initially, the group took form as a corps of masked “semi-­secret police” known as the cagoulards, explicitly styled, Trouillot reminds us, after the “European fascist organizations of the 1930s” (1990a, 189). At first Duvalier filled their ranks with members of the urban middle classes, but following the body’s institutionalization as the VSN militia in 1962, membership swelled to include larger numbers of peasants and landholders from the provinces. The formalization of the makout as the VSN was designed to produce a visible counterweight to the army, a warning to light-­skinned urban elites, and a large, geographically expansive base of unpaid lackeys who, when patronage from the center proved inadequate, were given license to use their powers to supplement their earnings as they saw fit. The higher-­level, urban makout, many of whom never joined the VSN, operated as the regime’s “baron[s],” extracting both for the Duvalier family and for themselves (Trouillot 1990a, 154). Similarly, the lower echelons of the militia, the “artisans, small shop owners, and peasants,” became the “uncontested lords of their neighborhoods or villages,” exerting a similar authority to the higher-­ups in Port-­au-­Prince albeit in the peripheries of the system and in the smaller-­scale venues of the center (154). Most importantly, despite the dispersion of these networks in physical space and the devolved “taxing” power they exercised—what Achille Mbembe, drawing on the Haitian example, has referred to as modes of “indirect private government” (2001, 80, 83)—the makout operated as stand-­ ins for Duvalier and thus for the apex of the political pyramid itself (Hurbon 1979, 88). Because each makout was considered an instantiation of the president, an ordinary citizen’s resistance to makout “taxation”—whether the requisition of chattels or real property—was often seen as resistance to Duvalier and could result in disproportionate reprisals, pulling typically apolitical actors into the crosshairs of state violence. This mode of value extraction and its tendency to politicize mundane acts came to be one of the standard refrains of the written affidavits and oral testimony marshaled in the litigation of the 1970s and 1980s. To be clear, the use of state posts for self-­enrichment was not a Duva-

The Political and the Economic 39

lierist innovation. Nor was the use of violence to maintain access to state coffers—shortly before the US occupation of Haiti began in 1915, for example, then president Vilbrun Guillaume Sam ordered the execution of his jailed political opponents following a failed coup attempt and was himself subsequently dragged from the French legation and killed by an angry mob, a development that created the pretext for the US invasion that followed shortly thereafter (Plummer 1992, 90–92). Nonetheless, despite some notable exceptions, a “traditional code” of culturally acceptable repertoires for the exercise of state coercion existed prior to 1957 (Trouillot 1990a, 167). Trouillot has sketched out the contours of these tacit rules of engagement, which, in Haiti, largely protected “innocents” (women, children, the elderly) and shielded high-­ranking civil servants ( judges, clergy, prominent intellectuals), giving the latter the opportunity to flee to the foreign embassy of their choosing as a means of avoiding imprisonment or execution (166–68; Charles 1995, 136, 139–40). Papa Doc abandoned these limitations, including, perhaps most notably, by using “violence against groups that could not be defined in political terms,” such as “a neighborhood, an entire town, a soccer team, or a group of individuals sharing a surname” (Trouillot 1990a, 168). The targeting of the mulâtres of Jérémie during the vespers massacre described earlier was but one instance of this broader tactical transition. In this sense, the changes Duvalier had wrought in the existing standards of the application of force were, for many, not merely shifts in intensity but qualitative transformations that reworked the thinkability of certain forms of political violence. The incipient conditions of possibility for the abrogation of these long-­ standing normative constraints can be found in the US imperial ventures in Haiti that unfolded between 1915 and 1934. The subjugation of provincial mercenary armies, the creation of a domestically focused constabulary (Plummer 1992), the dramatic reworking of economic space—with its redirection of commercial networks through the capital (Anglade 1982)—the centralization of administrative power, and the exaltation of Haiti’s Europhilic, light-­ skinned elites at the expense of its majority black population (Hurbon 1979; Trouillot 1994a) set the stage for Papa Doc’s own interventions. Building on this earlier respatialization of Haitian politicoeconomic geography and color politics, Papa Doc styled the makout-­VSN body as a national organization that extended the center into even the most remote hamlets as a black nationalist move to return power to the masses. For many scholars and engaged political commentators in the diaspora, the Duvalierist intensification of existing models of economic exploitation and political subjugation were, however,

40  Chapter One

more than variants on an existing theme. They created a new political infrastructure of surveillance, patronage, and control that outlived the president himself. A good deal depended on the credibility of such arguments. The US Department of State, however, had a different interpretation of Duvalierism, and insisted that the transition to Jean-­Claude in 1971 had marked the end of the excesses of Papa Doc. The pre-­1971 period, according to this reading of history, was no longer relevant to the question of political asylum. The “boat people” coming ashore in South Florida during the new era of Duvalierist rule were, in the eyes of State Department officials, virtually all economic migrants unworthy of legal status in the United States. For instance, in July 1974, Frank Kellogg, the special assistant to the secretary for Refugee and Migration Affairs, laid out the State Department’s position on Haitian asylum claims generally, explaining that he and another individual from his office had visited Haiti and both had concluded that “[t]here is no evidence of any systematic persecution of Haitians by its government.”12 Kellogg went on to clarify that he was “not being an apologist for the present government of Haiti,” which he recognized as “authoritarian,” but was simply offering an honest assessment that “the Haiti of today is not the same as that under former President Duvalier.”13 With the transition to Jean-­Claude, he continued, “[t]he excesses of the past government ha[d] largely been curbed,” creating a “more open” society in which “[p]eople [could now] criticize the government.”14 Similarly, a Department of State “information sheet” circulating around the same time clarified that the real reason behind the spike in boat migration was that the Haitians were simply “desperately poor people who [we]re leaving one of the poorest countries in the world in search of better economic opportunities.”15 The abuses of the past, in other words, were no longer pertinent. Migration was now, in almost every instance, regarded as a purely economic matter. Certainly, the rural peasants—known in Haiti as moun andeyò, or “people from the outside”—and the poorer residents of the cities and coastal towns who began to flee by boat in the 1970s faced dire prospects whether they depended on subsistence farming, wage labor, or some combination of the two. The long-­standing parasitic nature of the Haitian state (which drew much of its revenues from indirect taxation of the peasantry); its failure to invest in agriculture, infrastructure, or state services; and the shrinking ownership of land that was ensured by a growing population and Napoleonic partible inheritance practices—land was distributed equally among heirs—had initiated an ecological catastrophe. Add to this the declining revenues of the cof-

The Political and the Economic 41

fee export sector, a devastating drought in the northwest, and impacts from the global economic recession that had contributed to similar outmigration throughout much of the Caribbean, and it is easy to see how attractive the economic explanation was. Moreover, looking for answers in the economy shielded the INS from any obligations vis-­à-­vis the new asylum seekers just as it protected the State Department from embarrassing administrative findings regarding the abuses of Jean-­Claude’s regime at a time when US aid packages to Haiti were growing along with US capital investment in the manufacturing sector in Port-­au-­Prince. The polarization of accounts of Haitian migration continued along these lines through the 1980s, 1990s, and into the early 2000s. Although Haitian advocates often attempted a more sophisticated narration that linked the intensification of economic exploitation under the Duvaliers to the political agenda of the dynasty (an agenda of self-­preservation and self-­enrichment), the bipolarity of US Cold War foreign policy paradigms and US refugee law itself inserted a schismatic tendency within the practice of narrating Haitian suffering. To put it differently, there was rarely any material reward on either side for accounts that reflected the complexity of the situation in which Duvalierist political violence and economic exploitation were intertwined and mutually reinforcing. The need to calibrate depictions of the situation in Haiti to the classificatory structure of US foreign policy discourse and asylum law created an exaggerated bipolarity to the narrations that was embedded not only within the legal code but also within the vision of economy and society that gave the distinction between undeserving economic migrants and deserving political refugees its purchase. In this particular historical conjuncture, the stylization of the accounts took shape around the issue of the continuity— or absence thereof—between the two Duvaliers. Under such circumstances, arguments for a ruptured dynasty and a liberalized Haitian state were aimed at making it possible to articulate and publicize a plausible theory of purely economic causation for the new wave of migration and to respond to it accordingly. More interesting than the representations of conditions in Haiti themselves were the interventions they authorized. The recognition of the gravity of political persecution under Jean-­Claude would have required, minimally, more attentive and individualized asylum adjudications as opposed to the blanket dismissals that seemed the preferred method of the INS inspectors and district directors, as I will show in chapter 2. Accepting the reality of persecution also would have entailed, ethically speaking, a spatial imaginary in which the

42  Chapter One

circulation of, at the very least, some of the Haitian asylum seekers was seen as legitimate. This was simple enough to imagine, and, for the Department of State and the INS of the time, simple enough to dismiss. The economic interpretation of Haitian mobility lent itself to a different set of Haiti-­focused projects with their own geographies of desirable Haitian (im)‑ mobility. Specifically, the Department of State’s analyses of Haitian migration conjoined with efforts to transform Haiti into a bastion of offshore assembly production and agro-­industrial exports, a process that depended on cheap Haitian labor and increased rural-­urban migration to feed the manufacturing industries in the cities and to allow the consolidation of land in the countryside at levels sufficient to achieve economies of scale (DeWind and Kinley 1988). These transformations were explicitly meant to decrease incentives for migration to the United States, but they also depended on containment measures that would confine Haitian workers to Haiti, restricting their access to a wider set of labor markets and thereby keeping wage competition down. A closer look at this entanglement of private enterprise, public development aid, and migration policing reveals a striking intersection of market-­centered ideologies of economic naturalism—the idea, mentioned previously, of the economic as a domain apart, better left to its own internal workings—and the tremendous public investments and regulatory labor expended on making the panacea of laissez-­faire possible.

The Market Solution Not long after his election in 1957, François Duvalier announced his interest in an “Operation Bootstrap” model of development, which had been used by the unincorporated US territory of Puerto Rico starting in the 1940s to reorient its agricultural economy toward the industrial manufacture of exports for US markets (Manigat 1964, 64). While Duvalier had difficulty attracting much private foreign investment in Haiti during the rocky period of the early 1960s, by the end of the decade an incipient offshore assembly industry had begun operating in Port-­au-­Prince due in large part to revised US tariff laws lowering import duties on certain items manufactured overseas and reimported into the United States (Laham 1978; DeWind and Kinley 1988, 107–9). Spurred by these legislative changes in the United States, the number of assembly enterprises in Haiti nearly tripled between 1966 and 1968 (DeWind and Kinley 1988, 110, table V:3). During Nelson Rockefeller’s visit to the island as part of his tour of Latin America the following year, Duvalier offered up Haiti as “an enormous reservoir of manpower for Americans [wanting to] establish

The Political and the Economic 43

reexport industries, closer, more reliable, and cheaper than [in] Hong Kong” (quoted in Pierre 1971, 49, author’s translation). The encouraging response from Rockefeller that followed signaled a complete thawing of relations with the United States and solidified Papa Doc’s reputation with the Haitian bourgeoisie (to use the local descriptive term of choice), paving the way for the transition to his son’s rule several years later. Once in the National Palace, Jean-­Claude announced the launch of an “economic revolution” and with it a favorable attitude toward the assembly sector, which did indeed continue to expand during the 1970s. The more stable political climate that followed the transition helped to jump-­start the manufacturing boom along with the completion of the foreign loan–­financed hydroelectric components of the Péligre Dam in the Central Plateau, which allowed Port-­au-­Prince–­based factories to operate with a more reliable power supply than had previously existed (Pierre-­Charles 1973, 216; Trouillot 1990a, 201). Between 1971 and 1981, the number of subcontracting assembly enterprises nearly tripled, churning out textiles, electronics, and baseballs for sale in the United States (DeWind and Kinley 1988, 110, table V:3; see also Farmer 1988; Lundahl 2013). Despite this growth, the sector failed to significantly ameliorate the lives of urban workers, largely for the very reasons American capital was drawn to Haiti in the first instance. As Trouillot explains, given the working conditions, the “very low cost of labor” (the cheapest in the hemisphere), “the absence of unions, and the excessive demands of the employers (from sudden shifts in schedule to sexual harassment), few Haitians held their jobs long enough, even in the more stable firms, to benefit significantly from their employment” (1990a, 209). Despite these unpromising beginnings, by 1982, the US Agency for International Development (USAID) and the international lending institutions, the World Bank primary among them, had settled on agro-­industrial and assembly exports as the centerpiece of their strategy to “develop” the Haitian economy (DeWind and Kinley 1988, 61–62). Ironically, the resurgence of the manufacturing dream of the early Duvalier years had returned as a political nightmare foisted on Jean-­Claude (as will become clear momentarily) by the international aid technocracy and its faith in the capacity of a market solution for Haiti’s woes. The agricultural and assembly production components of the plan were linked in a seamless whole that depended on the simultaneous reworking of farming practices and on the intensification of the economic centralization schemes that had begun with the US occupation nearly seventy years prior. In the countryside, cultivation would shift from subsistence farming of local staples, like yams and manioc, to the planting of cultivars for which there was a demand

44  Chapter One

in the United States—erosion-­reducing tree crops like coffee and cacao in the unterraced hillsides and fruit and vegetable crops in the valleys and plains (DeWind and Kinley 1988, 58). A “massive” increase in rural-­to-­urban migration was anticipated, both as a result of these reforms and as part of a more general, preexisting trend (quoted in DeWind and Kinley 1988, 58), but these largely landless internal migrants were expected to be absorbed by the growth in the assembly industry in Port-­au-­Prince, stimulating a productive symbiosis between the agricultural transition and the scaling up of the industrial sector in the capital (58). Many of the reform protocols USAID and the World Bank pushed in Haiti were simply common sense within the standard neoliberal development orthodoxy of the time (Stiglitz 2003), but there was one dimension of the strategy—its articulation with US migration deterrence policies—that made this particular set of interventions stand out. The stimulation and harnessing of massive internal migration was not exclusively, or even primarily, driven by the goal of economic development in Haiti. Instead, it was explicitly designed to stem the tide of boat migrants that had begun coming ashore in the United States during the previous decade. The director of USAID and the US ambassador to Haiti, two key players in the program, endorsed this position openly, explaining that “export-­led development [would] not only reduce emigration from Haiti but also [would] eventually stimulate a flow of return migration” (DeWind and Kinley 1988, 138). In other words, the diminution in the number of economic migrants from Haiti was not merely a beneficial side effect of the strategy; it was its raison d’être (138). Around the same time that USAID was pursuing the assembly solution in Haiti, the Reagan administration was engaged in intensive litigation over the mass detention of Haitian asylum seekers in the United States—a policy shift that marked the birth of the modern immigration detention system—and the shoring up of its then year-­old pilot program of interdicting Haitians at sea, an innovation that signaled the birth of what has since become a global regime of externalized maritime borders. This meant that the migration of manufacturing contracts to Haiti and of “assembled” products back to the United States, itself an archetypal element within the post-­Fordist, flexible model of accumulation that had exploded over the previous ten years (Harvey 1990), went hand in hand with the new militarized surveillance of Caribbean seascapes designed to keep the bearers of Haitian labor power in place. Moreover, these projects were meant to function as an ensemble that created different tiers of acceptable mobility operating within different enclaved scales—for example, national and international—and guided by a typologizing logic of desirable

The Political and the Economic 45

circulation within them. Assembled goods produced in Port-­au-­Prince, for example, could move along international circuits, facilitated by changes in the tax laws of both the United States and Haiti, while unskilled Haitian labor was constrained to move only within a domestic scale, and even then, largely from the provincial zones to the capital. The market solution to the perceived refugee crisis relied in the end on enormous private and public sector investments and in considerable regulatory work, all loosely coordinated as an interlocking regime of mobility governance. This coupling of state investments and intensified policing all in the name of free markets highlights the contradictions of a particular neoliberal vision that has relied on a radical distinction between regulated economies and autonomous ones—a division, as Bernard Harcourt has pointed out, that simply does not stand up to close scrutiny (2011, 48). Regardless of how one categorizes the juridical structuring of the market, what is important to note here is that the minimal government of a laissez-­faire cosmology of capitalism (cf. M. Sahlins 1994) seldom views its own principle of minimalism as applicable to the penal sphere, which is permitted to grow in order to guarantee the freedom of the market itself. Within this worldview of “neoliberal penality,” as Harcourt calls it, the invisible hand works in tandem with the clenched gauntlet in order to regulate those who would bypass the market through, for example, fraud, with its insertion of corrupted information into economic decision-­making, or theft, with its coercive interference in otherwise voluntary exchanges (2011, 38).16 A tremendous amount of state resources, in other words, must be allocated to ensure markets continue to “self ”-­regulate. Certainly, the package of responses to Haitian migration, with its coupling of intensified border enforcement and a commitment to a free market–­ oriented export development strategy, evinced some of the key elements of the paradigm of neoliberal penality itself—a belief in the autonomous efficiency of markets and their maintenance through robust policing. At the same time, however, the solution on offer here took shape across an international plain long fragmented by sovereign parcelization and its attendant membership-­ based logics for the distribution of state resources, creating a different terrain than that habitually associated with an intranational space of law and society. The scope and juridico-­political structure of this landscape produced something that exceeded conventional depictions of a market-­oriented penal regime. This excess emerged at the intersection of two key concerns: the “emplacement” (Chu 2010, 105) of mobile labor markets, a concept I will explain shortly, and the maintenance of a set of dominant incentive structures rooted

46  Chapter One

in an analogy between citizenship and private property ownership. With regard to the first, the movement of undocumented Haitians into the South Florida labor pool was seen by many as an intrusion of an external labor market into the local one. Haitians, through their willingness to work for less, brought some of the dynamics of the Haitian labor market with them, albeit in a context where they could work for higher wages than in Haiti but lower wages than the prevailing average. This intrusion also brought with it a perceived willingness to work outside of the existing regulatory framework governing labor conditions—wage and hour laws, for example—thereby giving these Haitians an unfair advantage over citizen workers unwilling to sell their labor power in what for some was tantamount to a hybrid Haitian-­US market. Keeping Haitians in place, then, would prevent this “deformation” of the local labor market by making sure the playing field was level and the market “free”—undistorted by advantages rooted in Haitians’ willingness to ignore immigration and labor regulating regimes. It also preserved the competitive advantage of low-­cost Haitian labor in Haiti, which, theoretically, could be diminished if Haitians were able to leave Haiti en masse and sell their labor in a wider market. In this sense, the “freedom” of these local Haitian and South Florida spheres of exchange would come to depend on the architecture of containment that emerged in the early 1980s with maritime interdiction and the expansion of the US-­based immigration carceral institutions at that time. While the actors involved might not describe their interventions in these terms, these logics were embedded in the projects themselves. “Freedom” at one scale required regulation and policing of movement at another. With regard to the incentive structure mentioned previously, the fear that welfare entitlements would serve as a magnet for Haitians became a key element of the immigration restrictionist rhetoric, as I will show in chapter 2, although, again, not quite in these terms. Permeable borders, it was feared, would transform a pool of resources allocated based on subjects’ enduring ties with the polity—mediated through the idiom of liberal citizenship—into a commons open to the world. While an effectively enclaved, modest version of state welfarism may have been provisionally tolerable to market fundamentalist reformers, the potential of mass migration that the Haitians represented signaled an alternate dystopic future and a tragedy of the commons wrought by the parasitic desires of those lacking any vested interest in the polity that citizenship-­based national belonging was meant to cultivate. The parallels between scaled-­down theories of the economic rationality fostered by private property ownership (Demsetz 1967; Hardin 1968) should be obvious and have been drawn on at this scaled-­up frame—the international level—by such

The Political and the Economic 47

liberal theorists, broadly construed, as John Rawls (1999) and Michael Walzer (1983).17 I will delve more into this in chapters 2 and 6, but it is worth noting here that the policing of Haitian mobility was informed by this anxiety over an infusion of illiberal, alien subjects and its potential effects on the viability of the entente between the Great Society social insurance institutions and an ascendant vision of the property-­owning, atomized subjects of the market appropriately incentivized to good stewardship by their own self-­interest. The economic interpretation of Haitian migration and the market solution that accompanied it were hardly limited then to some independent and natural sphere of exchange. To the contrary, the narration of Haitian suffering as purely economic became part of the justification for enormous state investments in new forms of migration policing. The attempt to awaken the potential of “free” markets in Haiti and the need to protect resources in the United States from the global communalism and tragic outcomes of porous borders seemed to necessitate this militarization of Caribbean seascapes. It was a solution with its own moral geography, its own circuits of desirable mobility, and its own coupling of freedom and carcerality.

T h e F a l l o f t h e D y n a s t y, t h e R i s e o f A r i s t i d e , and the Enduring Market Solution By 1984 rising inflation, an increase in the cost of imported and domestically produced foodstuffs, the economic catastrophe of the USAID-­sponsored creole pig eradication program (more on this in chapter 3), and the perceived indifference and lavish spending of Jean-­Claude and his wife, Michèle Bennett, paved the way for widespread public protests against the dictatorship. USAID had predicted that many of the short-­term shocks of the new development plan would result from the turn away from subsistence crop production and an increasing dependence on foreign food imports, but they did not anticipate the rapid political upheaval that ensued. Duvalier’s response was characteristically draconian: “[s]oldiers and elite battalions of the militia shot point-­blank at demonstrators,” while other officials shuttered media outlets with any semblance of independence (Trouillot 1990a, 220). Still, despite the riots and crackdowns, the INS clung to the economic explanation for migration it had relied on for so long. In the midst of this violence, Harold Boyce, the chief interdiction officer who oversaw the process of interviewing Haitians aboard the Coast Guard cutters, made his own thoughts on the illegitimacy of the interdictees’ claims for asylum clear in a 1985 Haitian Migrant Interdiction Activity Report. Boyce, who had partici-

48  Chapter One

pated in processing Cuban asylum seekers for the INS, had run the infamous “Haitian Program” of the late 1970s (more on this in chapter 2), and had spent time in Thailand interviewing Indochinese refugees, noted in his report that an old acquaintance from the Royal Malaysia Police had visited the office for a briefing on the interdiction program and that they both had reached the same conclusion vis-­à-­vis the Haitians: “the only difference” between the “Haitian problem” and the “Vietnamese problem” was “in the reason for leaving their country, persecution for the viet [sic] boat people and proverty [sic] for the Haitians.”18 The man in charge of the adjudications of interdicted Haitians’ claims was convinced, even as Haiti was entering the tumultuous run-­up to the ouster of Baby Doc, that all Haitians fleeing by boat were economic migrants. After Jean-­Claude’s initial attempts to suppress the protests with brutal force, he shifted toward hollow reform gestures and eventually lost the support of the US government along with key sectors of the Haitian political and military classes. The result was a “high-­level coup d’état executed with international connivance” (Trouillot 1990a, 226; see also Dupuy 1997, 50). In the aftermath of Jean-­Claude’s departure in 1986, a series of US-­backed military juntas ruled over Haiti largely under the same precepts that had guided the Duvaliers. These army-­led transitional governments ushered in another phase of state repression and the countervailing onward march of the popular resistance that had forced Jean-­Claude out of power. As might be expected, Haitians continued to depart for the United States, although nearly all, as I will show in the next chapter, were interdicted and returned as economic migrants. Amid the turmoil of the mid- to late 1980s, Jean-­Bertrand Aristide, a Salesian priest originally from the remote provincial town of Port Salut, emerged as an icon of resistance to Duvalierism and neo-­Duvalierism with enormous support among both the urban poor and the rural peasantry (Dupuy 1997, 86; Farmer 2003, 105).19 The public outbursts that marked the initial destabilization of Jean-­Claude’s regime would have been unthinkable in previous decades, but the forced partial relaxation of repression during the Carter years (Fatton 2013, 211; O’Neill 1993, 93) and the repopulation of the Haitian clergy with more left-­leaning Haitian priests of a lower socioeconomic class had opened up a space for modest public critique into which Aristide, among others, jumped. During the regime’s Carter-­era softening, some members of the bottom echelons of the Catholic Church had come to adopt a “mild version of liberation theology” and the progressive politics associated with it while also

The Political and the Economic 49

establishing outlets—radio chief among them—for disseminating its message (Trouillot 1990a, 219). Pope John Paul II’s condemnation of Duvalier during his visit in 1983 provided the official endorsement that allowed segments of the Catholic hierarchy to support this new movement and led to a “systematic if modest politicization of the populace” via church-­run radio and sermons (Trouillot 1990a, 219). The Ti Legliz (“little church”) base communities that emerged during this era and the media outlets associated with them helped to fashion the food riots of 1984 into a broad-­based movement to oust Jean-­Claude Duvalier and other members of the Duvalierist political class (Dupuy 1997, 86; Farmer 2003, 104; Trouillot 1990a, 219). Aristide, whose own church sat at the edge of one of the largest of the capital’s slums, played an important role in the political mobilization of this period. After four years of chronic instability, repeated military coups, and tremendous violence following Duvalier’s flight into exile, a transitional government scheduled elections for December 1990. Faced with the possibility that Duvalierists would prove successful in fielding their own candidates (despite a constitutional bar on their participation), a broad coalition of left-­of-­center political organizations called the National Front for Democracy and Change (FNCD) selected Aristide as its candidate (Dupuy 1997, 85). Titid, as he was affectionately called by his followers, waged a last-­minute but ultimately successful campaign. During his first year in office, the newly elected president and his government attempted to implement a multipronged reform strategy that struck at the core of the pro-­Duvalierist camp and unnerved many Haitian elites. These efforts included an attempt to purge some of the worst human rights violators from the military ranks, to disband the cadre of infamously abusive rural section chiefs, to implement a modest agrarian reform platform, to reduce tax fraud, and to raise the minimum wage (Dupuy 1997, 120; Farmer 2003, 143–46). Seven months after Aristide’s inauguration, the military, with the support of families from Haiti’s wealthy elite (Naidu, Robinson, and Young 2016), organized a coup that resulted in Aristide’s ouster and replacement with a three-­man junta headed by Brigadier General Raoul Cédras. The coup marked a rupture in what had up until then been promising developments in Haiti’s march toward democracy. The country had enjoyed its first free elections in history and a subsequent period of relative calm. Despite the questionable accounts of violence spread via the de facto government’s postcoup smear campaign (Farmer 2003, 157–58), it is generally acknowledged (even by critics) that the human rights situation improved during Aristide’s first seven months in office (Dupuy 1997, 118). As might be expected,

50  Chapter One

under the new regime the number of US Coast Guard interdictions (and thus presumably the number of boats departing Haiti) remained low, hovering between one-­fourth and one-­fifth of what they had been under the military governments of 1988 and 1989.20 This trend shifted abruptly following Aristide’s ouster, giving way to a dramatic spike in migration. In the hours following the coup, large numbers of unarmed Haitians took to the streets and were slaughtered by the Haitian military (Farmer 2003, 152–54).21 After the initial displays of indiscriminate violence, army patrols and death squads began hunting down Aristide partisans, government ministers, and members of popular organizations, priests and laymen associated with the Ti Legliz movement, among others ( James 2010).22 The de facto government also cracked down on the media, closing radio stations in the provinces and the capital.23 Most of the initial violence, however, was concentrated in Port-­au-­Prince and to a lesser degree in the provincial capitals. As a result, thousands fled the cities, seeking refuge in smaller towns and hamlets throughout the country and across the eastern border with the Dominican Republic. By late October, Haitians had started escaping by boat, many in hastily organized voyages. Over the next three years, US Coast Guard vessels would interdict and transport over fifty thousand of them to the US Naval Base at Guantánamo Bay, Cuba. Countless others died at sea or were interdicted and returned following George H. W. Bush’s decision to suspend asylum prescreening interviews altogether. Both Bernard and Luc, whose stories opened this chapter, were brought to Guantánamo during this period, Bernard on two separate occasions after twice attempting to flee Haiti by sea. The magnitude of the violence along with a series of recent reforms within the INS, including the creation of a corps of specialized asylum officers (Beyer 1992), meant the agency had a less unified vision of the appropriate response to the surge in boat departures than was typical in the past. My own interviews with INS officials from this period confirmed specific disagreements at various institutional sites within the agency vis-­à-­vis the possibility of establishing, for example, fixed quotas for what were then called screen-­in rates—the number of Haitians authorized to enter the United States for further interviews—and the wisdom of suspending screenings altogether. These disputes extended as far as the interagency Policy Coordinating Committee charged with managing the “crisis” and the detention of Haitians at Guantánamo. In the end, a more hardline position within the INS and Department of State would triumph as it had during previous decades but not before thousands of Haitians were paroled into the United States.

The Political and the Economic 51

While various officials within the INS would come to accept the validity of a significant percentage of the Haitian asylum claims following the coup, Robert S. Gelbard, chair of the aforementioned coordinating committee and principal assistant secretary of state for inter-­American affairs, continued to vigorously support the exclusively economic explanation for the increase in boat voyages. In a declaration submitted as part of a lawsuit challenging the quality of the interdiction interviews being conducted on the Coast Guard ships, Gelbard explained that “statistics indicated that the current outflow of Haitians is not linked primarily to political factors” and that a State Department study on “patterns [of illegal migration] from Haiti over the last ten years indicates that increased outflows tend to coincide with periods of economic difficulty rather than any particular political factor.”24 Approximately four and half months later, Gunther Wagner, the senior INS intelligence officer for the agency’s southern region, informed asylum officers at Guantánamo that after several missions to Haiti he had determined that more than 90 percent of the claims were fraudulent, implying that the causes for flight were almost exclusively economic in nature.25 In other words, an attachment to a singular economic explanation proved highly durable, even under conditions of well-­documented political violence acknowledged by the INS’s own asylum corps. After almost a year of processing asylum claims at Guantánamo; closing the camps; suspending asylum screenings altogether; recommencing asylum screenings aboard ships moored off Kingston, Jamaica; and reopening Guantánamo a second time (more on this chronology in the chapters to come), the Clinton administration opted for a solution that combined military force with economic reforms. In 1994, the United States launched a UN Security Council–­approved invasion to reinstate Aristide, an operation that met with little open military resistance on the ground, although reprisals against Aristide supporters continued well after the marines had landed (Farmer 2003). While ostensibly about restoring democracy, the deployment of US forces was in reality more about halting the refugee flows that were proving far too costly to the Clinton administration in terms of its domestic political capital (Farmer 2003, 315; Morley and McGillion 1997, 383). As part of the negotiations for Aristide’s return, the United States, along with the International Monetary Fund and the World Bank, insisted on a set of neoliberal reforms that included tariff reductions, suspension of certain import quotas, privatization of state-­owned industries, and intensive pruning of the state bureaucracy (Morley and McGillion 1997, 378). The conditions effectively marked a return to the export-­led assembly model of development

52  Chapter One

pursued during the prior decade. This meant an increase in opportunities for foreign firms, including Walmart, Kmart, Sears, and JCPenney; a continuation of the rural-­urban migration trend; and the flooding of Haitian markets with highly subsidized US agricultural exports (Farmer 2012; Green 1998; Lundahl 2013). The refugee containment of the 1990s had evolved to assimilate full-­scale military intervention into its existing repertoires, supplementing interdiction, updating its market-­oriented reforms, and excising the obvious political variables—in this instance, the postcoup junta and its attachés—that had for too long complicated an exclusively economic framing of the relevant push factors.

Conclusion Although it has long been impossible to discuss Haitian migration without addressing the competing classifications of Haitians as political refugees or economic migrants, it is another matter to recognize that this bipolarity itself was neither merely a matter of differing interpretations of existing conditions in Haiti nor a mere artifact of Cold War political alignments. It was those things, of course, but it was not only them. The bifurcation in the narration of Haitian suffering was part of a more durable modernist divide, codified in laws both international and domestic and given new weight with the neoliberal turn of the post-­Fordist era and the rebirth of the notion that the market could and ought to exist as an autonomous and self-­regulating sphere. As I have shown, that sense of the economic as a natural space governed by its own perfect logic demanded, counterintuitively, enormous outlays in terms of regulatory and policing labor to ensure its “freedom.” With regard to the Haitians, the diagnosis of economic causation for their patterns of international circulation provoked not only particular representations of Haitian suffering but also a series of interventions oriented toward the liberation of market forces regionally and the restriction of human mobility internationally. No other accounts of this period have taken this constellation of processes into consideration together in order to illuminate the ways in which economic interventions and migration policing projects in Haiti and its aqueous surrounds took shape as a transnational extension of a larger trend in carceral expenditure designed to maintain the boundaries of a natural market order.26 What is most remarkable, perhaps, about the narration of economic causality is the way it abetted the launch of this complex geography of containment and affordance—the latter term referring to the encouragement of certain forms of circulation—each operating on different scales. The launch of

The Political and the Economic 53

interdiction in 1981 was the centerpiece of this new regime. Although it gave concrete form to the scalar differentiation of desirable and undesirable movement, interdiction did not spring fully made as an inevitable response to the economic framing of Haitian boat migration. Despite the incredible strength of the economic narrative and the tenacity with which many clung to it as an all-­encompassing explanation—and cover—the countervailing narrative of political persecution had its own power as well. In the hands of an array of litigators, activists, lobbyists, and other actors, this frame was made to do quite a bit, often in tandem with a sophisticated host of legal arguments and a deep temporality of struggle that allowed for the coordination of multiple styles of attack—or counterattack, depending on one’s perspective. In order to further grasp the nuances of the geographies that began to emerge in the early 1980s out of the clash of these dueling narrations, we must shift our perspective and begin to examine additional legal conditions of possibility—beyond the political/economic divide—for the novel forms of state spatialization that interdiction’s birth would unleash on the borderlands of the northern Caribbean. It is to that task that I now turn.

Chapter 2

Border Laboratories

In August 1981, shortly after the US Coast Guard cutter Hamilton deployed for the first Alien Migrant Interdiction mission in the Caribbean, B. H. Ken­ ney, a member of the Coast Guard’s photo team, penned a screenplay for a short film on this new form of maritime policing. According to the text, the envisioned “documentary” would open with a montage of “slum conditions found in Miami” and “shots of over crowded Haitian boats” accompanied by a voice-­over explaining “the problems caused by the influx of Haitians.” Next, the action would unfold in the form of the “[w]ild sound of [a] teletype pounding out a message[,] . . . the crackle of radio voice traffic,” and the frenetic activity of the crew readying the vessel for an interdiction mission somewhere out in the “open ocean.” Soon, viewers would be treated to the image of a “small wooden boat over loaded with Haitians” on the horizon, which would then be eclipsed by the massive, white hull of the Hamilton. Eventually, there would be a cut to a view from the air showing the repatriation of the Haitians accompanied by a voice-­over of the captain’s assessment of the event, which would “sum up the activity on the vast rolling ocean” and “leave us[, the viewers,] with the feeling that all is in order and under control.”1 Kenney provided his own commentary on what purpose he imagined the “documentary” would serve should the Coast Guard decide to fund it. The explanation is worth quoting at length: Throughout this film, the focus has been on the Coast guardsmen, not on the Haitians. This is the whole point of the film. We are showing the Coast Guard as the authority, the law enforcers. Compared to the Haitians, the men and

56  Chapter Two

women of the HAMILTON are “larger than life.” The Haitians are subject to them, dependent on them. The Coast Guard is calling the shots and giving the orders. To show this vividly we will look into the faces and the eyes of the Haitians. Into the eyes of the children and the old people. We will see the fear, the hope, the desperation, and the realization that the Coast Guard men and the big white ship are unmistakable symbols of authority.2

It would be difficult to imagine a clearer artistic vision of resurgent sovereign control. In addition to his planned use of melodramatic visuals, Kenney also employed a highly stylized plot structure to convey this triumph of policing power. The imagined viewers would be taken on a journey beginning with the breach of America’s southeastern border by a threatening and, in this telling, unlawful Haitian influx and ending with the restoration of American power over not only the solid territorial land border but also the seascapes that extend beyond it. The energetic efficiency of the “big white ship” and the evocative desperation of the Haitians in their precariously overloaded boats would emerge as battling metonyms in a stereotyped dialectic of order and disorder writ small. Despite its sensational qualities, the proposed film’s chronology was in one sense accurate: it highlighted the transition from a Caribbean of open sea corridors to one dominated by an offshore American policing regime designed to contain Haitian mobility. Throughout the remainder of the book, I will examine the ways this maritime border was imagined, constructed, and sustained from various angles and various scales of inquiry. This chapter will allow us to begin that process by sketching how a multidecade arc of litigation battles and associated political maneuvering propelled American immigration policing out beyond the edge of firm land and onto the sea. Rather than providing a realist history of every twist and turn in the progression of Haitian rights organizing, however, the goal is to tether the narrative to a series of spatial transformations, or border disjunctures, that emerged during this period. My intention is to offer a historical account that shuttles between micro and macro vantage points but always with the aim of revealing the play of forces that drove the creation of this new maritime frontier.3 The chapter will thus serve as a broad canvas to which we can return in later chapters to get our bearings or to look deeper into particular processes, but it will also be selective, crafted to focus on phenomena relevant to the dynamic tensions of liberal sovereignty and the geographies it produces.4

Border Laboratories 57

Perhaps most importantly, the chapter will introduce the unique role law played in the creation of the landscape of maritime interdiction. In the pages that follow, I reveal how the boundaries that emerged in the waters off South Florida during the early 1980s constituted the first American border to be created as the result of an intensive series of litigation battles.5 I will delve into the history of how a network of Haitian activists and attorneys emerged in the mid-­1970s and how this network devised a campaign of siege litigation, repeatedly blocking the US government from deporting Haitians from South Florida. The intensity and remarkable success of their efforts triggered an escalating, contrapuntal dynamic of constraining judicial intervention and evasive executive response, which eventually remade the juridical landscape of immigration policing in the United States. This chapter will chart the unfolding of this dialectic and the disjointed border spaces it created. This is the first attempt, scholarly or otherwise, to grasp the legal dynamics underlying this late twentieth-­century spatial transformation of the American nation-­ state.

The Terrain I begin here with a sketch of the juridico-­political geographies that framed the administration of the asylum and border-­policing regime as it existed in the early 1970s, when poorer Haitians began making the sea journey to South Florida in greater and greater numbers. This will allow me to explore how the legal and political contests unfolded within and shaped existing landscapes, both material and imagined. I proceed with a sense of the “terrain” of legal conflict as both the context and object of space-­making endeavors. The terrain I am concerned with at this stage of the analysis is composed of three principle modes of spatial organization. The first is what I will be calling a realist geography of alliance, which should already be familiar from chapter 1. By this, I am referring to how the adjudication of refugee, and later asylum seeker, claims during the 1970s hinged on a double classification of political space.6 Nation-­states were categorized within Cold War alliance paradigms of left and right, communist and capitalist, creating global cartographies onto which gradations of friend and enemy were projected under the ostensible polarity of the World Order as it was then envisioned (Farish 2010; Westad 2006).7 In turn, the atrocities committed in spaces classified within this framework were discounted or amplified by refugee- and asylum-­ processing bureaucracies depending on whether the acts occurred in left- or right-­leaning “spaces.” In other words, where an act occurred largely deter-

58  Chapter Two

mined whether it would be ignored or denounced within American foreign policy discourse. This geography, at once realist and “moral,” undergirded the refugee and asylum apparatus of the 1970s, the foreign policy that guided it (Loescher and Scanlan 1986, 78–79; Zucker and Zucker 1996, 34, 72), and the reason, as I will show, claims of political oppression in Haiti during this period could receive such short shrift from the US Department of State. 8 The second mode of spatial organization that constituted the terrain of legal conflict was the implicit triple-­bordering of political and judicial power within American law. The first of these three boundaries, what I call the territorial border, demarcates the edge of the American polity’s claims to authority over “land” and provides a material anchor for its administrative structures in not “merely space” and soil but something far more rich in affective attachments—the nation’s “geo-­body,” conceived of here as an organically imagined font of national spirit (Winichakul 1994, 17; see also Darian-­Smith 1999, 35).9 The second, the judicial border, denotes the geographical limits of the federal judiciary’s capacity to intervene in matters of executive power. Finally, there is the policing border, which establishes the geographical limits of executive policing power, in this case, the power of border enforcement agents to surveil, interdict, and detain. In the early 1970s, the three borders were largely aligned insofar as immigration policing was concerned: judicial power and policing power were coterminous with the state’s territorial boundaries. This landlocked “conjuncture,” or alignment, of bordered space (shown in figure 2.1) would change with the launch of maritime migrant interdiction in 1981, which would create a divergence between the judicial, territorial, and policing borders, the latter extending out onto the sea and beyond the other two. The manipulation of such “borders” would become essential to creating zones of executive discretion freed from constraining legalities and the interinstitutional checks that lie at the core of American rule-­of-­law ideologies. Throughout the 1970s, however, these borders remained more or less aligned. I say more or less because the third and most peculiar element of the terrain I have been elaborating thus far was a legal fiction—known as the “entry” fiction—that created a wrinkle in the aforementioned map of border conjunctures. “Entry” existed as a technical device within US immigration law central to the ordering of jurisdictional space in the American polity up until the late 1990s. In the 1970s, it functioned like this: a noncitizen could be physically within the United States and yet, at the same time, be deemed juridically not present, or “exterior.” Such a state of affairs usually came about when noncitizens arrived without proper entry documentation (for example, visas) at or

Border Laboratories 59

MIAMI, FL

TERRITO

RIAL

JUDICIA

L

POLIC

ING

TERRITORIAL BORDER JUDICIAL BORDER POLICING BORDER

Cayman Islands Cuba Jamaica The Bahamas Haiti Turks and Caicos Dominican Republic

2 . 1  The three planes of border space and their alignment in the 1970s.

near a US border and failed, whether intentionally or otherwise, to sufficiently penetrate American territory prior to their encounter with INS officials. So, if a boat of Haitians beached in, for example, Fort Lauderdale, and the Haitians remained onboard, patiently awaiting the arrival of the INS and local law enforcement, as was often the case, this would not have constituted an “entry” under existing law. Although, technically speaking, they were within the United States once they entered its territorial waters and stood on US piers and sandy coastlines, both physical peripheries (coastlines and ports)

60  Chapter Two

and internal peripheries (airport transit zones) remained “outside” national legal space within the regime of what Ayelet Shachar has called the “shifting border of immigration regulation” (2007, 167; see also Volpp 2012).10 What exactly was so significant about the fictional nature of the entry determination? Noncitizens whom the INS had assessed to be juridically exterior were shuttled into “exclusion” proceedings, a dark corner of the immigration bureaucracy in which low-­level administrators were given the bulk of the authority in adjudicating asylum claims. This fracturing of jurisdictional space created a regime of bureaucrats vested with tremendous and largely unreviewable power over “exclusion,” a formal adjudicatory framework that contrasted sharply, as I will explore further in chapter 5, with “deportation”— the regime used to process those who were deemed to have “entered.” Given that American rule-­of-­law ideologies in the Madisonian vein have long been suffused with a proceduralism heavily reliant on the perceived necessity of separated powers and layered review, this concentration of exceptional discretion in bureaucratic agents might appear anomalous, but the fictional exteriority of these subjects served to temper any strong sense of contradiction it might provoke; it recast the actions as happening “outside” American territory, partially relieving the tension through the spatial “fix” of externalization (cf. Harvey 2001). I will return to the question of why adjudication practices that were anathema within domestic space could become thinkable in the world beyond American borders in chapters 4 and 5. For now, what is important is that in the early 1970s, whether Haitian asylum seekers were deemed to have “entered” the United States would determine if predominantly low-­level bureaucrats or a wide array of ostensibly neutral arbiters, including virtually the entire hierarchy of the federal courts, would have control over their future. The terrain that seafaring Haitian asylum seekers stumbled on in December 1972 thus consisted of a complex imbrication of the three aforementioned modes of spatial ordering. The realist geography of alliance; the triple-­ bordering of territory, judicial power, and executive policing; and the fictional landscape of entry all combined to set the stage for these Haitians’ reception in the United States. The terrain was not fixed, however, nor have I intended to pre­sent it here as mere “context,” a neutral backdrop in front of which the real action unfolds. Rather, as I will show in the pages that follow, this terrain became both the ground on which the coming legal battles would emerge and a target of manipulation within such contests. This terrain would shift and mutate as various actors worked to reconfigure it, creating new spatial formations and new thinkable futures in the process.

Border Laboratories 61

S i e g e L i t i gat i o n The 1970s marked a decade of conflict and precarity for the Haitians who had made the eight-­hundred-­mile sea journey to the shores of South Florida. Most lived in the shadow of the instability wrought by shifting INS policies on work authorization and detention, the looming threat of expulsion to Haiti, and the prejudices engendered by their status as largely uneducated racial and linguistic minorities (Laguerre 1984; Stepick 1998). When the first Haitian migration vessel, the Saint Sauveur, came ashore at Pompano Beach in December 1972, there was no Haitian community in place to welcome its passengers; Miami did not even rate on the map of the Haitian diaspora, the center of which lay to the north, in far-­off New York (Charles 1996; Glick 1975). Instead of being received by kin or, at the very least, a community of fellow exiles, these Haitians encountered an immigration bureaucracy hostile to their claims of suffering and a once predominantly white resort town shaken by both the recent arrival of hundreds of thousands of Cuban refugees and the more general economic instability that would become synonymous with the decade (Mohl 1983; Portes and Stepick 1993). The irony is that out of this extreme social and economic vulnerability arose a series of crushingly powerful litigation campaigns that would cripple the INS’s attempts to quietly expel thousands of Haitian asylum seekers over the next eight years. As Robert Cover noted in characteristically evocative fashion some years ago, “legal interpretation entails action in a field of pain and death” (1986, 1616). He was referring to the relation between the “judicial word” (1611) and “actual deeds of violence” (1610), which, within an American “ecology of jurisdictional roles” (1617), facilitates the translation of judicial pronouncements into physical force (1617).11 It is this force that interests me here, and the mechanisms by which a small group of Haitians and their attorneys were able to access and weaponize it. We begin with the messy, early phase of activist and humanitarian responses to the arrival of Haitians in South Florida and the crystallization of an aggressive, politicized litigation strategy within it. My goal here is to conceptualize this process as an orchestrated, intensifying application of force—in this instance, the formalized, legitimate violence of the state refracted through its adjudicatory institutions—that targeted both the terrain of immigration policing and the bureaucracies that actualize it. The account is meant to capture some of the nuance of this early phase, which has never been properly documented, but also to distill it into a partial abstraction, an accumulation of animating pressure within the agonistic rhythm of litigation

62  Chapter Two

conflict that would continue into the decades that followed. I thus begin with the first phase of this escalating succession of moves and countermoves in which members of a besieged incipient Haitian community in turn became the siege-­layers, masters of a litigation strategy that would bring the exclusion and deportation machinery of South Florida to a screeching halt. The landing of the Haitian sloop the Saint Sauveur at Pompano Beach in December 1972 marked the first arrival in a wave of voyages that would punctuate the decade to come.12 The INS screened the vessel’s sixty-­five passengers and then released them into the care of a Church World Service refugee program in Miami, which operated with the financial support of the National Council of the Churches of Christ (NCC), the largest Protestant ecumenical partnership in the United States (Findlay 1993; Gill 2011).13 It was a small group of black Baptist ministers, however, who would provide much of the initial support to the recent Haitian arrivals in Miami, housing and feeding them in their churches and homes.14 Among these African American congregations, the Baptist Friendship Church took on a primary role, in part because its associate pastor, Reverend Jacques Mompremier, was himself one of the few Haitian exiles living in Miami at the time. As more boats began arriving in the spring of 1973, Mompremier and the church’s head pastor, Reverend James Jenkins, worked through the Greater Miami Ministerial Alliance, a black ministers’ fellowship, and the local Baptist Ministers Council to negotiate for the release of subsequent arrivals whom the INS would soon begin detaining at sites throughout Florida and, later, Texas. This same group also created the Haitian Refugee Information Center (later known simply as the Haitian Refugee Center) to provide services for this new population of asylum seekers.15 The voyagers on these first boats all lived under the constant threat of expulsion. Because they arrived by sea and more often than not encountered the INS before “entering” US territory, immigration agents placed them in exclusion proceedings, which, as mentioned above, meant that frontline inspectors and INS district directors exercised nearly complete discretion over their cases. It also meant that the question of legal representation was at the forefront from the beginning. Without attorneys to help them navigate the immigration bureaucracy and, later, the federal courts, members of the slowly growing Haitian community in South Florida would have been quickly expelled. This latter point is not in doubt. As I demonstrated in chapter 1, the State Department, whose opinions carried great weight with the INS bureaucrats deciding the fate of these Haitians, was not timid in expressing its disdain

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for asylum claims of this sort. This categorical discounting of Haitian asylum claims, itself part of the Cold War realist geography of alliance described previously and in chapter 1, was borne out in the asylum statistics as well: virtually no Haitians in exclusion proceedings were granted relief from expulsion during these early years.16 What, then, kept the INS from expelling the first boats of Haitians during 1972 and 1973? The short answer is lawyers. How these impoverished Haitians were able to secure legal counsel in a city sorely lacking in pro bono immigrant legal services demonstrates the highly contingent nature of the early days of Haitian advocacy. The story begins with Gerard Leandre, one of the passengers who had landed in Pompano Beach aboard the Saint Sauveur. Leandre had previously lived and worked in the Bahamas during Papa Doc’s rule and, after the president-­for-­life’s death in 1971, had traveled back to Haiti, lured by promises of amnesty under the new, supposedly gentler dictatorship of Jean-­Claude, only to be locked away in the infamous Fort Dimanche prison shortly after returning.17 Unlike many, however, he was released and was able to flee Haiti once again, this time for Florida. Once in Miami, he contacted a well-­connected member of the family who operated the Freeport plantation, where he had worked in the Bahamas, and through him arranged an introduction with Donald Bierman and Neil Sonnett, two former assistant US attorneys running a small criminal defense firm in the city. Although they had little experience with immigration law, Bierman and Sonnett agreed to represent Leandre. When they arrived at the hearing, however, they found the other sixty-­four passengers of the Saint Sauveur without counsel and began working with Mompremier and Jenkins to represent them and, shortly thereafter, more recent arrivals. Although new to asylum representation, these attorneys worked diligently to try to keep the Haitians’ claims moving through the wider architecture of the immigration adjudication bureaucracy and the federal courts that supervised it. This, in turn, forestalled expulsion. This story captures the delicate and ad hoc nature of the initial legal and social service support provided to the Haitians, which developed in part through happenstance connections, such as Mompremier’s involvement with the Baptist churches of Miami, and felicitous networking, as with Leandre’s introduction to Bierman and Sonnett. It would not be long, however, before a more coordinated response began to emerge. Available records suggest that the wider set of network linkages that developed around the issue of Haitian asylum seeker treatment began to take form when the Miami Baptist Ministers Council, mentioned earlier; the Haitian Fathers, a group of exiled Haitian Spiritain priests operating out of Our

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Lady of Good Counsel Church in Brooklyn; and the Miami-­based Christian Community Service Agency (CCSA) (which itself drew much of its funding from the NCC-­affiliated Church World Service) urged the NCC to support efforts on behalf of the Haitians beginning in the spring of 1973.18 The NCC took up the call, providing preliminary funding through Church World Service and issuing a resolution in February 1974 in which the NCC’s governing board denounced the violations of international and domestic law inherent in the Nixon administration’s policy toward the Haitian refugees.19 In framing its statement on the issue, the board was careful to emphasize the “racial overtones” and the implicit “champion[ing] of dictatorships of the right” suggested by the callous dismissal of the black Haitians’ claims for asylum and the administration’s preference for predominantly “white, skilled” Cuban ­refugees.20 It is hard to overemphasize the impact of the NCC’s involvement. Suddenly, a local and improvised response to INS bias became a national civil rights and foreign policy issue in the hands of an organization with a membership roster totaling nearly half of all registered voters in the United States (Gill 2011, 4). This was an organization with liberal establishment clout, the ear of the White House, and the attention of other DC insiders (Gill 2011, 4), but it was also an institution permeated by the radicalization and militancy spurred by the war in Vietnam and the splintering of the civil rights movement into a “movement of movements” in the late 1960s and early 1970s (Gosse 2002, 279; Hall 2005). The tensions within the NCC, particularly between its antipolitical, humanitarian wing, Church World Service, and the more politicized coalitions among its members (Gill 2004; Gill 2011) fostered similar conflicts within the evolving networks responding to the situation faced by the Haitians in South Florida. These fault lines would prove crucial in opening the door to a core group of leftist, activist Haitians and attorneys who would seize control of the humanitarian response and transform it into a movement capable of wielding tremendous legal force against the US border-­policing bureaucracies. The NCC Governing Board’s February 1974 resolution authorized the creation of a task force to investigate the situation of the Haitian refugees with funding support from various NCC agencies and units and in collaboration with other religious and civil liberties groups.21 It was through the task force that the architects of the later political and legal strategy would assume positions of authority within the developing institutional structures of the response and begin to craft their approach under the shield of NCC support. Specifically, I have in mind Father Antoine Adrien, one of the Brooklyn-­

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based Haitian Spiritain priests mentioned earlier, and Ira Gollobin, the general counsel to the American Committee for the Protection of Foreign Born (ACPFB), both of whom were invited to join the task force in the spring of 1974. Fr. Adrien and the other members of the Haitian Fathers, as they came to be known in Brooklyn, were former teachers at the elite Port-­au-­Prince school, Petit Séminaire Collège Saint Martial. Accused of plotting against the regime of Papa Doc and exiled in 1969, they eventually settled in New York in the early 1970s.22 Radicalized by their expulsion, Fr. Adrien and the others began ministering to the poorer among the more recent Haitian immigrants in New York and publishing a Creole and French language periodical, Sèl, which disseminated stories on liberation theology–­influenced church teachings, immigration policy, politics in Haiti, and immigrant life in New York ( Jacquot 2010).23 Gollobin, also based in New York, had honed an impeccable radical pedigree over decades of work with leftist causes extending as far back as the 1930s. He was a founding member of the National Lawyers Guild, one of the first integrated bar associations in the United States and a significant organizational player in the early radicalism (Mack 2006, 54–56) of the “long civil rights movement” (Hall 2005, 1235). He had also provided legal services to the ACPFB since 1936, building a deep and nuanced understanding of the constitutional landscape of US immigration law in the process (Gollobin 1987, 1). The ACPFB was itself a creation of Roger Baldwin, the founder of the American Civil Liberties Union (ACLU), and over the years provided individual representation for immigrants in deportation proceedings while also developing its own law reform strategy geared toward challenging what its members saw as unjust developments in US immigration policy, particularly during the second Red Scare of the 1940s and 1950s (Cole 2003, 131; Gollobin 1987; L. Smith 1959, 44–45, 344). With the onset of the Cold War, however, the ACPFB fell out of favor with its mainstream political supporters (Gollobin 1987) and eventually, it has been alleged, became a shill for the Communist Party (Neuborne 2006). During this time, Gollobin found himself on the more radical side of cleavages within the civil liberties movement, eventually becoming general counsel to the ACPFB and providing his services to the National Emergency Civil Liberties Committee (NECLC), an organization created in 1951 in response to the ACLU’s purge of Communist Party members and other “subversives” from its ranks (Lamont 1986, 334; Rabinowitz 1996, 159). It appears that Fr. Adrien and Gollobin began their collaboration in the winter of 1973, when one of the passengers from the Saint Sauveur, a Mr.

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Latour, relocated to New York. Fr. Adrien reached out to Gollobin to take on Latour’s case, which he did, and later asked Gollobin to provide the Haitian Fathers with counsel on immigration-­related matters.24 It is likely that this initial collaboration led to Fr. Adrien engineering Gollobin’s participation in the NCC task force, paving the way for his more formal role in the lawsuits then being pursued on behalf of the Haitians by Bierman and Sonnett in Miami.25 As I will demonstrate shortly, the inclusion of Gollobin as an insider in the NCC’s early strategic planning and the relationship between Gollobin and the Haitian Fathers set the stage for the development of a leftist core to the incipient Haitian rights movement but also an omnivorous approach to tactics, including the combined use of intensive litigation campaigns, insider lobbying, and direct action with and on behalf of the Haitian refugees over the years to come. Crucial to the story is the task force’s decision to endorse continued financial and organizational support of legal action on behalf of the Haitians. The investigation had brought task force members face to face with an intransigent INS bureaucracy, which, according to their report, explicitly endorsed the position that “illegal aliens” cannot “expect ‘due process.’ ”26 In the months that followed, the NCC took up this “due process” issue with legislators, particularly members of the recently formed Congressional Black Caucus (Marable 2007, 119), whom W. Sterling Cary, the first black president of the NCC (Gill 2011, 335), wrote to personally.27 This approach yielded no immediate tangible results, thereby revealing the importance of litigation, which could not so easily be ignored. The NCC, to its credit, recognized the value of an aggressive stance in the courts and appealed to its member congregations for further financial support for the legal campaign. As part of the decision to ramp up the litigation effort, Lucius Walker Jr., a black Baptist minister recently appointed general secretary of the NCC’s Division of Church and Society (Findlay 2006, 153–54), officially invited Ira Gollobin to join in the litigation and to secure voluntary cocounsel.28 Gollobin, in turn, brought in the NECLC, then composed mainly of lawyers working out of the offices of Rabinowitz, Boudin, and Standard, a firm also renowned for its leftist credentials.29 The formalization of Gollobin’s role as counsel and the ensuing involvement of the NECLC opened the gates to the legal warfare that would soon be waged on behalf of the Haitians. Bierman and Sonnett, to their credit, had diligently represented and pursued appeals on behalf of the four hundred or so Haitians who had arrived thus far; however, though well-­credentialed, they were not battle-­tested cause lawyers in the same vein as Gollobin and

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his colleagues, nor could they match the decades Gollobin and the NECLC attorneys had spent litigating questions of international, immigration, and constitutional law at all levels of the federal courts.30 It was, however, the combination of Gollobin’s willingness to be led by the Haitian exiles who had orchestrated his entrée into the NCC fold and his and his colleagues’ legal and radical political cosmopolitanism that would allow for the highly creative and ambitious campaign that would develop from these humble beginnings. Hints of this cosmopolitanism can be seen in the immediate shift of the litigation strategy toward articulating a compelling and well-­documented account of political oppression in Haiti and a reorientation of the legal arguments toward US international treaty obligations. The latter point may seem utopian in this age of high “sovereigntist” antipathy vis-­à-­vis international law (Spiro 2013; Resnik 2006), but in the early 1970s, there was no statutory framework for asylum adjudication in place, only the prescriptions of the UN Protocol Relating to the Status of Refugees, to which the United States had become a party in 1968, and subregulatory administrative guidance in the form of the INS’s “Operations Instructions” (D. Martin 1990, 1254n12, 1295).31 An appeal to international law under such circumstances was simply good, realist lawyering, not aspirational norm entrepreneurship (cf. Finnemore and Sikkink 1998, 893).32 The “fact development” portion of the case, as lawyers call it, added further international depth by signaling that the Duvalier regime and its apologists in the US State Department would be put on trial in spectacular fashion for sponsoring violent oppression in Haiti, a strategy driven by both the nature of the Haitians’ asylum claims, which hinged on a demonstration of persecution abroad, and the political aims of Haitian exiles, including the Haitian Fathers, who saw the twin goals of securing fair treatment of Haitians in the United States and the demise of the Duvalier dictatorship as inextricably linked.33 Looking through the turbidity of this early moment, one can start to see the incipient structures of a double-­pronged siege launched on and against the terrain of the realist geography of alliance and the fictional landscape of exclusion. With regard to the former, the effort to prove the reality of Duvalierist repression was a direct assault on the Cold War cartographies driving the State Department’s position on the regime. And with regard to the latter, the argument that the substantive provisions of the 1951 UN Refugee Convention (effectively incorporated via the ratification of the aforementioned UN Protocol) and domestic constitutional due process considerations required more robust review even for those who had not “entered” US territory was not simply banal proceduralism; to the contrary, it was an ambitious attempt

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to entirely remake the space of the immigration border. To understand why these moves amounted to a siege and not merely a typical litigation offensive, however, we will have to delve more deeply into the increasing entanglement of efforts to target both the realist geography of alliance and the fictitious geography of “entry,” both of which gave shape to the INS border enforcement terrain as it existed at that time. I have been referring to the campaign to transform this terrain as siege-­like because of its comprehensiveness and the diversity of tactics Gollobin and his protégés would use to make it so. From the beginning, Bierman and Sonnett had represented all of the arriving Haitians, but it is unlikely that they could have continued to do so or that they would have been successful with the cases they had brought given that they had been unable to gather the requisite evidence on conditions in Haiti or to even interview the small number of Haitians who had come ashore in 1972 and 1973. Gollobin and the NECLC, with NCC backing, made sure that nearly all of the Haitians continued to be represented, grouping them into the equivalent of mini-­class actions based on the timing of their arrival.34 Simultaneously, they began working with the nascent community of Haitian refugees in Miami and wider exile networks from New York to Montréal to gather expert witness affidavits, which they paired with human rights reports from the fledgling American branch of Amnesty International.35 By 1975, Gollobin and his team were managing three major federal lawsuits—Marie Pierre,36 Sannon,37 and Ketley Jean-­Baptiste38—combining exclusion challenges and motions to enjoin the INS from denying their clients work authorization during the pendency of their suits.39 This tremendous litigation pressure prevented the INS from excluding Haitians for years, a tremendous feat, albeit one that was transformed into something more durable through its pairing with a host of other grassroots and insider elite tactics, which I will turn to now. As the lawsuits began moving forward under new leadership in the spring of 1974, two stances became discernible among the key players, described to me by two Haitian organizers involved at the time as a “humanitarian” approach and a “political” approach. Although certainly an oversimplification, this rubric fit a similar divide, mentioned earlier, within the NCC itself between the largely antipolitical Church World Service and the more activist Council institutions, including those under the supervision of Lucius Walker’s Division of Church and Society. There was a sense that the Church World Service-­funded CCSA, which had become the official conduit for the NCC’s funding to the Haitian Refugee Center, was stymying efforts to use the center for more “militant” organizing

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within the Haitian community. This was not, however, the only political current circulating through the NCC. The Office of Haitian Refugee Concerns, which was formed by the NCC to establish a national political network in support of the Haitian cause and to coordinate the insider game of congressional and regulatory lobbying efforts in Washington, DC, was regarded as far more sympathetic to the attempts by more elite Haitian exiles to organize within the refugee community. Sue Sullivan, for example, a former member of the NCC’s local Miami Task Force and, beginning in 1975, the director of the Washington Office of Haitian Refugee Concerns, would play an important role in the center’s break from the CCSA some years later.40 In the meantime, however, the different philosophical approaches of these entities manifested themselves in turf wars between the CCSA and the Office of Haitian Refugee Concerns and eventually in the ouster of the center’s director, Reverend Jacques Mompremier.41 This regime change within the center appears to have been orchestrated by the Haitian Fathers and Gollobin and occurred, per reports drafted at the time, with at least tacit support from the Office of Haitian Refugee Concerns.42 The Haitian Fathers selected Rulx Jean-­Bart as the new director with the goal of folding the Haitian rights “struggle,” as it came to be called, into the wider movement for a democratic transition in Haiti then being pursued by a fractious array of organizations throughout the Haitian diaspora (Antonio 1984; Charles 1996). Jean-­Bart was himself a Haitian-­born activist and community organizer who had been deeply involved in the Haitian democratic movement in New York during the 1970s. Once in Miami, he, along with several other exiles, a charismatic young refugee from one of the first boats among them, created a militant, politicized companion organization to the center called Konbit Libète, a Haitian Creole term that roughly translates as “work group for freedom.”43 With Konbit, Jean-­Bart and the others began the process of organizing the Haitian community through educational meetings, grassroots networking across rural and urban sites in South Florida, and, eventually, direct action campaigns. Work of this sort made it possible to identify cadres of expert witnesses from among recent arrivals, pack courtrooms or congressional hearings with supporters, and mobilize street protests with the purpose of generating media coverage and educating the population at large on conditions in Haiti. By 1977, this process was still in its early phase. Nonetheless, by that time, what had begun as an improvised humanitarian response had transformed into an embryonic political movement that defied easy characterization as radical or establishment, domestic or international, elite or popular.

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It self-­identified with and clearly fit within older civil rights paradigms but was also far broader in scale and juridical orientation, equally at home when engaging with the esoterica of international law and the recondite technicalities of American constitutional doctrine, the treatment of Haitians within the United States and the treatment of Haitians in Haiti, the decision to affiliate with domestic groups like the NCC and efforts to partner with more globally oriented institutions like Amnesty International. Certainly the swirling complexity (cf. Latour 1993) it represents complicates any definitive sense of rupture between past and emerging utopias (Eckel 2013, 252; cf. Moyn 2010).44 More important, at least for my purposes, than settling on a clear diagnosis of taxonomic or temporal location is the need to recognize the movement’s hybrid tactics, including a highly sophisticated exertion of overwhelming legal force in the courts, its “softer” lobbying pressure through beltway insiders, and its savvy street protests. These were early manifestations of a siege practice that would continue to gain strength through the waning years of the ­decade. Before the full might of this new movement could be felt, however, its lawyers were able to provoke a legal compromise that momentarily signaled the possibility of a different outcome than the escalating, border-­shifting dialectic to come. This was a moment in which Jimmy Carter’s embrace of human rights in the final months of his 1976 presidential campaign and his eventual electoral victory (Keys 2014, 238) signaled a potential shift in the realist geographies of alliance and the fictional legal landscape that had been targeted by the Haitian campaigns until that point. The question remained whether this would prove to be merely a rhetorical flourish or something more substantial. As we will see, the pivots that ensued with regard to the Haitian litigation revealed it to be a bit of both. At first, things began to look hopeful for the Haitians. Leonel Castillo, Carter’s choice for INS commissioner (Stepick 1982, 182), proved willing to negotiate with the NCC’s Office of Haitian Refugee Concerns on current policy. Eventually, the INS and the NCC reached a regulatory compromise in the shadow of the ongoing litigation struggles that would moot the various suits then wending their way through the federal judiciary. Whether it was truly an implementation of the ostensibly postrealist morality of the Carter administration or simply a strategic maneuver to avoid a potentially adverse Supreme Court ruling and its cascading effects in the sphere of immigration enforcement, it is certain that the bargain partially remade the terrain that had been both the ground and the target of the conflicts up until that point. Once promulgated, the rules would allow Haitians in exclusion proceedings—that

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is, those who had not “entered”—to press their claims for asylum before immigration judges and the full range of administrative and judicial arbiters already available to those who had been deemed to have “entered.”45 This was a new landscape, one that no longer rested on a dramatic distinction between juridically exteriorized and interiorized subjects and the fictional spatialities this dualism created. The thawing of administration policy on the Haitian refugee issue, however, produced a backlash in South Florida, prompting a new attempt at purging Haitians from the state that would unleash the full force of the Haitians’ siege litigation tactics in the tumultuous final years of the decade. In addition to reworking the infrastructure of exclusion processing, Castillo’s softer approach ended years of bonded detention for male Haitian asylum seekers and reversed the policy of denying work authorization to those waiting for their exclusion cases to make their way through the courts (Stepick 1982, 182). INS officials in Miami and other members of the community, however, regarded this change as a potential signal that the Haitians might be permitted to remain in South Florida and put down roots. The shocks of the Cuban influx of the 1960s had already created an atmosphere of “resentment” in the city, and by the end of a decade wracked by the oil crisis, stagflation, and racial tensions (Ferguson 2010; Borstelman 2012; Rodgers 2011), some Miami residents had begun to regard the growing Haitian population, now in the thousands, as a threatening intrusion of third-­world squalor and disease into their communities.46 Driven by this sense of existential foreboding, which I will explore further in chapter 3, local INS staffers, city leaders, and elected officials responded to Castillo’s approach by pressuring the attorney general, Michael Egan, to reverse the newly instituted measures (Stepick 1982, 182–183). Rather than return to a modified status quo, the Justice Department moved to appease its critics in Florida and escalated the conflict in July 1978 by creating the “Haitian Program”—an effort to completely empty the state of the vast majority of its Haitian population. Up until this point, I have largely been talking about schemes created to deal with “excludable” asylum seekers—those juridically exterior subjects the INS encountered on the beaches and ports of South Florida. The Haitian Program, however, targeted “deportable” Haitians—those who had made an “entry,” whether by evading detection after a long boat journey or by entering on a tourist visa and then staying beyond the time period authorized. By 1978, a backlog of these deportation cases had begun to develop, augmented by Castillo’s earlier work authorization policy, which lured Haitians out of the shadows and onto INS deportability lists. The negative reaction to Castillo’s

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softer touch, fear that crackdowns on “illegal” Haitian migrants across the Florida Straits in the Bahamas would create a spike in unauthorized boat traffic, and a distillation of anxieties over Haitian otherness into the bureaucratically operationalized concept of “the Haitian threat” (more on this shortly) all fueled the transition to a highly coordinated project of mass deportation.47 The new “get tough” attitude was also spurred in part by a sense that the refugee flows from Haiti and other impoverished Latin American countries could continue unabated and intensify, creating a crisis of enormous proportions absent sufficiently draconian deterrence measures (Loescher and Scanlan 1986, 174–75). The program itself involved accelerated group hearings, pressure on Haitians to voluntarily depart, and prejudgment of all claims.48 The INS associate commissioner of enforcement Charles Sava encapsulated the blunt logic behind the new methods in an internal agency memorandum, stating simply that “the best most practical deterrent to this problem is expulsion from the United States,” suggesting that the ongoing hearings were merely a mechanism for generating formal deportation orders and not a good faith effort to assess the validity of individual asylum claims.49 In many ways, the program attempted to create a de facto recapitulation of the formal brevity of an earlier era of exclusion processing: prejudgment and mass accelerated hearings would lead to a prompt resolution of the cases and also deter Haitians from filing appeals. In this sense, the program was an effort to create a doubly fictional landscape that would replicate the procedural infirmities of “exclusion”—with its “entry” fictions—through a maintenance of another, but very different type of fiction: the idea that although exclusion had rested on a useful deformation of the spatial reach of statutory and constitutional law, deportation could still be made to function like exclusion by abandoning an attempt at a formal alteration of its own legal geography and engaging in a de facto transformation. In other words, the INS would attempt to overwhelm the Haitians and their attorneys with the mass hearings and other techniques, thereby nullifying, as a practical matter, any procedural advantages of deportation over the earlier exclusion-­type processing. Despite the fantastical infrastructure of the new adjudication regime—fantastical because of its basis in the INS’s own desire for flexibility rather than in existing law—rapid, across-­the-­board expulsions seemed, at least to the INS higher-­ ups, to be a fait accompli. At the same time, however, these INS officials were troubled by the power wielded by the Haitian rights movement in the courts. At a meeting in August 1978, Deputy INS Commissioner Mario Noto urged the INS trial attorneys

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in Miami to prevent the expedited deportation cases from becoming “legal entanglements.”50 He specifically advised that the trial attorneys “take” their opponents’ “strength and use their weakness,” giving them a “dose of their own medicine” by forcing them to spend more time than they could afford to give on the cases.51 For Noto, the goal of the Haitians’ litigators was “to create complete frustration,” and he advised the INS staffers involved to “turn the tables around” by one-­upping them at their own game.52 Noto and the others, however, had underestimated their opponents. The Haitians in Miami and New York had been pushing for funds to hire a local attorney more in line with the aggressive critical stance they had been cultivating. Gollobin and the NECLC attorneys fit that mold, but their practices were based out of New York, far away from the daily action unfolding in South Florida where Bierman and Sonnett were still acting as local counsel. Some years before, however, Leonard Boudin, the general counsel to the NECLC, had met a young law student by the name of Ira Kurzban while lecturing at the University of California, Berkeley. Kurzban, quite taken with Boudin’s radical brand of civil rights lawyering, volunteered to work on some of the NECLC’s cases and was later recruited by Gollobin to provide legal counsel to the Haitian Refugee Center in Miami in late 1977. In Miami, Kurzban would work closely with Jean-­Bart and the evolving Konbit leadership, cutting his teeth on the exclusion cases still under district court jurisdiction and several other suits that had been filed in coordination with Gollobin and the more experienced NECLC attorneys in New York. By the time the INS was preparing for the Haitian Program, Kurzban was already on the agency’s radar as a tough and aggressive litigator.53 More importantly, his arrival would mark the culminating phase of the transition from the earlier humanitarian interventions of the voluntary agencies in Miami in the early 1970s to a far more creative and disruptive assault on the INS approach to dealing with Haitian asylum seekers in South Florida. Reflecting on the cases decades later, Kurzban would recall that their tactical choice was one of “overwhelming force” through “overwhelming facts.” Over the previous years, the NECLC attorneys and the Haitians in Miami and Florida had created the infrastructure for just this type of fact gathering: they had cultivated grassroots networks among the new arrivals in Miami, developed a cadre of highly skilled interpreters to convey asylum narratives to courts and administrative adjudicators, and fostered relationships with human rights organizations, such as Amnesty International, which provided investigative reports on conditions in Haiti. Moreover, the litigation had become fully embedded within a wider, Haitian-­driven democratic movement,

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drawing its various factions together into a shadow force that operated beneath the various formal, more public institutional layers of the organizing and advocacy effort, including Konbit in Miami and the Office of Haitian Refugee Concerns in Washington.54 The more distant temporal horizon of this political framing, its transnational scale, and its racial inflections positioned the Haitian rights struggle at the confluence of deeper historical trajectories at a volatile cultural and economic moment, elevating the disputes over asylum processing, which could have been written off as mere technical irregularities, into something that was far grander, far more sinister, and far more narratively compelling: the discriminatory treatment of black refugees and their deliverance to persecution at the hands of a ruthless, US-­backed dictator. A growing concern with the potential opening of migration floodgates from the South (Zucker 1983), the simultaneous broadening of the civil rights concept to more openly embrace immigrant and other rights in an era of supposed declension, and the newly popularized discursive frames offered by the human rights breakthrough of the late 1970s (Eckel and Moyn 2013) were all emblematic of a new institutional landscape largely cloaked in the antipolitical trappings that had come to replace the more public radicalism prevalent earlier in the decade.55 This ferment led to opportunities for new partnerships, which Gollobin and Kurzban choreographed to great effect, bringing in the recently formed Alien Rights Law Project of the Lawyers Committee for Civil Rights Under Law, the National Center for Immigrants’ Rights, and the Lawyers Committee for International Human Rights (now widely known under its current name, Human Rights First) into various degrees of affiliation with the lobbying, litigation, and investigatory projects then being pursued through the Haitian Refugee Center.56 Similarly, Kurzban began reaching out to academics, particularly at the University of Miami School of Law, expanding the legal brain trust in hopes of providing a more diverse and innovative menu of arguments to the courts. Simultaneous with this increasing professionalization was the more overt politicization of the Haitian Refugee Center under the new leadership of Fr. Gerard Jean-­Juste, an exiled Haitian priest handpicked by the Haitians and leftist attorneys eager to foster a more aggressive, community-­organizing approach to the issues.57 In the early days of his involvement, Jean-­Juste embodied the energy of a more militant Haitian politics blended with the mainstream credentials of priestly ordination. His commitment to street protests; criticism of establishment entities, like the Catholic Church, of which he himself was a part; and disdain for the charity-­oriented agenda of the CCSA

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would eventually lead to the establishment of an independent, Haitian-­run center in late 1980. This agility within the movement’s radical nucleus, evidenced by Jean-­Juste and its other members’ willingness to shift between confrontational political and professionalized antipolitical registers, made it possible to attack opponents from multiple angles simultaneously using a wide variety of methods and institutional proxies. The result was a full-­fledged siege, something entirely new in the field of immigration law. The weapons that inflicted the most pain in the battles to come were the restraining orders and injunctions that mobilized the law’s violence on behalf of the Haitians and halted the army of asylum adjudicators, detention officers, and deportation agents in their tracks. The refinement of the litigation arsenal that made this possible occurred over many years. As noted earlier, the attorneys first engaged in individual representation, albeit of a type that mimicked class action structures in its comprehensiveness. Later, the lawyers turned to prospective-­oriented formal class actions that no longer asked judges to simply settle individual claims or generally applicable legal principles retrospectively but rather to insert themselves into the machinery of administration itself, indefinitely suspending large-­scale executive branch projects like the Haitian Program (cf. Chayes 1976).58 This ability to activate and influence the violent power of judicial sovereignty in a manner that subsumed and neutralized executive sovereign prerogative proved to be a devastating tool when combined with a larger repertoire of siege tactics, from lobbying pressure to direct action. By July 1980, when Judge James Lawrence King, a Nixon-­ appointed federal judge in the Southern District of Miami, issued a permanent injunction in the suit challenging the Haitian Program, the movement had largely prevented the INS from executing its agenda of across-­the-­board expulsion of Haitian asylum seekers in South Florida for nearly a decade.59 It is worth pausing here to contemplate the enormity of what had occurred. Over the course of the previous eight years, a tremendous pressure had been building, weighing down the entire hierarchy of the INS bureaucracy. Its primary medium was the law and, eventually and more specifically, the injunction: the legal word translated into force through, in this instance, the alchemy of a radical politics flexible enough to adopt the tools of legal liberalism as its own.60 Its generative forms disrupted the INS’s capacity to exclude or deport with an astonishing efficacy never before seen in centuries of legal battles over the question of expulsion.61 These successes, however, came not just from the sword of the legal decree but the softer yet interlinked pressures of journalistic narration, congressional testimony, and closed-­door negotiations. Together, these techniques—cohering as they did around the performative

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genres of the American trial (cf. Merry 1994; Mack 2006, 39)—besieged the agents of Haitian expulsion and encased them in legal prohibitions. What had once been a border landscape oriented around the legitimacy of an extraordinary sovereign flexibility found itself more and more hemmed in by legal battle lines. The proliferating entanglements of judicial orders had stymied this form of border exceptionalism for the better part of a decade and partially disrupted or refashioned the realist and fictional geographies that gave it shape. This accumulation of tremendous force was by no means inevitable, nor was it entirely contingent. The gentler approach toward the Haitians adopted by INS commissioner Castillo in the early days of the Carter administration reveals an alternate path, as do the felicitous connections that barely kept the Haitian cases alive during the early years of the decade. Of course longer durée shifts in the lineaments of jurisdictional imaginaries, activist litigation models, stubborn racialized chronotopes, and economic cycles also played their role, as I will continue to examine in the chapters to come.62 Nonetheless, the creative agency of the architects of the movement was such that they unintentionally engineered the conditions of possibility for an escalating border-­bending dialectic. The impinging force of the legal violence these actors wielded would provoke a potent response, one that would remake the terrain of the immigration border into a space through which sovereign power could once again find opportunities for its exceptional modes of expression. This transformation was deeply rooted in the foundational tensions of liberal sovereignty and yet generative of new forms of frontier governance. Its actualization, however, would require a disjoining of the political, judicial, and policing borders and a reimagining of the juridical contours of the American nation-­state itself. It is to this disjuncture that I now turn.

The Disjuncture Gambit The border protection regime of the 1970s, as I have already discussed, was focused on firm land. In the 1980s, it moved offshore, and it did so in a way that was novel both in terms of its scope and its form. While it is true that the Coast Guard provided what one INS memorandum referred to simply as “aerial support” over Florida waters during the mid-­1970s, remote sensing of this type was not designed to assist with the offshore interception of migrant vessels.63 Instead, it functioned as an advance warning system primarily geared toward land-­based interdiction and the fractured geography of exclusion and deportation: if the appropriate border patrol or INS agents could

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be notified with sufficient time, then he or she could intercede at beaches or in territorial waters, not to block the Haitians from reaching the shoreline, but to ensure that they would come no further, allowing them to be placed in exclusion and deprived of the increased protections that an “entry” would trigger.64 Even the drug interdiction efforts of the time were startlingly landlocked, incapable of dealing with the cocaine-­laden “mother ships” in the Florida Straits because no statutory framework was in place to support effective maritime law enforcement programs outside territorial waters.65 The restrictive isomorphism between border policing and a territorial imaginary of firm land may appear surprising these days given the proliferation of offshore maritime migrant interdiction programs across the global North and the creative jurisdictional paradigms on which they rest. And yet, given the legal peculiarities of the American border geography of the 1970s, it is easy to see how the promise of the exceptional flexibility offered by the then–­existing exclusion regime, with its juridical exteriorization of asylum applicants, could have made it seem unnecessary to interdict these seafaring Haitians before they reached the territorial seas of South Florida. The border fictions of that era seemed, at least at first, adequate to the task of dealing with the “Haitian problem.” Cracks in the foundations of this overweening reliance on existing jurisdictional architectures began to show, however, as early as 1978, a few years before the Reagan administration’s formal reimagining of the spatiality of American border enforcement. Although Coast Guard vessels were not involved in interdiction, screening, and repatriation missions at that time, they would, on occasion, rescue distressed vessels and bring their passengers to shore for INS processing.66 In the run-­up to the launch of the Haitian Program, however, Deputy Commissioner Noto began to wonder whether it might not be preferable for the Coast Guard to transport such Haitians to Guantánamo instead of bringing them to the United States.67 Why would this be necessary, one might ask. Noto’s memorandum does not specify the reason, but one can infer it from the INS’s own experience with processing Haitians at the naval station. As noted in the opening pages of this volume, Haitians would, on occasion, sail into Guantánamo Bay while en route to Florida, and if their vessels were in good condition, military personnel would provide them with supplies and navigational instructions allowing them to continue their journey.68 The use of an American military base as a waypoint in longer clandestine migration journeys to the United States speaks to the tremendous porosity of the maritime spaces surrounding Florida at the time and, as I mentioned in the introduction, the strange hospitality

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some Haitians found there. At the same time, however, when base personnel deemed a Haitian vessel unseaworthy, the State Department would dispatch an embassy official from Port-­au-­Prince or the INS would send a team of officers to the station to screen those passengers now unable to continue on to Miami by sail.69 It appears that nearly all of the Haitians the INS teams screened at Guantánamo were repatriated to Haiti.70 With the INS’s involvement, Guantánamo would shift from a waypoint on a longer route northward to a dead end in the labyrinth of escape. More importantly perhaps, was the stark contrast between the fates of these two groups: on the one hand, the Haitians caught up in exclusion proceedings in the United States, who, for the most part, would eventually receive a lawful status despite initial exclusion orders thanks to the litigation campaigns discussed above, and, on the other hand, the passengers of the stalled vessels at Guantánamo. It was this discrepancy that had drawn Deputy Commissioner Noto’s attention. His rumination on the possibility of a standardized policy of Guantánamo-­based screening, coming as it did in the midst of laments over the interference of litigators like Kurzban and others in the spheres of land-­based exclusion and deportation processing, is easily recognizable as a new type of spatial thinking, one that would facilitate novel screening techniques designed to ensure quick removals outside the landscape of the siege litigation being fought in South Florida. In other words, at Guantánamo, INS agents would not have to rely on the legal fiction of exteriority to operate with exceptional authority—they were literally outside of American territory, or so the INS believed at the time. Noto’s musings were indicative of what would become a new sea-­oriented imaginary spurred in part by the continuous and unprecedented legal force the Haitian rights movement had mobilized to restrain the INS in its territory-­ based processing. Although, as we will see, a version of the Guantánamo model Noto had proposed would not be formally adopted until the Haitian refugee crises of the early 1990s, the Reagan administration, also eager to take the battles over Haitian asylum seeker processing onto new terrain of its own making, would opt for a similar reformatting of the immigration border in which the Coast Guard cutters themselves would serve the same function as Noto’s Guantánamo model in a new regime of offshore detention and processing sites. Before turning to the sea-­based screening platforms of the cutters, however, Reagan’s Task Force on Immigration and Refugee Policy (created to evaluate the report of the Select Commission on Immigration and Refugee Policy established during Carter’s presidency) mulled over the possibility of asylum processing at the naval station. One of the officials involved in man-

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aging the development and roll out of the interdiction policy assured me that asylum screening at the base had been on the table as an alternative to maritime interdiction but that the Department of Defense had buried the option, not wanting responsibility for a detention mission. Still, the turn toward maritime interdiction, as we will see, would achieve similar ends to Noto’s proposed Guantánamo solution. I will be referring to this pivot to oceanic policing and sea-­based interdiction as the “disjuncture gambit” for reasons that will become clear in just a moment. By the end of the 1970s, there was a palpable sense among political elites in Washington that a migration catastrophe was on the horizon. In addition to the Cuban influxes of the 1960s and the slower and much smaller trickle of Haitians during the 1970s, civil wars in El Salvador and Nicaragua had led to a surge in flows from Central America at the decade’s end (Coutin 2003; Loescher and Scanlan 1986, 171) and signaled that the United States was no longer insulated from the sorts of large-­scale population movements that had caused massive upheavals in Europe and Asia during and after the Second World War. In short, there was a growing concern around the idea that the United States was becoming what Wyoming Republican senator Alan Simpson would later call a country of “mass first asylum.”71 Moreover, the “malaise” that had gripped the “Western political economies of the 1970s” and inspired a “collective uneasiness” (Maier 2010, 42) throughout the United States began to intersect with these anxieties over porous borders, the perceived decline of a muscular US sovereignty, and the fear that the Great Society state welfarism of the 1960s would act as a magnet, drawing in the impoverished masses of the developing world.72 The imagined refugee crisis finally arrived when Fidel Castro opened the port of Mariel in the spring of 1980, prompting 125,000 Cubans to cross the Florida Straits in just five short months.73 The crisis had become a major political issue, and Reagan, delivering his acceptance speech at the Republican National Convention, at first assumed a welcoming, humane stance, proclaiming that the United States was an “island of refuge” and “freedom” created by “Divine providence” for the “boat people of Southeast Asia, Cuba and Haiti,” among others facing persecution, drought, or famine.74 By January 1980, however, 20,000 Haitians had joined the so-­called Marielitos,75 and by July of the following year, Reagan had laid the foundations for a maritime interdiction program that would entirely “suspend” the “entry of undocumented” Haitian “aliens from the high seas.”76 The welcome refugees of the campaign trail were now viewed as a tide of criminal “gate crashers,” to quote then associate attorney general Rudolph Giuliani (1982, 7), who threatened

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American sovereignty and American democracy with their disregard for the rule of law.77 In addition to interdiction, the Reagan administration also proposed a broader package of immigration reforms in July 1981, which included dismantling the procedural protections of the asylum adjudication apparatus and a formal return to the carceral management of asylum seekers that was both reminiscent of an earlier era of border control, with its detention centers at Ellis and Angel Islands (Fairchild 2003), and indicative of a newer trend toward mass incarceration in the United States more broadly (Beckett 1997; Harcourt 2011).78 The reforms were designed as part of a larger project to reinvigorate American sovereignty and shake free of the palpable sense of economic and political crisis that had taken hold during the previous decade (Ferguson 2010), a task that would be accomplished by radically disjoining the territorial, judicial, and policing dimensions of the immigration border then in existence. This disjuncture gambit had three major effects: it transformed the terrain of border enforcement by ripping the border apart, inflicted the cost of Mariel not on the Cubans but on the Haitians, and provoked a seminal institutional schismogenesis (Bateson 1978, 68) as a reaction to the growing power of the Haitian rights movement.79 Let me begin with the disjuncture gambit—an intentional rending of judicial and policing borders—that lay at the core of the new interdiction policy. As shown in figure 2.1, the triple-­layering of US territorial, judicial, and policing boundaries during the 1970s had been a conjoined layering: each border aligned with the other. Migrant interdiction, which effectively began in October 1981, unsettled this framework by extending the policing border out beyond the territorial and judicial borders and onto the seascapes of the greater Caribbean. As indicated in the lower plane of figure 2.2, offshore interdiction presented an entirely new imaginary of immigration policing power, one that now stretched out across vast maritime expanses. The goal, however, was not, as it had been in the past, to extend an advance warning system farther from shore so that land-­based officials would be ready when a Haitian vessel arrived. Instead, the intent was to transport the immigration border itself out onto the sea and beyond the reach of the scrutiny of courts and lawyers, who remained, for the moment at least, bound by formal territorial conceptualizations of jurisdiction. By disjoining judicial and policing boundaries, the administration had remade the terrain on which the battles over the broader Haitian struggle would be fought, opening a new space of sovereign flexibility that both replicated and enhanced older models of border exceptionalism. Although administration officials were not keen on broadcasting the law-­

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MIAMI, FL

TERRITO

RIAL

JUDICIA

L

POLIC

ING

TERRITORIAL BORDER JUDICIAL BORDER POLICING BORDER

Cayman Islands and Territorial Waters Cuba and Territorial Waters Jamaica and Territorial Waters The Bahamas and Territorial Waters Haiti Turks and Caicos and Territorial Waters Dominican Republic and Territorial Waters

2 . 2  The three planes of border space and their misalignment circa October 1981. The expansion of border policing onto the high seas and into the territorial waters of Haiti are represented in the lowest plane. In this early phase of disjuncture, the territorial waters of the Bahamas and Turks and Caicos were not yet open to US maritime policing.

evading dimensions of the new program, planning documents drafted by President Reagan’s Task Force on Immigration and Refugee Policy reveal that the decision to fashion a new sea border was an attempt to get out from under the siege litigation that had completely incapacitated the INS throughout the previous decade (Zucker 1983). The task force viewed both the litigation and

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the entire exclusion processing framework as it existed after the Castillo compromise of the late 1970s not as valuable checks on government excess but as barriers to rapid processing of Haitian claims (Zucker 1983).80 One task force paper explicitly listed the circumvention of administrative and judicial review systems as one of the benefits of going offshore (Zucker 1983, 157). Furthermore, these new forms of immigration policing would apply almost exclusively to Haitians: the nonexistence of diplomatic relations with Cuba meant that Cubans could not be interdicted and returned, and perhaps more importantly, there seems to have been a transference of the fears about future Cuban exoduses to their Haitian neighbors, whom the State and Justice Departments targeted with a “single-­minded focus” entirely out of proportion to their numbers (Zucker and Zucker 1996, 34).81 The disjuncture gambit was a spatializing technique designed to facilitate the evasion of the tremendous force that the Haitians had brought down on the INS through their litigation and advocacy campaigns and to create a new screening regime in which few impediments to across-­the-­board repatriations existed. The birth of the maritime border as a responsive counterpoint to the strength of the Haitian activists was also accompanied by further institutional experimentation with the creation of a platoon of bellicose government attorneys who were meant to match what the INS would later call the Haitians’ “extraordinary litigative staying power.”82 The new post-­Mariel political climate and the devastating loss in the Southern District of Florida over the legality of the Haitian Program drove the DOJ to adopt its own “aggressive” approach meant to mimic the ferocity, creativity, and agility of the Haitians’ lawyers.83 Rudy Giuliani, then associate attorney general in the Reagan Justice Department, pioneered this early “task force” method, which was first deployed against the Haitian Refugee Center’s attacks on the mass detention of Haitians that began in 1980 and 1981.84 Later these task forces evolved into the DOJ’s Office of Immigration Litigation, or OIL, which would develop a reputation for its zealous and unflinching defense of the INS’s more egregious programs over the years to come (Taylor 2002, 295n132).85 The Haitians’ crippling legal attacks had thus produced not only a new terrain but also a new type of agency in the play of forces I have been tracking, one specifically created to turn back the tide in the fight for control of the rapidly shifting immigration border. The Haitian movement, however, had continued to transform itself as well, strengthening and diversifying its institutional structures. On the one hand, the CCSA leadership had grown weary of what they perceived to be Jean-­ Juste’s rabble-­rousing and removed him from the directorship of the Haitian

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Refugee Center in 1980. This, in turn, allowed Jean-­Juste and the more militant members of the movement to establish a Haitian-­controlled center of the same name that was free to pursue political organizing and litigation campaigns without the interference of the more moderate and service-­oriented CCSA.86 Jean-­Juste, described to me by one of his colleagues as “always at the front of the demonstration,” would become the public face of the new Haitian Refugee Center and the Haitian democratic movement in South Florida with backing from the more radical Haitians and litigators alike. His pugnacious temperament and charisma allowed him to both provoke and mobilize in equal measure and to facilitate the transition that kept the funds flowing from the NCC, which took its cue from its longer-­standing partners on the ground, including Gollobin, Kurzban, and Sue Sullivan, among others, who threw their weight behind Jean-­Juste and the independent center.87 While the interdiction program was gearing up, the emboldened Haitian Refugee Center and its growing roster of ambitious young attorneys clashed with the INS’s new task force over the administration’s detention program and the return to the processing methods of the Haitian Program, which had been revived in the months after Reagan’s inauguration (Helton 1984/1985; Stotsky 2004, 158–59). The tenacity with which the administration recycled these older methods, including mass exclusion hearings and efforts to prevent detainees from retaining counsel (Stotsky 2004, 158–59), signaled the INS’s desire to return to a juridical terrain in which the framework of exclusion had given the agency’s bureaucrats nearly unbridled discretion to “keep things rolling,” the euphemism used in the late 1970s by Associate Commissioner of Enforcement Sava to indicate a full commitment to perfunctory adjudications followed by rapid expulsion.88 It was as if the INS brass believed that matching the doggedness of the movement attorneys would allow them to regain control over their deportation and exclusion programs on firm land as well as at sea and turn back the clock to an earlier moment of border exceptionalism.89 As both sides found themselves locked in battle over the administration’s new policies, the contest became one of relative network mobility—the capacity to exert power through institutional circuits across wide spaces—and, as before, the ability to access or block the violent injunctive power of judicial sovereignty. The detention of close to two thousand Haitians throughout an emerging archipelago of military installations and federal prisons from Big Springs, Texas, to Fort Allen, Puerto Rico (Gerdes 1996), developed as a formalization and refinement of prior and more sporadic Haitian detention policies and a tool for exerting pressure on both the detainees and their

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lawyers, now forced to represent clients scattered across thousands of miles. This capacity to call into action a national institutional landscape of “carceral mobility” (Li 2015, 158) was a further escalation of the conflict that was met, in part, by a similar spatial extension of the Haitians’ own networks to match this expanding constellation of prisons and camps.90 Scaling up of this sort was accomplished through the creation of an ambitious and unprecedented network of thousands of pro bono attorneys from Puerto Rico to California (Helton 1984/1985). Once again, the willingness of the militant core of the movement in Miami to collaborate with better-­funded, establishment institutions—in this case, the New York law firm Fried Frank, the American Bar Association, and the American Immigration Lawyers’ Association, among others (Helton 1984/1985)—meant that it could more effectively emulate the dispersion tactics of the INS by extending itself under the guise of other institutional skins across the landscape.91 The increasing attention interdiction and detention had drawn to the Haitian issue also spurred groups in New York to create a truly national Haitian advocacy and investigatory organization as well. It began as an interfaith committee, bringing together Haitian religious leaders like Fr. Guy Sansaricq, a future auxiliary bishop of Brooklyn, and the Haitian Fathers, as well as Gollobin, and Anthony Bevilacqua, the then auxiliary bishop of Brooklyn, among others.92 By the spring of 1982, the interfaith committee had become a secular coalition with a membership list that would soon include various human rights and civil liberties groups (including the ACLU, Freedom House, and Americas Watch), religious organizations and partnerships (such as Lutheran Immigration and Refugee Service, the NCC, and the US Catholic Conference), Haitian community organizations (for example, Charlemagne Peralte Haitian Center and Haitian Neighborhood Service Center Inc.), and various unions (among them International Ladies Garment Workers Union and AFL-­ CIO).93 The organization, later dubbed the National Coalition for Haitian Refugees, remained connected with Gollobin, the Haitian Fathers, and the Haitian Refugee Center but settled into a more moderate role in the fights to come, operating as a hybrid human rights investigatory body, special interest association, and sometime sponsor of litigation campaigns. The growing organizational power and mutual escalation of these contests transformed them from what once might have been regarded as an impossibly asymmetric siege to a total war careening outward in all directions and leaving not only destroyed lives and the wreckage of stalled policies in its wake but also a host of new institutions. In the end, the litigation campaign based out of the Haitian Refugee Center succeeded in securing the release of the Haitians

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but not the dismantling of the detention regime itself, which would continue to metastasize into the sprawling carceral archipelago it is today (cf. Dow 2004).94 While these fights over domestic detention and the lives of the new wave of Haitian arrivals played out in the courts, the media, and the streets, the Coast Guard and INS were honing their interdiction- and extraterritorial-­ processing techniques, largely sealing off the maritime corridors that had been open to Haitian seafarers during the previous decade. The interdiction program was officially launched as a ninety-­day trial operation with a single high-­endurance cutter; short-­range, ship-­based recovery helicopters; and a C-­130 surveillance aircraft.95 Initially, the goal was to interdict “a substantial enough fraction of the boats . . . to visibly act as a deterrent to other illegal migrants” without expending the resources necessary to create an actual blockade.96 Patrols focused on the Windward Passage “choke point” between Cuba and Haiti, though the Hamilton, one of the first interdiction cutters, often remained close to or within Haiti’s territorial waters, pushing this newly conceived maritime border to Haiti’s doorstep.97 To render this extension of US power visible, both governments would publicize interdictions to maximize the deterrent effect and to avoid the expenditures necessary for a full-­fledged “quarantine.”98 By February 1982, the Coast Guard estimated that Haitian interdiction patrols had achieved 100 percent policing coverage in the Windward Passage, and by 1984, all cutters patrolling waters off South Florida were tasked with interdiction duties, which, the INS estimated, were 95 percent effective in intercepting Haitian vessels.99 This was a far cry from the open sea lanes of years past. Within this liquid borderland, the INS had re-­created the conditions of possibility for the freedom it had lost in the battles of the 1970s. The screeners deployed on the cutters exercised a discretion entirely insulated from judicial interference and, from 1981 through 1989, wielded that authority to parole only 6 out of the 21,461 Haitians captured at sea.100 This was all the more striking given that the interdiction officers were supposed to be applying a very low-­threshold standard to determine if the Haitians exhibited any refugee characteristics, one that was described by a screening official as the mere “possibility . . . that a person may have a fear of persecution.”101 Nonetheless, according to one former INS official I interviewed, the screenings were very off the cuff, [the officers] didn’t read country conditions, they really didn’t know much about the law, even the definition really of refugees, and they weren’t really taking very good notes before they were making their decisions, and their decisions were always really quite popular because the framework

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of INS was very enforcement-­minded, anti this kind of migrant coming in the back door. So when [the interdiction officers] came and said we can’t find anybody [who deserved asylum] . . . that, that all resonated very well with people in INS, and so they were happy.

The near uniform commitment to denials during a period punctuated by intensive political violence in Haiti, as discussed in the previous chapter, was unsettling even to those aware of the history that produced this new landscape. And so a decade that opened on a terrain modestly but consequentially altered by Haitian siege litigation ended with a second transformation— the turn to offshore migration policing—firmly in place. The new sea-­based regime was essentially a spatial backlash that had dramatically remade the waters of the greater Caribbean into an extraterritorial American border space, a new mare clausum, at least for the Haitians who traversed it and the Coast Guard vessels that tracked them (more on this in chapter 6). In this sense, the shift in the terrain was the outcome of an escalating and agonistic mobilization of legal violence. The fact of the backlash that was part of this dialectic is, however, less remarkable than the form it took—in this instance, a radical reconfiguration not only of the relevant sites in the geography of American border management but, more importantly, of the official juridical formations behind a new spatiality of American policing power. The disjuncture gambit at the core of this novel experiment was paying off in the short term, but it still remained to be seen whether the precarious legal scaffolding that undergirded the rending of the policing border from its territorial and judicial counterparts would hold. What was certain, however, was that battle-­ tested litigators on all sides now stood ready to grapple once again over the spatial politics of this new border exceptionalism.

Routinizing Disjuncture If the transition from the 1970s to the 1980s could be characterized as a closure of oceanic spaces in the name of border control, the transition from the 1980s to the 1990s could be depicted as a judicial benediction of offshore migration policing and a move toward an arrogation of near limitless sovereign discretion beyond the territorial seas. In the run-­up to the launch of interdiction, the Office of Legal Counsel had opined that the UN Protocol imposed a nonrefoulement obligation on the INS, preventing its agents from repatriating Haitians with legitimate claims of persecution.102 Faced with a massive exodus

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from Haiti ten years later, however, a deputy assistant attorney general in the Department of Justice’s Civil Division offered a very different vision of the INS’s legal obligations, declaring in federal district court that “the judiciary has no role in [asylum screening at Guantánamo, where thousands of Haitians were being held,] because, in effect, the Haitians who are outside the United States, have no judicially enforceable claims in our courts.” Incredulous, the judge presiding over the hearing queried whether the Haitians at Guantánamo, a site “controlled by the United States Government, which is [itself ] a creature of the Constitution,” had no “constitutional protection at all?” The deputy attorney general’s answer was very matter-­of-­fact: because Guantánamo was not US territory, and there was “no serious argument” that it was, the Haitians held there had “no judicially cognizable or enforceable rights in the United States Courts.”103 This was the clearest articulation up until that moment of the complete caesura between judicial and policing borders and the ultimate concentration of power it enabled. How did the terrain shift to encompass offshore detention at Guantánamo and to favor such an extreme assertion of executive sovereignty? Once again, the infliction of legal violence through the medium of judicial injunctions had triggered a transformative and reactive, space-­making dialectic. In this concluding section, I will look at how this dynamic unfolded in the culminating battles of what I have been treating as the long war over the US-­Haiti immigration border. In a sense, this is a return to the beginning in that it was INS Deputy Commissioner Noto’s late 1970s vision of a “Guantánamo model” that eventually emerged as a new orienting framework within the offshore maritime border. The development of a formally instituted Guantánamo paradigm out of what became perhaps the most intense litigation confrontations of the long struggle finally offered, along with maritime interdiction, a return to the sovereign freedom the INS had been seeking since the initial litigation salvos were launched in the early Haitian rights campaign. By embracing the flexibility that Guantánamo ostensibly offered, the INS was circling back to the exceptionalism it imagined as both its end and its true beginning. As described in the previous chapter, following the ouster of President Jean-­Bertrand Aristide in late September 1991, Haiti’s military unleashed a reign of terror throughout the country. Within weeks of the coup, the boat exodus commenced. The first group came ashore on Islamorada in the Florida Keys, and its passengers were quickly transferred to the Krome detention center on the outskirts of Miami. The vast majority of those who followed, however, ended up detained on the decks of Coast Guard cutters in the Windward Passage, and, later, in camps at Guantánamo Bay.104 Surprisingly, the INS did

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not continue its policy of prompt repatriations after cursory screenings, but neither did the agency show any interest in bringing the interdicted Haitians to the United States. Instead, they settled on a new regime of oceanic carcerality—a system of mobile, sea-­based detention—that transformed the cutters into floating camps while diplomats sought to identify potential third-­country processing sites throughout the wider region.105 Anticipating the precariousness of the cutter detention policy, the Department of Defense set up a joint task force at Guantánamo in order to provide, among other things, shelter for the Haitians who, for various reasons, could not be kept at sea.106 By late November, the situation had grown volatile. Close to two thousand Haitians were crammed onto the decks of the cutters, some on patrol and others docked at Guantánamo along with an LSD-­38 (amphibious landing ship dock), which was also being used for detention purposes.107 Interdiction rates continued to mount, but the State Department was unsuccessful in finding a third-­country processing solution. On November 17, the administration returned to the precoup repatriation policy, and the Coast Guard cutter Confidence left Guantánamo with more than two hundred “screened-­out” Haitians. The following day, the State Department formally announced that repatriations would resume, and the Confidence disembarked its Haitian detainees on the docks of Port-­au-­Prince during the late afternoon.108 The Haitian Refugee Center, the National Coalition for Haitian Refugees (NCHR), and close affiliates of the movement, like the Lawyers Committee for International Human Rights, had long set their sights on interdiction and the sham that was the screening process aboard the cutters. Arthur Helton, one of the architects of the national pro bono program described earlier and a lawyer with the committee, had brought a lawsuit on behalf of the Haitian Refugee Center in the mid-­1980s, challenging the legality of interdiction only to have the case dismissed on a technical issue of standing.109 The committee later followed up with a devastating investigative report on the impossibly low “screen-­in” rates, spurring the INS to institute a series of modest and largely inconsequential reforms in 1990.110 It was the resumption of postcoup repatriations, however, that would throw this particular terrain of border exceptionalism into question and, in the crucible of the legal battles that ensued, transform it into something more durable and transparently imperial by reorienting it around the juridically amorphous but physically solid space of Guantánamo. Anticipating the State Department’s announcement that repatriations would resume, the Haitian Refugee Center attorneys immediately sought a judicial order to restrain the Coast Guard from transporting their Haitian de-

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tainees to Port-­au-­Prince. A judge in the Southern District of Florida issued the order the same day as the announcement and set in motion a series of agonistic maneuvers that would throw the border terrain and its disjunctures into flux.111 The restraining order placed the cutters and the INS agents they carried under the supervision of the judiciary. In an instant, an entirely different jurisdictional cartography from the one the previous administrations had worked so hard to construct over the previous decade took shape. The purposeful misalignment between judicial and policing borders had, with the stroke of a judge’s pen, been replaced by a different map, one in which the court’s power extended out onto the high seas, enveloping the Coast Guard vessels cruising the waters off Haiti and docked in Guantánamo Bay (see figure 2.3). By provoking the tentacular extension of judicial power onto the oceans and over the Coast Guard vessels, Kurzban and the other Haitian Refugee Center attorneys had begun the process of refashioning the border landscape into an aligned landscape—however contorted this new alignment might have been—just as they had done in the late 1970s with their attack on the fictional contortions of “exclusion.” Of course, this was a deeply provisional exertion on the part of the district court, one that would be undone and redone repeatedly under the grueling pace of a litigation campaign at the center of an international crisis. Here is a taste of this making and unmaking: the district court converted the temporary restraining order mentioned above into a preliminary injunction, which the court of appeals dissolved at the request of the government; the district court then followed with a second temporary restraining order, which the court of appeals also dissolved; the district court subsequently issued another preliminary injunction, which the court of appeals stayed once again, only to have the district court issue yet one more injunctive order holding the cutters at bay.112 With each injunction, the judicial border pushed outward, and with every stay, it retreated, settling back into disjuncture. In little more than a single month, the border terrain was remade no less than seven times, and, despite the constant juridical refashioning of these land- and seascapes, one order or another remained in place for nearly a month and a half, ensnaring the cutters in law and preventing them from disembarking any Haitians in Port-­au-­Prince.113 With repatriations stalled, the cutters quickly transformed into severely overcrowded floating prisons. Suddenly, Noto’s suggestion of processing at Guantánamo from more than a decade prior offered a solution. By transferring the Haitians to the base, where many of the cutters were already docked, the INS could keep the Haitians confined offshore without having to sacrifice

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MIAMI, FL

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Cayman Islands and Territorial Waters Cuba and Territorial Waters Jamaica and Territorial Waters The Bahamas Haiti Turks and Caicos Dominican Republic and Territorial Waters

2 . 3  The three planes of disjointed border space with overlap between tendrils of judicial power and the expanded policing power of maritime interdiction. Note that the policing borders have extended to include the territorial waters of the Bahamas and Turks and Caicos pursuant to bilateral agreements.

the freedom from judicial constraint it had achieved by operating at sea.114 Within three days of the first restraining order, Haitians were being taken to Camp Bulkeley on the remote eastern corner of the naval station to be housed in permanent shelters and tents (Reynolds 2003, 5).115 Bulkeley, however, was small, and within a week, Seabees were constructing a vast tent city

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2 . 4  An aerial view of the Haitian camps at McCalla Airfield, US Naval Station, Guantánamo Bay, March 10, 1992. Department of the Navy, Naval Imaging Command. Courtesy of National Archives, Washington, DC.

on the abandoned McCalla airfields to handle the nearly five thousand other Haitians who were being brought ashore from the cutters (8).116 The turn to Guantánamo signaled the rise of a new feature of the interstitial terrain of disjuncture, one that was both the original but unrealized model for the experimental border manipulations of the previous decade and a product of its evolving dynamics. While Guantánamo was taking shape as both the land-­based infrastructural core of the offshore border regime in the Caribbean and a new satellite of the domestic immigration prison archipelago, the litigation battle over the legality of the screening procedures in use aboard the cutters rushed toward its conclusion. The movement litigators’ success before the district court had temporarily shut down a large-­scale international policing operation and forced the US government to create an enormous detention center on one of its “foreign” military bases.117 This was a stunning use of judicial power in an arena where, as I will discuss further in chapters 4 and 5, judges normally yield

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ground to the president with little resistance (Koh 1990). The George H. W. Bush administration, however, took this perceived intrusion into its executive prerogative seriously and conveyed the urgency of its position to the courts by sending then solicitor general, Kenneth W. Starr, to argue motions in the district court and the Eleventh Circuit, a rarity given that solicitors general normally only appear before the highest court in the land and then often only in the most pressing cases.118 Starr sought to cow the judges with his presence and with declarations from senior State and Defense Department officials warning that the district court’s meddling was hampering a negotiated resolution to the crisis in Haiti and complicating US relations with Cuba, Honduras, Jamaica, and the Bahamas.119 Other scare tactics included unsubstantiated claims that close to twenty thousand Haitians were “massing” along the coast of Haiti, poised to take to the sea at any moment.120 Starr’s intimidation tactics appear to have worked: the Supreme Court eventually stayed the district court’s injunction while various expedited appeals were still pending before the Eleventh Circuit; the Eleventh Circuit followed with a ruling against the Haitians; and the Supreme Court declined to review the decision, leaving the Eleventh Circuit’s denial in place and signaling that a majority of justices were happy to let the INS proceed unburdened by further injunctions from the lower courts.121 Repatriations began again in earnest, and the INS settled back into the disjointed border world it had so carefully created, one that had now been sanctified by the tacit approval of eight of the nine robed oracles (cf. Grey 1984, 22) of the Supreme Court.122 The strands of judicial authority that had briefly reached out onto the seas to envelop cutters and the naval station itself receded, leaving vast stretches of “liberated” American policing power in its wake (see figure 2.5). By February 2, 1992, more than 11,000 Haitians were detained at Guantánamo and close to 1,000 on Coast Guard cutters.123 To put this in perspective, the incarcerated population of the new maritime border was nearly twice that of the INS’s domestic detention capacity at the time.124 In order to shore up the interdiction efforts that made this offshore prison regime possible, the Bush administration deployed one high-­endurance cutter, nine medium-­endurance cutters, one oceangoing buoy tender, seven patrol boats, four HH-­65 helicopters, two HC-­130 long-­range search aircraft, and one HH-­3F long-­range recovery helicopter to the waters around Haiti, and to run the camps where these interdicted Haitians would be held, the administration deployed 46 Marine Corps officers, 549 enlisted marines, and approximately 400 members of other branches of the military.125 Guantánamo had become the largest

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MIAMI, FL

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POLIC

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TERRITORIAL BORDER JUDICIAL BORDER POLICING BORDER

Cayman Islands and Territorial Waters Cuba and Territorial Waters Jamaica and Territorial Waters The Bahamas Haiti Turks and Caicos Dominican Republic and Territorial Waters

2 . 5  Routinized border disjuncture circa 1995. Note the absence of judicial overlap with policing power and the extension of policing power across the Caribbean.

immigration detention site operated by the United States government anywhere in the world—at home and abroad—and the sea routes between Haiti and South Florida had become the most militarized in the Americas. In many ways this last battle was the beginning of the end of the long war of Haitian exclusion. The Haitians and their seasoned litigators had reshaped the legal geography of the border for a brief moment, only to see its exceptional and disjointed architecture reemerge as the restraining orders and in-

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junctions were swept aside by appellate courts guided by the vigorous efforts of an equally seasoned cadre of government attorneys. In the run-­up to this latest conflict, the juridical conditions of possibility for interdiction had been largely crafted on a scaffolding of executive orders, proclamations, and memoranda, the intricacies of which I will explore further in chapter 4. By February 1992, however, the border regime had begun to take root in something far more substantial: an appellate court endorsement of interdiction’s legitimacy that amounted to a self-­circumscribing exercise of judicial power. This, coupled with the echoing silence of the Supreme Court’s refusal to intervene, was momentous. The dialectic we have been observing had reached a culminating phase, propelled forward, though not inevitably, through a cyclical back-­and-­forth that now appeared destined to settle into a new, more complete, formal disjuncture than had existed over the prior years of legal c­ onflict. Surprisingly, the final attempt to dismantle interdiction came not from the Haitian Refugee Center and the long-­involved movement litigators like Kurzban and Gollobin but from a group of Yale law professors and their students in the school’s progressive legal clinics.126 Because of the infrastructural attributes of Guantánamo as a physical site, detention of Haitians there, as opposed to aboard the cutters, had made it possible to test “screened-­in” asylum seekers for HIV before they were transported to the United States. This decision to medically examine the Haitians and the techniques employed for managing those who tested positive were deeply embedded in longer histories of Haitian racialized and medicalized stigmatization, not to mention the heated political climate surrounding HIV/AIDS at the time, both of which I will be exploring in depth in the following chapter. The tests were significant in that they opened the door to the creation of an HIV quarantine camp at Guantánamo, an alternative asylum processing track for its inmates, and, by extension, an opening for another lawsuit challenging the legality of such a framework. In consultation with the Haitian Refugee Center attorneys, with whom the Yale professors and students had worked on prior cases, the Yale team—headed by Harold Koh, a Yale Law School professor at the time; Lucas Guttentag, the founding director of the ACLU’s Immigrants’ Rights Project; and Michael Ratner, an attorney with the Center for Constitutional Rights— hauled the Bush administration back into court, this time in the Eastern District of New York, not far from Flatbush, the heart of Brooklyn’s Haitian community. It was not the original filings attacking the HIV camp that would have a lasting effect on the border landscape, however, but rather an offshoot that arose after President Bush suspended asylum screening altogether, exercising

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the most breathtaking assertion of supreme executive authority over the maritime border thus far.127 Vacationing at his Kennebunkport home over the 1992 Memorial Day weekend, President Bush issued Executive Order 12807, which ended “asylum prescreening,” as it was called, on the cutters and at Guantánamo and disclaimed any legal obligations to sort refugees from “economic migrants” before sending them back to the docks of Port-­au-­Prince and the Haitian military that awaited them there. All would be returned no matter the danger they faced. The Yale attorneys, already in court over the legality of the screening procedures in the HIV camp and working closely with the NCHR, challenged the “Kennebunkport Order,” as they dubbed it, seeking, much like the Haitian Refugee Center attorneys before them, an injunction halting the new policy.128 In a recapitulation of the litigation of several months prior, a series of restraining orders and stays projected judicial power out onto the sea, unmaking and remaking the contours of disjuncture until the Supreme Court dealt the movement its most devastating blow, holding that the requirements of the UN Protocol and US immigration statutes did not apply to “aliens on the high seas.”129 With this, the once juridically precarious disjuncture gambit metamorphosed into the virtually unassailable legal infrastructure of a border regime characterized by a sovereign freedom both routinized and exceptional. This new border was not, however, entirely stable. Guantánamo, a mix of firm land and estuarial waters that mirrored, legally speaking, some of the jurisdictionally anomalous features of its larger aqueous surrounds, was a throwback to an era of American formal empire and, in its embryonic 1990s form, an incipient node in a global carceral regime not yet conceived.130 While the Yale clinics did secure rulings that the base was effectively US territory and therefore subject to the jurisdiction of US courts, these decisions were later vacated pursuant to a settlement stipulation and a post-­litigation ruling by the Supreme Court (Goldstein 2005; Koh and Wishnie 2008). Although the suit had led to the closure of the Guantánamo HIV camp and the resettlement of its detainees in the United States, as a legal matter the case left unanswered the question of where exactly Guantánamo was (Kaplan 2005) in the regnant jurisdictional cartographies of the time. In June 1994, President Clinton, making good on a long overdue campaign promise to rescind Bush’s Kennebunkport order, assembled a joint military force in anticipation of a return to the policy of asylum prescreening at sea. This time, however, the Haitians would be held and processed aboard

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the USNS Comfort, a naval tanker previously converted into a hospital ship, and the Gruziya, a leased Ukrainian cruise ship, both of which would be anchored off Kingston, Jamaica (Reynolds 2003, 25).131 INS teams processed hundreds of Haitians in this new variation of oceanic carcerality, which, like its forebears, was designed to avoid the kinds of legal entanglements that were still possible at the then-­empty Guantánamo migrant camps. As interdictions increased and the two vessels became overcrowded, however, the administration was forced to reopen the base to refugee processing and detention once again, using it as a “Safe Haven” during the remainder of the crisis in Haiti (Reynolds 2003, 29). With the shift back to Guantánamo, the INS once again stopped screening Haitians for refugee characteristics, and as a deterrent to future outflows, the Haitians would remain detained at Guantánamo, or, when possible, would be transferred to third countries for resettlement. Almost none would be brought to the United States. While the violence continued in Haiti, the tent cities of Guantánamo arose once more, although this time, the Haitians would not be alone in their offshore prison; Cubans would soon join them in the confines of the base’s barbed-­wire encampments. In August 1994, Fidel Castro authorized boat departures from Cuba as he had done during the Mariel crisis of the previous decade.132 Soon, wave after wave of “rafters” would take to the sea in an attempt to reach the United States. Thousands were interdicted and brought to Guantánamo, where they were housed in their own camps, separate from the Haitians (Campisi 2008). The Yale litigation team entered the fray once again, joining up with Miami-­based attorneys from the Cuban American Bar Association to gain access to the Cubans and lodge a second challenge to the extrajurisdictional status of the naval station (Koh and Wishnie 2008, 417). The litigators from earlier battles in the Haitian rights movement, including attorneys from the Haitian Refugee Center, led yet again by Ira Kurzban, intervened in the lawsuit as well, seeking access to their detained Haitian clients at Guantánamo.133 Despite early successes in the district court, the litigation ultimately led to another disappointing and, at this point, predictable loss in the court of appeals that bolstered the disjointed architecture of the new immigration border. The decision of the Eleventh Circuit, the same court that had dealt the first death blows to the Haitians’ challenge to interdiction, hinged on a particular cosmology of sovereignty and jurisdiction, separately conceived, which, much like the rupture underlying interdiction’s rending of the spatiality of policing and judicial power, produced Guantánamo as a place apart.

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The power of the US military at the base had long rested, formally speaking, on a lease that discursively pulled “jurisdiction and control” and “ultimate sovereignty” asunder, vesting the former in the US military and the latter in Cuba.134 The court, however, “did not agree that ‘control and jurisdiction’ [wa]s equivalent to sovereignty” and so marked Guantánamo as an external space within a geography of the “domestic” and the “foreign,” a juridically salient distinction on which the decision itself would turn.135 This intentional crafting of jurisdictional liminality was neither fully new nor merely duplicative of earlier imperial formations. As I will show in chapter 5, it built on and reconfigured older concepts of “the insular” empire, the “vast external realm,” and the American jurisprudence of sovereignty with which these spatial imaginaries were entangled. Although the Supreme Court would later revisit and reimagine the question of the base’s location in wider jurisdictional cartographies in the post-­9/11 moment (see, e.g., Mashaw 2009), its juridical exteriorization had, in the meantime, foreclosed judicial review in the context of asylum seeker incarceration at Guantánamo Bay and remains the final word on this issue from the federal courts. In the end, the violence unleashed by the long war culminated in a tumultuous flourish followed by rapid ossification. The staccato fluctuations in the spatial relations of policing and judicial borders that accompanied the iterative agonistic collisions of adversaries in the courts settled into a degree of rigidity, at least with regard to the circumscription of the kinds of institutional power that could determine its shape. In the new border world, agency bureaucrats might determine the degree and the extent of power projection, but the boundaries keeping judges or those who sought their intervention out of these fields of action had become firm, etched into legal texts imbued with their own latent force. Moreover, the geographical limits of this policing power continued to expand. What had begun in the 1970s as a landlocked cosmology of American policing power (see figure 2.1) had, by the 1990s, evolved into an expansive maritime security regime that eventually blanketed much of the Caribbean (see figure 2.5). The pressures that the Haitian struggle had thrown on the sentries of sovereign gatekeeping had produced this florid jurisdictional landscape, driving experimentation and darkly creative manipulations of legal space in the search for a lost Lockean prerogative.136 This was not a mechanical dialectic pulled ineluctably toward its inner telos but a contingent, though structured, escalating dynamic that would end with a recapitulation of the lost freedom of the 1970s (and its instantiation in the ad hoc Guantánamo screenings of that decade) envisioned as its beginning.

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Conclusion This narrative provides both the substantive material and some of the overarching analytic frames that will orient us in the pages that follow. The goal has been to trace out the powerful border-­bending dialectic of constraint and flexibility that unfolded over decades, remaking the spatiality of the American nation-­state in the process. I will return to the intricate specificities of its architectures and the micropractices through which it was assembled as I proceed. The scale of the long war, however, reveals the sedimentations and ruptures that would otherwise be eclipsed through a methodological fetishization of the proximate encounter or a more modest temporal bounding of my analytic object. Here, however, with this ranging account, one can discern the punctuated evolution of the proliferating (Mezzadra and Neilson 2013) and thickening (Andreas 2003) borders that surround us. It also allows me to begin the work of sketching out the juridical cosmologies of liberal legalism, not as naturalized and unchanging, but as formations produced out of a complex and unexpected cauldron of political energy and violence. And now, a bit more history.

Chapter 3

Contagion and the Sovereign Body “Jacmel was the outlying symptom; Port-­au-­Prince was the central ulcer.” Ja m e s A n t h o n y F ro u d e

With the above statement, James Anthony Froude (1888)—the English travel writer, imperial apologist, and famed Thomas Carlyle biographer—presented Haiti to his nineteenth-­century audience as an ulcerated body, two of its main cities the visible sequelae of a deep-­seated pathology (342). While traveling along Haiti’s coasts in 1886 as part of a larger tour of the Caribbean, Froude noted that, from a distance, the gardens of Jacmel and Port-­au-­Prince gave an impression of “graceful civilisation” (341). However, once one set foot on Haitian soil, one could see the “pestilential squalor” behind the “tawdry” (343) veneer of European refinement. The “rags of the gold lace of French civilisation” remained, Froude remarked, but an African “heart” still beat visibly beneath the tatters (183). Froude used the uncanny play of surface and interior, evident in the metaphor of the “ulcer” (the skin cracked to reveal the underlying rot) and the “gold lace” (the gilded ornamentation belying an African savagery), to great effect. For him, they revealed a rampant decay in the Haitian republic brought about by its tragic but instructive experiment in “negro self-­government” (345), the failure of which was on display in the literal deterioration of Haiti’s citizens, “the most repulsive” he had seen “in the world,” and its cities, “the foulest, nastiest, and dirtiest of human habitations” (188). What hope was there for Haiti? In Froude’s mind, the only appropriate remedy was imperial intervention, which, he acknowledged, would most likely come in the form of an invasion by Haiti’s neighbor to the north, the United States. On a July afternoon in 1915, three decades after Froude called for the “Yankees” to take up the burden of governing Haiti, a force of American blue

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jackets and marines landed in Port-­au-­Prince, launching what was to become a nineteen-­year occupation of the country. Ten years later, C. S. Butler, a US Navy medical officer and administrator in the Haitian Service Nationale d’Hygiène Publique (Service d’Hygiène or Service), repeated Froude’s grotesque imagery before a group of Haitian staff members of the Department of Agriculture in Port-­au-­Prince. Quoting the by then deceased Englishman’s talk of “symptoms” and “ulcers” verbatim, Butler presented Haiti as a suffering body, its cities festering like so many wounds on the landscape (Butler 1926, 272–73). Apparently, Butler had found Froude’s “enfleshment” (Povinelli 2006, 46) of Haitian geography evocative, although one might imagine that the assembled Haitian bureaucrats found it less appealing—yet another instance in a lengthy catalog of racist slights inflicted by the American officers of the occupying force. His invocation of Froude, however, was more than prejudicial claptrap; it publicly anchored the twentieth-­century mission of the American-­run Service d’Hygiène and its concern with creating more healthy and therefore more productive Haitian laborers in a nineteenth-­century vision of Haiti as a rotting body and, by extension, a “rott[ing] world” (Povinelli 2006, 27). Bodies have, of course, long been “good to think” with (Lévi-­Strauss 1962, 89) in instances where the idea of a nation or people is concerned and vice versa, as the enduring trope of the “body politic” or the “body social” and its instantiation here confirm (Bashford 2004, 4; Douglas 1996; E. Martin 1990; 1994; Poovey 1995). The state, the other bookend in that hyphenated composite the nation-­state, has its place in these metaphors as well, in which imaginaries of purity and health join with images of sovereign power’s institutional forms to mark out and police the boundaries of normative publics (Bashford 2004, 4; Wald 2008, 26), just as, for example, the immune system’s “soldier” cells have been imagined to protect the body from “invading” organisms (E. Martin 1994; 1990, 412–414). Westphalian-­sovereignty-­like modernist forms of biomedical subjectivity valorize, in their ideal-­typical manifestations, the norm of closely regulated exteriors—the skin sealed off from foreign pathogens (E. Martin 1990) and the border that impedes the entry of unwanted “aliens.” As certain types of Haitians—the urban and rural poor—demonstrated an increasing mobility starting in the 1970s, journalistic and governmental messaging often framed their arrival in the United States in terms of destabilizing contagion—a penetration of the sovereign body of the nation. In the hundred years since Froude walked the boulevards of Port-­au-­Prince, the

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ontologies and economies through which disease was conceptualized and managed in the West underwent radical transformations, but permutations of a narrative of Haitian pathology persisted such that it was among the dominant idioms through which many Americans engaged with the perceived crisis of Haitian migration in the late twentieth century and the erosion of American sovereignty it signified. In this chapter, I place the intimate relationship of the United States and Haiti within the long historical arc of geographic thinking that has become so central to the interconnected governance projects of biomedical modernity and sovereign territoriality. My goal is to foray into hitherto unexplored histories of an American fascination with Haitian pathology—for instance, its manifestation in the intensity of US medicalized policing of Haitian cities during the occupation—while connecting such episodes to a more generalized set of concerns with and reactions to the threat of contagious, mobile subjects, all the while developing a conceptual framework with which to elucidate the felt urgency behind the exceptional responses to Haitian migration in the late twentieth century.

C h r o n o t o p e s o f C o n ta g i o n More than sixty years ago, Monica Wilson published a fascinating account of the “witch beliefs” of the Pondo and the Nyakusa, highlighting the link between social structure, witchcraft ideologies, and witchcraft accusations. In it, she asserted that beliefs about witches and their nefarious acts are expressions of the “standardized nightmare of a group”—that is, what its members fear most about the frictions and fault lines within their social worlds (Wilson 1951, 313). If we bracket hoary debates about the interplay of structure and ideology and newer ones concerning perspectival ontology, we can recognize in Wilson’s work the implicit suggestion that certain groups or social types become “good to think” with, like Lévi-­Strauss’s totemic animals, in those moments when nightmare becomes reality—that is, instances of perceived crisis during which the structural anchors that give a sense of solidity to worlds begin to slip. This chapter is, in part, an exploration of how America’s “fevered dreams” (Wilson 1951) over a crisis of sovereignty in the late twentieth century became legible through the idea of threatening Haitian contagion, an observation that differs considerably from assertions regarding the ultimate function of such narratives. Rather than discard these imaginings as aberrant political demonologies (Rogin 1987) from the “paranoid fringe”

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(Perlstein 2017), I will be engaging with them as serious elements within an ongoing “American political theater” (Rogin 1987, 300) of sovereign feeling (see the introduction of this book). The condition of possibility for this particular form of nightmarish legibility has deep roots in modernity’s geographical imagination and the particular role Haiti has played within it. As scholars like Reinhart Koselleck and Trouillot have noted, the eighteenth century marked a turning point in emerging Western modes of thinking about history, wherein teleological, progress-­ oriented “temporalization[s]” began to replace “naturalistic” models of time (Koselleck 2004, 37; see also Trouillot 2003, 38). These new modernist “regimes of historicity” (Trouillot 2003, 38) took the form of an “epic story about the passage from savagery to civilization,” or, in more contemporary instantiations, the adoption of liberal forms of governance (with robust rule-­ of-­law commitments, popular sovereignty, and rationalized bureaucracies), some version of market capitalism, and science-­based epistemologies (Comaroff and Comaroff 1993, xii).1 In addition to giving a temporal structure to the world, this historicizing mode of thought also produced a modernist geography, a “localization in space,” that mapped subjects, nations, even continents both physically and conceptually (Trouillot 2003, 38; see also Coronil 1997, 73; Mehta 1999, 21; Wald 2008).2 The idea of Africa (Curtin 1964; Mudimbe 1994) is perhaps one of the most stunning examples of this form of modernist geographical thinking, one that is linked to the idea of Haiti, as will become clear below. Writing of the development of European biomedicine and its roots in the colonial project of, first, missionization, and, second, the rise of the colonial state’s public health apparatuses, Jean Comaroff (1993) has observed that “ ‘Africans’ personified suffering and degeneracy, their environment a hothouse of fever and affliction . . . the savage natives . . . the very embodiment of dirt and disorder, their moral affliction all of a piece with their physical degradation and their ‘pestiferous’ surroundings” (305–6). Similarly, Simon Watney (1994), writing of the association of AIDS with Africa in the late twentieth century, has commented that [a]n entire continent may be infected because its peoples and its physical geography are held as one. “African AIDS” thus legitimates and “proves” the fantasy of intrinsic correspondences between environment, character, and physical health—constructing “Africa” as an undifferentiated domain of rot, slime, filth, decay, disease, and naked “animal” blackness. This infernal and unhygienic territory is the perfect imaginary swamp in which a new virus might

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‘percolate’ . . . a virus which eventually kills by transforming all its “victims” into “Africans,” and which threatens to “Africanise” the entire world. (111–12)

What we see here is the production of diseased space, “rotten worlds” (Povinelli 2006, 27), where premodern, prebiomedical subjectivities mesh with hostile environments to produce landscapes of contagion. The “diseased heart of Africa” (Comaroff 1993, 305) is both a “time” in modernist temporalities and a “place” in modernist medicalized geographies. This has been equally true for Haiti, which, from the nineteenth century onward, came to be seen as a kind of “African Antilles” (Dayan 1995a: xvi), its largely African-­born population at the time of independence carrying on the customs of the “dark continent” and the filth and decomposition associated therewith (16). To quote the Heinls, who were part of the US Naval Mission to Haiti during Papa Doc’s early years, the island should be thought of as “a fragment of black Africa, a fragment dislodged from the mother continent that drifted across the Atlantic and grounded in the Antilles” (Heinl and Heinl 2005, 2). This “Africa-­Haiti connection” (Farmer 1992, 226) has been a common theme in writings dating back to the nineteenth century (Dash [1988] 1997). The architectonic of such metanarratives is structured and made meaningful through its temporal and spatial form. It is, to borrow a now well-­known neologism coined by Mikhail Bakhtin, chronotopic. For Bakhtin, the chronotope was a useful concept with which to analyze novelistic genres, distinguishable as they were by the relation of the pace or direction of literary emplotment and the space in which it unfolds. Whereas in the novel, the chronotope structures the relation of pace and mise-­en-­scène, in the modernist imaginaries with which I am concerned, it structures the symbolic lamination of physical space as well as its making. The chronotope of the Greek romance, for example, creates an “adventure time” in which the cycles of mundane life give way to the “speed” of a world where chance reigns and “abductions, escapes, captivities, and liberations” all follow one upon the other in rapid succession because of the “alien” and thus unstable world in which the action unfolds (Bakhtin 1981, 101). The space of the “alien” and the “foreign,” which eclipses all other codifications of space in such works, is the foundation of the genre’s temporality of contingency. Similarly, the chronotopes of contagion that structure modernist regimes of historicity bind space and time such that through the rotten, often embodied or enfleshed, tropical jungles of our imagination we enter a decelerated or regressive temporality with stunted or

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degraded subjectivities that both produce and are produced by the decaying landscape in which they are embedded. Trouillot reminds us that geographies of imagination are always bound up with geographies of management—the concrete production of landscapes through political codifications and the creation or destruction of capital’s material infrastructure (2003, 37). Although each geographical register reveals and reproduces itself through the other, the emphasis on materiality is crucial, because the chronotopes of contagion I seek to elucidate find their expression in the various manipulations of Haitian landscapes and Haitian bodies. In order to understand how Haitians became the means by which to think through the shifting contours of American sovereignty, we must turn to the deep history of these manipulations of juridico-­political, economic, and bodily space.

From Imperial Hygiene to Emergent Vulnerabilities During the so-­called golden age of medicine of the late nineteenth and early twentieth centuries (Brandt and Gardner 2000), biomedical advancements in disease control and treatment greased the wheels of European and American imperial expansion, facilitating the reorganization of tropical ecologies and the creation of new regimes of “biosocial spacing”—the association between normal and pathological surrounds and subjectivities as well as the exposures to risk these associations entailed (Povinelli 2006, 32). Under the guidance of this biomedical technocracy, imperial engineers, planners, and architects drained swamps, dug canals, and etched new cordons sanitaires into the built environments of colonial settlement (Bashford 2004; Packard 1997; Worboys 2000). Both informal and formal imperial endeavors also targeted the private spheres of home and body in attempts to instill new biomedical subjectivities in native populations. Although these projects aimed first and foremost to facilitate European and American penetration and exploitation of “hostile” peoples and climates, they also sought to enhance the productivity of native laborers while providing legitimacy to the colonial enterprise as both civilizing and healing mission (W. Anderson 1995, 659; W. Anderson 2006; Comaroff 1993; King 2002; Packard 1997; Vaughan 1991). The logics of imperial medicine and the regimentations of space and bodily discipline that accompanied it were dialectically bound up with elaborate chronotopes of contagion—that is, the pathologized space-times that both fed into and were sustained by “empirical” accounts of tropical encoun-

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ters in distant lands. Despite biomedicine’s shift away from older climate and miasma-­based geographical understandings of disease (W. Anderson 1992; Harrison 1996), aspects of the spatial logic of the older causal models endured within an emerging germ theoretical etiology. Naturally disease-­ridden environments were seen to combine with the undisciplined bodily practices of colonial subjects to produce pathologized spaces in need of both containment and cleansing (Bashford 2004). Like the unclean natives, insalubrious climates, and miasma-­producing sites of old, these partially reimagined colonial subjects and tropical landscapes became synonymous with the fevers, bacteria, parasites, and viruses seen to permeate them. US forays into overseas empire during the later nineteenth and early twentieth centuries, often regarded as anomalies within a longer history of American exceptionalism, were a key part of the wider story of imperial medicine (Stern 2006, 42). During this period, the United States took crucial steps to becoming a world economic power, developing its navy, establishing transoceanic networks of coaling stations, securing its regional hegemony through annexation of former Spanish possessions along key sea lanes in the Caribbean and Pacific, and constructing the centerpiece of this new economy, the Isthmian canal ( Jacobson 2000). The US occupation of Haiti came relatively late in this transformative period, following on the heels of interventions in Cuba, Puerto Rico, the Philippines, Panama, Nicaragua, and the Dominican Republic. The invasion was ostensibly a move to protect foreign property interests and maintain law and order following the assassination of Haitian president Vilbrun Guillaume Sam in July 1915, but the real goal was to ensure US control over Haiti’s customhouses, thereby preventing undue German or French influence in the vicinity of the Windward Passage and, by extension, the shipping lanes that connected the US-­controlled Canal Zone to the rest of the Atlantic world (Ramsey 2011, 118–19; Schmidt 1995, 56, 64). As the invasion became an occupation, the United States began a series of technical programs in agriculture, public works, and, most importantly for purposes of this chapter, public health. The projects were designed to create the material infrastructure and instill the technical skills necessary to “improve” Haiti for purposes of attracting American capital and remaking the Caribbean nation into a foreign market for US goods. US military and economic hegemony in Haiti were the watchwords of the occupation. By the time of the invasion, the United States had already engaged in numerous tropical medicine ventures throughout Latin America and the Pacific (W. Anderson 2006; McBride 2002, 81–82). US occupiers, however, perceived Haiti as unique in the extent of its filth and disorder. One naval medi-

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cal officer and future author of a treatise on the history of Haitian medicine referred to it as “an unspeakable hotbed of diseases, ranking second to none in the world in downright rottenness” (Parsons 1930, 4–5, emphasis added). The annual report of the occupation’s sanitary engineer for 1922–1923 noted that “prior to the Occupation . . . sanitation in the modern sense did not exist” and that “Port-­au-­Prince and . . . many towns of the Republic were reputed to be the worst in the world from a sanitary standpoint” (Service National d’Hygiène 1923, 1, emphasis added). These descriptions perpetuated nineteenth-­ century ideas about Haitian pathology espoused by authors like Froude, with whom I opened the chapter, Joseph-­Arthur de Gobineau ([1853–1855] 1915), Sir Spencer St. John (1884), and Thomas Carlyle (1899), among others. Occupation planners would put these narratives to work in the twentieth-­century context of US-­directed imperial medical interventions in Haiti, imagining and justifying their projects in light of these older chronotopes of contagion. Central to the ideology guiding the public health endeavors in Haiti was the notion of the Haitian peasantry as a mass of what Charles Briggs has elsewhere called “unsanitary subjects”—that is, individuals who have “failed to internalize medical epistemologies [and] bodily practices” (2003, 288). US military personnel viewed the vast majority of Haitians as having “the mentality of children,” specifically with regard to their understanding of sanitation projects, hygiene practices, and disease etiologies (Service National d’Hygiène 1924, 14). According to the occupation’s Sanitary Service, Haitians were “ignorant” and “superstitious” (Service National d’Hygiène 1924, 14). One American sociologist referred to them as a “tropical race deficient in traditions of efficiency” (Weatherly 1926, 364), while a counselor to the US Department of State described them as exhibiting an “ ‘inherent tendency to revert to savagery and to cast aside the shackles of civilization’ ” (Robert Lansing, quoted in Schmidt 1995, 62–63). “Ignorance” and “superstition” were code words for the Haitians’ irrational “voodooism” (C. Butler 1926, 276), itself associated with the African dimensions of Haitian society (Ramsey 2011, 130; Renda 2001). Reports of unbridled promiscuity completed the stereotype, all of which were repeated and coalesced in popular North American literary and journalistic accounts of Haiti (Dash 1997; Renda 2001). The occupation’s public health efforts were to become an experiment in the possibility of transforming such disorderly and diseased “negroes”3 into minimally capable administrators and “sanitary citizens” (Briggs 2003, 288) in part through “the spreading of the gospel of sanitation and health” (Service National d’Hygiène 1923, 4). In the above descriptions, unsanitary subjectivities were linked to dis-

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orderly sociality; the occupation’s programs were designed to target attitudes, beliefs, and bodily practices and to contain a biological disorder created by the absence of the civilized social norms necessary for liberal society (Ramsey 2011; Schmidt 1995, 13; Weatherly 1926, 366).4 By establishing the American-­ run Service d’Hygiène, the occupation forces began a process of technocratic reorganization of the Haitian landscape and its people, dividing the country into hierarchically integrated districts with seaport headquarters and quarantine stations while also subjecting Haitian bodies and domestic spaces to new forms of medical policing (Service National d’Hygiène 1923). The Service erected and refurbished hospitals, established rural dispensaries and rural clinics, launched vaccination and disease eradication campaigns, built and repaired drainage systems, created waste disposal sites, redesigned public markets, and founded a corps of laborers and sanitary inspectors, all with funds provided by the Haitian treasury (Service National d’Hygiène 1923, 1924, 1925, 1926, 1927). As they pursued these programs, members of the Service represented Haiti as both a diseased space populated by unsanitary subjects as well as an object of biopolitical engineering, which might be transformed into a disinfected space inhabited by moderately sanitary citizens capable of greater labor output and modern consumption practices.5 Part of the Service’s project was to understand disease incidence in Haiti through survey work and the compilation of “vital statistics” (Service National d’Hygiène 1927, 155). This was accomplished through examination of prisoners (Dickens 1925), migrant laborers (P. Wilson 1928; 1929), “domestics” (L. Williams 1930), members of the occupation-­created gendarmerie (Koltes 1918), students (P. Wilson 1929), and cadavers (Choisser 1929). Military physicians reported the results of their studies in academic publications, organizing their data within the biomedical ontological scalar order of population, subject, and pathological specimen, each of which was accessible through the corresponding techniques of epidemiology, physician-­patient encounter, and laboratory science (cf. Good 1994, 75, 83). Although the published statistics and photographic images of patients and their pathologies were oriented toward American medical audiences, the knowledge produced and the epistemological framework endorsed were intended to feed into the broader project of transforming Haitian understandings of their bodies and material surroundings, moving them “further and further from the old empirical beliefs” (L’Herisson 1935, 928). By building an understanding of disease pathology and epidemiology in Haiti, these military physicians would improve their own knowledge of tropical diseases as well as their ability to impart the reality of this biomedical ontology to the Haitian

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populace. This was a key element of the “civilizing” process at work under the Service. Other projects involved more dramatic methods of instilling biomedical discipline in Haitian subjects, including various forms of biopolitical policing and containment. One such program involved a peculiar kind of quarantine, directed not at securing Haiti from external epidemics but at protecting US commercial interests in the Caribbean from the potential threat of diseased Haitian migrant labor. The Service, commensurate with its goal of enhancing what its US director called Haitian “vital capital” (Service National d’Hygiène 1927, 155), instituted programs to medically screen thousands of Haitian migrant agricultural workers for malaria, filariasis, and other parasites prior to their departure for the United Fruit Co. cane fields in Cuba (Service National d’Hygiène 1925, 33; P. Wilson 1929). Between November 1927 and January 1928, the Service screened eleven thousand migrant workers departing from ten of Haiti’s major port cities (P. Wilson 1929). Service officials physically examined the laborers’ undressed bodies to determine “age, presence of ulcers, hernia, heart disease, or any physical defect that would be a handicap to him or in his work” (87). The physicians then performed spleen palpations, drew blood samples, and administered cowpox vaccines, deworming agents, and quinine treatments (88). The screenings were designed to keep infectious and morbid workers out of the fields in Cuba while at the same time impressing upon the Haitian laborers the benefits of biomedical diagnostics and treatment (88). This process of medically screening migrant laborers introduced new immigration-­related biopolitical security regimes to Haiti via the occupation’s Service d’Hygiène. By the early twentieth century, the United States had adopted various public health exclusions as part of its immigration control regime, requiring medical certification in departure countries and medical inspections at points of entry like Ellis Island in New York, Angel Island in San Francisco, and Brownsville in Texas (Fairchild 2003, 121, 134, 153; Shah 2001). The Service inspections in Haiti replicated these measures and inserted Haiti into the US’s emerging global regime of migration control and biomedical containment (Ngai 2004, 19; Shah 2001, 179).6 It also helped to define the US-­run Service d’Hygiène as an administrative body whose goals included controlling the spread of Haitian disease abroad in service to US capital—in this instance, American agricultural interests in Cuba. The screening procedures in Haitian ports were far more intrusive than those used at Ellis Island, where primarily European immigrants entered

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the United States, and more closely approximated examination techniques used in California and Texas, where mostly non-­European immigrants (Chinese, Japanese, Indian, Mexican) sought to enter (Fairchild 2003, 153; Stern 2005). More surprising, however, was the way in which the inspection stations in Haiti reversed the logic of quarantine: they were devised to protect a wider world from Haitian contagion as opposed to securing a sanitary Haitian body politic from foreign contamination. The US-­directed and highly invasive screening regime served more as an outpost of a US medical border protecting peripheral sites of US informal empire than as an example of a Haitian quarantine regime designed to protect Haitian publics. Whereas the medicalized migration controls described above helped insert Haiti into a new supranational biosecurity framework, a second important Service project introduced biopolitical policing mechanisms into Haiti’s system of internal administration.7 Since at least 1923, and most likely earlier, the Service d’Hygiène had established a cadre of sanitary inspectors who monitored not only public spaces, like markets, water supply sites, and abattoirs, but also the private residences of urban and rural town dwellers throughout the country (Service National d’Hygiène 1923, 20). During 1923, sanitary inspectors issued 51,364 “unfavorable reports” in Port-­au-­Prince alone (Service National d’Hygiène 1923, 20). Inspectors conducted similar investigations in more remote cities and towns, such as Jérémie, Aux Cayes, St. Marc, L’Archaie, Las Cahobas, Mirebalais, Belladere, Port-­de-­Paix, Saint Louis du Nord, Marmelade, Ennery, Saint Michel, and Terre Neuve (Service National d’Hygiène 1923, 22–25; 1924, 35, 37–39). The inspectors could issue verbal warnings and citations for violations related to latrine maintenance, drainage, mosquito-­breeding, and cleanliness; failure to comply could lead to judicial proceedings, fines, and even short-­term imprisonment (Service National d’Hy­giène 1925, 25). Although the occupation had attempted and failed to create a comprehensive cadastral survey in Haiti, a key index of the type of high modernist governance the marines were attempting to create (Schmidt 1995, 179; cf. Pottage 2004; Scott 1998, 3), the sanitary inspectors developed its analogue in the capital—a complete registry of the private property holdings in Port-­ au-­Prince, which totaled 10,747 in number (Service National d’Hygiène 1927, 98). The city was then rezoned, the zones were divided into districts for inspection purposes, and a file card was created for each individual property, which gave “a complete record of any property at a glance and the condition in which it has been kept for a period of time” (Service National d’Hy-

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giène 1927, 98). This created a compendium of all the sanitary infractions committed by the entire property-­holding population of Port-­au-­Prince. The surveillance capacity made possible by this new restructuring of administrative space allowed the Service to conduct a staggering 350,116 inspections in 1927, the equivalent of visiting each Port-­au-­Prince residence thirty times over (Service National d’Hygiène 1927, 98). The work of the sanitary inspectors meant that the occupation’s goal of spreading “the gospel of sanitation and health” (Service National d’Hygiène 1923, 4) would take the form of biopolitical policing of the Haitian people and a reconfiguration of the diseased and disordered space of Haiti’s capital city into a site of rational, administrative governance. The US occupation came to an official end in 1934 in the midst of a global depression and a broader crisis of colonialism throughout the Caribbean and Africa (Cooper 1997, 66; Schmidt 1995, 229). The sense of pessimism that hung about the withdrawal and the occupation’s failure to achieve any meaningful change in Haiti may have marked a turning point in American attitudes toward formal empire, but it did not stifle an American optimism regarding the potential of development endeavors more generally. The triumph of Keynesian economic thinking and New Deal planning in the United States at the time, particularly the Roosevelt administration’s inauguration of the Tennessee Valley Authority, combined long-­standing “uplift” paradigms to create a comprehensive framework that would serve as a model for numerous other postwar international aid projects (Ekbladh 2010, 48). The new shift toward “development,” and its spatialization in the concept of the “developing world” (Escobar 1988; King 2002), occurred during a monumental reconfiguration of the global political landscape following World War II (Farish 2010; Galli 2010). Whereas the security dimensions of development intervention and the goal of expanding US economic power through greater access to world markets had long been a part of an earlier phase of both American colonialism and liberal internationalism, these goals took on new significance within the emerging bipolar regime of the Cold War. America’s aid industry, beginning with Truman’s “Point Four” program, became a tool of “Cold War counterinsurgency,” the spearhead of a “global New Deal” designed to remake the political landscape under the banner of modernization while containing the growing communist threat to liberal democracy and capitalism (Latham 2010, 6, 37). This new form of development broke from the overt violence of older imperialist annexation and occupation models, moving toward the ostensibly softer touch of modernization, although violence in the form of covert action and, at times, robust military

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intervention remained part of the US foreign policy arsenal throughout this period. Public health projects continued to be an important, if underfunded, element of these Cold War battles to remake the developing world. As with American Progressive-­era models of societal change, modernization theory posited its own chronotopes in which the ecologies and subjectivities of backward peoples could be sanitized and brought into the present of the industrialized West through scientific management. Less concerned with deficient races, the new approach focused on “deficient cultures” and the negative synergy between unsanitary subjectivities and naturally disease-­producing landscapes (Latham 2010, 22). Advances in the production of new pharmaceuticals and pesticides, such as the polio vaccine, antibiotics, and DDT, meant the new wave of public health modernizers could deploy muscular “magic bullet” solutions in the form of infectious disease eradication campaigns alongside other less ambitious interventions (Brandt 1987, 4; Garrett 1994, 30–31; King 2002; Escobar 1988). The success of the World Health Organization’s smallpox eradication campaign, for example, and early triumphs in polio and malaria eradication efforts buoyed hopes that the pathological spaces of the third world could be transformed and infectious diseases conquered (Garrett 1994; Wald 2008). The goal was to create a more homogeneous, medicalized spatial regime in which the disease-­ridden developing world would become part of a sanitized, global society, dissolving old disjunctures of time and space embedded in modernization theory’s own temporalities and geographies. In Haiti, the most visible postwar public health interventions focused on eradicating yaws, a treponemal malady that results in painful and often disabling sores. Yaws was considered a disease of “the end of the road—­ geographically, economically, and socially” (Hyde 1955, 450). Like leprosy, it was highly stigmatized because of its association with “[p]overty and filth” and the disfiguring lesions it left on the bodies of the afflicted (Hyde 1955, 452). Haiti had long been synonymous with yaws within public health circles.8 During the occupation, efforts had been made to control the disease through traveling clinics in rural districts (Service National d’Hygiène 1924, 18; Service National d’Hygiène 1927, 11; P. Wilson 1930), but despite the Service’s sanguine account of its own successes (Service National d’Hygiène 1927, 11), the epidemic persisted, primarily among Haiti’s rural population. In 1942, the Haitian government and the US Institute for Inter-­American Affairs, one of USAID’s predecessor institutions, launched a new yaws control program in Haiti. François Duvalier was among the Haitian physicians selected to participate in the campaign and later to pursue graduate studies

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at the University of Michigan under its auspices (Diederich and Burt 1991, 54–56). The program, however, failed to eradicate the disease (Hyde 1955, 452). The Haitian government, the Pan American Sanitary Bureau (later the Pan American Health Organization), the World Health Organization, the United Nations Children’s Fund, and the US Foreign Affairs Operations Administration9 made another attempt to eradicate yaws in Haiti in 1952, inspired in part by successful yellow fever–­mosquito eradication efforts in Brazil. The efficacy and affordability of the new magic bullet treatment, penicillin, and the simplicity of the campaign model itself bolstered faith in the possibility of disease eradication efforts in Haiti and in “a profound and universal swing toward health for all men who people the world” (Hyde 1955, 152–53). Haiti was a key test case for the new public health development ideal: if an anti-­yaws campaign could function successfully in Haiti, regarded as one of the most diseased and underdeveloped countries in the world, then it could be replicated with success in other challenging settings. The complete eradication of yaws in Haiti proved elusive for some time, however, and accompanied other disappointments in muscular disease eradication campaigns during the 1960s and 1970s. Health transition utopianism, the optimistic belief that comprehensive infectious disease eradication was a possible outcome of these projects (Garrett 1994, 32), suffered devastating blows as advances in genetics and disease surveillance revealed the stubborn resistance of bacteria and viruses to biomedical advances while reservoirs of hitherto unknown infectious agents deep within the “diseased heart” of the world’s so-­called hot zones (Preston 1992) became the focus of new epidemiological narratives (Wald 2008, 30–33). Previously unknown tropical hemorrhagic fevers, drug-­resistant malaria strains, and other “emerging diseases” both solidified and destabilized the pathologized geographies of earlier eras (King 2002; Garrett 1994; Preston 1992; Fisher 1995). The compressed space-­ time of a globalizing world (Harvey 1990; Wald 2008, 7) and the massive displacements and violent upheavals in postcolonial sites of disorder became central to new contagion tropes and the growing sense that older regimes of historicity and spatial order were fracturing under the weight of rapid social, political, and economic change. The rotten worlds of old were no longer firmly in place in distant lands but threatened to remake themselves within the sanitized spaces of the developed North as their migrant emissaries breached the walls of as-­yet unprepared liberal polities. As discussed in the previous chapter, the political and economic shocks of the 1970s (Ferguson et al. 2010) created a mood of distrust and uncer-

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tainty within which the roots of antistatist, promarket, neoliberal ideologies began to take hold, setting the stage for a dethroning of modernization theory’s government-­led technocratic solutions. At the same time, however, the border-­opening dimensions of neoliberal thought also combined with an evolving ideology of neoliberal penality, described in chapter 1, which posited a robust role for the state in matters of criminal prosecution (Harcourt 2011), national security, and border policing. At this unstable juncture, prior to the end of the Cold War but on the cusp of a neoliberal revolution, America’s self-­image as a nation insulated from the refugee flows and mass demographic shifts characteristic of other sites across the globe came under threat as increasing numbers of Latin American and Caribbean migrants arrived at US land and sea borders. At the same time, the emergence of HIV/AIDS triggered another sense of vulnerability expressed in the valence of internal moral decay (Treichler 1999) and in a growing fear of external penetration by the unsanitary subjects of the “third world.” Haitians, with their long history as objects of American biomedical engineering and nightmarish fantasizing sailed into the tumultuous storm of a nation in flux. Once again, the chronotopes of contagion that had lasted through various shifts in geographies of management over the past century returned, shaping the emergence of a new border management regime on a shifting terrain of American sovereignty.

M i g r at i o n a n d M e d i ca l i z e d B o r d e r s Before turning to the arrival of seafaring Haitians on US shores and the reimagining of that moment as a biomedical catastrophe, it is necessary to first take a step back and examine another element of the chronotopes of contagion I have examined thus far. As I noted earlier, medicalized geographies in the age of Westphalian sovereignty are often expressed through bodily idioms, whether it be the smooth and contained geo-­bodies of the sanitized North or the ulcerated and porous geo-­bodies (cf. Perera 2009; Winichakul 1994) of the pestiferous tropics. Throughout the twentieth century, the project of maintaining the social body of the nation in the United States and elsewhere became increasingly tied to questions of border control. The composition of the nation, its culture, and its health were all linked to an idea of sovereign power at the frontier and a concern with the permeability of exteriors. Managing difference across modernity’s chronotopic landscapes often hinged on the screening mechanisms designed to keep these boundaries stable. In order to wrestle with the interplay of pathologized geography and sovereign power

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so central to the story of America’s Caribbean borderland, I will now turn to the longer histories of contagion, migration, and quarantine from which it emerged. There is nothing new about restricting the movement of people in order to constrain the transmission of disease. Both the link between illness and contagion and the administrative efforts to contain the movement of circulating diseased bodies have existed for centuries, predating modern germ theory by more than a thousand years (Markel 1997, 6; G. Rosen 1993). Cordons sanitaires and quarantine regimes can be found as far back as the middle ages, reemerging time and time again as a common thread that joins the medicalized border control mechanisms of Westphalian system nation-­states (Zolberg 2006, 11) and earlier political geographies (Markel 1997, 7). The contemporary iterations of these practices, however, include the work of new international germ governance bodies, nongovernmental public health institutions, and, perhaps most importantly, the medically oriented immigration control regimes of modern nation-­states. In the United States, the authority to restrict the circulation of diseased individuals has a long history, beginning primarily with state quarantine laws later supplanted by federal legislation that used health as a means of screening out undesirable populations (Neuman 1996b, 31). In the transition from state to federal immigration control, it is easy to see the influence of the contagion narratives discussed above on immigrant selection criteria, even in the so-­called open borders period that preceded the advent of early twentieth century restrictionist immigration quotas (cf. Ngai 2004, 18). The exclusion of immigrants based on morality in the 1870s (Ngai 2004, 37), on the potential for assimilation to Anglo-­American civic and political culture in the 1880s (18), and on health grounds in the 1890s (Fairchild 2003, 14; Kraut 1994, 51) were part of an evolving set of criteria used to determine just what sorts of subjects would be allowed to become members of the nation. In this process, the question of disease was not merely an instrumental, value-­neutral element in the administrative calculation of legitimate exclusion. For many, it indexed complex affective evaluations of the race, bodily discipline, and political capacity of potential immigrants against the background of shifting and spatialized regimes of historicity. The perceived likelihood that a specific immigrant carried disease was linked to his or her nationality, race, and various social characteristics. The triumph of the “gospel of germs” by the 1890s (Tomes 1998) intensified these associations (Kraut 1994, 4), marking groups through evolving chronotopes of contagion (e.g., Stern 2005, 20, 58). The idea that the United States was a “nation by design” (Zolberg 2006),

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fashioned in part through the discerning selection of its members, is not new, but it is important here (see also Ngai 2004, 5). The imaginaries that guided this design relied in part on the pathologized geographies discussed earlier in this chapter and their antithesis in the image of the sanitary, well-­ordered, liberal community of the United States. The diseased immigrant was in image, if not in fact, a concrete instantiation of a biological and social disorder that threatened the liberal polity’s biological health, its civic and democratic culture, and its capacity to perform its welfare functions, which these defective populations would divert and drain over time. And although medical exclusions only accounted for a small percentage of actual exclusions until the second decade of the twentieth century (Kraut 1994, 66), the visions of decaying bodies that motivated them were potent indexical-­icons, to use Peircean terminology (see Parmentier 1994, 32), pointing to and resembling the feared decay of the body politic as a whole. The medicalization of US borders and its manifestation as a process of “articulat[ing] a desired composition—imagined if not necessarily realized— of the nation” (Ngai 2004, 5) emerged in the context of US imperial expansion and the rise of eugenics as a mainstream policy science (Stern 2005). The practices of colonial public health policing in the Philippines, for example, and its attendant “hardening of colonial social boundaries” (W. Anderson 1995, 645) resurfaced in the metropole’s perceived sites of contamination, including the US-­Mexico border and San Francisco’s Chinatown (Stern 2005, 21; Shah 2001, 179). The disease management dimensions of these efforts were entangled with eugenic notions of racial health and ideas of the United States as a nation composed of a white, northern European, normative citizenry (Stern 2005). The result was the establishment of border security practices and structures whose geographies (that is, spatial features) were responsive to chronotopes of contagion that identified Asians and Mexicans as diseased and disorderly populations requiring intensive screening (Stern 2005; see also Chavez 2008). Attuned to these pathologized spaces and the individuals that emanated from them, immigration administrators created the highly invasive inspection and sanitization management regimes of the West Coast and US-­ Mexico border, which involved intensive, racially marked cleansing rituals not deemed necessary at the predominantly European entry point of Ellis Island (Stern 2005, 64–65; Fairchild 2003, 153).10 The Johnson-­Reed Act of 1924, which inaugurated an age of tightly controlled immigration, marked a triumphant victory for the eugenics movement and a culmination of the growing immigration restrictionism of the early twentieth century. The inscription of racial and nationality categories into the

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administration of migration flows made it theoretically possible to reestablish the putative northern European genetic stock of the liberal, Anglo-­American polity. The law effectively made Western Europe the primary source of authorized migration, thereby severely lowering the ability of eastern and southern Europeans to enter the United States, continuing the bar on migration from an “Asiatic zone,” and eliminating the possibility of migration from much of Africa (Ngai 2004, 18, 26–27). Health inspections continued via consular processing abroad and resulted in an upward spike in medical exclusions (Fairchild 2003, 258–59). The result was the instantiation of an existing geography of imagination within new legal and administrative codifications designed to protect the purity of the nation’s body from the pollution of diseased mobile subjects, unleashed from the pathological spaces of the globe.

Haitians Out of Place This interplay of contagion, chronotopic thinking, and medicalized border controls was long in the making by the time the first Haitian sloops began departing for South Florida in the 1970s. Their arrival, however, coincided with a sea change in political and economic orientations in Haiti’s neighbor to the north. As forerunners of an immigrant tide that began to hit the United States during a decade of “reckoning” and “trauma” (Perlstein 2014, xiii–­xiv), Haitian migrants were foisted into roiling national debates over the very nature of American sovereignty and American government. The dismantling of the national origin quota system during the previous decade and, later, the signing of the UN Refugee Protocol, had signaled a more forgiving federal immigration policy of a piece with Lyndon Johnson’s civil rights reforms and the promise of a Great Society shepherded by benevolent government. The combined effects of stagflation, the Arab oil embargo, the withdrawal from Vietnam, the Watergate scandal, the revelations of CIA atrocities, and hints of a new era of migration from the “undeveloped” South put the ideological firmament of the New Deal and the Great Society in a new light. The social welfare reforms of the 1960s now seemed like a magnet drawing unskilled, unassimilable, and illegal immigrants to US shores. As Florida Republican senator Paula Hawkins put it, smugglers were luring Haitians to Miami with tales of streets paved not in gold but “food stamps.”11 This put a new edge on the anxiety surrounding the unauthorized entry of what some feared were diseased, socially misfit, and economically dependent migrants. It also amplified the concern that the borders protecting the nation’s now overtaxed public resources were inadequate to the task.

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The asylum regime, then largely a Cold War tool for embarrassing communist governments by granting relief to defectors, was designed with the idea that the United States was largely insulated from these sorts of large-­ scale, unauthorized intrusions into its sovereign territory.12 By the late 1970s, however, the growing number of Haitian and, later, Cuban boat arrivals had shattered this illusion. The concern over mass migrations hinged in large part on a sense of resemblance (or iconicity) between the disorderly physicality of en masse mobility and the presumed disorderly subjectivity of the migrants who would choose to join such exoduses. These could not be “good” aliens within the gendered regime of liberal value codified in various accretions of US immigration law over the prior century. They were not the “white, healthy, law-­abiding, self-­sufficient, anti-­communist, heterosexual, male political refugee who arrives by himself at the U.S. embassy in Moscow and seeks political asylum” (Koh 1994a, 451). The “good” asylum seeker embodied a politicized ideal-­typical liberal order in contradistinction to the illiberal disorder of the socially, bodily, and politically undisciplined subjects clambering at the gate. When Haitians began arriving in South Florida, even before the emergence of AIDS, they all too easily became the standardized nightmare of a US immigration and border control regime wedded to this idea of the “good” alien. This was explicit. During the Haitian Program of the late 1970s, described in chapter 2, the INS branded this nightmarish mobility as “the Haitian threat.” Notes from a meeting between State Department, INS, and DOJ officials in the summer of 1978 regarding plans to manage the backlog of Haitian cases in South Florida reveal that INS deputy commissioner Mario Noto instructed INS trial attorneys to work together with the US Attorney’s Office in Miami to “ACTUALLY PAIN[T] OUT THE DIMENSIONS OF THE HAITIAN THREAT” by “show[ing] that these are unusual cases dealing with individuals that are threatening the community’s well-­being—socially & economically.”13 Clearly, from the perspective of the INS these were not archetypal “good” aliens. But what was this Haitian threat? A report authored by the county manager of Dade County, Florida, regarding human services provided to Haitian aliens offers a glimpse into the imagined substance of this looming menace, albeit in a prosaic, bureaucratic register. The report, concerned with the possible impact of Haitians consuming public resources at the expense of lawful residents, urged federal funding for services to Haitians in order “to prevent an influx of immigrants from being a drain on the vitality, well being, and prosperity of this community.”14 The predominant and potentially harmful characteristics of Haitians as a group, according to the report, were as follows: they “1. live in poverty[;] 2. in

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crowded, old housing[;] 3. inadequate diet[;] 4. untreated sickness[;] 5. avoid being identified[;] 6. usually unemployed[;] 7. speak little or no English[;] 8. anxiety problems.” Florida newspaper reports of the late 1970s evinced similar ideas of the threat that Haitians presented, though often in more sensationalistic prose. One article from 1977, entitled “Refugees from Haiti Are Special Problem,” enumerated the traits that inspired foreboding among Floridians: “The Haitians landing here by boat carry few possessions, but they bring along a considerable number of problems. Few speak English and many are illiterate. They tend to come from poverty-­stricken farms and villages in Haiti, uneducated and untrained in the skills of an industrial society. A high percentage are infected with tuberculosis and venereal disease” (Nordheimer 1977). Other articles focused on nearly identical themes and fears with such titles as “Refugees Feared as TB, VD Source” (UPI 1979a) and “Spreading of Disease Feared as Haitian Community Grows” (UPI 1979b). The narrative of the “Haitian threat” drew on typical features of the chronotopes of contagion discussed above and thus the equation of Haiti and Haitians with disease, disorder, incivility, and backwardness. As the migration from Haiti escalated in 1980 so did the accounts of Haitians as threatening disease carriers. An Associated Press article printed in the Palm Beach Post entitled “Syphilis, Tuberculosis: Haitian Diseases Worry Border Patrol” described immigration agents’ fear that Haitian asylum seekers would transmit tuberculosis and exotic skin diseases to them during interdiction and screening procedures (Associated Press 1980). An AP article that appeared in the New York Times described “voodoo”-­practicing refugees “rife” with “tuberculosis,” “[p]arasites and exotic diseases such as malaria, yaws, and dengue fever” (Associated Press 1981, emphasis added). Stories of noncompliant Haitian TB patients circulated in the media along with medical professionals’ accounts of drug-­resistant strains, spurring panic among residents of South Florida (Nachman 1993, 228–29). Perhaps the most explicit governmental elaboration of the nature of the “Haitian threat” appeared in a legal brief submitted by the state of Florida in a lawsuit that sought to have Haitian asylum seekers transferred from the Krome processing center to detention centers in other states and to enjoin the Department of Justice from releasing additional Haitians into the state of Florida.15 The papers filed by Florida’s attorneys warned of the release of large numbers of unskilled, Creole-­speaking Haitian disease carriers into healthy South Florida communities, the reproduction of an unsanitary, Haiti-­ like space within Miami, and the strain on public resources that this caused.

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It is worth looking at the actual language of one of the court filings, which is unabashed in its enumeration of the elements of the “threat”: Krome North detainees are being released, indeed “dumped,” by Defendants into Florida communities without proper medical screening, thereby creating a grave risk of a public health disaster . . . . Even when screening procedures are nominally followed, Krome North detainees are indiscriminately released without prospect of employment and without sponsorship in the community . . . . These Haitian immigrants, together with thousands of Haitian immigrants who, due to the inadequacy of Defendant’s immigration procedures, are not taken into custody for screening at Krome North (or other facility), congregate largely in an area of Miami known as “Little Haiti.” The resulting overcrowded and squalid conditions in Little Haiti have created a severe public health hazard . . . . Despite maximum efforts by the Dade County Department of Public Health, the unsanitary conditions and improper garbage disposal in little Haiti have led to extensive rat infestation . . . . The influx of unscreened and improperly screened Haitians has substantially increased the potential for tuberculosis in the Dade County area . . . . In addition to imminent health hazards, the concentration of immigrants in the state of Florida has overtaxed public services in areas of hospital, health care, employment, housing, education, police, correctional and other state governmental f­ unctions.16

The memorandum also added “crime problems” and “urban decay” to the litany of ills that the Haitians had brought to Miami.17 The suit was a condemnation of what were seen as insufficiently robust medicalized borders and a protest of the federal government’s failure to adequately manage what the litigants—here, the state of Florida itself—viewed as the growing burden of Haitian disease and disorder. By the early 1980s, the “Haitian threat” had evolved into a constellation of traits indexing the pathology of Haitian culture, sociality, and sexuality. Paul Farmer, who has written brilliantly on this topic, refers to this “folk model” of Haitian subjectivity as an elaboration of “exoticism/racism semantic networks” that, as I have also noted earlier in this chapter, existed long before Haitians began arriving in the United States (1992, 223). To borrow the apt phrasing of Nina Glick Schiller and Georges Fouron, “Haitians were portrayed as ragged, wretched, and pathetic and were said to be illiterate, superstitious, disease-­ridden and backward peasants” (1990, 337, quoted in Farmer 1992, 4). Journalists obsessed over a potential surge in the incidence of venereal disease, long a “symbol of pollution and contamination, . . . a sign of

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deep-­seated sexual disorder, [and] a literalization of what was perceived to be a decaying social order” (Brandt 1987, 5).18 In addition to these class- and race-­based stigmata, Haitians were also defined by a host of category transgressions evident in their mixed African/Catholic religion (“voodoo”) and their African/French “patois” (Creole). By the early 1980s, the ulcerated body of Haiti with its unsanitary subjectivities and unclean hybridizations implicitly reemerged in American narratives of the refugee crises. In it, Haiti was depicted as if it were a sore that had ruptured, sending forth decrepit boats and decaying bodies metonymically linked to the “rotten world” from whence they spewed forth. The enfleshed category of the “Haitian threat” was all the more destabilizing because the presence of thousands of uninvited Haitians on US territory confounded the intersecting politicolegal and medical codifications that gave form to the spatial imaginaries and infrastructural battlements of American sanitary citizenship at a moment of intensive national self-­doubt. The logic of US public health borders and their relationships to efforts to design and maintain a normative citizenry have long been predicated on the organization of global political space into sovereign, nation-­state “container[s]” (Sassen 1996, 30), the elements of a “national order of things” (Malkki 1995b). The capacity of state institutions to control the flow of people across sovereign boundaries in accordance with preferences for particular types of valued subjects is at the heart of this system. Existing chronotopes of contagion have shaped how and from where certain groups are permitted to enter, “harden[ing]” “boundaries” between the unwashed and the clean (W. Anderson 1995, 645; see also Wald 2008, 21). Within this regimented spatial regime, Haitians bore many of the characteristics of “matter out of place,” a phrase that Mary Douglas long ago identified as the very “definition of dirt” and pollution (1966, 36).19 The perceived contamination of bounded sites of liberal order fueled the media’s emphasis on disease incidence and criminality at the end of a decade during which intensifying feelings of national vulnerability and decline had already put many on edge.20 But just as older chronotopes of contagion conditioned American publics’ reaction to the arrival of these Haitians, so did the narrative framing of Haitian pathology and its grounding in wider landscapes help crystallize a growing sense of insecurity and fallibility in late 1970s America more generally. Haitians became “good to think” with as many Americans confronted a crisis of confidence in their nation’s standing in the world. As the aggressive responses to this ennui began to take shape with the dawn of the Reagan decade, the “Haitian threat” would come to include “the new qualifier, AIDS-­carrier,” spawning revised interactions between the

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idea of Haitian disease and disorder and the carceral revolution of a newly imagined US immigration regime (Farmer 1992, 212).21

AIDS and the “Bad” Aliens The spread of HIV/AIDS in the early 1980s and its later expansion to the status of global pandemic provided the impetus for the late 1980s “emerging diseases worldview” (King 2002, 767) and signaled a recrudescence of older chronotopes of contagion. AIDS “appeared,” writes Jean Comaroff, “like a memento mori,” a “throwback to an era when sickness was, by its nature, immutable, mysterious, and fatal” (2007, 197). Spurring what Paula A. Treichler (1988) has so aptly called “an epidemic of signification” (quoted in Comaroff 2007, 198) and what Paul Farmer, riffing on Treichler’s pithy aphorism, dubbed an “epidemic of discrimination” (1992, 212), AIDS and its construction by various actors transformed the stakes of “effective” medical exclusions in the midst of intensive legal battles over Haitian asylum seeker rights and the hardening of physical and juridical borders. In the United States, early efforts to wrestle with the emergence of HIV/ AIDS were deeply embedded in a “geography of blame” (Farmer 1992) in which Haiti and Haitians loomed large. Several scholars have charted this history in interesting ways (Dayan 1995b; DuBois 1996; Galarneau 2010), but Paul Farmer’s (1992) work on the early association of Haitians with AIDS stands out among them. Since Farmer’s perspective is in large part in line with my own and since his work in this regard is so compelling, I will not attempt to duplicate his efforts here. Certain key elements of the story must be retold, however, in order to elucidate how the addition of AIDS-­carrier to the idea of the “Haitian threat” fit into larger chronotopes of contagion and corresponding biosecurity regimes not fully captured by Farmer’s “geography of blame.” This will help to demonstrate how anxieties over circulating Haitian bodies led to changes in the US border control apparatuses that made possible the quarantine of HIV-­positive Haitians at Guantánamo Bay, Cuba, in the early 1990s. As the above descriptions make clear, perhaps not since the US occupation of Haiti had journalists devoted such efforts to elaborating the contagion narratives that situated Haiti within larger conceptualizations of pathologized space and degraded sociality. At the same time media reports were circulating about the diseases the Haitian refugees were bringing to US shores, an African swine fever epidemic hit the Caribbean. The US pork industry grew concerned that Haitian refugees would enter the United States illicitly transport-

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ing infected live pigs or tainted pork products, which in turn might lead to the introduction of the fever into healthy North American swine populations.22 This added to the already potent narrative of a threatening Haitian contagion at America’s doorstep. The ground was fertile for just the kind of etiological and epidemiological speculation and containment efforts that the emergence of HIV/AIDS would soon trigger. The Haiti-­AIDS link was first publicized through case reports and risk assessments printed in the Center for Disease Control’s (CDC) Weekly Morbidity and Mortality Report (WMMR) in 1982 and 1983. Initially, the WMMR pieces identified incidents of unexplained immunosuppression in Haitians in Miami and New York (Galarneau 2010, 211; Farmer 1992, 211). Later, based on the unexplained nature of the earlier findings, the CDC categorized Haitians, alongside homosexuals, hemophiliacs, and heroin users (the infamous four Hs), as a group with a high risk for contracting AIDS (Galarneau 2010, 211; Farmer 1992, 211). Both the first announcement of immunosuppression in Haitians and the later classification of Haitians as a high-­risk group, the only risk category defined by ascriptive racial/ethnic/national characteristics, came within weeks of judicial decisions ordering and, later, upholding the release of thousands of Haitians from immigration detention facilities throughout the United States (Farmer 1992, 210).23 Shortly after the CDC’s risk group finding, the Federal Drug Administration issued administrative guidance that reiterated the CDC classification and prohibited Haitians from donating blood (Galarneau 2010, 211). The media and scientific community responded with an explosion of inflammatory speculation in an attempt to explain the connection between Haitians and AIDS. As they sought to find their balance on the shifting terrain of the new epidemic, both medical professionals and journalists relied on and modified the contagion narratives that had developed over the past century of biopolitical intervention in Haiti. First came the unsurprising environmental assertion: Haitians were not only AIDS carriers, but AIDS itself originated in the diseased landscape of Haiti (Farmer 1992, 212; Sabatier 1988, 44). And with this came claims of a degraded Haitian sociality as the cause for the proliferation of the disease and the reason it had spread from its “natural” source: voodoo blood rituals, occult sex practices, homosexuality, human sacrifice, and prostitution were offered as explanations for the emergence of AIDS and its dispersal beyond Haiti (Farmer 1992, 220–28; Sabatier 1988, 45). And then the “Africa-­Haiti connection” reared its head once again as the scientists and the media speculated that the dark continent was, after Haiti, another possible source of the disease and, among a smaller group of journalists and profes-

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sionals, that a mutated African swine fever (the very same swine fever supposedly infecting the Haitian creole pig population at the time) was the viral agent behind the epidemic in Haiti, Africa, and the United States (Sabatier 1988, 44; Epstein 1996). Predictably, administrators and legislators moved to adapt the preexisting regime of medicalized border policing to the AIDS threat shortly after scientific assertions of a viral etiology for the disease began to circulate in media reports and advances in antibody testing allowed health professionals to identify those who were infected (see Epstein 1996, 92–97). At the time, the Immigration and Nationality Act (INA) barred the entry of aliens “afflicted with any dangerous contagious disease” without enumerating what those diseases might be.24 That task was left to experts in the Department of Health and Human Services (HHS), the agency charged with the regulatory duty of removing or adding diseases to the official list.25 The list itself was an antiquated collection of highly stigmatized ailments (leprosy among them). Nonetheless, an infected alien could easily surmount the barrier these exclusion criteria imposed by seeking simple and inexpensive treatments.26 In early 1986, however, the Reagan administration attempted to add AIDS to the list in the midst of controversies over mandatory testing proposals and debates over an immigration amnesty bill that the president would sign into law later that year (Percoski 1986). This regulatory move would have added the only incurable disease to the list while reinforcing a spatial imaginary in which AIDS and other diseases were located outside of the US body politic. The goal was to use the AIDS exclusion as an updated biolegal filter—a juridically codified biomedical sorting criterion—with which to shore up the boundaries of a healthy but at-­risk nation. When the regulatory effort faltered, however, Senator Jesse Helms took up the issue in the Senate, drumming up fear with references to AIDS-­infected Haitian and African migrants who might infiltrate healthy American communities if not for a statutorily mandated AIDS exclusion. Speaking from the Senate floor, Helms argued, [t]he Federal Government has the obligation to protect its citizenry from foreigners emigrating to this country who carry deadly diseases which threaten the health and safety of U.S. citizens. . . . Despite the growing numbers of individuals who have contracted the AIDS virus worldwide and the deadly nature of the disease, this country is continuing to welcome with open arms individuals who are infected with the AIDS virus. We are excluding individuals with infectious syphilis, remember, Mr. President, we are excluding aliens

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with gonorrhea and leprosy, and so forth. How can it possibly make sense that this Nation of ours should not exclude individuals coming to this country infected with the AIDS virus as well? It is not clear how many individuals infected with the virus have been allowed to enter the United States. . . . There are 43,312 persons who have emigrated from Haiti, 73,000 have come here from various countries in Africa, and we know statistically that Haiti and Central Africa are very high risk areas.27

The rhetoric proved persuasive. Ninety-­six senators voted in favor of the amendment (four were not present) as part of an unrelated appropriation bill, mandating that the secretary of HHS add AIDS to the list of “dangerous contagious disease[s].”28 The secretary complied by promulgating the regulation in August 1987. The spatial thinking that guided the ban was preserved in the final rule, which noted that the goal was “to prevent the importation and related further spread of HIV into the United States.”29 Despite the high concentration of HIV/AIDS cases in the United States, the exclusion framework depicted the disease as an external and alien agent that could be held at bay by biolegal filters. The Senate’s intervention also signaled a politicization of a decision-­ making process that had been delegated to ostensibly neutral technocrats. HHS’s jurisdiction over the list was commensurate with a long-­held American ideology of administration, which delegated the authority to regulate certain fields of activity to specialists and specialized agencies better suited to the task of promulgating rules on highly technical matters (Mashaw 2010, 1376). By interceding, the Senate hijacked the agency decision-­making process, substituting its own evaluations for current and future agency technocrats who might have the benefit of more accurate scientific and epidemiological data on a new and, at that point, little-­understood virus. Moreover, unlike later justifications for the ban that focused on the cost of treating and supporting AIDS patients, the 1987 statute and rule portrayed HIV/AIDs as alien to US publics. Helms’s legislative maneuvering, in other words, had etched a new pathologized geography into American administrative law. The fight over who would control the contagious disease list was, however, not over. Three years after Helms’s legislative coup, a series of protests, boycotts of important international AIDS and hemophilia-­themed conferences in the United States, and a condemnation from the presidentially created National Commission on AIDS put the question of the “HIV ban” in contention once again (Osuna 1993, 13–14). Congress responded in the Immigration Act of 1990 with language that retooled the INA’s exclusion grounds and gave

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power back to the secretary of HHS to repeal HIV as a bar to entry (Barta 1998, 328; McCormick 1993, 159). The move signaled congressional support for a decision to remove HIV and all other diseases except active tuberculosis from the list of “dangerous contagious disease[s],” now given the more sober caption, “communicable disease[s] of public health significance” by the 1990 Act (Barta 1998, 328; McCormick 1993, 159). The issue remained, however, too politically sensitive; after the secretary of HHS published a proposed rule to alter the list of diseases, Pat Robertson of the Christian Broadcast Network led a “right wing letter writing campaign” that cut short the rulemaking process (Barta 1998, 330). On the eve of what was to become the largest influx of Haitians in United States history, efforts to repeal the HIV exclusion faltered and the ban remained firmly in place. Haitians were again to become the paradigmatic, unwanted refugee group, much like they had been in the late 1970s and early 1980s. The addition of AIDS-­carrier to the “Haitian threat” cemented their position within US visions of deserving and undeserving refugee populations. “[I]f the Haitian boat people did not exist,” Harold Koh later observed, “we would have had to invent them, as the paradigm group uniquely disfavored under U.S. immigration law” (1994a, 451).

O f f s h o r e Q ua r a n t i n e : Putting Haitians in Place In the Senate debates over the Helms amendment that created the “HIV ban” in US immigration law, Senator Alan K. Simpson, a Republican from Wyoming, presciently observed that the HIV exclusion might require the quarantine of aliens who were HIV-­positive but could not be deported, leading to the potential for indefinite detention.30 Within five years, the US military was holding several hundred HIV-­positive Haitians at Camp Bulkeley, an offshore detention site at Guantánamo Bay, while the Bush administration argued in federal court that it could continue to do so for as long as it determined it to be necessary to protect the American public. The creation of the quarantine camp and its conceptualization as an extralegal site of containment marked a shift in the geographies of management so often responsive to long-­standing but evolving spatial imaginaries of disease and disorder. The Haitian mass migration that triggered the use of Camp Bulkeley and the political responses to it also helped stimulate efforts to reinscribe the “HIV ban” in statute, ensuring its continued existence well into the first decade of the twenty-­first century.

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As I discussed in the previous chapter, the idea of Guantánamo as an extraterritorial and extrajurisdictional site for the confinement and processing of undesirable subjects dates back to the late 1970s, at least. Likewise, the use of offshore quarantine facilities is not new. The merchant ships turned floating prisons of the middle ages and the medical detention centers at Angel and Ellis Islands during the early twentieth century are only a few examples among many (G. Rosen 1993, 44; Fairchild 2003). The quarantine of HIV-­positive Haitians at Guantánamo Bay, however, was still shocking for many, perhaps both in spite of and on account of this history. Some journalists branded the facility a “latter-­day leprosarium,” the implication being that the Bush administration’s response was antiquated, almost medieval in its methods (Quindlen 1993). There was something about isolating sick asylum seekers in a barbed-­wire camp that struck portions of the American public as archaic. Despite the uncanny (Masco 2006) discomfort the quarantine engendered, nothing could be more (post)modern than the offshore confinement of HIV-­positive migrants under a system of flexible oceanic policing designed to target and exclude carriers of a newly emergent infectious disease.31 The pairing of the antiquated and the advanced, the territorial and the deterritorialized, was, it seems, in part tied to the baffling temporal hybridity of AIDS itself, a disease, which Jean Comaroff notes, simultaneously “prefigured an ironic, postmodern future” by “unsettling scientific certainties” while “cast[ing] a premodern pall over the emancipated pleasures . . . [of ] advanced consumer societies” (2007, 197). The frantic effort to reclaim control over the US’s southeastern border and reaffirm a classic sovereign power in the name of public health intersected with the drive to produce new legal geographies and policing regimes that would fracture political and legal space in fascinating, innovative ways (more on this fragmentation in chapter 6). The creation of the hybrid premodern/modern/postmodern quarantine camp as a subset of the extraterritorial detention of Haitians at Guantánamo was at once a contingent effect of a particular border-­screening regime and an unsurprising consequence of the chronotopes of contagion embedded in US immigration law. I will provide a brief explanation of how the camp came into existence before concluding with an account of its effects on new ways of containing and managing the threat of pathologized migrant mobility.32 While INS interdiction officers scrambled to screen Haitians for refugee characteristics—at first, aboard Coast Guard cutters and, later, at Guantánamo Bay—State Department and INS officials rushed to find third countries willing to accept the asylum seekers. According to deposition testimony pro-

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vided by Grover Joseph Rees III, then general counsel of the INS, the decision to begin testing the Haitians at Guantánamo came about after these third countries expressed that they would only consider accepting Haitians who had already undergone HIV testing.33 Given Haiti’s place in widely shared imaginaries of disease and disorder, it is plausible that potential third-­country hosts and the United States were insistent for both political and practical reasons that the growing number of detained Haitian asylum seekers be tested. Why had HIV testing suddenly become an issue in the aftermath of the Aristide coup and not before? During the interdiction operations of the previous decade, the rapid and by most accounts perfunctory asylum-­screening interviews onboard Coast Guard cutters resulted in repatriation rates of close to 100 percent. The issue of HIV screening had never truly been at issue: interdicted Haitians were never in US custody long enough to make HIV testing feasible, and almost no Haitians were ever cleared for further processing in the United States. Medical testing was a moot point, because the INS never intended to bring any of these Haitian to the United States. The spatiotemporal shift that detention at Guantánamo created and the greater openness to paroling Haitians into the United States for further asylum interviews changed this. Haitians were no longer briefly held on cutters but were instead incarcerated for weeks and months at a time in camps where military and medical personnel could monitor them with greater ease. The possibility of medical examinations at Guantánamo34 combined with the two-­tiered asylum-­screening framework used in interdiction led to the very conditions that Senator Simpson had foreseen during the 1987 debates over the “HIV ban”—that is, the quarantine of HIV-­positive aliens who could not be deported and yet could not be set free within the social body of the nation. As noted in earlier chapters, the preexisting interdiction program used a low-­threshold diagnostic interview to determine if Haitians intercepted at sea had refugee-­like characteristics. If the interdiction team identified such characteristics, it would transfer the individual to the United States for an opportunity to file an application for asylum. By early 1991, the INS began attempts to codify these amorphous prescreening criteria into a more formal “credible fear of persecution” standard, in contrast to the higher “well-­founded fear” standard applied in full-­fledged domestic asylum hearings. Once a Haitian passed his or her credible fear interview, the INS could not return him or her to Haiti, having already acknowledged a degree of legitimacy to his or her asylum claim. It could and did, however, screen Haitians for excludable medical conditions prior to their transfer to the United States. Those Haitians with a credible fear of persecution who tested positive for HIV were

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not permitted to enter the United States because of their infection, but they were also not returned to Haiti. Instead, they were kept at Guantánamo and eventually isolated at Camp Bulkeley, the world’s first fully militarized HIV quarantine camp. The Haitian Centers Council lawsuit described briefly in the previous chapter began by challenging the INS’s decision to subject these HIV-­positive Haitians to final asylum interviews at Guantánamo without the assistance of counsel, assistance they would have been statutorily entitled to receive if they had been brought to the United States. Although the number of HIV-­positive Haitians at Guantánamo was minuscule in relation to the number of HIV-­ positive individuals already lawfully residing within US borders, and despite the fact that the attorney general had the power to circumvent the HIV exclusion and parole the detainees into the country, the government poured tremendous litigation and operational resources into keeping these Haitians confined to Camp Bulkeley.35 And in crafting their legal rhetoric, the DOJ attorneys unambiguously reiterated the older “Haitian threat” albeit in its reformatted incarnation, arguing that “[i]t is axiomatic that an injunction that barred repatriation of persons carrying HIV, malaria, tuberculosis, leprosy and sexually transmitted diseases would harm the United States.”36 For these government lawyers it was indisputable that the presence of these Haitians on US soil would do harm to the nation. The shifting nature of Camp Bulkeley as an institutional form does not lend itself to a compendious description. It mutated over the course of its existence in complicated ways, transforming along with the different strategies and tactics of the rotating joint task force commanders who ran it and the Haitians who inhabited it. Although I cannot delve too deeply into the changes in camp management strategy and the evolving nature of Haitian political activities within the camp here, readers will get a sense of the ethnographic complexity of the camps in future publications. Here, I focus on the broader juridico-­political transformations that unfolded during this time period and the ambiguous role of Camp Bulkeley in their development. The year 1992 was in many ways reminiscent of the Mariel boatlift and the Haitian influx of the early 1980s. President George H. W. Bush’s Kennebunkport Order, which shut down the entire screening and detention regime in favor of blanket repatriation, and the establishment of the quarantine camp itself propelled the issue of Haitian refugees into the national political debates of a fierce presidential reelection campaign. As part of their platform, Bill Clinton and Al Gore promised to end the comprehensive repatriations of Haitian asylum seekers and to repeal the regulatory HIV exclusion that re-

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mained on the books (Clinton and Gore 1992). Although once elected, Clinton would initially falter on the repatriation pledge and would only shutter the quarantine camp after a federal court ordered its closure, his administration did attempt to move forward on the repeal of the HIV exclusion, triggering a backlash among legislators not eager to be held responsible for the admission of more than two hundred HIV-­positive Haitians held in an offshore detention complex at Guantánamo Bay. Senator Don Nickles, a Republican from Oklahoma, led the charge on the eponymous “Nickles amendment,” which would again enshrine the HIV exclusion in statute, taking it out of the hands of HHS regulators. As before, the “Haitian threat” and its attendant geographic and temporal features provided the backdrop for the debates over the general HIV ban. The legislators’ rhetoric relied heavily on two premises common to past discussions over Haitian migration: (1) biolegal filters (the incorporation of biological attributes into law as sorting criteria) can protect an American sanitary citizenry from Haitian biological and social pathology; and (2) biolegal filters can protect state welfare resources from a parasitic class of diseased immigrants. A statement from Senator Jesse Helms, the author of the first statutory HIV exclusion, exemplified both arguments: As has been mentioned, there are currently about 300 Haitians with AIDS sitting at Guantanamo Bay right this minute. They are waiting for President Clinton to keep his promise to open up the doors to Haitian immigration. I’ve heard that the Immigration Service estimates that if Mr. Clinton gets his wish, we could receive more than 100,000 immigrants from that country. How many AIDS carriers are we talking about? Nobody knows for sure, but the World Health Organization says that almost 15 percent of the Haitian population—15 percent—has AIDS. Are we looking at the prospect of letting thousands into America with this disease? Before I conclude, I think I should mention one other issue created by the potential admission of Haitians with AIDS. . . . If we open the doors to thousands in Haiti infected with the virus, the American taxpayers are surely to be stuck with billions in medical costs.37

If Senator Helms had exchanged his previous explicit warnings about the likelihood that Haitians would infect healthy Americans for a more budget-­ focused rhetoric, Senator Nickles was less subtle, announcing from the Senate floor that these Haitians, if allowed in, “could really spread the disease throughout the United States.”38 The senators framed the debate as a question of both the health and wealth of the nation, of both potential infection

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and potential taxpayer liability. The Haitians quarantined at Guantánamo became the metonymic substitution for the thousands of Haitian and other nonnormative, HIV-­positive immigrants threatening to transgress US borders, drain US coffers, and infect US bodies. The Senate passed the Nickles amendment, once again taking the power to decide which diseases should be grounds for exclusion out of the hands of agency technocrats. Although the detainees at Camp Bulkeley were eventually paroled into the United States pursuant to a settlement agreement, the extraterritorial, militarized maritime border that the United States had erected around Haiti with its fleet of cutters continued to operate as a tool of biopolitical containment, monitoring the circulation of healthy and diseased Haitians alike much as US naval physicians had done during the 1920s in the port towns of Haiti’s provinces. Once again, the chronotopes of contagion in which Haiti featured so visibly had played their role in shaping another regime for the control of threatening bodies, populations, and spaces.

Conclusion Some might say these stories are relics of a bygone era when AIDS was misunderstood, American racism was still a reality, and a politics of fear and revulsion, if only for a moment, superseded reason. It is true that in the decade after the Nickles amendment, some asylum seekers were able to secure relief using their HIV diagnoses as a ground for inclusion, arguing that, if deported, they would be persecuted on account of their stigmatized illness (Neilson 2004). Although this type of humanitarian “regime of care” never took on the same significance in the United States as in France, for example (Ticktin 2006; cf. Fassin 2005), some asylum seekers in the United States did benefit from these arguments. And, of course, today, the Nickles amendment is no more. In 2008, Congress stripped the HIV ban from the statute books in a bill reauthorizing funding for US HIV/AIDS programs abroad, and the CDC removed HIV from the list of diseases for which a noncitizen could be excluded or denied other forms of immigration relief (Wasem 2011). The HIV ban had gone the way of other panic-­driven policies. But what of the logics that supported it? I would like to conclude with two examples of the stubborn persistence of the chronotopes of contagion that have been the subject of this chapter. The first involves a lingering variant on the stigmatization of decades prior, which resurfaced first in alleged comments made by President Trump during a June 2017 meeting concerning the number of visas issued to nationals of

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Haiti, Afghanistan, and Nigeria. According to the New York Times, the president had grumbled to several cabinet officials that “all [Haitians] have AIDS” after learning that the State Department had issued fifteen thousand visas to Haitians that year, a number he apparently found excessive.39 The White House denied the accuracy of the account, but the Washington Post reported similar comments in January of 2018, when the president was said to have referred to Haiti and Africa as “shithole countries” while discussing proposed statutory protections for Haitians granted Temporary Protected Status in the aftermath of the earthquake that laid waste to Port-­au-­Prince and surrounding towns in January 2010.40 Even if the specific associations asserted do appear anachronistic (they harken back to an earlier moment in the history of both Haitian migration to the United States and the AIDS epidemic itself ), the comments, if true, point more to a shift in the candor of presidential rhetoric than any radical change in the place Haiti and Haitians have long occupied in the American public imagination. The second example involves the easy slippage through which both the form of the contagion narrative and the methods for containing Haitian contagion have mutated in reference to what we might call, following Wilson’s comments referenced earlier in the chapter, one of the dominant “nightmares” of the early twenty-­first century—the terrorist sleeper cell. This shift from one type of pathologization to another (and I will get to how the pall of terrorist violence is relevant to Haitians shortly) has been facilitated in part by the evocative homologies between HIV’s biology and the tactics (at least in their stereotyped forms) of outmatched “belligerents” within relations of asymmetric warfare. AIDS, to return to Jean Comaroff ’s insights once again, “prefigured a novel order of post–­Cold War terrors: of protean, deterritorialized invaders who hijack our defenses and threaten to co-­exist with us in a deadly symbiosis that sets off rapidly mutating mimetic forms of violence and counterviolence” (2007, 198). The iconicity (a relation of resemblance) between terrorist “invaders,” the biology of surreptitious HIV replication within the infiltrated host’s own cells, and the dangerous penetration of state borders by HIV-­positive “illegal” immigrants suggested by, if not overtly mentioned in, Comaroff ’s passage make it unsurprising that Guantánamo, the detention site for several hundred HIV-­positive Haitians, emerged as the most visible military prison in the post-­9/11 “war on terror.” The liminal repository of the 1990s had become the holding site for the anomalous subjects of the new millennium—a rebirth I will return to in the afterword.41 For now, it is worth noting that it is also unsurprising that Haitians fleeing a second Aristide coup in 2004 were detained en masse and without bond in

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3 . 1  A “wave” of Haitian refugees hits the South Florida coastline, from Los Angeles Times, February 24, 2004. This cartoon was published days before the second ouster of President Jean-­Bertrand Aristide and reflects the fear, in some circles, that Miami faced a new influx of Haitian asylum seekers. By permission of Michael Ramirez and Creators Syndicate Inc.

the United States because Haiti had been identified as a new but, according to statements coming out of Washington, important site in an evolving geography of terror. In the wake of the 2004 ouster, immigration officials held fleeing Haitians in detention centers during the pendency of their hearings, a decision that harkened back to the early 1980s and the launch of the contemporary immigrant detention regime (chapter 2). Then attorney general John Ashcroft explained the rationale behind the blanket detention policy: there was, allegedly, intelligence that indicated Palestinians and Pakistanis were attempting to enter the United States using the same staging routes as Haitian asylum seekers.42 He also mentioned the difficulty of accurately tracking the identity of Haitian migrants, their criminality, and their propensity to migrate in large numbers as other problematic characteristics. These traits made certain types of circulating Haitians “a national security concern” that justified the deterrent measure of holding them without bond.43 As with the refugee crises of the early 1980s and the onset of the HIV/AIDS epidemic, the US government once again attempted to constrain and manage a vexing pathology—this time, the specter of Islamic terrorism—that threatened to unsettle the security of

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the American “homeland” (a trope I will explore further in chapter 6) by linking it with Haiti and mobile Haitian bodies. As before, the response was to “quarantine” Haitians through targeted, juridified containment measures. While this chapter has given a sense of the cultivation of urgency behind the manufacture of interdiction and offshore detention as new modalities of border governance—as well as the periodic revitalization of that urgency— the next chapter looks to the technicalities of its architecture of control. The felt presence, for some, of a looming Haitian peril and its hypostatization and uptake, whether in good faith or cynical instrumentalization, by others made a particular arrangement of constraints and affordances appear appropriate, if not necessary. I have already charted the expression of these sentiments and the general outlines of their effects. Now I turn to the intricate composition of the new edifice they helped to shape and the pragmatics of the possible within it, taking seriously the arcane elements of a juridical world-­making too often, and too easily, brushed aside by noninitiates as uninteresting or inscrutable technocratic esoterica (cf. Riles 2005).

Chapter 4

Screening’s Architecture

In late November 1972, a group of twenty-­five Haitians set out to sea aboard a small wooden sailboat, departing from Léogâne, a coastal town to the west of Port-­au-­Prince famed for its artisanal shipbuilders. Although their ultimate destination was the United States, dwindling supplies and the need for repairs forced them to land in neighboring Cuba not long after their departure.1 There they stayed for approximately five months before making a second attempt to reach US soil. After crossing the Florida Straits, they found themselves in distress once again, this time near Bahamian waters. “[U]nable to proceed,” according to immigration court records depicting the journey, they were fortunate enough to encounter an American commercial fishing vessel, the Miss Nee, and were towed into port. The group eventually disembarked in Miami, where INS agents, already notified by the captain, awaited them dockside.2 William Joseph, a mechanic by trade, was one of the passengers who arrived aboard the Miss Nee. From the documents that remain of his case, it appears that he and his fellow passengers were detained shortly after stepping ashore in the Port of Miami. Within a month, the INS had denied Joseph’s claim for asylum and furnished him with a boilerplate explanation: “On the basis of the information presented and after consultation with the Department of State, it is my opinion that you would not be subject to persecution on account of your race, religion, nationality, membership of a particular social group or political opinion if you return to Haiti.”3 Standardized language of this type offered Joseph and his attorneys little insight into the reasoning behind the INS’s decision in his case in particular and of the methods the

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agency used in adjudicating such cases in general. Anodyne and conclusory, these form letters, which arrived in the offices of the Haitians’ attorneys one after the other during this period, presented the final determination in a clean, concise package that concealed the flurry of bureaucratic and political activity that was surely taking place behind the scenes. Such missives were the rule when it came to Haitian asylum claims during the early 1970s. Later, the INS would release portions of the files of Haitians like Joseph— letters and notes that partially revealed the secret bureaucratic labor that had gone into generating the denials. The agency did so sparingly, however, and in the context of litigation. Although these modest divulgences shed only a dim light on the inner workings of the screening process, they do offer a glimpse behind the veil of secrecy that was so jealously guarded by agency personnel of all stripes, from the low-­level inspectors in South Florida to the higher-­ups in Washington, DC, at the time Joseph’s case was under review. One illuminating document was a telegram sent by INS district director Robert Woytych to the Department of State’s Office of Refugee and Migration Affairs. The telegram was meant to provide Department of State officials with background on the asylum claims of Joseph and his fellow passengers. Joseph’s “biographical résumé” as the district director called it in the message, was stunningly concise given the role it was meant to play in determining his fate: “[He] is a native and citizen of Haiti, born . . . in Port du Paix [sic] Haiti. He has never been married and has two children who are living in Haiti. He has no relatives in the United States. He has never been employed by the Government and has never participated in political activity. He fears persecution on his return to Haiti as he left without permission.”4 This entry, one among several similarly thin “résumés,” encapsulated, for the bureaucrats who read it, the entirety of the world of relevant details specific to Joseph’s case, making its brevity all the more shocking. For all we know, this was the only inscription of the screening interview that existed. Certainly, these were the only officially recorded details the Department of State, and, likely, the INS district director, who exercised near-­complete jurisdiction over “exclusion” cases of this sort, would ever see. For these adjudicators, William Joseph’s life was reducible to the above-­quoted four, short sentences. There was, however, another inscription, or “graphic artifact” (Hull 2012a, 259n1), that began to circulate a little over a year after William Joseph’s arrival in the United States—a written account of his persecution in Haiti that he and, likely, the staff of the Haitian Refugee Center had drafted as an alter-

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4 . 1  Affidavit of William Joseph, page one. Courtesy of the Schomburg Center for Research in Black Culture, New York Public Library.

native to the “biographical résumé” quoted above (see figures 4.1 and 4.2).5 Although Mr. Joseph and his advocates may not have seen the INS version of his biography when they elicited his story—these documents were habitually concealed from asylum applicants—the attorneys did know that the INS inspectors’ brief and technically clumsy interviews could not have generated enough useful information for what should have been a careful evaluation of the equities of each case. The attorneys’ goal was thus to pre­sent the relevant

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4 . 2  Affidavit of William Joseph, page two. Courtesy of the Schomburg Center for Research in Black Culture, New York Public Library.

adjudicators with an affidavit (and an accompanying, contextualizing documentary array) that could serve as the basis for a meaningful assessment of his claim. The affidavit the Haitian Refugee Center staff helped Mr. Joseph to craft was an altogether different sort of document than the one District Director Woytych had dispatched to the Department of State. In it, one finds a description of Joseph’s past political support of the populist former interim president of Haiti, Daniel Fignolé, who was forced into exile prior to Duva-

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lier’s ascendance in 1957; Joseph’s later imprisonment as a suspected dissident; his beating while in prison; his release; his refusal to submit to the extortion of a municipal political figure; his later targeting by the tonton makout for this intransigence; and his eventual flight (see figures 4.1 and 4.2).6 Though still rather sparse by today’s asylum affidavit standards, this narrative was, by contrast with the four-­sentence INS inscription quoted in full earlier, a relatively detailed account of the complex intersection of structurally dispersed kleptocratic practices and violent retribution characteristic of Duvalierist Haiti at that time. Joseph’s attorneys mobilized it as a narrative designed to compete with the State Department’s version of events, sending it out into an entirely different series of adjudicatory passageways than the INS “résumé” had traveled. Moreover, unlike such résumés, it did not circulate in relative isolation. Rather, a rich set of citational accretions—a bundle of related textual artifacts that framed the narrative—moved with it. The point of juxtaposing these two objects—the “biographical résumé” penned by the district director and the affidavit drafted by William Joseph and his attorneys—is not to posit one as “ultimate veracity” (Fassin 2013, 40) and the other as fantasy. Their propositional content—that is, their correspondence with the series of events they purport to represent (Caton 1987, 231; Silverstein 1976, 14, 21)—is not my primary concern (cf. Hull 2012b, 254). Rather, my goal is to use these graphic artifacts as a means of entering into the interwoven juridical architectures and material geographies of two bureaucratic landscapes: the border exceptionalism that served as the condition of possibility for the production of the first inscription of Joseph’s story and the liberal legalism that allowed for the production of the second. This “pragmatic” approach (Silverstein 1976, 11–12; see also Caton 1987) reveals how inscriptions, like the two versions of Joseph’s asylum narrative, both signal a referential object—the persecution or lack thereof literally described in the narrative—and a broader contextual world that shapes how such inscriptions become thinkable or unthinkable as “good enough” referents for the “real” within various adjudicatory regimes. It is these contextual frames that will occupy much of my attention throughout the chapter. As I detailed in chapter 2, the long war over the terms and viability of Haitian containment cohered around the paired ideals of sovereign freedom and constraining legalities. The schismogenetic tensions of this polarity in turn gave shape—along with other factors, terrestrial and oceanic materialities among them—to the spatial dynamism of the border-­warping “fixes” we saw emerge over decades of judicially mediated conflict. Although I have already traced the broad contours of these shifts in the border disjunctures described

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in previous chapters, here I will delve into the specifics of how such edifices of law are built through the creation of citational chains that link graphic artifacts of varying genres and hierarchical markedness. Perhaps more importantly, I will examine how such intertextual infrastructures (cf. Elyachar 2010) have operated to constitute spaces and render specific practices “felicitous”—recognizable as appropriate pursuant to a shared interpretive repertoire (Goffman 1983, 48; Povinelli 2002; Trouillot 2000). This will give us a chance to scrutinize the geographically encoded conditions of possibility (more on this in the pages ahead) of the two “entextualizations” (Silverstein and Urban 1996) of William Joseph’s biography referenced above as well as other similar artifacts produced in the decades that followed. It will also provide us with a means of moving closer to an adequate conceptualization of the remarkable ways in which the terrain of sovereign discretion is fabricated in its concrete specificity and how the types of border exceptionalism it authorizes—exceptional vis-­à-­vis a particular spatialized vision of the rule of law— presuppose and entail a rich cosmology of American power, a topic I will continue to pursue into the next chapter.7 As a word of warning, the task of unveiling the elements of this architecture requires a painstaking attention to the technical dimensions of law to an extent that may, at times, border on the excruciating for those not initiated into the world of legal draftsmanship. This is not a matter of undue precision, however, but of a necessary acknowledgment of the labor and the material that go into making a border regime of this kind. Neither is it a slip into the genres of mainstream doctrinal analysis of the sort that fill most law reviews or, even, professional legal memoranda, characterized as they are by an obsessive concern with citation and precedent. Instead, I will be turning an eye to what can be made with such obsession—that is, what practicing lawyers do with it. In this sense, it is meant to be taxing, because it is the banality and arcanity of the art of legal manufacture that abets its invisibility and fosters the type of fetishization that makes such edifices appear monolithic in the first instance. We must be willing to see the trees and the forest. This is both the cost and the benefit of a legal anthropology of the technical.

Monopolizing the Means of Inscription Not long after Joseph stepped ashore in Miami, INS frontline inspectors, already notified of his group’s impending arrival, subjected him and his companions to a barrage of questions. What we know about the interviews comes almost entirely from the reports of those Haitians who lived through simi-

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lar encounters during this time period. The murkiness that surrounded this process of primary inspection was a result of the INS’s efforts to intentionally enshroud these screenings in secrecy: officials kept tight control over the spaces in which initial exclusion interviews took place—forbidding the presence of advocates or family members—and often refused to relinquish any records the inspectors had produced to document the interviews, even when required to do so by regulation.8 Nonetheless, we have learned from the Haitians that INS interviews were, in general, superficial affairs, often consisting of only ten minutes of substantive questions, not accounting for translation delays.9 In the majority of instances, there were no verbatim transcriptions of these encounters, and, for the most part, the only records that the Haitians and their advocates would ever see of the event were the terse “biographical résumés” mentioned above, and then, in some instances, only after a federal judge ordered these documents released years after they were first created. We also know that the transmission routes, what Jan Blommaert has elsewhere referred to as “text trajectories” (2001, 25), along which these and related documents traveled were not ad hoc. They were carved out in advance by the existing INS “Operations Instructions,” a set of written rules that occupied a rung at the lower reaches of the hierarchy of administrative law. I will discuss this hierarchy along with the ideologies of legitimacy and process that frame it in greater depth later in this chapter. For now, what is important is to recognize that these rules fashioned a set of passageways—information channels through which inscriptions of Joseph’s stories could potentially travel. The overall architecture looked something like this: The inspectors’ notes, whatever form they took, served as the opening step in the process of file creation. Portions of the documents created based on that initial interaction then traveled a predetermined path through the district offices in Florida and up to the State Department’s Office of Refugee and Migration Affairs in Washington, DC. If interbureaucratic disputes over a claim persisted—for example, disagreements between the State Department and the INS district director— the claim might then move on to the INS regional director with jurisdiction over Florida and other states and, finally, to the INS Central Office, although I am not aware of any such disputes, which is unsurprising given the unity of purpose exhibited by the State Department and District Director Woytych when it came to evaluating Haitian applications for asylum. As a formal matter at the time of Joseph’s arrival, these aforementioned passageways between institutional sites were the only ones that existed and thus the only ones through which Joseph’s and other arriving Haitians’ files could travel as part of the evaluation of their asylum claims.

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The exceptional status of this exclusion regime, as noted in chapter 2, was a direct result of the structure of the text trajectories, or information routes, that gave it its form. Exclusion was built out of a set of pathways that dead-­ended within the enforcement arenas of the bureaucracy. Unlike other processing tracks designed to assess identical questions of fact—for example, the “deportation” regime also described in chapter 2—exclusion did not include administrative tribunals and the federal courts in the adjudication process. This was a pre-­engineered bureaucratic terrain that existed as a model, enshrined in rules, prior to and apart from the actual circulation of the individual files themselves. The INS did not just maintain a monopoly on the means of circulating the files. The agency also maintained a monopoly on the means of creating and framing the narratives they contained—that is, the content, detail, and word choice of the interview summaries themselves and the inclusion of contextualizing language and/or documentation along with them. As already noted, this monopoly was strengthened, in part, by sealing off the interview process from the world beyond the agency’s walls. Although the routes of file circulation were fairly clear, even after years of litigation the Haitians’ lawyers were not able to fully grasp the hidden evaluation procedures used to assess a claim within them. One attorney, Eric Lieberman, stated as much in an affidavit submitted as part of a habeas suit challenging a set of asylum claim denials, noting that the Haitians were not “advised of the fact or contents of the telegram[s]” sent to the Department of State seeking advisory opinions nor of the Department of State’s replies.10 More importantly, however, the scant administrative record disclosed during litigation, Lieberman explained, did not provide sufficient detail for the attorneys to determine “the nature of ” the screening “procedures” the INS and the Department of State used in evaluating the Haitians’ claims.11 In other words, the INS had so successfully concealed its techniques of inscription, recontextualization, and evaluation that attorneys for the Haitians remained baffled as to the exact nature of the process even in the midst of a lawsuit reviewing it. The secretive insulation of the evaluation process was also mirrored in a different form of isolation that further strengthened the INS monopoly—the citational sequestration of the central text artifacts in the intra-­agency adjudication process. I am referring here to the careful disembedding of documents like Joseph’s “biographical résumé” from a wider landscape of potential intertextual reference. No transcripts, affidavits, newspaper articles, legal briefs, advocates’ statements, or human rights reports were included in Joseph’s INS

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file, nor were there any means, at that time, for those outside the bureaucracy to insert such materials into the flow of paper passing between offices as part of these adjudications. The message of the telegram that contained the INS’s version of Joseph’s asylum narrative offered a one-­sentence concluding paragraph, which announced that “[t]he subjects state they have no additional information on which they base their claim for asylum,” signaling that the sum total of the relevant narrative details shared by the Haitians with the INS inspectors had been included in the text of the document.12 The implication of such language, of the scant textual traces of evaluation procedures left in the administrative record, and of the bureaucracy’s unyielding antipathy toward efforts at contextualization by those on the outside was clear: the INS and the Department of State officials examining such documents already had the complete legal and factual framing knowledge necessary for assessing such claims. Nothing more could be added to their understanding of the asylum narratives nor of the situation in Haiti. Additional information or commentary added nothing more than a layer of artifice. The opacity and insulation of the exclusion regime and its documentary forms was no accident. It had been intentionally created to ensure that the iterative process of inscription and circulation remained under the control of the INS and State Department agents alone. The bureaucratic tendency to restrict access to the means of file production and circulation is, of course, not unique (I. Feldman 2008, 52–57; Weber 1958). Here, as is often the case, it was engineered to concentrate the power to craft the Haitians’ narratives in the hands of the agencies involved. As others have noted (Hull 2012a; Bauman and Briggs 1990; Silverstein and Urban 1996; Mertz 1996), such methods of decontexualizating and recontextualizating strips of discourse—the transcription of a string of utterances, for example—is always potentially an “act of social control” (Bauman and Briggs 1990, 76) that both “reflect[s] and constitute[s] asymmetrical social relations” (Silverstein and Urban 1996, 4). Entextualization—the process of “rendering a given instance of discourse a text” (Urban 1996, 21)—is, to put it more succinctly, about power. With the case of Joseph, we see just how dramatic these entextualization asymmetries could be: within the architecture of exclusion adjudication, INS bureaucrats monopolized the means of presenting Joseph’s testimony, which they used to transform it into the graphic artifact we saw earlier and to re/decontextualize it in Woytych’s letter to the State Department. The system was created to prevent any competing versions, particularly those that offered a different contextual universe, from circulating among the relevant offices of the exclusion bureaucracy. Why the INS felt this was necessary had to do with

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a long-­institutionalized belief that sovereign power could, and should, operate with less restraint at the nation’s borders in order to remain more effective and nimble in the face of external threats, an idea with its own spatial imaginary that I will address more fully in what follows and in chapter 5. Along with the power to inscribe Joseph’s story came the authority to structure the frames through which circulating documents of this type would be interpreted. Woytych’s letter, for example, stands as a token of the standardized genre of authorial erasure also characteristic of bureaucratic modes of domination more generally—what Matthew Hull, following Wil­liam Maz­ za­rella, calls the “politics of immediation” (Hull 2012b, 253; Mazzarella 2006). Although autographical (it was signed by Woytych), the letter slips into a “collective voice” (Hull 2003, 288), both through its detached recitation of mundane facts (the length and itinerary of the voyage), and its repetitive incorporation of reported speech, signaled and framed by phrases such as “[a]ccording to the testimony of the applicants . . . .”13 The letter is thus a compilation of multiple voices, including some version, however deformed, of Haitian voices, and, implicitly, the inspectors who interviewed them. But it is also a voice from nowhere (Hoag 2011, 82), self-­presenting as professionally disciplined, neutral, and monovocal. In this mode, it elides the labor involved in the sedimentation of the Haitians’ narratives as texts—that is, it provides no overt explanation as to the actual process of inscription. At the same time, however, the authority of its voice rests on the fact of the official nature of the mediating processes through which such narratives were first elicited and recorded and then passed on along formal channels. These two characteristics—one that conceals and one that relies on the context of text production—are forgotten and assumed simultaneously. The double movement is essential to the instrumentalization of such texts: they must bear specific indicia of their fabrication to signal procedural legitimacy while at the same time appearing self-­made and natural so as to convey pure facticity. For instance, despite the dialogism—the copresence of multiple voices (Bakhtin 1981)—made possible by the document’s use of paraphrase, the actual techniques of entextualization become invisible within the archive, even from the perspective of the attorneys working with court orders near in time to the events being investigated.14 It is as if the graphic artifacts crafted in the interview and the later repackaging of those entextualizations were meant to be regarded as transparently referential (cf. Mertz 1996, 232; Collins 1996).15 Mediation, within the implicit ideology of inscription hinted at here, was not seen as a process that altered the raw material of the Haitians’

Screening’s Architecture 145

testimony: it was a vehicle for the transparent conveyance and insurance of a facticity seen as existing independent of context. This bundle of assumptions and epistemic frames I have been enumerating amount to what Matthew Hull would call a “graphic ideology”—the “sets of conceptions,” including “conventions for the interpretation of graphic forms,” their “ontology and authority,” and their “capacity (or incapacity) to represent or produce truth” (2012a, 14), that are presupposed and entailed by textual objects like Woytych’s letter. Here, this graphic ideology is part of a larger adjudication ideology of “exclusion,” in the technical legal sense of the term described in chapter 2, which instructed the consumers of the objects it produced how to consume such objects, including written texts, oral testimony, or marks of physical trauma (cf. Fassin and D’Halluin 2005). It signaled what was felicitous within its own regime of truth, both in terms of the structure and techniques deemed permissible in the fashioning of evidentiary objects and the proper methods of interpreting those objects once they were created. Within this particular ideology of adjudication, the official, entextualized asylum narratives of applicants like Joseph could be presented, as I noted above, as mere fact, in part because of the assumption that such biographical “résumés” were simply replicas of the original oral statements provided by the Haitians during screening interviews. Though they were not presented as verbatim transcripts, one gets the sense from the Woytych letter that the message conveyed to the State Department and other bureaucrats was that everything essential had been included in the transmitted text. If anything, Woytych, or the subordinate(s) who drafted the letter he signed, were presenting the brief summaries as a purer, truer iteration of the narrative that had unfolded in real time. Whether Woytych and others involved actually internalized this vision of the seemingly “pure” text artifact, it remained a key fiction within the world of the exclusion regime, one that would affect the way those caught up in the screening process could participate in the crafting of their own narratives. Administrative power over inscription is often not as concentrated within select entities of the bureaucracy as it was in the process described above. As Ilana Feldman has noted, standardized bureaucratic procedures and their documentary genres do not merely lock subjects in an iron cage of bureaucratic rationality; they also create “arenas of self-­expression . . . and self-­ fashioning” (2008, 48), spaces where those who interact with administrative offices can engage with the “social aesthetics of eligibility” (Cabot 2013, 453) such regimes create (cf. Coutin 2000; Merry 1990, 8). Here, however, the architecture of exclusion minimized the possibilities of any such self-­fashioning

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because it concentrated what might be called a monopoly on the legitimate means of inscription in the hands of government agents who controlled the stylistic features of narrative entextualization across institutional sites within the bureaus. Moreover, its ideology of objective and transparent text making seemed to rest, in part, on a sense that total control over the screening process prevented opportunities for creative but dishonest self-­crafting: by denying Haitians the opportunity to “perform” their stories based on the asylum criteria, the INS prevented them from polluting the facticity of the circulating file.16 In other words, only a distinct set of administratively controlled techniques of mediation were acceptable. To understand how this monopoly on the legitimate means of inscription was maintained, we must turn to the citational edifice in which it was embedded.

C i ta t i o n a l A r c h i t e c t u r e s The architecture of exclusion and its de facto sovereign devolution of decision-­ making authority to low- and midlevel bureaucrats, something I will explore further in chapter 5, was predicated on a metapragmatics—a metalevel discursive framing—of the proper execution of administrative duties that rendered the actions of INS bureaucrats authoritative. Traces of this higher-­order regimentation were embedded in the documents that began to circulate soon after the Haitians’ arrival. Following the initial screening interviews, for example, the INS inspection officer would provide the Haitians with a “notice,” informing them that [y]ou do not appear to me to be clearly and beyond a doubt entitled to enter the United States as you may come within the exclusion provisions of Section 212(a)(20) of the Immigration and Nationality Act, as amended, in that You [sic] are not in possession of a valid unexpired immigrant visa, re-­entry permit, border crossing identification card or other valid entry document required by this Act nor a valid unexpired passport or other suitable travel document of identity or nationality. Therefore you are detained under the provisions of Section 235(b) of the Immigration and Nationality Act, as amended, for a hearing before a [sic] Immigration Judge to determine whether or not you are entitled to enter the United States or whether you shall be excluded and deported.17

With this, the Haitians were instantaneously pulled into a citational web of legal texts and their anchoring lexicon, which provided the scaffolding for the entire exclusion enterprise. Through specific reference (the direct citation to

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section 212[a][20] of the code) and reported speech (the document’s language is largely a quotation from the cited statutory text), the notice linked the actions of the agents who would take physical control over the Haitians’ bodies to the juridical edifice of exclusion that authorized them to do so. The weaving of text and action did not, of course, end with these specific citations. As I have already mentioned, the core structure of the exclusion regime was laid out ex ante in the INS Operations Instructions, which articulated how cases of asylum should be handled when an applicant had not yet “entered” the United States, a fiction that should be familiar from chapter 2.18 The instructions laid out the procedures to be used for such “alien[s] . . . [applying] for admission at a seaport or airport of entry, before or during an exclusion hearing.”19 This reference to an “exclusion” hearing connected the instructions to the INA; exclusion, as you may recall from chapter 2, was a technical term of art within the act, although it only took on its full significance—that is, the implications of being placed in “exclusion” proceedings—when one traced its multiple components across various textual fields, from the instructions, to the statutory text, to the notice handed out in Joseph’s case, drawing these sites together into a lattice work of mutual reference. The techniques of exclusion processing were intelligible only in light of this context, which was always embedded within the texts that were explicitly and implicitly regimented by it. As I will show in a moment, these references were only a small subset of the wider archive against which these documents were read. The question that interests me here, however, is not merely how bureaucrats were able to interpret the meaning of “exclusion” across variously genred legal writings for purposes of orienting their practical interventions—for example, training subordinates or performing screening interviews at the border. Rather, we should be more concerned with how the overt citational as well as implicit indexical connections that existed across these planes of legal textuality grounded the whole enterprise of exclusion as an apparatus of exceptional sovereign discretion. What made this regime of total INS control over the inscription, framing, circulation, and evaluation of asylum claims felicitous? How could it remain thinkable as a legitimate enterprise situated, as it was, alongside the parallel evaluation regime of “deportation” processing, which gave those Haitians who had clandestinely traversed American borders access to an entirely different set of institutional adjudication venues, not to mention the opportunity to participate in the crafting of their own claims and to involve professional discourse managers—attorneys—in the juridical and factual contextualization of their testimony?20 What allowed these radically

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different visions of legality and legitimacy to coexist without eroding conventional understandings of the rule of law under a grating dissonance? The answer can be found in a rich body of constitutional law and the spatial cosmologies it embodied. In the immigration court hearings that followed on the heels of the district director’s denial of Joseph and his fellow voyagers’ claims, higher-­order legal texts (higher denoting here a superordinate positioning within a marked spectrum of authoritative text types) prefigured the possibility of “exclusion” as a process operating outside the normative space of the iconic vertical and horizontal separation of powers at the core of liberal legalism’s due process ideal—the benchmark against which I have been measuring the exceptional throughout this book. Citations to such texts (primarily, in this instance, Supreme Court opinions) would often appear as key contextual referents anchoring the discussions between the attorneys and the immigration judges, at least back in 1973, when cases like these were still novel enough to merit an overt, verbal articulation of this juridical grounding. Later, even when this grounding was hotly contested, its referents were often simply assumed in colloquies, and the actual work of overt, specific citation was left to the more formal task of briefing and official opinion writing. One clear example of this higher-­order framing took place the week after Joseph’s hearing, when a separate group of Haitians who had also come ashore aboard an American fishing vessel, this time at Marathon Key, appeared before Judge Joseph Monsanto of the Miami Immigration Court. As with the Miss Nee Haitians, the exclusion hearing was a formality: under the Operations Instructions, the judge had no authority to review the district director’s asylum determination and could only assess whether the Haitians had the proper paperwork to enter, although none of the applicants were asserting that they had such documentation. There were contentious aspects to the proceedings, however, and they revolved around whether exclusion or deportation was the proper mechanism for assessing the claims. Neal Sonnett, the attorney representing the Haitians that day, argued, “I would move to have these proceedings, which are being held in exclusion dismissed and ask that they be held in deportation,” because “an entry was made by these immigrants into the United States, and they are therefore improperly in exclusion and should be in deportation.”21 The salient question of the hearing then was whether the Haitians had “entered” in a manner that was technically sufficient under the INA and the case law interpreting it. A fundamental reframing would have involved a challenge to the legitimacy of the distinction between exclusion and deportation, as well as the entry fiction on which that distinction rested; here, however, Sonnett was launching a midlevel attack,

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one that disputed a frame-­relevant fact—the manner of entry—and not the deeper structure of the border geography as it then existed. After a lengthy back-­and-­forth over whether the commercial lobster vessel that had picked up the Haitians at sea had done so within the territorial waters of the United States or out beyond what was then its three-­mile limit, the lawyers and the judge turned to case citations to resolve the matter. In a colloquy on this point, Judge Monsanto, responding to Sonnett, referred to the case of Beauvil v. Ahrens, a Board of Immigration Appeals administrative decision dealing with a group of Haitians who had arrived by boat in the 1960s, which, coincidentally, he had litigated as a trial attorney for the INS prior to becoming a judge.22 Monsanto noted that in Beauvil, “the court . . . relied on the LENG MA v. BARBER case of the Supreme Court” when deciding whether the Haitian asylum applicants, who had been towed ashore by a Coast Guard vessel at West Palm Beach, had made an “entry.”23 Leng May Ma, as Monsanto well knew from his work as an attorney on Beauvil, was a Supreme Court decision in which Justice Clark, the opinion’s author, had reiterated the classical geographical fissure on which exclusion, as a regime apart, rested: “It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, such as petitioner, and those who are within the United States after an entry, irrespective of its legality. In the latter instance, the Court has recognized additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry.’ ”24 The evocation of Leng May Ma via the Beauvil decision was important, because it situated the actions of the inspectors and the unfolding procedures of the INS bureaucrats on a terrain of border exceptionalism in which practices became thinkable and legitimate at the “threshold” of national space that would have been anathema in the interior. I will explore these spatial cosmologies further in chapter 5. Additionally, Judge Monsanto’s allusion to Leng May Ma stitched the existing spatial figuration of the encounter to a jurisprudence emanating from the oracular core of another national political geography—the federal system of courts and the white marbled halls of the Supreme Court, a body at both the apex and center of this institutional matrix. The reference to Leng May Ma grounded the proceedings in the “precedential textual context” (Mertz 1996, 236) of Supreme Court doctrine. As a general matter, the most important technique within the professional repertoire of American legal argumentation is that of linking a particular set of actions to an existing citational edifice (236). By situating the facts of the Haitians’ arrival in light of Leng May Ma, Monsanto was using this method of (re)‑

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contextualization to draw on the deep temporal foundations often implied by the canonical “authorizing discourse” that Supreme Court opinions create (Caton 2006, 50; see also Asad 1993). The historical depth came not only from the Leng May Ma case itself, however, but from the long citational chains that decision trailed behind it and from which it derived its force. From Leng May Ma (1958), one could follow the indexical linkages on the issue of exclusion’s rending of juridical space through its strands of direct citation back in time to Shaughnessey v. United States ex rel. Mezei (1953), from Mezei to United States ex rel. Knauff v. Shaughnessey (1950), from Knauff to United States v. Curtiss-­Wright Export Co. (1936) and Nishimura Ekiu v. United States (1892), and from Ekiu and Curtiss-­Wright to Chae Chan Ping v. United States (1889) (see figure 4.3). As this chapter is not an analysis of legal doctrine but of the pragmatics of doctrinal mobilization, I will forego a description of the facts and issues of each case, although I will return to the details of some in chapter 5. I will note here, however, that following the intertextual and intertemporal threads of the previously named canonical cases would take one, respectively, through the Cold War anxieties of the Second Red Scare, the executive musculature of the Good Neighbor Policy, the rise of federal immigration power with Chinese Exclusion and its other Gilded Age “progeny”—a familial metaphor often used in professional legal discourse to denote the “offspring” of a canonical decision—and the issue of sovereign power’s spatial configurations with which all of these cases grappled. This history was, even for many skilled practitioners, present only as a temporally distant grounding, presupposed, though barely (if at all) visible, in contemporary doctrinal authorizations— that is, Leng May Ma and Beauvil’s etching of the legality of exclusion as a regime apart in constitutional and administrative law, respectively. This accretion of precedent is the stuff of legal cosmology, though, as previously mentioned, only the more specialized legal technocrats likely had a strong sense of its full scope. Nonetheless, I argue that it existed as a kind of subterranean firmament, part of the naturalized sense of the proper spatial ordering that undergirded the governance of this landscape and that erupted within it through citation and reported speech at various moments.25 The border agents, district directors, INS trial attorneys, and immigration judges moved through the terrain it created as players on and extensions of it. This terrain, in other words, consisted of the textual and material infrastructures that tied these institutional nodes and actors together in a wider and hierarchically uneven network; at the same time, these nodes were themselves part of the terrain as well (more on this below).

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For the human actors involved, the general fragmentation of border geographies that exclusion achieved as well as the degree of control it afforded INS bureaucrats over the entire adjudication process were, at first, assumed from the outset. The minutiae might have needed working out: How did the Haitians come ashore? Did they remain aboard a ship and wait for the INS inspectors? Or did they set off on foot? If so, how far did they travel into the interior? These were relevant details, but the foundational splitting of space and the adjudication regimes that mapped onto either side of the exclusion/ deportation divide were not in question. The INS’s near exclusive monopoly on framing, circulating, and evaluating Joseph’s asylum narrative, not to mention its excision of the agency’s own administrative tribunals—the immigration courts—from involvement in assessing the substance of the asylum claims, had long been normalized.

Competing Visions Exclusion, again in the technical sense of the term, can be viewed as an extreme form of mobility governance within which the authority to create and circulate the relevant and authoritative graphic artifacts for asylum adjudication were monopolized by select bureaus within the INS and Department of State. As I noted in chapter 2, however, this regime, at least as it existed on terra firma, would not last the decade. By 1978, the litigators, activists, and advocates who helped to craft the response to the INS’s draconian Haitian migration policies had remade the terrain of exclusion. But why did this matter? What was it about bringing “exclusion” and “deportation” in line with one another that benefitted Haitians like Joseph? This question of the “demonstrable consequentiality” of “institutional” context is an important one (Briggs 1997, 537), and its answer lies, in part, in the spatiality of exclusion’s jurisdictional paradigms as well as the deeper cosmologies on which they rested, both of which will occupy my full attention in chapter 5. Here, however, I provide a partial reply by examining what the techniques of inscribing, framing, and circulating asylum narratives would look like within an adjudication regime open to the iteration of documentary and verbal performances beyond the bare-­bones genre of William Joseph’s “biographical résumé” with which I opened this chapter. Haitians like Joseph sought this openness and its welcoming of a more nuanced pragmatics of expression that could serve as an antidote to the oppressive exceptionalism of the 1970s exclusion machinery. In the introduction of this chapter, I demonstrated just how stark the contrast could be between the narratives of persecution circulated by the INS

INA

236(a) “[a special inquiry officer] shall have authority in any case to determine whether an arriving alien ... shall be allowed to enter or shall be excluded and deported.”

212(a) “the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission to the United States ...”

Executive power supreme in foreign affairs.

299 U.S. 304 (1936) Inter-branch dispute over executive power and arms sales to Latin American countries involved in the Chaco war.

CURTISS-WRIGHT

LENG MAY MA V. BARBER

KNAUFF

CHAE CHAN PING EKIU

142 U.S. 651 (1892) California Immigration Commissioner denies Japanese woman entry and Supreme Court finds courts have no power to review such admissions decisions.

345 U.S. 206 (1953) “harborage at Ellis Island not an entry into the United States”

357 U.S. 185 (1958) Chinese citizen paroled into United States held to not be within United States and thus ineligible for INA 243(h) relief.

MEZEI

Admission a “privilege granted by the sovereign.”

338 U.S. 537 (1950) Knauff excluded without a hearing because her admission would be prejudicial to the United States.

130 U.S. 581 (1889) Supreme Court upholds Chinese Exclusion Act, concluding that power to exclude is an incident of sovereignty that cannot be contracted away.

THE ENCOUNTER

INS DENIAL

IMMIGRATION COURT HEARING

BEAUVIL V. AHRENS

4 . 3  Citational architecture of exclusion pre-­1978. Each solid line denotes a connection of overt reference.

INS NOTICE

STATE DEP’T POLICY STATEMENT

37 Fed. Reg. 3,447 (Feb. 1, 1972) “Both within the United States and abroad, foreign nationals who request asylum of the U.S. Government owing to persecution should be given full opportunity to have their requests considered on their merits.”

THE UN PROTOCOL

19 U.S.T. 6,223 (1968) “The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined.”

108.1(c) “An alien who requests asylum at time of application for admission at a seaport or airport of entry, before or during an exclusion hearing ...shall be interviewed by an immigration officer to determine the basis for his request.”

INS OPERATIONS INSTRUCTIONS

(BIA 1963) “The record relates to 23 natives and citizens of Haiti and a twenty-fourth alien, a child, a native of the Bahamas . . . [who] last arrived in the United States at West Palm Beach, Florida on September 15, 1963 on a boat called the “Good Fortune” which was towed into the dock by a Coast Guard boat.”

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and the Haitians themselves, a distinction exemplified by the two versions of Joseph’s narrative discussed earlier. In the affidavit (figures 4.1 and 4.2), which was likely collected as the federal court litigation over Haitian exclusions began to ramp up during 1975, one can see a comparatively rich account of Joseph’s mistreatment at the hands of Duvalier’s henchmen that is entirely absent from the “résumé” in District Director Woytych’s letter. Moreover, the narrative style of the affidavit, despite its greater detail, conformed to what scholars of asylum testimony in particular, and legal testimony more generally, have described as an expectation of linearity—an anticipated correspondence between “narrative clauses and the temporal sequence of events to which they refer” (Briggs 1997, 529; see also Blommaert 2001, 23; Coutin 2000, 105). In Joseph’s affidavit, this credibility-­conferring “temporal sequentiality” (Blommaert 2001, 23) was also accompanied by an implicit orientation of the substantive narrative content of the affidavit toward the legal texts against which the validity of the factual statements were to have been judged—in this instance, the requirement of political persecution codified, by reference, in the 1967 UN Protocol Relating to the Status of Refugees and, directly, in US regulations (cf. Coutin 2000, 116; Conley and O’Barr 2005; Merry 1990; Philips 1998).26 When compared to the “biographical résumé” the INS produced, Joseph’s affidavit appears as an entirely different aesthetic object (cf. Cabot 2013; Riles 2006), one exhibiting a fuller narrative crafted in the shadow of existing evidentiary genres of plot coherence and a formal paradigm of juridically recognizable political violence. It also provides us with a hint of what the asylum narratives of Haitians like Joseph could become when produced under different conditions of inscription. The affidavit’s formal attributes—the structure, the length, the use of first person narration, the preservation of colloquial register markers—and content suggest that it was fashioned using an approach to narrative elicitation and inscription that departed dramatically from the INS’s ideology of exclusion adjudication I parsed earlier. Moreover, I discovered the document in a collection of Ira Gollobin’s papers—Gollobin, as you may recall, was one of the attorneys discussed in chapter 2—where it had been filed alongside a series of other affidavits collected as part of the litigation carried out under the sponsorship of the National Council of Churches (NCC). The material embeddedness of the document within this subset of this particular archive—one focused on the lawsuits of the early to mid-­1970s—suggests an institutional environment of attorney- and client-­driven testimonial crafting and thus a form of inscription that would have been unthinkable under the

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tight constraints of exclusion’s entextualization regime. We are lucky, however, in that we do not have to rely on these cues alone to understand this and other similar documents’ context of production. While sifting through another archive, a privately held collection in which some of the papers of the Haitian Refugee Center and the original NCC task force are contained, I uncovered an internal memorandum from a young attorney dispatched to Florida by the National Emergency Civil Liberties Committee, an organization that should also be familiar from chapter 2. In it, the author articulates the ideological divergence between the Haitians’ litigators and the INS in explicit terms. Styled as advice to a new employee, the memorandum lays out the problems with the INS screening techniques and the time-­intensive approach required to gather more reliably accurate Haitian narratives for purposes of including them in the then ongoing litigation efforts. Although it was written several years after Joseph’s arrival, it remains relevant to that earlier moment and is worth quoting at length. The author, whom I will refrain from naming here due to the candid nature of the document, begins with an overview of what transpired when the Haitians would arrive by sea: What happens administratively is this: a boatload of Haitians typically arrives on the coast somewhere between Palm Beach and Key West, and they are picked up immediately by INS. . . . If they are picked up on the beach, they are considered not to have made an “entry” into the US; the men are hustled off to jail in Immokalee and the women and juveniles (under 18) are released to the custody of Rev. Jacques Mompremier, director of the Haitian Refugee Center . . . . But before that, almost as soon as they have landed and while they are still exhausted (having survived an 800-­mile-­voyage in small, leaky, open boats with insufficient food and water) they are interviewed by INS officials, with an interpreter. They often lie to INS because they don’t trust the interpreter or they think they’re supposed to say they just came to work, and they think if INS knows they were in trouble or ever arrested back home, they’ll be sent back. INS doesn’t tell them why they’re questioning them or anything, but [sic] they do a shoddy job of it and try to put words in their mouths and intimidate them like crazy and try and get them to say they came to work so they can be branded as “economic refugees.”27

Having summarized the techniques used by the INS, the memo’s author goes on to describe her own routine for gathering affidavit testimony.

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When they get [to the center] the refugee should be briefed first on why you wanted to see him or her, and told that we want to take their statement on why they left Haiti, what “problems” they had in Haiti (this is a universal expression—I had problems with the government) and why this is important: it will be the basis for their claim for political asylum. . . . [T]hen start asking them why they left Haiti; you will get a long and rambling story which will then have to be put into story-­form—see the sample affidavits in the file. They are really bad on dates and you won’t be able to pin them down too well, but it should be consistent, anyway—try to write it so they don’t say they were arrested and jailed for six months and then later tell you they were arrested again during the time they were supposed to be in the jail. It takes a good two hours, at the very least to get a roughed out affidavit. After you have enough facts, having taken notes, you can write it up yourself or compose it on the typewriter, which I usually do, while they wait. . . . This whole process will take often a good half-­ day. It requires patience and is very exhausting, which is why I only schedule one a day, and try not to do them every day. . . . We also try and put in their impressions of the [INS] interpreter—some say they were afraid because they thought it [sic] was a spy for the Haitian government, and some even say the interpreter warned them not to talk, etc.—and we also ask them if they told the whole story they told us and they inevitably say no and explain why—they were sick, tired, afraid, didn’t have enough time to answer, etc. Put that in the affidavit, and put in somewhere, if it’s true, of course, how they’re afraid to go back to Haiti under the present government, and why specifically—the Ton Ton Macoutes will get me, etc. It’s important not to put words in their mouth, though. . . . Don’t let the interpreter answer the questions because he is tired or bored or fed up, which often happens. You have to be fairly pushy to get what you want in this game. If you think the interpreter is trying to shortcut the whole business, ask him “Is that what s/he said?” and if not, he will usually re-­ask the question so you get the answer from the horse’s mouth.28

Based on my conversations with attorneys for the Haitians during this time period and over the following decades, this memorandum is a fair approximation of the lawyers’ sense of the inadequacy of INS screening interviews of this type, whether they were carried out on the docks of South Florida during the 1970s or, later, aboard Coast Guard cutters in the Windward Passage and in the camps at Guantánamo Bay. The incompatibility of the assumptions underlying the INS inspectors’ practices of eliciting testimony and those of the Haitians’ lawyers should be immediately apparent. To start, the memorandum clearly recognizes the ne-

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cessity of significant “contextualization work” (Blommaert 2001, 20)—the labor involved in framing narratives within a particular epistemic regime—in the preparation of asylum cases. Patience, cultural competence, cultivation of trust, and legal expertise are, according to the memo, integral to the process of recrafting the unpolished accounts of the Haitians into something that the administrative tribunals and courts might recognize as meaningful under their interpretations of existing paradigms of eligibility. There is also an implicit acknowledgment that the techniques of “discourse management” (Irvine 1989, 257) involved in the sedimentation of narratives of this type are a technical resource and that asylum adjudication often requires access to professionalized rhetorical skills, which can be scarce within a given political economy of linguistic competence (cf. Blommaert 2001; Bourdieu 1987, 817, 819; Irvine 1989). Most striking, perhaps, is the temporal aspect of the approach: effective entextualizations, the memo author contends, require hours of painstaking dialogue, not to fashion a canned version of history, but to perform the work necessary to bring the messy details of unexpurgated speech into line with the common sense “illusion” of unmediated biographical coherence (Bourdieu 2000, 297) that INS adjudicators seemed to demand.29 The inscription of the asylum narrative was, however, just the beginning of the contextualization duties the attorneys would perform. The affidavit may have been the centerpiece of a claim, but its authority depended on the mobilization of other documents with which it could be woven into a complex, intertextual, multigenred package. For example, a cover letter submitted to Florida’s INS district director by the National Emergency Civil Liberties Committee’s Eric Lieberman a few years after Joseph’s arrival lists no fewer than five excerpts from Amnesty International Reports on Haiti, one pamphlet authored by former Haitian political prisoners, three letters on Haiti country conditions, and eight sworn affidavits.30 Moreover, attorney affidavits, memoranda, and legal briefs submitted along with these documents operated in a metadiscursive mode to orient the recipients—the district director, for example, or those subordinates to whom he delegated his responsibilities—as to how the different pieces of the documentary puzzle fit together and satisfied the relevant legal criteria for a grant of asylum. Given the INS’s idea of an acceptable and effective inspection program (a model exemplified by the rapid screening interviews described above) and the more time-­intensive model imagined by the Haitians and their advocates, it is clear that the two visions of what a procedurally fair screening process should look like were irreconcilable. To reiterate, under the INS’s exclusion model, low- to midlevel bureaucrats maintained near total control over every

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aspect of the elicitation and evaluation of asylum claims, including the timing of interviews, the selection of interpreters, and the entire process of entextualization, recontextualization, and circulation of evidentiary graphic artifacts. Attorneys were barred from participating in the interviews and, initially, from providing any additional supporting evidence or legal framing of claims. Moreover, speed was prioritized: the substantive portions of screening interviews were over in a matter of minutes, making it nearly impossible that the narrative core of the asylum file would ever satisfy a cadre of administrators already predisposed to deny Haitian claims. The advocates’ proposed alternative methodologies could not coexist with such a regime. When the Haitians began attempting to supplement the administrative record before the agency with the packet of human rights reports and expert witness statements mentioned above, the INS simply ignored the materials. INS bureaucrats argued openly and with notable candor against the relevance of the types of supplementary evidence the Haitians intended to offer. In one instance, Florida’s acting district director, Richard Gullage, mocked the submission of a newspaper article by Graham Greene, the famed author of The Comedians, a novel that vividly depicted the brutal repression of Papa Doc’s tonton makout during the 1960s. Greene’s account contained details regarding a wave of recent politically motivated arrests in Port-­au-­Prince. For Gullage, however, the fact that “neither Graham Greene or any of his family” were themselves seeking relief from exclusion meant the piece was irrelevant.31 Later, District Director Edward Sweeney refused to include an Amnesty International report in the administrative record because “it contains much general information about conditions in Haiti but does not have any relevant material as to the individual asylum requests before the court.”32 As noted by the NECLC attorney directing the litigation, it was baffling that the INS could argue that “information about the general situation in Haiti” was not “relevant to individual asylum claims.”33 Indeed, one would think that INS adjudicators would be interested in assessing individual claims in light of the “general situation.” The culture of willful blindness in the Florida INS offices at the time, however, precluded contextualization of asylum applications beyond that undertaken by government officials. Anything short of a report describing the specific circumstances of a particular applicant was excluded from consideration. As noted earlier, the State Department’s own body of knowledge about Haiti constituted the entire universe of context deemed worthy of consideration, and the narratives elicited and inscribed by INS inspectors comprised the only testimonials meriting examination. District directors and the State De-

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partment made every effort to preserve these aspects of their extreme form of entextualization power. In addition to this obsession with circumscribing what constituted relevant context for a claim, the INS’s screening and adjudication methods also demonstrated an ideology in thrall to the illusion of natural biographical coherence as well as a naive textualism (Collins 1996) that generated expectations of a transparent correspondence between the circulating “résumés” described earlier and the verbal interactions they purported to represent. Honest interviewees would, in this understanding, provide INS inspectors with complete, temporally synchronized (cf. Labov and Walletsky 1967, 20) accounts with little prompting, which could be inscribed into a transparent textual form that revealed whether the applicant was deserving of asylum. When expressed in these terms, the assumptions underlying the South Florida border regime may appear absurd, but when INS bureaucrats endorsed their screening procedures as a noncynical attempt to sort deserving from undeserving refugees, they also adopted, whether implicitly or consciously, these ideas about self-­ narration and the ease with which it could be elicited, interpreted, and adjudicated.34 The advocates’ vision, with its commitment to rapport-­building, patience, and robust documentary contextualization, could not exist in tandem with the INS and Department of State’s graphic ideologies. To the Haitians and their attorneys, the INS model of interviews, evaluations, and formal hearings resembled what Trouillot has called “abortive rituals”—routinized performances “born without the capacity to meet their inherent purpose” (2000, 185). For the litigators, this was no accident of bureaucratic incompetence. The regime had been engineered to produce these outcomes, and, for this reason, it became the target in the battles to come. The conflict between the then burgeoning Haitian rights movement and the INS described in chapter 2 was thus not merely a dispute over whether Haitians like Joseph had valid claims of persecution, though it was certainly that. Instead, the conflict evolved into a higher-­order “frame dispute” (Goffman 1974, 322) over how to locate the practices and geographies of exclusion screening—its methods and fictional borders—within a spectrum of the juridically “thinkable and the unthinkable” (Merry 1990, 9). In other words, this was not simply a battle over the facts on the ground in Haiti, nor was it even over whether the facts of the Haitians’ arrival indicated that they had made an “entry” and were thus entitled to the benefits of “deportation” proceedings or not. The dispute, over time, became more fundamental, turning toward the basic legality of the procedures that ultimately determined the

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form, and, in part, the content of each case’s factual predicate and the review pathways through which the material inscriptions of the Haitians’ narratives could circulate. The architecture of exclusion became the object of contes­ tation. We can see hints of the emerging structural dispute in a habeas corpus petition filed in April 1974 after Gollobin and the NECLC became involved in the litigation. In it, the lawyers argued that the Haitians “should have been granted the right to pre­sent testimony of political tyranny, oppression and persecution during the initial stage with Immigration authorities with an opportunity to pre­sent evidence in an adversary hearing” as was required under the UN Protocol Relating to the Status of Refugees.35 The NECLC pressed the Supreme Court with similar arguments when petitioning for a writ of certiorari in another, virtually identical habeas suit.36 These efforts at frame shifting focused on weaving a new citational fabric, one that drew attention away from Leng May Ma and its roots in the case law of sovereign prerogative (see figure 4.3) and toward the politically engineered constraints of accession to and ratification of the UN Refugee Protocol. The attorneys argued that the treaty, as the duly ratified law of the land, had to be applied in accordance with the procedural due process limitations of the Constitution, which, in this instance, would have allowed them to pre­sent a robust contextualized evidentiary package much richer in detail than the short “résumés” the INS was consulting for Haitians in exclusion at that time. In the words of Eric Lieberman, the NECLC attorney who drafted the petition, “once a category of admission has been created by Congress, as it was here [with the Protocol], an alien cannot be denied entry pursuant to that category without being provided procedural due process of law.”37 In place of a vision of fictionalized borders—and the externalized legal subjectivities they created—Lieberman was offering an alternative model of jurisdictional form and a reordering of the citational chains on which it rested. It was an attempt to turn edifices into “remnants” (P. Kahn 1999, 41) and to erect a new scaffolding on the ruins (cf. Stoler 2008; Dawdy 2010). Prior to the filing of the habeas petitions, the exclusion cases had remained within the bureaus of the INS and State Department, passing between administrative offices and agency tribunals, including the immigration courts and the Board of Immigration Appeals. So long as the cases remained within the administrative field, the agency decision-­makers proved unwilling to revisit the basic procedural structure of exclusion, including the text trajectories that made up its information highways. The bureaucrats took these structures to be the very ground on which they stood. The immigration judges, for ex-

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ample, would refuse to consider arguments about persecution in Haiti, proclaiming, as one judge did, that they had “no jurisdiction over claimed political asylum,” which, under the existing regulatory framework, was true—that power resided with the district directors and their subordinates in a separate institutional cluster of the very same bureaucracy.38 The Board, much like the immigration courts it reviewed, focused on the question of “entry” and the facts of the Haitians’ arrival almost exclusively, leaving the underlying legality of the distinction between exclusion and deportation, which rested on the “entry” fiction, untouched.39 Once the administrative tribunals had spoken, however, the lawyers could use habeas petitions in the federal courts to make frame-­level arguments, like those noted above, that challenged the legitimacy of the bifurcated border-­ screening landscape itself. Unlike the agencies, the federal courts, which existed as a separate institutional “branch” under the framework of a constitutionally derived separation of powers, proved more willing to consider these attacks on the structural foundations of exclusion seriously. I will delve into why this was possible in chapter 5. For now, what is important is the re-­ engineering of legal infrastructure that began to unfold in these institutional venues. The first structural attack of this sort to yield fruit was in the courtroom of James Lawrence King, the Nixon-­appointed judge of the Southern District of Florida who would, in the midst of the Mariel boatlift years later, enjoin the INS from continuing the “Haitian Program” described in chapter 2. Well before the Haitian Program had begun, however, King had already given the Haitians their first substantial federal court victory, ruling that despite the heavy weight of geography-­rending precedent behind the INS’s endorsement of exclusion’s border exceptionalism, the 1967 UN Refugee Protocol was the relevant point of reference, not the Operations Instructions. The regulatory framework that “remove[d] the asylum claims of excludable aliens from the normal channels” of adjudication was, in Judge King’s opinion, invalid.40 As discussed in chapter 2, this victory at the lowest levels of the federal courts was far from definitive, and in fact was soon swept aside by the Fifth Circuit, but its validation of the Haitians’ efforts at reconfiguring the relevant citational matrix from which exclusion drew its legitimacy proved to be a potent signal for the Carter administration, which would later rewrite its regulations to create a new screening regime, one that would end the INS’s monopoly on the means of inscription that had defined the agency’s handling of Haitian claims on American soil and essentially codify King’s opinion in regulatory text. The citational reconfiguration of exclusion—that is, its reorientation

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toward the substantive foundation of the UN Refugee Protocol and away from the normalized jurisprudence of fractured border space—allowed for the diffusion of entextualization power across a more extensive and more diverse institutional landscape. Prior to the late 1970s regulatory shift, itself negotiated in the shadow of Judge King’s judicial intervention, the federal courts remained accessible to the Haitians in exclusion proceedings only in the sense that they could petition federal district judges to review the legality of the excision of their own courtrooms and the appellate institutions that oversaw them from the apparatus of exclusion adjudication itself. The question was classically jurisdictional and structural: the Haitians were asking the judges to opine on whether they had the power to intervene at all. Once INS commissioner Leonel Castillo’s regulatory compromise gave the administrative tribunals the authority to move beyond the threshold jurisdictional question and turn to the substance of asylum claims, the judiciary reentered the picture, no longer merely as arbiters of the legality of its own power to participate in the asylum review process (a role that had been denied by the more radical paradigm of exclusion as a regime apart) but as one of numerous adjudicators in a multilayered hierarchy of institutions that could evaluate the merits of actual asylum applications (more on this in chapter 5). The Haitians were suddenly able to offer their own testimony in immigration court and, later, in federal district courts, in order to contest INS characterizations of their narratives in their own words and in the words of other experts whose writings or oral testimonies they had interwoven with their own. They could also, of course, now benefit from the specialized discursive maneuvers of their attorneys, who guided the aesthetic and technocitational crafting of these new textual assemblages in the immigration courtroom, an adversarial setting unforgiving to lay discursive framing (Ramji-­Nogales, Schoenholtz, and Schrag 2007; cf. Conley and O’Barr 1990). More fundamentally, these new arenas allowed the Haitians to contest the INS’s ideology of exclusion adjudication itself through the performative venue of immigration court hearings. No longer stymied by immigration court judges’ claims of jurisdictional impediments, the Haitians were free to offer up different models of authenticity, including alternative visions of the legitimate production of narrative linearity and the proper inclusion of expertise in a claim’s citational nexus. There was no longer any question about whether immigration judges and federal district court judges could entertain such presentations in adjudicating claims. In the end, the shift in the terrain, and the changes in footing it permitted, unfolded on two planes, one nested within the other. The higher-­order recon-

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figurations occurred within metapragmatic webs of juridical reference—the nodally clustered linkages between cases, like Leng May Ma; statutes, like the INA; regulations, like those laying out asylum protocols; and guidance documents, like the Operations Instructions—out of which the exclusion regime was constructed (see figure 4.3). This architecture was one source of the production of felicity with regard to a particular set of practices: at various points within each citational strand was a concrete anchor for the professionally appropriate affective reaction within the habitus of the properly socialized adjudicator—the textual mooring to which attorney, inspector, or arbiter could point in support of his or her cultivated judgment.41 Its reordering gave birth to a new sense of “the appropriate,” as well as a lower-­order metapragmatics—the frame within the frame—that articulated the contours of thinkability for the specific practices of a new, now dispersed, entextualization power far different from that which had produced William Joseph’s scant “biographical résumé” years before. Out of the altered general frames, in other words, new microprocedures necessary for their implementation also came into being. The two planes (micro and macro) were interconnected of course, divergent as a matter of scale, but mutually presupposing. On the one hand was the relocation of exclusion as a regime within a broader juridical terrain, and on the other, the structuring of the new inspection practices entailed by this repositioning, practices that operated at a more detailed level of specificity— the “how” of interviews and hearings and the mapping of new information passageways, or text trajectories, as lower-­level bureaus became linked to a more expansive and hierarchically patterned institutional landscape through which evidentiary texts could circulate. I will have a chance to explore the relation between these citational matrices and the jurisdictional architectures they authorized further in chapter 5. For now, what is important is to grasp the pragmatics of their emergence and its impact on what could be said and where, not to mention who would be listening. Even without a triumphant endorsement of liberal legalism’s fetishization of process, one cannot deny the significance of “institutional” context, to paraphrase Briggs again (1997, 537), in this instance, where, for the better part of a decade, the peripheral offices of the INS maintained a monopoly on the means of inscribing and evaluating Haitian claims. The outcome of this monopoly was the immigration bureaucracy’s brutally consistent rejection of the Haitian plight. On the other hand, the federal district courts, at times, and the ranking political appointees responding to them, in rarer moments, offered an alternative to such rigid conformity and monopolized entextualization power. As described in chapter 2, working the terrain of 1970s border exceptional-

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ism entailed a dim hope in the promise of institutional checks of this sort and a reorientation of the legal landscape to a more diffuse form of authority that would allow the Haitians to access professional discourse managers when presenting their asylum claims and to pit different bureaus and courts against one another in their search for relief from expulsion.

The New Border Exceptionalism The battles that led to the fragmenting of the INS monopoly on the means of inscription also set the stage for a ground-­shifting backlash, as shown in chapter 2, that would transform South Florida’s immigration border into a regime both disjointed and unified: disjointed in that it ripped the small subset of INS bureaucrats who would become interdiction officers out of newly crafted networks of institutional power designed to constrain the discretion of frontline inspectors and unifying in that it concentrated that hard-­won, dispersed authority once again in an INS inscription monopoly, albeit, this time, one located primarily at sea. In the following pages, I will look at some of the pragmatic labor that made this reconstitution of INS entextualization power imaginable in the early 1980s, including the steps that were taken to create the juridical foundation for a mobile, floating bureaucracy new to the annals of American border policing. As before, this will involve an examination of how the citational architectures that would authorize offshore border screening were crafted. It will also involve reflection on the infrastructural (Elyachar 2010; 2011) nature of this legal edifice and its relationship with the complex temporalities and materialities of doctrinal wreckage and ruin (cf. Stoler 2008; Dawdy 2010).42 The recent work of Julia Elyachar (2010, 2011) on “social infrastructure,” already alluded to, provides a fitting entry point into the possibilities of conceptualizing what have traditionally been imagined as the ephemeral dimensions of sociality (for example, fleeting gestures and casual conversation) in a new idiom of material metaphors (that is, the “things” that make up the built environment). Focusing on the bodily practices (2011) of certain groups within Cairo and the “communicative channels” (2010, 455) maintained through “phatic labor”—“gossip” or “chatter” pursued with the aim of establishing social ties (453)—Elyachar has argued that social phenomena of this type operate as a form of “infrastructure” that facilitates different projects and modes of interaction within the city. The allure of such an approach to my own investigation should be clear, and the metaphor of infrastructure

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even more apposite here, given the relative durability and “thinginess” of the juridical architectures I have been exploring. The tendency to view law as infrastructure is, of course, not new. As Arendt has noted, in Greek antiquity, the “laws” were “like the wall around the city,” providing the “structure” of the “public realm of the polis” (1998, 194–95; Comaroff and Comaroff 2006). Another example, among many, is the language of “framing” found throughout The Federalist, a canonical assemblage of explanatory propaganda published during the debates over the ratification of the US Constitution (Cooke 1961 [Hamilton 1787 essay], 144; Cooke 1961 [Madison 1788 essay], 258, 259). The idea of a framing moment, and of the “Framers” as the craftsmen behind it, hints at the architectural imaginary at work within an American governmental cosmogony. So too does the later use of the now hackneyed metaphor of the “blueprint” in discussions of constitutional form (for example, Tribe 1983, 441). Although the idiom of drafting in this last instance suggests planning, not making, the concept of juridical infrastructure highlights the law as an edifice itself, as opposed to a model for as-­yet-­to-­be-­created institutional bodies. By treating law as infrastructure, I treat law as a constitutive force (Mertz 1994; Riles 2005) rooted in a performative modality (Austin 1975; Richland 2006, 67)—that is, a force that, through the medium of statutes, regulations, and other documentary forms, creates new realities rather than merely denotes those already in existence. With the felicitous promulgation of an executive order, for example, money, goods, and people are suddenly able to circulate and interact in new ways. Whereas it was thinkable to deny someone like William Joseph an adversarial hearing to determine the credibility of his asylum claim under the exclusion regime of 1972, it became unthinkable as a matter of official bureaucratic practice under the new set of authoritative regulatory texts penned in the late 1970s. If an immigration judge had baldly refused to yield to the exigencies of the then novel order, for example, he or she would find that violence-­backed interpreters of the law could send forth their agents to force his or her hand. This is not to assert any facile relation between textual authorization and action, paper and practice; certainly, as I have shown already, relations between superiors and subordinates mediated by legal documents are complicated affairs rife with indeterminacy. Nonetheless, the world of lawful possibilities open to various actors, at least within the context of this American immigration bureaucracy, changes the instant a legal text becomes authoritative, having met its conditions of felicity. Faced with continuing boat traffic from Haiti in the wake of Mariel, the

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Reagan administration began to craft itself a new edifice on the wreckage of the dismantled exclusion infrastructure of decades past. As noted in chapter 2, the proposals came out of the President’s Task Force on Immigration and Refugee Policy, which had been created in response to a report issued by the Select Commission on Immigration and Refugee Policy established during Carter’s presidency, years prior to the Cuban exodus. Mariel, along with the coeval surge in seafaring Haitian asylum seekers, would shape the contours of the policies ultimately proposed at the end of the Commission and task force’s long process of investigation and deliberation. As early as May 1981 task force members had presented Reagan with the option of interdicting Haitians on the high seas so as to avoid the impediments to rapid expulsion the federal district court in Miami had imposed the previous year.43 By July, the president had elected to move forward with the recommendation, directing his subordinates to proceed with the work of assembling the legal armature for the new maritime policing venture. Over the following months, they would erect a scaffolding of various textual forms in an attempt to create a stable base for this new exercise of border-­policing power at sea. Before turning to the actual legal assemblages that would emerge over the summer and fall of 1981, it is worth taking a moment to discuss the hierarchy of textual genres within American law, something hinted at repeatedly in the preceding pages and chapters. How the different genres interact with one another is at the core of judicial interpretation and the legal training that attorneys develop over years of formal schooling and practice (Mertz 2007). I will have time to examine only a brief sketch of this landscape here. Throughout this book, I have noted such generic legal inscriptions as the “Constitution,” “statutes,” “executive orders,” “regulations,” “guidance documents,” and “judicial opinions.” Roughly, the hierarchy of these juridical types runs from the Constitution, at the top, down to guidance documents at the bottom, the former crafted in a mythologized, almost sacred, founding moment and the latter comprising the ongoing enunciation of the technical and much less formally instituted minutiae of bureaucratic administration. Executive orders (or proclamations) issued by the president are a more ambiguous form, which, in certain instances, operate with the full force of law, equivalent to a statute, and, in other instances, may work in tandem with congressional authorizations, drawing support from them (Mashaw, Merrill, and Shane 2003, 264–67). The authority of judicial opinions in relation to these other forms is highly context specific and often geographically limited, depending on the question raised (a constitutional issue or mere statutory inter-

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pretation) and the court in question (state, federal district, federal appellate, or Supreme). The growth of the administrative state and the role of expert agencies since the early twentieth century has made the scheme even more complicated. Statutory texts often include intentionally vague language so as to delegate interpretive power to expert agencies for the purpose of implementing statutory goals through two methods. The first involves formal procedures of promulgating regulations, which have a force equal to statutory text and are somewhat durable: once issued, changing such rules can be difficult, potentially requiring a host of costly procedural steps. Gaps in statutory text can also be filled by interpretations issued in guidance documents, a less formal process that creates less durable legal objects: it is far easier for agency bureaucrats and judges to sweep aside this type of administrative inscription with the stroke of a pen than it is to abrogate regulations. Formally promulgated regulations end up in the code of federal regulations. Guidance documents, on the other hand, may take the form of internally circulated letters or memoranda that are often not widely available to the public (and in some instances may be classified). A host of interpretive canons, often enunciated in judicial opinions, guide the relative supremacy of each textual type depending on context (for example, Eskridge, Frickey, and Garrett 2002, appendix B). Those who build such structures and those who wish to tear them down scrutinize the connections between each piece, assessing the strength of the whole through the lenses of these sometimes competing canons. For example, for a new, high-­ level executive edifice to come into being, elite lawyers of the Justice Department’s Office of Legal Counsel (OLC), an institutional body that issues written opinions meant to establish a body of precedential legal commentary (Koh 1993; Morrison 2010), are often required to weigh in on the legality of the proposed program with this background of interpretive doctrine in mind. The Reagan administration did just that in 1981, requesting that the OLC compose a formal opinion on the lawfulness of a then hypothetical maritime interdiction framework. The office, headed at the time by Theodore Olson, released its opinion on the program in August of that same year, charting out the potential citational architecture that could serve as the legal grounding of the project and the new legal texts that would articulate with it. The document operated in both a referential and pragmatic mode. With regard to the former, the memorandum offered specific instructions on how to create a new, plausible, textual framework for interdiction—that is, it explained, literally, what had to be done to bring the program into existence. With regard to its

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pragmatic function, the fact of the program’s vetting by the OLC signaled, metadiscursively, a commitment to a legalistic proceduralism—a willingness to submit the proposal to the scrutiny of that entity—within the executive that was meant to cloak the project in the legitimacy of expert judgment and elite institutional capital. The OLC opinion dwelled on the now familiar dialectic of sovereign power and legal constraint at issue in the program, examining this tension through the existing juridical idioms of “plenary” and “implied constitutional power” (see chapter 5).44 Familiar case captions mentioned above, such as Curtiss-­ Wright, Knauff, and Ekiu, also emerged, once again, as anchors for sovereign exceptionalism (compare with the citational edifice of figure 4.3), although with caveats noting the lack of definitive clarity as to pure executive power in the immigration field.45 Specific quotations to INA provisions, including one establishing (or confirming, depending on one’s view) presidential power to suspend entry of all aliens in the nation’s interest, were carefully noted. The virtuous restraint of the OLC’s tone, which refrained from endorsing some of the more extreme positions of sovereign prerogative—for example, sole executive power—along with the acknowledgment of congressional authority, even if, in this instance, that acknowledgment focused on the statutory delegation of power to the president as opposed to an assertion of congressional supremacy, lent further gravitas to the course charted through the ruins of precedent and code. What, however, did the memorandum accomplish in a concrete sense? In chapter 2, I discussed the disjuncture gambit that motivated the launch of interdiction as a rending of judicial and policing borders. Although the OLC opinion did not announce a specific geography of judicial power, it did offer a spatialized interpretation of the legal constraints of the INA, specifically the actions necessary to trigger INA applicability, such as a noncitizen’s “arriv[al] by water or air,” with regard to exclusion procedures, and “prese[nce] in the United States” or at a “port of entry” with regard to deportation and asylum procedures, respectively.46 Because interdiction would be “taking place on the high seas,” the OLC determined that “none of these provisions” would “apply.”47 Similarly, in what appeared almost as an afterthought triggered by a recollection of the earlier proposal to conduct screenings at Guantánamo (chapter 2), the OLC drafted a short memorandum declaring the INA inapplicable at the naval station as well.48 The INA and its constraints were thus discarded—that is, cut from the relevant citational web—for purposes of “offshore” screening, but the question of the constraints imposed by the UN Refugee Protocol remained. In a few short sentences, however, the OLC

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determined that while the Protocol did bind the INS inspectors at sea, the administrative procedures envisioned by the INS, which, apparently, the OLC had already scrutinized, were sufficient to satisfy the Protocol’s requirements. These procedures, of course, were designed to keep screening decisions out of the courts and offered no mechanism for attorney participation, formal review by administrative tribunals (for example, an immigration court), or judicial review. Finally, Olson’s memorandum laid out a step-­by-­step approach for the installation of the program’s legal infrastructure, which would entail, among other things, issuing a presidential proclamation suspending entry of Haitians “without proper documentation.”49 Olson advised that the proclamation could be grounded in two INA provisions, codified at 8 U.S.C. §§ 1182(f ) and 1185(a)(1), which, in combination, delegated tremendous power to the president concerning the admission of noncitizens into US territory, giving him the authority to “suspend the entry of all aliens or any class of aliens” when their entry would be “detrimental to the interests of the United States.”50 These were the very same provisions to which the Trump administration turned, often publicly, in order to justify its hotly contested “travel ban” in 2017. One should think of the OLC memorandum as a sketch of the infrastructural project to come and as an existing element within that structure. With regard to the former, the opinion enumerated the potential textual genres out of which the edifice of offshore migrant policing might be constructed as well as the methods to assemble them. The memorandum was also self-­referential in that it was an object within the metapragmatic discourse of lawfulness it espoused: the opinion itself was the cornerstone of the imagined infrastructure that was required to launch interdiction as a program cloaked in an aura of legality. The mere existence of the OLC opinion signaled that interdiction had been born out of careful attention to procedural safeguards—it was evidence, as it were, that a specific type of process had already unfolded and that the proposal, given the memorandum’s conclusions, had survived the gauntlet meant to destroy illegitimate alternatives. At the same time, however, it did more than embody process values; the act of writing and issuing it was a task of binding together a concrete citational constellation that was an integral part of the new infrastructure of the disjuncture gambit. It facilitated the crafting of something novel. The official version of the memorandum was released in August 1981. In a flurry of activity over the next two months, the Reagan administration began laying the remaining legal groundwork for the program. The American ambassador Ernest H. Preeg executed the so-­called Exchange of Notes with the

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Haitian government that granted Coast Guard vessels the authority to board Haitian flag vessels.51 Shortly thereafter, President Reagan issued a proclamation suspending “[t]he entry of undocumented aliens from the high seas” as well as an executive order authorizing the interdiction of Haitian vessels, each referring to the INA provisions delegating this suspension authority to the president.52 The INS then formally, though not publicly, disbursed its guidelines for implementing refugee screening on the high seas in a document that had apparently been precirculated within the OLC and on which Olson’s opinion relied when the office declared the new program in compliance with US obligations under the UN Refugee Protocol.53 The commandant of the Coast Guard also distributed an implementing order to various mobile and fixed sites, including the Coast Guard cutters Hamilton and Chase as well as the White House Situation Room and the INS offices in Washington, DC.54 Legal guidance interpreting the implementing order followed, which, along with the INS guidance, laid out the division of responsibilities between Coast Guard and INS officials as they moved between the cutters and detained ­vessels.55 The various textual genres of memorandum, proclamation, executive order, and guidance supported one another in turn through mutual reference. The memorandum quoted the statutory delegation of authority of 8 U.S.C. §§ 1182(f ) and 1185(a)(1) and announced the proclamation to come; the proclamation implied the existence of the memorandum as its procedural prerequisite and through its actualization of the documentary production and citational labor prescribed by the memorandum itself; the executive order performed similar work as the proclamation; and the internal guidelines made reference to the proclamation and order and the latter’s concern with the UN Refugee Protocol all while enumerating the concrete tasks to be followed by actual Coast Guard and INS teams on circulating Coast Guard cutters. This network of texts was not, of course, cut from whole cloth, nor did it stand alone; instead, through reported speech—for example, verbatim quotation or paraphrase of statutory language—and reference, it indexically sutured this new regime to particular anchor points in a preexisting edifice of statute and legal opinions. On the wreckage of an older exceptionalism partially demolished in the litigation battles of the 1970s, the administration erected a new geography of hyperdiscretion painstakingly framed through law. The textual cascade described above may, intuitively, evoke a sense of something quite different from the discretionary freedom I have been describing, suggesting, instead, more of an administrative saturation of these offshore seascapes than anything else. Certainly the INS interview teams were

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required to carry the guidance memorandum with them while at sea, and the document did mandate such officers remain “constantly watchful for any indication (including bare claims) that a person or persons on board the interdicted vessel may qualify as refugees.”56 But what might such indications be? It is worth looking at the documentary traces left behind from one of the early interdictions to find out just what the aforementioned administrative infusion of these sea spaces might mean. In May 1973, the Sea Cat, an American shrimp trawler fishing off the coast of South Florida, crossed paths with the Ella, a Haitian sailing vessel. Beaten down by the journey and running low on food, the Haitians of the Ella requested assistance, and the Sea Cat obliged, towing them ashore. Much like the other examples of Haitian arrivals on US territory described above, the Haitians were detained and their asylum claims rejected by both District Director Woytych (with the blessing of the Department of State) and, later, an immigration judge, who, like others before him, disclaimed jurisdiction over the substantive elements of their applications.57 The passengers of the Ella became plaintiffs in the lawsuits that would rock the INS throughout the remainder of the decade. Most, presumably, were spared from deportation to Haiti thanks to these legal battles, which I chronicled in chapter 2. Nelson Thomas was a member of the group towed in by the Sea Cat. His biography, however, would diverge from those of his fellow travelers in the years to come in ways that would juxtapose the screening regimes that existed prior to and after the launch of interdiction. During the 1970s, Thomas lived in South Florida and Virginia, picking oranges and apples along with many other Haitians who traveled the seasonal agricultural routes between the two states.58 During this time, he also fathered four US citizen children, deepening his connections to his new home. In April 1980, about seven years after fleeing Haiti, Thomas received distressing news from Port-­au-­Prince: his mother’s house had been set ablaze. On the eve of what was to become the largest outflow of seafaring asylum seekers from Haiti since the first boats started arriving in greater and greater numbers during the previous decade, Thomas acquired a Haitian passport at the local consulate in Miami and boarded a Pan American Airways flight back to Port-­au-­Prince.59 He had hoped to tend to his mother, but, after arriving, he was stripped of all his possessions and thrown in jail. About two years later, he fled by sea, much like he had done in 1973. This time, however, his vessel was stopped en route as part of the newly inaugurated Haitian Interdiction Program. After a brief interview onboard the Coast Guard cutter Hamilton, he was sent back to Port-­au-­Prince.60 What’s striking about this case is that the details about Thomas’s return to

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Haiti in 1980 and his subsequent run-­in with government agents do not come from affidavits secured by sympathetic lawyers; they were recorded in the INS interdiction team’s own interview notes, which were later reviewed by the INS Central Office and, at some point, disclosed to the Haitian Refugee Center.61 This is to say that the interdiction officers were aware of Thomas’s story because they were the ones who had elicited it, recorded it, and included it in his file aboard the Hamilton. Here was someone claiming to have been jailed after his return to Haiti, someone with multiple US citizen children and no deportation record, and he still could not meet the modest burden of demonstrating a “suggest[ion]” of “a legitimate claim to refugee status,” the standard set forth in the INS guidance for interdiction screening carried by the INS teams at sea.62 Sandra Stevens, a staffer in the INS Central Office, drafted a memorandum regarding the case several months after Thomas’s return to Port-­au-­Prince. Her reaction is almost as striking as the file documents themselves: In reading the interview notes from the 4th interdiction, the case of Mr. Nelson Thomas came to my attention. As you will see, Mr. Thomas had been in Miami 7 years prior to his return to Haiti for a family emergency, he has 4 U.S. citizen children. The interview raises a dozen questions—Why was Mr. Thomas jailed when he returned to Haiti from the U.S.? What was Mr. Thomas’ status while in the U.S.? Why did he chose [sic] to flee Haiti a second time in such an unseaworthy vessel? etc. etc. All in all, in my view the INS interview raised more questions than it answered. . . . Based on my assessment of the available data, Mr. Thomas should have been brought to Miami for further ques­ tioning.63

And yet, Mr. Thomas was not brought to the United States. What does this tell us? The interview notes and the Stevens memorandum offer a rare glimpse behind the scenes of the early phase of interdiction screening and the degree to which it recapitulated certain features of Haitian refugee adjudication from the previous decade—that is, its extreme insulation and its extreme de facto devolution of decision-­making authority to peripheral bureaucrats. Lest the appearance of “quality control” signaled by this months-­late missive from Washington give an impression of effective administrative checks, the statistics on later transfers to the United States should remind the reader that the result of this resurrected exceptionalism gibes more with the image of a floating wall, an infrastructural metaphor I will discuss in greater detail in chap-

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4 . 4  “Don’t interdict ’til you see the black of their skin!!,” from Miami Herald, November 22, 1991. This cartoon was published following the first Aristide coup and represents the view that the interdiction program discriminated against black Haitian asylum seekers. By permission of Jim Morin.

ter 6, than a meaningful refugee protection regime: as noted in chapter 2, between 1981 and 1989 only 6 out of 21,461 interdicted Haitians were brought to the United States for more in-­depth interviews.64 That is to say, less than one-­quarter of 1 percent of Haitians stopped during the first eight years of the interdiction program exhibited a mere “suggest[ion]” of a claim for asylum according to the INS screeners out on the cutters. A senior INS official with direct knowledge of the program candidly acknowledged to me that the interdiction officers “had no instruction, they had no training, they just had whatever they felt at the moment, and you know, whether we like it or not, these people were all black, and you know, to some degree, that plays in somewhere.” This was echoed by other former INS employees with whom I spoke (see chapter 2). Moreover, he explained that the screening officers went largely unsupervised. In other words, the INS had developed an effective monopoly on the means of inscription and evaluation and had delegated it down to the furthest reaches of the interdiction bureaucracy. The result was a particular geography of discretion that rested on a new cita-

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tional architecture with similar effects to that which had produced William Joseph’s interview résumé nearly a decade prior. The results, as the statistics make clear, were staggering.65 Over the coming years the legal edifice of interdiction would grow, diminish, and contort with a host of documentary accretions and dissolutions, some fleeting and others more durable. At times, this involved the intensification of bureaucratic standardization of screening criteria in ways meant to replicate the process values that reigned on the terrestrial side of the border disjuncture while still maintaining the apartness of high seas adjudication. One example was the creation and honing of the “credible fear” standard described in the notes to chapter 2, which amounted to an effort to subject sea-­based evaluations to a tighter set of rules without losing the flexibility that offshore adjudication afforded.66 Other more fleeting changes were less accretions and more acts of temporary demolition—for example, the injunctive orders that extended judicial power out onto the cutters, dissolving, even if only momentarily, the juridical infrastructure that had kept such spaces distinct. In contrast, the Bush executive order suspending screening entirely and the US Supreme Court decision ratifying that maneuver, also described in chapter 2, were perhaps the most dramatic additions to this border architecture. As the interdiction regime expanded in physical space during the early 1990s to subsume Guantánamo as a landed extension of maritime freedom, further accretions adhered to the existing architecture. These legal attachments, or appendages, created a new offshore hybrid of oceanic and imperial exceptionalism, with its “graduated sovereignty” (Ong 1999, 215) and degrees (cf. Stoler 2006) of domesticity and foreignness. A mixed, and, given this history, counterintuitive, form developed out of the indexical welding of the jurisprudence of America’s insular empire to the legal framework undergirding still nascent modes of offshore screening. I will have the opportunity to explore these new citational matrices and the histories they intertwine in chapter 5. For now, it is worth noting that despite the changes in interdiction’s form over the years, one thing has remained remarkably consistent: the tremendous labor invested in crafting, defending, and repurposing its legal infrastructure has maintained these border spaces as zones of exceptional flexibility.

Abducting Felicity Throughout this chapter, I have examined various texts, ranging from high-­ status genres (for example, judicial opinions) to low-­status genres (such as telegrams containing summaries of asylum-­screening interviews). In addition

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to focusing on the documentary types in play, I have also looked to the citational practices that link many of these documents together in what I have called juridical infrastructures or architectures. Despite the robust materiality that such terms connote, texts like those I have examined still carry a hint of the immaterial about them (even when embodied as graphic artifacts and assembled in hefty files). As devices designed to “store information” (Goody 1986, 89–90), the files I have contemplated exist as embodied discourse within a lay philosophy that tends to characterize material forms of representation as somehow less real and less solid than other objects. As fixed traces of “ideation” (Hull 2012a, 13), the statutory provision, the memorandum, and the jotted note, whatever the “number of trees felled or megabytes consumed for the purpose of transmitting” such texts (Guillory 2004, 111), appear less thinglike than other objects. Or, rather, their thing-­ness is more about freezing the “variable utterance” (Goody 1986, 99) and less about shaping a particular landscape as a component of its built environment. They seem not to be objects in the same way that steel rivets, concertina wire, or canvas tarps are. As stabilized ideas, these texts remain “quasi-­mental objects” within certain ontologies (Silverstein and Urban 1996, 2).67 This chapter, however, has not been about an exclusively textual world of mutual reference. To be clear, the edifice of interdiction is not about language alone. On the contrary, ship decks, office doors, seawater, wood, and concrete also make appearances, sometimes explicitly, other times implicitly. For many, presumably, these entities will seem to be the real stuff of terrain and infrastructure, a different sort of “thing” than an inscription. Materiality, within such a perspective, takes on a determinative role, as with those commentators who assert an ontological correspondence between, to give one example, the lawlessness of the sea and the qualities of ocean space—liquid, vast, churning, uninhabitable.68 From a different, radically constructivist perspective, however, the materiality of entities like water and earth may also carry with it a hint of passivity: for some, the brute facticity of seawater and soil might suggest an absence of vitality and agency that renders them recipients of active subjects’ visions—the canvases on which culture or power traces its own construction of the real.69 In other words, water and soil may be treated as first one type of object and then another depending on how each is framed within circulating discourses, legal or otherwise. Their ontological status as “ ‘mere’ things” (Gell 1998, 20) remains unaltered while their discursively determined meaning shifts. Here, I adopt an approach that differs from these admittedly caricatured extremes of material and cultural determinism by examining how the cita-

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tional chains between documents attach themselves not just to one another but also to metal, water, and earth. The aim is not to do away with a distinction between, for example, an executive order and a mahogany keel in an effort to posit some “flat ontology” (Bryant 2011, 245; Kohn 2015, 316) or indulge in a brand of “material-­cultural mysticism” (Gell 1998, 21). Instead, my intent is to examine how the felicity of the orders (in the sense of actual “commands,” not overarching “regimes”) I have examined thus far depend not only on the juridical architectures on which they have been erected but also on the material constraints and material affordances (cf. Kockelman 2013, 30–32) of the nongraphic objects they have been crafted to codify and mobilize. This approach offers something more compelling, I argue, than existing performative theories of legal language and their focus on the word. Moreover, it moves beyond an admonition to take note of how ships and currents facilitate and impede certain actions. Rather, it suggests that one needs to look at how these things themselves become part of the citational webs that provide the architecture for their own felicitous mobilization. What I mean by this will become clearer once I turn momentarily to the points of contact between textual artifacts and other object categories, including steel, fuel, and bodies. As you may recall, after Reagan launched the interdiction program with his executive order and proclamation in late September 1981, a host of lower-­ order documents began to accumulate as the material for a new component of what was by then a relatively old legal edifice of border exceptionalism. Among these texts were the Coast Guard commandant’s implementing order, the INS’s implementing order, a memorandum confirming the detailing of an INS examiner to supervise screening aboard the cutters, and the identification of a specific funding source and account code for the new program.70 Other documents and conversations presumably followed as well, through which specific personnel were dispatched to South Florida, cutter docking and disembarkation schedules were arranged, and specific sorts of materials redirected. It is clear from an affidavit executed in the wake of the first interdiction that at least two INS officials had been detailed to the Coast Guard cutter Chase by late October and that the Chase was operating in its interdiction capacities by that time.71 It is also clear that because of this assemblage of texts, utterances, personnel, and supplies, the Chase was well positioned to interdict Haitian vessels traversing the Windward Passage on their way northward. Finally, there is documentation that the Chase did encounter such a vessel, the wooden sloop Exorde, early in the evening of October 25, 1981; that an INS examiner, Henry Boyce, boarded the ship via the Chase’s “small boats”; that he, with the help of an INS interpreter, conducted what

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amounted to a group interview of the fifty-­six Haitians onboard; and that all of the Haitians were returned to Port-­au-­Prince the following day never having set foot on American soil.72 This tableau is the outcome of a host of citational linkages that extended beyond graphic artifacts, pulling ships, people, and supplies together in a particular configuration not completely determined by an executive command but closely related to its explicit and implicit ends. Reagan’s executive order and proclamation authorized the production of a host of other related texts, which in turn triggered further authorizations on a spectrum of formality, which, at a certain point, instigated physical interventions beyond inscription. Pistons turned, sails were lowered, and INS agents stepped aboard rocking vessels. In addition to being tied to throttle mechanisms and rudders through increasingly attenuated indexical links of authorization, the urtexts of the new regime—the executive order, the presidential proclamation, the INS interdiction guidelines (which cited the former), and the highly technical OLC memorandum that had laid out much of the juridical edifice undergirding the program—moved about in the landscape themselves; according to Rudolph Giuliani, by March 1982, and perhaps earlier, the INS agents aboard the cutters carried with them hard copies of these documents.73 If or when the texts were consulted, I do not know. Certainly, their utility went beyond reference; like legal talismans, they moved about with the INS teams as they traversed the Windward Passage, mobile indicia of an elaborate legal infrastructure to which the circulating vessels and subjects were appended. In order to more fully grasp the integration of these different forms of infrastructure as something other than unidirectional reference originating in texts and ending in actual interventions, it is necessary to recognize how acts of interdiction at sea also operated in a citational modality of their own, albeit one quite different from the explicit indexicality of legal writing. Alfred Gell’s notion of “abduction of agency” will help us here (1998, 23). For Gell, “artefacts have the capacity to index their ‘origins’ in an act of manufacture” (23). That is, “by virtue of being a manufactured thing,” an artifact “motivates an abduction which specifies the identity of the agent who made or originated it” (23). Abduction here refers to the act of hypothesizing, or guessing about (Peirce 1998, 107), an object’s conditions of creation, a response that is provoked by one’s encounter with that object.74 A sighting of the Coast Guard cutter Chase, for example, may bring to mind a surmise about the factories and shipyards in which it was crafted. I am concerned, however, with a different sort of “manufacture”—the manufacture of interdiction’s conditions of legitimacy.

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When the Chase’s presence in the Windward Passage as part of a mission to interdict Haitian migrants became known through intragovernmental reports and journalistic accounts, it generated suppositions regarding the lawfulness or unlawfulness of that presence for that purpose. Three days after the encounter between the Chase and the Exorde, a short article appeared in the late edition of the New York Times mentioning INS deputy commissioner Alan Nelson’s defense of interdiction before a House subcommittee the day prior.75 It also mentioned criticism of the program’s legality.76 The publication of the article and the committee hearing may appear to be run-­of-­the-­mill occurrences, and they were. But their relation to one another and the interdiction also contains within them the key linkages of felicity’s abduction—the pondering, in this instance, of the legitimacy of this particular interdiction and thus, by implication, the performative efficacy of the acts authorizing it. The cutter’s interception of the Exorde gave rise to specific testimony on the part of Coast Guard Vice Admiral Donald Thompson before the congressional subcommittee describing the interdiction. Both the cutter’s actions and the hearing statements that followed from them gave rise to the Times piece, which, in turn, drew the reader’s attention to the question of interdiction’s legality; and the congressional testimony itself, if one were to have followed the breadcrumbs further, indexed the prior drafting work involved in creating the bureaucratic structure of interdiction that I parsed earlier.77 This pointing back to a prior moment of legal ground-­setting is precisely the type of abduction of felicity that interests me. The cutter’s placement and the role it occupied in that placement triggered statements about its activities and subsequent questions about the legal and administrative infrastructure that had moved the vessel into that location and had given it that task in the first instance. A citational modality in which emplaced ships index their legal conditions of possibility is undoubtedly an unconventional way of thinking through the relationship between legal programs and their implementation. Certainly, the indexical function of a cutter’s physical placement and visibility operates through a different modality than that which was at play in the graphic artifacts of interdiction’s legal edifice examined above, objects that contained explicit textual allusions to named documents. Nevertheless, the Chase and its positioning also drew attention to the discursive dimensions of a wider juridical architecture, albeit not with the overt precision of legal reference. The mediated visibility of the cutter (mediated by testimony and reportage) motivated an abduction—the imagining of a legal act authorizing the cutter’s deployment—that operated as a com-

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ponent relation and process within the complex infrastructural arrangement of memoranda, ships, and persons all of which are held together, in part, by multidirectional reference, allusion, and surmise.78 In other words, the borderscape of interdiction emerges out of a double movement of citation—one indexical chain flowing downward from an originating textual order and the other flowing back from the material presence of ships and the abduction it generates. The former triggers the presence of the latter and the latter triggers an abduction of the bureaucratic world of the former. Moreover, the chains of communication and action flowing from the executive order operate within the technocratic spheres of government bureaucracy while the physical appearance of the cutter in the Windward Passage operates within a public imagination that may only guess at what are, for it, the vague contours of administrative law making. Together, I argue, each series within this double movement has the potential to hold the border space together as a legitimate assemblage through attempts at felicitous manufacture and the abductions through which they are sometimes imagined to already exist.

W at e r a n d E a rt h While the linkages maintained by explicit textual or verbal indexing and abductions triggered by a cutter’s physical (non)presence are central to this inquiry, they do not exhaust the relevance of materiality to the question of how particular instrumental configurations of this sort are created and maintained. It is a truism that the possibility of specific assemblages depends on material affordances. Ink, paper, wire, screens, and a host of other technologies facilitated the crafting and circulation of interdiction’s necessary inscriptions, stabilizing utterances and extending the spatiotemporal reach of agents and institutions in the process. The sea, however, provided something a bit more grand in terms of what it impeded and facilitated—a degree of physical apartness necessary for the flexibility that was the program’s raison d’être. This distinction was, in part, a feature of its material qualities and the ways such qualities allowed the legal infrastructure of interdiction to emerge as something plausible and efficacious. When discussing the materiality of seascapes, there is always a risk of being seduced by the tropes of oceanic “emptiness” and the iconic relation they erect between the sea’s different archetypal spatial registers—on the one hand, a space that “cannot be [physically] occupied” and on the other, a space

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of “apparent lawlessness” (Benton 2010, 105). The seeming inevitability of this paired vision turns on a perceived causal relationship between the “fluid and moving” nature of the medium (Wigen 2007, 12) and its enduring status as “a strange and sublime wilderness” within certain cultural imaginaries (Helmreich 2009, 19). For example, William Langewiesche, a journalist who has written about what he calls the “outlaw sea,” has emphasized the materially conditioned inescapability of oceanic “chaos”—its “nature” as a vast and “eternally restless” space resistant to habitation and control (2004, 61–62, 69). The ocean, for Langewiesche and others, remains literally and figuratively “outside” (Das and Poole 2004, 8)—outside the dwellings of human civilization and thus outside the reach of law.79 As my own analysis of the extension of law into Caribbean seascapes demonstrates, any materialist perspective that posits the inevitability of ocean spaces as formal juridical voids will prove inadequate. This is, of course, not specific to interdiction or to the present moment. As Lauren Benton (2010) and Philip Steinberg (2001) have demonstrated, a host of complex jurisdictional tangles have overlain seascapes from the Windward Passage to the Straits of Malacca for centuries. And yet, although the qualities of the medium are not determinative, they are also not irrelevant. The physical barriers to populating maritime environments and seawater’s resistance to lasting physical manipulation (when compared to land) have long facilitated arguments for its exceptional status. Grotius, whose Mare Liberum stands as perhaps the most famous treatise on the freedom of the seas during the seventeenth-­century “battle of the books” (Steinberg 2001, 89; see also Armitage 2000), confidently proclaimed that “there is not a single person in the world who does not know that a ship sailing through the sea leaves behind it no more legal right than it does a track” ([1609] 1916: 39–40). The evanescent qualities of seawater served, for Grotius, as a poetic evocation of the impossibility of maritime dominium, a topic I will return to in chapter 6. Fading wakes and turbulent flows, however, do not a legal void make. Nonetheless, the aqueous consistency of the maritime environment has abetted a juridical sense of oceanic difference. It has also ensured the physical isolation that becomes possible at sea. Interdiction as a legal and political project sought to harness this normative and material exteriority as a means of recapturing a monopoly on the means of inscription once ensured by the built environment of INS screening—that is, its fences, walls, and doors—and, more importantly, the juridical landscape of 1970s “exclusion” that made possible the scant “biographical résumé” of William Joseph with which I opened this chapter. The indexical connections

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of interdiction’s legal structure were designed to anchor themselves in existing jurisdictional codifications of sea space and, also, its material qualities— its vast apartness that ensured physical isolation. This is crucial. The latter gave additional force to the former, each facilitating the instrumentalization of straits, channels, and passages. With interdiction, the result was a new sea qua infrastructural extension of an existing border-­policing regime. Through the realignment of texts, humans, ships, and water, the ocean became an entity one could do something with—in this instance, a tool for keeping Haitian asylum seekers out of US courts and out of sight of overzealous lawyers. I will have another opportunity to discuss how this repurposing of the maritime realm fit into evolving geographies of distributed sovereign personhood (cf. Gell 1998; Strathern 1988)—the spatiotemporal extensions of state power projections—in chapter 6. What is important here, I argue, is to recognize how the interplay of different material forms and citational modalities are integral to the ways this new border space has been crafted out of the felicitous production of certain types of texts and the abduction of their making.80

Conclusion I conclude here with a return to the beginning (of this chapter, at least), a return to William Joseph’s “biographical résumé,” the document with which I launched the discussion of screening’s pragmatics. As you may recall, I highlighted its brevity ( just four short sentences) in comparison to the much longer and more detailed affidavit later submitted on his behalf by his attorneys. I also associated the formal properties of Joseph’s résumé—its structure, its length, its citational (dis)embeddedness, its constrained mobility within administrative information channels—with the degree of entextualization power the INS exercised at the time it was inscribed. I presented it as iconic of what I have been calling the INS’s monopoly on the legitimate means of inscription during the early 1970s. One might expect then that with all the effort invested in creating the legal edifice of interdiction as a space that mimicked the flexibility and control of exclusion, we would see a similar degree of INS power and a similar textual product at the center of the new floating evaluation regime. We do. In the early 1991 litigation that challenged the adequacy of interdiction screening methods aboard the cutters (see chapter 2), attorneys gained access to the graphic artifacts of interview encounters at sea that were then circulating within the INS bureaucracy. As is apparent from the following excerpt,

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these interview summaries look remarkably similar to the INS’s documentation of William Joseph’s narrative inscribed nearly two decades earlier. Here is one: [Date of Birth:] 9/15/72, AU BORGNE, RESIDED AU CAN: ELECTRICIAN. CLAIMS HE DEPARTED THE COUNTRY BECAUSE OF THE CRISIS OCCURRING IN THE COUNTRY. MILITARY OFFICERS AS WELL AS THIEVES WERE ENTERING PEOPLE’S HOME AND KILLING THE OCCUPANTS. HE FURTHER CLAIMED THAT BECAUSE HE WAS A MEMBER OF THE LAVALAS NEIGHBORHOOD COMMITTEE ASSISTING PEOPLE WHO NEEDED HELP. AFTER ARISTIDE DEPARTURE THE MILITARY TURNED AGAINST THE MEMBERS AND STARTED SHOOTING AT THEM. APPLICANT WAS NEVER ARRESTED OR HARMED . . . HE WENT INTO HIDING. HE FEARS TO RETURN TO HAITI HE WILL GO BACK TO THE SAME CRISIS; HIDING TO SAVE HIS LIFE OR BE KILLED BY THE ­AUTHORITIES.81

This strip of text would have been the focal point of the evaluation of this particular individual’s claim. The contextualization work of situating it within a wider array of supporting documents was the sole province of the interdiction screening officers and their supervisors, just as it had been with the “biographical résumé” of William Joseph. How would a brief narrative like this have fared in the hands of adjudicators on the cutters or at Guantánamo Bay? Ira Kurzban, one of the lead attorneys contesting the legality of the interview techniques being used at the time, was able to query one of the supervisory asylum officers then working aboard the cutters on this exact point during a deposition in November 1991. The response he received was that the previous narrative was inadequate. The individual would not have been transported to the United States for further investigation. Why? The story was too focused on the generalized situation of violence in Haiti to meet the specificity required of the “credible fear” standard, the recently established criteria serving as the new shibboleth in offshore screening.82 Although this is not the place to delve into the specifics of “credible fear,” the memoranda elaborating the standard formally required many of the implicit assumptions of evidentiary narratives discussed earlier: the Haitians were expected to provide a coherent, chronologically consistent, juridically relevant account of their persecution, through an interpreter, dur-

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ing an interview encounter that often lasted around ten minutes, after a long voyage at sea.83 This particular applicant had failed to perform to the satisfaction of the INS agents aboard the cutters, and he was likely returned to Haiti as a result. In interdiction, the INS once again held a virtual monopoly on the means of inscribing texts and on defining their possible trajectories within a preformatted evaluation regime. Just as was the case during the era when William Joseph was towed into Miami, directed discretion would, for the most part, be placed in the hands of peripheral bureaucrats. Unlike that earlier moment, however, the juridical isolation would be enhanced by a physical isolation that far surpassed previous attempts to sequester Haitians from counsel, including earlier efforts during the 1980s to disperse Haitian asylum applicants through the then nascent immigration carceral archipelago. Rapid interviews and prompt repatriation missions would take place on military vessels at sea, hundreds of miles from US territory, and later, at Guantánamo Bay. This was a new type of physical segregation. What were the conditions aboard these cutters? During the post-­Aristide coup period, they were bleak. An excerpt from an after-­action report filed by the Coast Guard cutter Confidence in November 1991 is revealing. After nine days of interdiction patrols and migrant exchanges with other cutters, the Confidence anchored at Guantánamo with 244 Haitians onboard. INS screeners continued to interview those being held on this floating camp as conditions deteriorated. The commanding officer described the situation as follows: The crew worked around the clock to adequately provide for the migrants on board. We utilized the sails from the interdicted vessels to provide shelter and distributed blankets to each migrant. . . . We onloaded two port-­a-­johns [at Guantánamo] but as the migrants became more restless and less cooperative the crew had to frequently remove human waste from all weather decks. Toothbrushes, toothpaste, shampoo and soap were provided although space and water limitations greatly hindered personal hygiene. It was a constant effort to maintain sanitary conditions with a never ending cycle of soiled blankets, human waste, and garbage being produced by the crowded, increasingly restless migrants. [Their] . . . morale significantly deteriorated due to the difficult conditions and reduced expectations of asylum and manifested itself in more overt incidents. The migrants became increasingly unruly and even threatened to take over the ship necessitating an increase in the number of security watchstanders.84

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Prior to their time on the cutter, the Haitians onboard had been at sea on their own vessels, in many instances likely for days before their interdiction, itself more than a week earlier. These were the conditions in which life and death decisions of repatriation were unfolding, insulated from the scrutiny of courts, attorneys, and, to a significant degree, the public at large. The state of these mobile migrant camps suggests the importance of interdiction’s physical and juridical isolation to those managing the offshore border apparatus. The Haitians had to be kept within this interstitial water world, and, later, the “anomalous zone” (Neuman 1996a) of Guantánamo’s materially firm land lest government officials found themselves suspended in a set of citational webs not to their liking and in proximate position to journalists, attorneys, and publics eager to witness the goings-­on of the screening program. Walled off by legal statutes, orders, proclamations, memoranda, and ocean expanses, however, the INS teams were able to recapture the control they had lost in earlier disputes over which actors and what temporalities would govern the crafting of asylum’s textual assemblages.

Chapter 5

The Jurisdictional Imagination

I concluded the previous chapter with an image of the salt-­sprayed, windswept, and, at times, overcrowded decks of the cutters guarding America’s southeastern border. The archival traces of these ocean scenes draw one’s attention to the outer reaches of an enormous bureaucratic labyrinth, its extensive network of often-­shifting pathways erected on an intricate cartography of “jurisdiction and discretion” (Moore 2000, 30). As alluded to earlier, this map of administrative power is itself bound up with wider cosmologies often obscured by the American legal tradition’s dense “formalism” (30). Despite this capacity of law to obfuscate its own ideological foundations—its tendency to self-­present as “placeless principle” (Geertz 1983, 218)—the official discourses through which law wrestles with its own nature are not to be ignored. As I have argued throughout the book, law’s formal technicalities (Riles 2005, 975) evince a host of meaningful, at times competing, spatial arrangements within which the arteries and boundaries of sovereign power’s exercise and constraint take form as a vast juridical landscape. This notion of the law as world-­constituting (Cover 1983; L. Rosen 2006) finds particularly vivid expression in the domain of jurisdiction. As Carl Schmitt reminds us, every legal order is a “spatial order” ([1954] 1997, 37), and jurisdiction is the primary idiom through which the possible manifestations of official authority within a spatial field are delineated (Richland 2013, 212). From the papal edicts that set the terms of early imperial conquest in the Americas (Dorsett and McVeigh 2012, 1) to the demarcation of municipal police powers in twentieth-­century rural Alabama (Ford 1999), jurisdictional thinking reveals itself as a technique (Dorsett and McVeigh 2012; Richland

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2013) for inscribing geographies of formal power into the textual artifacts of governance. When not a dead letter, these texts have the capacity to reorganize the world of experience, stabilizing “spatial stories” as “spatial legislation” along a scalar hierarchy from property boundaries to territorial borders (de Certeau 1984, 122). Although these jurisdictional cartographies often pivot on the concrete specificity of mathematically calculated lines (Dorsett 2007), they also generate explicit and implicit second-­order metadiscourses (Lewis and Wigen 1997), abstractions that operate within a more fluid and far-­ranging spatiotemporal register. One need only think of the massive partitioning of land and sea as juridical objects to recognize the global dimensions of the jurisdictional imagination at work (Perera 2009; Steinberg 2009; Steinberg 2001; Schmitt [1950] 2003; Schmitt [1954] 1997). Still other cartographies are more modest, prosaic, and, at times, invisible (Dorsett and McVeigh 2012, 5), revealed only by virtual mappings—charts and narrated hierarchies—and the vague traces they leave in the built environments through which subjects and their bureaucratic dossiers move with varying degrees of ease. No matter their scale, these structures are erected through a social poetics ( J. S. Kahn 2017) of space conjured within the rhetoric of jurisdictional technologies, the performative “-­diction” of “jurisdiction” that speaks or entextualizes law into existence (Richland 2013, 212–13; Dorsett and McVeigh 2012, 4). I examined the interlocking elements of the maritime screening regime’s legal infrastructure in the previous chapter with a discussion of the material semiotics of juridico-­spatial framing. Here, I will range more expansively, moving between various scales of analysis to further illuminate the legal cosmologies on which the possibility of flexible sea-­based screening depended and on the implications that the jurisdictional ordering of virtual and material geographies holds for an understanding of a historically constituted sovereign power more generally. This approach requires that one take seriously the formal legalities of jurisdiction as potent organizing forces of the land and seascapes of the globe. Within these higher-­order spatial frames, I argue, one finds further hints of the hidden architecture of bureaucratic power operating across the field of the nation and beyond.

T h e G e o g r a p h i ca l P i vot o f S ov e r e i g n t y In his now classic foreword to the 1982 installment of the Harvard Law Review’s annual Supreme Court issue, Robert Cover noted with characteristic elegance that “law” is not just a “system of rules” but “a world in which we

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live,” one “plotted upon material reality by our imaginations” (1983, 4–5). Taking a cue from Cover’s cosmological approach and his metaphor of cartographic inscription—although perhaps not its overly drawn distinction between the ideational and the material—I turn my attention in this chapter to the work of the geographic imagination and its crystallization of large-­scale spatializations of power and constraint within an American jurisprudential political theology.1 Integral to this order are the juridico-­spatial concepts of the “gate,” the “vast external realm,” the “domestic,” and the “insular.” I begin with “the gate.” The decades following the American Civil War saw increased political centralization made possible in part by the expansion of the nation’s railways and advances in communication technologies, which provided a material infrastructure for the postwar ideal of the nation as a singular entity (LaFeber [1963] 1998, 6; McPherson 1990, viii; Trachtenberg 2007, 41; cf. Burnett 2005). Although America’s de jure continental empire was less than a decade old when the first shots of the Civil War were fired in South Carolina, within four years of the war’s end, rails stretched across the vast internal landmass of the nation, linking its Pacific and Atlantic coasts in an ever-­expanding, although still not fully coherent (R. White 2011, 2), web of commercial infrastructure (Zolberg 2006).2 More than economic highways, the rails stitched the “great body of the Republic together,” to quote Abraham Lincoln, whose own corpse traversed these routes of metal and wood in a lengthy funeral procession following his assassination at Ford’s Theatre, itself the sacrificial act, as Michael Rogin has remarked, that “mystically sanctified” the rebirth of the Union (1987, 90). The expansion of the railways also abetted a new phase in continental empire, “pour[ing] non-­indigenous settlers into a vast region that nation-­states had earlier merely claimed” (R. White 2011, xxiv). The continued multiplication of these linked, but still disarticulated, rail systems, the growing industrialization of the time, and the need for new sources of cheap labor in the postslavery economy combined to trigger other demographic shifts, one of the most conspicuous being the dramatic increase in the flow of Chinese workers to the West Coast (Zolberg 2006, 182–83). The arrival of Chinese immigrants in larger and larger numbers after the Civil War provoked a growing tide of xenophobic sentiment (Hingham 1988, 25), fueled by organized labor’s antipathy toward this new group of low-­wage workers, white small business-­owners’ resentment of competition from the Chinese enclave economy, and the concentration of Chinese populations in visible and impoverished urban Chinatowns seen as breeding grounds for epidemic disease (Shah 2001; Zolberg 2006, 184, 187). Reports from across

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the Pacific of the Chinese famine of the late 1870s, which, according to Aristide Zolberg, “raised the specter of the swamping of America by a tidal wave of starving humanity reminiscent of the Irish of an earlier generation, but commensurate with a population of 400 million,” added further fuel to the fire of nativist anxiety (2006, 187). The concern over a Chinese “invasion” found its expression in racial idioms rooted in a white supremacist ideal of American Anglo-­Saxon civilization. The perception that the Chinese were unhygienic, animalistic, and intellectually inferior had begun to coalesce into the potent stereotype of the unassimilable Asiatic by the 1870s (Cleveland 2002, 113; Salyer 1995, 10–11; Shah 2001, 35; Zolberg 2006). Armed with this rhetoric of immutable Chinese alterity, a coalition of migration restrictionists agitated for national legislation limiting the further admittance of laborers from China. Their efforts were rewarded when Congress passed a series of laws between 1875 and 1882 centralizing immigration regulatory power in the federal government and dramatically limiting Chinese migration to the United States (E. Lee 2003; Ngai 2004, 38; Zolberg 2006, 185–191). This political ferment in the immigration sphere during the last three decades of the nineteenth century led to nothing short of a reimagining of the spatiality of an American nation newly forged in the crucible of the Civil War (McPherson 1990). On one level, the various acts of Congress marked a formal shift in scale from state and local regulatory power over migration to a national sovereign power (Neuman 1996b). More interesting and more vivid than the mere fact of this scalar realignment, however, were the judicial pronouncements regarding the new sovereignty, which emerged in the face of legal challenges launched by Chinese and Japanese migrants caught up in the mass exclusions and deportations it authorized (Salyer 1995). The doctrinal grammar and spatial thinking through which the contests concerning sovereign power over immigration during the coming century would be fought were largely forged in this era. In the first of these challenges to reach the Supreme Court, the Chinese Exclusion Case, Chief Justice Field, a former presidential candidate from California and avowed advocate of restrictionist federal immigration policy (Cleveland 2002), articulated what has now become a deeply familiar vision of sovereign power, proclaiming that “[ j]urisdiction over its own territory . . . is an incident of every independent nation,” and that the concomitant power to “exclude aliens from its territory is a proposition which we do not think open to controversy.”3 Field presented this vision of border sovereignty as intrinsic and self-­evident while simultaneously inscribing it into the landscape

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of a nation struggling to imagine itself as more unitary and expansively delimited in its administrative architecture.4 In Field’s rendering of the model, one finds an implicit imaginary of a nation ensconced by invisible walls, its gates manned by the delegates of a centralized authority that extends over an enormous continental empire. This jurisdictional vision gave discursive reality to a new formulation of the nation as “one people, . . . one power,” to quote Justice Field again.5 It did so by formally ratifying a governmental capacity to transition from the uneven spatiality of complex federated subdivisions to a smooth space of internal sovereign unity when confronted, in Field’s own words, with the “danger to peace and security” of the “vast hordes . . . crowding in upon us.”6 Within the text of the opinion, one can see a formal poetics of the containerized nation-­state emerging as a settled and naturalized legal object, one in which the border becomes a geographical pivot between the jurisdictional spheres of the dangerous exterior of alien encroachment and the neatly ordered interior of sovereign cohesion. Crucial to this formulation was Field’s recognition that the national government had a plenary power, “conclusive upon the judiciary,” to make determinations about what constituted a threat and against whom it could close the nation’s gates.7 The Chinese Exclusion Case, however, was only one step in an incremental rebuilding of a new legal architecture of federal power. Other opinions followed, which established the authority to expel aliens from the nation’s interior subject to certain constitutional limitations. These decisions also recognized an unconstrained power to designate what procedural protections applied to aliens at the frontiers of the nation.8 As I noted in previous chapters, this second determination, characterized by a layering of constraint within the internal space of the nation and an authorization of exceptional executive power at and beyond the border, exalted the nation’s walls as the geographical pivot of sovereignty—where one fell in relation to them determined the nature of one’s encounter with bureaucratic power. At the turn of the nineteenth century, this administrative divide became the salient feature of the immigration border. More than half a century later, the Supreme Court would elaborate on this jurisdictional framework, explicitly organizing its border cosmology around the image of the “gate” at another tragic moment of American xenophobic turmoil—the second Red Scare of the 1950s. With the onset of the Cold War, the INS began its own domestic war against suspected communists (Cole 2003, 132). Ignatz Mezei—a Gibraltar-­born carpenter and longtime resident of the United States—found himself caught up in these INS purges (Cole

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2003, 138; Weisselberg 1995).9 After returning from an attempted trip to Romania to attend his mother’s funeral, Mezei was questioned by inspectors at Ellis Island and eventually denied reentry into the United States on the basis of allegedly damning secret evidence that the Justice Department refused to reveal to him, his attorney, or even the courts. Unable to find another country to grant him travel documents, Mezei remained trapped at Ellis Island for close to two years while he challenged his exclusion. When Mezei’s case finally reached the apex of the judicial hierarchy, a majority of the justices of the Supreme Court responded with little sympathy to his plight by affirming both the INS’s power to exclude him based on secret evidence and to continue to incarcerate him at their discretion, evoking his suspicious travel behind the “iron curtain”—the dominant Cold War spatial metaphor of the time—as justification. Justice Clark’s majority opinion relied on more than Cold War geographies, however, turning to the jurisdictional imaginary of the border pivot as a deeper structural foundation for the court’s holding; he wrote, while “it is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law . . . [,] an alien on the threshold of initial entry stands on a different footing: whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”10 Here was a reinscription of a jurisdictional cartography dating back to the turn of the nineteenth century that hinged on a now explicit poetics of the “gate,” an architectural trope used to divide an exceptional power beyond the regulatory walls of the nation from those interior spaces of constitutional constraint. What makes this space beyond the gate meaningfully different from that within it? This question takes us to another juridico-­spatial concept, that of the “vast external realm,” a phrase drawn from one of the most infamous Supreme Court decisions on executive power, United States v. Curtiss-­Wright Export Corporation (1936), to which I will turn momentarily. Earlier, I noted a sense of the distinctive space-­time of the nation’s exterior in the Chinese Exclusion Case, which associated it with various manifestations of “foreign aggression” from outright military assaults to the more insidious migratory invasion that seemed so palpably real during the 1870s. The “outside” loomed in this telling as a space of perpetual crisis and “wartime” (Dudziak 2012). Grappling with the Chinese question, Justice Field did not hedge in emphasizing the unified power with which the “government” was “clothed” when acting to ensure “security against [such] foreign aggression,”11 and as early as the 1780s, Alexander Hamilton spoke of the necessity of an executive “energy” to pro-

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tect “against foreign attacks” (Cooke 1961 [Hamilton 1788 essay], 471). In the wisdom of these statesmen, it was clear that the agility of unrestrained power was required to navigate the dangers of the exterior world, though whether (and to what extent) this principle of sovereign unity actually required a concentration of power in a single institutional entity was less clear. This was to change in the 1930s when, in Curtiss-Wright, the Supreme Court expressed a dramatic articulation of sovereign power that appeared to be salvaged from a more ancient political theology in tension with the liberal democratic constitutionalism of the American republic. The background of the case, rife with the intrigue of potential war profiteering, is worth examining here. By the time of Franklin Delano Roosevelt’s election in 1932, the United States had abandoned the more aggressive posture embodied in Theodore Roosevelt’s corollary to the Monroe Doctrine in favor of the Pan-­ Americanism of the so-­called good neighbor policy (Spellacy 2006). As part of this new cosmopolitan approach, Roosevelt committed the United States to maintaining peaceful relations among the Latin American republics with an enlightened commercial self-­interest and a wary eye toward the brewing troubles of Europe. In May 1934, almost two years after the Chaco war between Paraguay and Bolivia erupted, the US Congress jointly resolved that the president could suspend the sale of arms by private entrepreneurs to militants in the region, which Roosevelt did the very same day. As a result, the Curtiss-­Wright Export Corporation was blocked from an attempt to sell a number of machine guns to Bolivia. The company challenged the president’s authority to suspend the flow of arms to the Chaco, but when the litigants reached the Supreme Court, they faced a group of justices who, armed with a cosmogonic narrative of American sovereignty, were ready to quash discontent over Roosevelt’s supposed meddling in private commerce. Justice Sutherland, relying in part on the “one power” principle of the Chinese Exclusion Case, told a tale of the birth of the “powers of external sovereignty” in the new republic, which derived from the British Crown, not the Constitution, and passed to the Union through a mythical act of transposition at the founding moment.12 “A political society cannot endure without a supreme will somewhere,” Justice Sutherland explained, and “[s]overeignty is never held in suspense.”13 Clarifying the tie between this exceptional power and the border pivot, he went on to proclaim that “in th[e] vast external realm . . . the President alone has the power to speak.”14 This power was “in origin and essential character different” from that which the president could exercise in the internal, “domestic” realm.15 Although Sutherland had not created this sovereign geography whole cloth, his spatial vision ushered in a new manner

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of articulating the jurisprudential configuration of executive power beyond the walls of the nation. Thus far, I have shown how the legal sages of the court laid out, piece by piece, a cosmology structured by a deep sense of juridico-­spatial order. When one moves about the nation’s interior, one finds a landscape administratively configured around a formally entrenched separation of powers between governmental branches and the different scales of a federated system. This “domestic” space, with its connotations of home (Kaplan 2003, 86), is swaddled and slowed by the institutional expression of liberal constitutional ideals. Its mechanisms of deliberation and foundational constraints “restrict the discretion of power-­wielders” who, within the modernist anthropology of the rule of law, are, like all humans, internally riven by reason and impassioned will (Holmes 1995, 27). Such “rulers, too, need to be ruled” by law, or so goes the central maxim of constitutional self-­binding (27). The plodding time of this domesticity is appropriate within the nation’s gates. As one travels across this highly segmented and deeply regimented interior, stepping out through the “gate” and across the “threshold” of “domestic” space, the uneven topography left behind shifts before one’s eyes, transfigured into a coherent body cloaked by “supreme will.” Looking out beyond the gate, one encounters a realm where legislative ardor is unleashed from the constitutional fetters of the interior and finds its plenitude. Here, too, the executive rises over the vast expanse of sea and earth draped in the imperial powers of ancient monarchy, liberated from the formal shackles of law, transcendent and self-­referential.16 Of course, this is not the only existing cosmology of American power. While other models embody alternative visions (some grounded in law, some in aspirational politics) (Cleveland 2002; Koh 1990), what is clear is that the jurisdictional cartography I have unveiled here is a dominant one. It is a crucial touchstone toward which the pendulum of judicial politics often swings, particularly in moments of perceived crisis (Koh 1990, 135–37). It is also more grounded in the poetics of a particular type of political theology perceived as being in tension with constitutional democracy. This is the “imperial presidency” at its height (Schlesinger 1973). It is coded both as exceptional vis-­à-­ vis “domestic” jurisdictions and as normal within the geography of the “vast external realm.” If we look to a colloquy between a federal district judge and a government attorney that took place in a Brooklyn courthouse during the early spring of 1992, we can see this cosmology instantiated in the pragmatics of litigious wrangling. This particular exchange involved the Department of Justice attor-

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ney’s attempt to test out arguments regarding Guantánamo’s anomalous characteristics and its implications for the court’s power to intervene vis-­à-­vis the HIV-­positive Haitians detained there. THE COURT: You’re also saying, if I hear you correctly, notwithstanding all of this, that an agency like INS, assuming that they are arbitrary and capricious and even cruel, that the courts would have no jurisdiction . . . because these acts of commission or omission did not occur on U.S. soil. That’s what you’re saying? MR. VALENTINE: That’s correct, your Honor.17

Mr. Valentine’s assertion rested on the geographical pivot of the border and the jurisdictional barriers it throws up between judicial and executive power. For him, and for the George H. W. Bush administration he represented, executive action beyond the gate was “not the business of the judiciary.”18 What they did with the Haitians at the naval station was, in other words, their prerogative. This spatial caesura was no mere abstraction. Legal battles unfolded dialectically within the jurisdictional cartographies it created. Thus far I have discussed the “gate,” the “vast external realm,” and the “domestic,” but there is another dimension to this juridical universe that I have not yet explored—“the insular.” This spatial concept of jurisdictional liminality became central to the administration of America’s “insular,” or island, possessions in the Caribbean and Pacific, which the United States seized from Spain or annexed separately, as with the Kingdom of Hawai’i, in 1898 (LaFeber [1963] 1998; Merry 2000). The formal juridical elements of the category took shape in a series of Supreme Court decisions known as the Insular Cases, issued in the aftermath of the Spanish-­American War.19 The legal architecture of the young American empire and the oceanic vision of manifest destiny that was its condition of possibility reveal yet another dimension of the juridical cosmology that concerns me here. An almost Hegelian sense of oceanic destiny was present from the early decades of the American republic (W. Williams [1959] 2009, 18–21), as was its relation to the insular, a term I use in its literal sense—that is, of or relating to islands.20 One finds it in Jefferson’s admitted fascination with the island of Cuba as an inevitable southern boundary of an American “empire of liberty,” which would offer the United States political and commercial control over the waters of the Caribbean, the Florida Straits, and the Gulf of Mexico ( Jefferson 1899, 278). Similarly, John Quincy Adams viewed Cuba and Puerto Rico as “natural appendages to the North American continent” ( J. Adams 1917,

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372). Cuba’s commanding position at the intersection of vital trade routes and its natural harbors made it, in Adams’s eyes, an “object of transcendent importance to the political and commercial interests” of the nation (372). An eventual union between these islands and the American republic was, for Adams, inevitable. Nearly a century after Adams’s reflections on oceanic empire, the naval strategist Alfred Thayer Mahan would offer a different vision of America’s extension by insular annexation into the world’s great oceans and the commerce carried out upon it. In his magnum opus, The Influence of Sea Power upon History, 1660–1783, Mahan imagined an immense commercial fleet traveling along “the great highway[s]” of the ocean “common” under the protection of a revitalized American navy (1894, 25). The realization of this vision, however, required something the United States did not have: a network of coaling “stations” along important sea lanes throughout the Pacific and the Caribbean at which ships could anchor “for peaceful trading, refuge, and supplies” (Mahan 1894, 25, 27). Where Jefferson and Adams hoped to enlarge the Union by admitting annexed Caribbean territories as states, Mahan sought only “strategic bases from which shipping lanes and interior interests in Asia and Latin America could be protected” (LaFeber [1963] 1998, 91). The islands of the Pacific could provide such stations, allowing the United States to pro­ject itself outward into the seas of world commerce and fulfill its manifest oceanic destiny (Stephanson 1995, 85–87). Of course, the actual business of procuring such bases proved more complicated, and in the wake of the Spanish-­American War, a war for which Mahan and his expansionist compatriots Theodore Roosevelt, Henry Cabot Lodge, and Brooks Adams had long militated, the United States found itself with a host of not just coaling stations but colonies across the Caribbean and Pacific (LaFeber [1963] 1998, 85). Moreover, the act of selling the imperial project had required a moral framing of civilizational uplift, because, as Mahan noted, “[m]erely utilitarian arguments” would “have never convinced or converted mankind” (quoted in Stephanson 1995, 85). Both the rhetorical styling of the push overseas and the practical realities of the endeavor meant that the agile commercial imperialism advocated by Mahan and others became mired in the “benevolent assimilation” of a brutal counterinsurgency in the Philippines and the taxing work of administering and “civilizing” (Latham 2010, 14) the other island territories of the new commercial “supply archipelago” (Bélanger and Arroyo 2012). Once the United States took formal control over Puerto Rico, the Philippines, and, through a separate imperialist flourish, the Hawaiian Islands

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(Merry 2000), the question arose as to where these possessions fit into the new juridico-­spatial order of overseas empire. The American push onto the oceanic stage took its agents of colonization out into the world beyond the “gate,” a mythic “free space,” in the eyes of some, suited to “agonal tests of strength” and acts of “mutual destruction” (Schmitt [1950] 2003, 99). But once the war with Spain had concluded, these outposts of American empire were no longer coincident with the “vast external realm” of foreign lands and the mare liberum. They became part of a newly expanded imperial formation. Where, however, did these islands and their inhabitants fit in relation to the pivot of the gate? Not long after the signing of the Treaty of Paris, which ended the war with Spain, cases began winding their way through the courts regarding questions both mundane and fundamental. What types of tariffs applied to imports from the islands? Did the United States govern under the constraints of the Constitution or was it unburdened by the fetters of that fundamental law? If the Constitution extended out over these newly acquired lands, did it do so in its entirety? The justices responded by crafting a new liminal order and a new vocabulary of insular space not fully external nor internal to the American core. The banal issue of an import duty on fruit stemming from passage of the Foraker Act in 1900 provided the occasion for announcing the new jurisdictional architecture of empire. A merchant by the name of Samuel Downes sought to recover fees paid to the collector of the port of New York for a shipment of oranges that had arrived from San Juan, raising the question of whether Puerto Rico was part of the United States under the Constitution’s taxation clause, which required that federal import tariffs not favor one state over another. Justice White’s concurring opinion, which would later be adopted as the governing standard of the new order, declared the tax valid, because, “in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and owned by the United States,” and yet “it was foreign to the United States in a domestic sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.”21 This “foreignness” made the tax permissible, but its “domestic” aspects also meant that a truncated set of “fundamental” constitutional protections did in fact restrict the federal government’s actions over this insular possession. The result was an “unstable marriage of imperialism and constitutionalism” (Raustiala 2009, 224) that involved the insertion of these new appendages of quasi-­domestic space into the now-­fractured legal topography of the external realm. This new geography of distant oceanic outposts formed the basis for an insular imaginary (cf. Perera 2009), which

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stitched together multiple spatialities into the heterotopic compromise of liberal empire (Foucault 1986).22 In the century that followed, the Insular Cases largely faded from national debate (Burnett and Marshall 2001, 17). Among legal practitioners and academics, the opinions represented an antediluvian and largely irrelevant judicial activism better left uncited and untaught. The vexing issue of Guantánamo raised by the detention of Haitians, Cubans, and, later, war on terror detainees at the base, however, propelled the Insular Cases back into the legal mainstream in the late twentieth century. Guantánamo’s legacy as an anachronistic remnant of turn of the nineteenth-­century oceanic conquest and its similarity to other, larger insular possessions in terms of the degree of American jurisdiction and control provided ammunition for those seeking to pull the base out from the extrajurisdictional external realm and within, at the very least, a quasi-­domestic fold of constitutional space. The more recent successes of advocates to extend habeas jurisdiction to the base (Burnett 2009) and the lingering questions over the status of other outposts of American military might, such as Bagram Airfield in Afghanistan (see chapter 6), attest to the enduring significance of the “gate,” the “vast external realm,” the “domestic,” and the “insular” as the pillars of an elaborate juridical cosmology of American power.23

Dimension, Subject, Segment The world evoked by the above discussion is one in which, to quote Schmitt, “[a]ll law is law only in a particular location” ([1950] 2003, 98). The dominant mode of jurisdictional imagining I highlighted within this cosmology conforms to the idea of law as a “conceptual grid” spread “over the geographic world” (P. Kahn 1999, 62). Though it encompasses the liquid spaces of oceans and seas, the geographic sensibility that I emphasized is based on a territorial model (Dorsett 2007, 139), which is the most accessible jurisdictional register, visible as it is in the cartographic representations of political space that line the walls of every elementary school classroom. Though dominated by territorial thinking, the types of jurisdictional order I examined are not exhausted by that spatial concept. The power exerted over Ignatz Mezei at the gate, for example, is indeed a power tied to a particular place (the port of entry), but it is also tied to a particular subject (migration and border control). Moreover, the authority to actualize that power is circumscribed by its vesting within particular institutional bodies (an immigration inspection corps) themselves embedded in larger segmented political formations (the labyrinthine hierar-

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chies of executive governance). There is more going on here than the mere tracing of jurisdictional borders onto the two-­dimensional surface of political maps. My argument is that to understand governmental forms of sovereign power as historically unfolding phenomena actualized through material practices, verbal performances, and narrative imaginings, as one must (cf. Dorsett and McVeigh 2007, 5; Richland 2013), it is often necessary to pay close attention to the manifold spatial registers out of which this juridical scaffolding is built. In order to make this feasible, I propose an analytical framework composed of three juridico-­spatial concepts: dimensional jurisdiction, subject matter jurisdiction, and segmentary jurisdiction ( J. S. Kahn 2017). I have hinted at the meaning of each already, although unpacking the latter two with the necessary clarity will take a good deal more explanation. As I proceed to examine these concepts, I will argue that the legal battles I have discussed in previous chapters are struggles over the various configurations within these juridico-­ spatial registers and by extension the worlds that they make possible. To illustrate this point, I will rely on the case of the shifting exclusion regimes of the 1970s and 1980s explored in chapters 2 and 4. Dimensional jurisdiction is perhaps the easiest of the three registers to grasp. The territorial jurisdiction of the nation-­state is one prominent example of it (Richland 2013, 212). The geographic area over which a particular court or administrative entity holds sway is another.24 Figure 5.1 shows the various layers of dimensional jurisdiction through which Haitians in exclusion proceedings—in the technical sense of the term—circa 1980 might have passed if they had decided to pursue all of the appeals formally open to them. In the initial stages, one can see the geographic area over which INS inspectors within the INS’s Sixth District might roam, depending on their assignments. Above them, is the dimensional jurisdiction of the district director himself, whose authority extended over the state of Florida. Above him, within the hierarchy of an exclusion appeal, were the immigration judges, who exercised an identical dimensional jurisdiction. The Board of Immigration Appeals (BIA), in turn, with its national reach, could review all cases appealed from all of the immigration courts throughout the land. The decisions of the BIA, in turn, could be reviewed in habeas suits filed in the federal district courts, here represented by the dimensional jurisdiction of the US District Court for the Southern District of Florida, which would have reviewed appeals within the INS’s Sixth District. The federal district court was in turn subject to appellate review by the US Court of Appeals for the Fifth Circuit, which, at that time, had jurisdiction over the states of Florida, Georgia, Ala-

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5 . 1  Jurisdictional palimpsest of exclusion circa 1980. This figure represents the pathways a case would take through the bureaucracy of “exclusion review” circa 1980 and the dimensional jurisdiction of the institutions within that segmentary hierarchy.

bama, Mississippi, Louisiana, and Texas. Finally, the US Supreme Court, sitting atop the hierarchy, exercised a jurisdiction over the entire nation and, at times, beyond. The purpose of this illustration is both to reveal the deep palimpsest of dimensional jurisdictions that blanket the land but are normally invisible to the eye and, more importantly, to provide an opportunity to discuss how the location of Haitian asylum seekers within these spaces and the shifting contours of the spaces themselves had enormous consequences. For example,

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Alix Maltidor arrived on the Florida coast aboard the Saint Sauveur, a Haitian sloop, in December 1972. Because he and his fellow voyagers chose not to steal away into the Florida night but instead waited patiently for INS inspectors at the water’s edge, they failed to cross the nation’s metaphorical “gates” and remained at the “threshold of initial entry.” Although INS inspectors would later escort Maltidor deeper into the physical space of US territory, the existing legal fiction of nonentry meant that he would remain, juridically speaking, beyond the “gate.” As will soon become clear, the dimensional jurisdictions represented by “domestic” space and the “gate” and Maltidor’s placement with regard to them would determine the path his case could take through the hierarchy of administrative tribunals. To begin with, Maltidor’s juridical exteriority vis-­à-­vis the geographic pivot of the “gate” meant that the INS would place him in exclusion proceedings. As discussed in previous chapters, at the time of Maltidor’s arrival in 1972, the INS director of the Sixth District maintained virtually unreviewable discretion to adjudicate asylum claims within the regime of exclusion review—as opposed to deportation review. The dislocation of Maltidor’s case from the full panoply of appeals available to those, who, for example, had made a juridical entry, is clearly visible in figure 5.2, which depicts a rupture in the pathway of such review and the presence of the appellate bodies that might have heard his case, depending on the specifics of the relief pursued, if he had succeeded in making an entry. The disparity between the two review regimes is all the more apparent in the comparison of the thickness of the review layers of exclusion and deportation depicted in figure 5.3. Maltidor’s positioning within these spaces at the moment he encountered the INS officers of the Sixth District was supposed to establish the future trajectory he, or at least the file versions of himself (cf. Chu 2010), would take through the jurisdictional palimpsest of the early to mid-­1970s.25 In Maltidor’s case, the trajectory was meant to be temporally and geographically shallow—that is, it would be processed quickly in the peripheries of the INS bureaucracy. Dimensional jurisdiction, however, is not the only juridico-­spatial register in operation here. Also visible is the intricate division of subject matter competencies (cf. Richland 2013, 212) as they have been apportioned among administrative and judicial entities and how this apportionment shapes the landscape through which Maltidor’s dossier of legal briefs and supporting evidence could travel. For example, the plenary power of Congress to craft the radically truncated exclusion regime of figure 5.2 is a function of its jurisdiction over the subject matter of border control and its capacity to delegate that authority to administrative entities. The plenitude of this subject matter juris-

5 . 2  Jurisdictional palimpsest of exclusion circa 1976. This figure depicts the pathway a case would take through the institutions of “exclusion review” circa 1976. The two black bars represent the separation of the district director’s office from a host of other institutions that could have reviewed its decisions.

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5 . 3  Exclusion and deportation review compared, circa 1976. This figure depicts the discrepancy between the density of review mechanisms for exclusion and deportation adjudications.

diction is also a function of dimensional jurisdictional cartographies, which heighten Congress’s control over the subject matter of exclusion procedures in a particular geographic location—beyond the “gate”—where there is no overlap between the dimensional jurisdiction of Congress and the dimensional jurisdiction of the federal courts as there would be within “domestic” space. Certainly there is a long history of specialized courts charged with jurisdiction over specialized bodies of law, such as the English forest law courts, the English Court of Chivalry (Dorsett and McVeigh 2012, 46–47), the US bankruptcy courts, and the specialized US Federal Circuit, but their specialization by subject is not normally regarded as spatial, except insofar as the subject itself is geographically specific. Nonetheless, subject matter jurisdiction is, I argue, patently spatial, and though such features may not be readily apparent, they have long been conceptualized as such through discursive and graphic means. The cosmological language of “spheres” of authority and the organic language of “branches” or “arms” of government are a clear example of the importance of spatial metaphors to imagining and discursively representing

5 . 4  “Diagram of the Federal Govern‑ ment and American Union,” N. Mendal Shafer, July 15, 1862. This figure is a litho‑ graph depicting the “whole machinery of the Federal Govern‑ ment, and State Gov‑ ernments, of the United States.” Its overt didactic aim was “to make the subject of Government familiar to the masses” in the interest of “peace, happiness, prosperity, and security.” Courtesy of the Library of Con‑ gress, Washington, DC.

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5 . 5  Detail from “Diagram of the Federal Government and American Union,” N. Mendal Shafer, July 15, 1862. Courtesy of the Library of Congress, Washington, DC.

the distribution of sovereign power throughout a polity. These tropes then find their way into graphic artifacts, such as the elaborate lithograph of the “whole machinery of the Federal Government, and State Governments, of the United States,” created by the freemason and attorney N. Mendal Shafer during the US Civil War (see figure 5.4). Despite Shafer’s use of the metaphor of the “machine” in the title, the document’s vascular imagery recalls Woodrow Wilson’s own organic theories of US constitutionalism evinced nearly fifty years later, a theme I will return to in chapter 6 (W. Wilson [1908] 2011: 31). This extraordinary and self-­consciously didactic image—Shafer announced its instructional intent in the caption at a historical moment when the nation’s body was being rent apart—depicts executive powers, judicial powers, and legislative powers as various “departments” and “arms” (figure 5.5), to use its creator’s own terminology, plotted in an elaborate, organic cartography of subject matter jurisdictions. In addition to representing the delimitation of subject matter spheres of authority, Shafer’s lithograph also arranges the institutions vested with the power over these subjects in an intricate hierarchy, which brings us to the

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third juridico-­spatial register—segmentary jurisdiction. By segmentary jurisdiction, I mean the formal and informal relations between institutional entities that play a role in determining the type of power they exercise by locating them in positions of sub- and superordination. In Shafer’s diagram, one can see the Departments of War, Treasury, and Navy in their subordination to the president and his cabinet, just as one can see the various subsidiary courts of the land in their relation to the Supreme Court, itself held in thrall to the wreathed and haloed Constitution. Likewise, one can see a microcosm of executive segmentation in the admittedly less elegant INS organizational chart from 1974 (see figure 5.6), which depicts the hierarchical relations between a set of offices within the agency while also revealing the unification of difference as institutions cluster under supervisory entities the farther one travels up the scale, resulting, eventually, in the fictional representation of the INS as a unitary monolith in administrative space.26 The graphical inscription of segmentary jurisdiction is a cartographic practice that operates in tandem with the other juridico-­spatial registers to entextualize models for and of governmental authority. As with any map, the resemblance between a particular segmentary map and its object is often partial. To see this, one need only look to figure 5.2, which enshrines the regulatory pathways between screening entities but does not reveal other connections between the INS district director’s agents and the officials in the State Department’s Office of Refugees and Migration Affairs, whose advisory opinions most likely played a large role in the outcomes for the majority of Haitian exclusion decisions issued during the early 1970s (see chapter 4). Still, this given representation is iconic of the key portions of the operative hierarchical pathways. The exclusion axonometric depicted in figure 5.1, for example, captures not only the layers of dimensional jurisdiction involved in the appellate process but also a slice of segmentary jurisdiction in the passage that winds its way through geographically dispersed institutional bodies. This was indeed the pathway that a Haitian asylum seeker’s exclusion dossier would have traveled circa 1980. Despite the relative stability of such forms, this particular segmentary corridor was itself the product of hard-­fought legal battles, which, as I explained in chapter 2, transformed an older map of exclusion review (see figure 5.2) into a denser layering of process (see figure 5.1). The value of these jurisdictional concepts is that they promise to orient one to the hidden architecture of formal (and at times informal) authority of the American polity, which is often the condition of possibility for legal conflict and the object of that conflict itself. The juridical landscape is the terrain on

5 . 6  Immigration and Naturalization Service Organization Chart, 1974.

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which legal conflict bent on remapping the ground beneath its very own feet is waged. The fight over how and when these jurisdictional configurations will shift is a fight over the death and rebirth of institutions, the multiplication and contraction of security infrastructures, and the release or constraint of violence. One need only look to the success of Haitian rights litigators to remake the map of exclusion review in the 1970s (compare figure 5.2 with figure 5.1) and the failure of these same litigators to remake the jurisdictional spaces of offshore migrant interdiction review in the 1990s to see these processes at work (chapter 2). The hidden architecture with which I am concerned is not, however, purely instrumental. To the contrary, it is deeply poetic in the sense that each map is not only a technical manual but a communicative vehicle for nonreferential content. In other words, it literally depicts a set of legal pathways, but it also conveys a normative vision of justice and a desired architecture of government.27 The juridico-­spatial order is, in the American context, ostensibly an embodiment of sovereign will and thus an affective projection of political commitments. The delimitation and securitization of the nation’s territory, the division of competencies and thick layering of institutional review within its domestic spaces, and the unmooring of executive power beyond its gates are accomplished through an intercalation of jurisdictional registers that convey abstract commitments and geographic imaginaries. Jurisdictional forms mediate and manage these signals, ordaining and establishing but also concealing and revealing in ways that can both stabilize and destabilize the worlds we inhabit.

D e l e gat i n g D ow n In Marbury v. Madison, the urtext of an American “culture of law’s rule” (P. Kahn 1999, 1), Chief Justice Marshall, whose bronze statue now sits prominently on a marble pedestal on the ground floor of the Supreme Court, proclaimed that the US government was “a government of law, and not of men,” while simultaneously acknowledging the existence of political spheres of “executive discretion” where there is “no power to control that discretion.”28 With these words, Marshall hinted at the aporetic dynamism between sovereign power and the rule of law within one of liberal constitutionalism’s foundational documents. Over the next two centuries, the growth of the administrative state and the punctuated expansion of presidential power repeatedly thrust the question of the “madness” (Cuéllar 2006, 229) of “untrammeled discretion” (Sunstein 1995, 960) into national debates. In a polity whose own

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mythology of exceptionalism (R. Smith 1997, 27; Rana 2010, 5–6) has depended so much on the idea of the ultimate sovereignty of the people and the constraining force of the Constitution’s oracular judicial guardians, the jurisdictional configurations that vest executive agents with “petty” (Butler 2004, 56) sovereign-­like discretion or commanders in chief with world-­destroying power (P. Kahn 2010) may appear, to some, as archaic eruptions of an older arrangement of authority against which this exceptionalism has defined itself. Such moments, experienced at times as a sense of “temporal folding” (Dawdy 2010, 766), have the potential to provoke a certain uncanny dis-­ease (cf. Masco 2006, 28–29). They also, however, work to manage that dis-­ease by creating a fractured spatialized sense of the possible and thus of the legitimate. Legitimacy, in other words, may dwell in places, and places take shape in wider landscapes and cosmologies of power. One need only look to the examples of land- and sea-­based detention of Haitians to see this process in action. The 1970s saw a resurgence of this very anxiety over executive discretion in its bureaucratic forms, as with Reagan’s likening of the New Deal to Italian fascism (Whitman 1991, 750; S. Wilentz 2008, 122), and in its presidential manifestations, as with Schlesinger’s (1973) warning of an “imperial presidency” in the wake of the release of the Pentagon Papers (Perlstein 2014). The “shocks” of stagflation, oil insecurity, and unsavory political revelations—­exemplified, above all, by the Watergate scandal (Sargent 2010, 49)—left the nation with a palpable sense of “disorientation and disillusionment” into which Jimmy Carter stepped as the redeeming, honest, and moral antipolitician (S. Wilentz 2008, 125). The ensuing atmosphere of self-­doubt, however—­intensified with Carter’s chastising moralism (Rodgers 2011; S. Wilentz 2008, 125), continued economic stagnation, and a series of foreign policy debacles (the hostage crisis and the Mariel boatlift)—opened the door to a new muscular brand of optimistic conservatism that Reagan’s candidacy offered to a weary citizenry. Reagan’s antigovernment, promarket self-­styling was characterized by a deep commitment to dismantling the New Deal and Great Society legacy of the Left while bolstering government power in the military and law enforcement spheres (Harcourt 2011, 43; S. Wilentz 2008, 137). This biphasic anti- and progovernment paradox of neoliberal penality (discussed in chapter 1) paved the way for “the creation of the largest government-­run prison bureaucracy in the world” (Harcourt 2011, 43), enormous increases in military spending, and tremendous investments in border security, of which migrant interdiction and the rise of a massive immigration detention complex alongside and sometimes interspersed with this penal industrial complex are two examples (Dow 2004; Beckett 1997, 96–101). As discussed in chapter 2,

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both offshore interdiction and migrant detention arose out of the legal battles over Haitian asylum seekers’ rights in what amounted to a blustering push to regain sovereign control of porous frontiers through the invention of a fragmented and flexible border regime. The story of the rebirth of migrant detention in the early 1980s is also a story about informal jurisdictional manipulation and the dispersion of sovereign-­ like powers within the outer reaches of America’s immigration bureaucracies. As you may recall, July 1981 marked the official announcement of a package of new border control policies developed within the upper echelons of the Reagan administration. In addition to offshore interdiction, one element of this new approach was the blanket detention of “illegal aliens upon arrival pending exclusion or granting of asylum,”29 which marked a break with the practice of the previous three decades.30 Instead of a policy of near universal parole there would now be a presumption in favor of detention for noncitizens (even asylum seekers) arriving without proper documentation by land, air, or sea. When lower-­level immigration officers began to implement this facially neutral policy, however, they applied it almost exclusively to Haitians. Documentation from the Jean v. Nelson suit that challenged the detention policy provides a glimpse into the administrative processes that resulted in the mass incarceration of Haitian asylum seekers and their dispersal in numerous prisons throughout the country. The picture that emerges from witness testimony, administrative documents, and judicial opinions is that of a policy articulated by officials at the top levels of the executive hierarchy and then abandoned to the near-­complete discretion of the low-­level enforcers who executed it. In the words of the Eleventh Circuit panel assigned to review the matter: “This is not a case where a policy was developed and announced at the highest level of government, and implemented in accord with that announcement. Those who formulated the policy failed to convey the policy to those responsible for implementing it. Left without guidance as to how to implement an undefined policy, the immigration inspectors enforced the detention policy as if it was intended to apply solely, and uniformly, to Haitians.”31 Although clearly a case of poorly executed bureaucratic control, it is also much more than that. It exemplifies how certain configurations of jurisdictional space that concentrate authority in low-­level officials when combined with executive withdrawal from hierarchical review mechanisms can produce a form of de facto petty sovereignty (cf. Butler 2004, 56) at peripheral points of policy implementation. In order to understand this devolved power, I begin by looking at the arrangements of legal space that lodged parole decision-­making authority at

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particular sites within the segmentary jurisdictional structures of the INS. In the early 1980s, the attorney general had complete discretion over the parole of noncitizens in exclusion proceedings. He also, however, had leeway to delegate that authority down the chain of command to INS district directors, which he did.32 At the time of the new border policy launch, Joe Howerton was director of the INS district with dimensional jurisdiction over the state of Florida. He was thus the ostensible bearer of the delegated subject matter jurisdiction over parole for Haitians arriving in South Florida. Howerton, however, chose to informally further delegate that responsibility down the pathways of the district’s segmentary structures and on to his subordinates. In responding to a question during a deposition regarding the criteria used in making parole determinations after the administration’s shift in policy, Howerton responded as follows: “Sir, the determinations here again of detention are delegated down. The inspectors at the airports and seaports were making that determination, looking at the cases and giving recommendations up the line. So I really couldn’t address the exact basis that they would have used.”33 By his own admission, Howerton was unfamiliar with parole determination standards, because he never involved himself in such matters. Later testimony revealed that Howerton had vested Leonard Rowland, the assistant district director for Detention and Deportation of Howerton’s district, with direct review authority over these frontline inspectors, though by Howerton’s own testimony, it would appear that true power lay at the lowest levels of the hierarchy.34 Left to make their own, unreviewed decisions, these South Florida “port” inspectors, many of whom were likely steeped in a bureaucratic culture forged in the Haitian expulsion programs of the late 1970s, sat like petty sovereigns atop a peripheral hierarchy that was de facto detached from the greater segmentary structure of the INS. Like tiny islands of sovereignty, their kingdoms of discretion were severed from the wider bureaucratic landscape. Judith Butler, spurred by the charade of combatant status review tribunal “justice” in the wake of the September 11 terrorist attacks, has argued that peripheral power of this type is a “rogue” power, exercised by “petty sovereigns” who are “mobilized by aims and tactics of power they do not inaugurate nor fully control” (2004, 56). These bureaucratic sovereigns, she contends, “make unilateral decisions, accountable to no law and without any legitimate authority” (56). Although Butler’s critique is rooted in the example of the Guantánamo tribunals, it is styled as a general proposition regarding the transformation of law into rules and tactics and the resulting impossi-

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bility of “political power . . . tak[ing] on a unitary and causal form” (62). As such, it stands in for a broader set of theories of sovereign power written in the shadow of Michel Foucault’s arguments concerning governmentality. One could imagine it applying to our INS inspectors who, vested with full discretion over whether to incarcerate or liberate thousands of Haitian asylum seekers, do appear like so many petty sovereigns. Approaches like Butler’s, however, fail to attend to the jurisdictional cosmologies that inflect (and are inflected by) the historically evolving, spatialized sensibilities of the legitimate and the possible. The jurisdictional landscape of these parole determinations was deeply complex. They involved intrabureaucratic delegations of varying degrees of formality that localized subject matter authority over parole and severed, in practice, the pathways of segmentary jurisdiction between inspectors and their superiors. The parole power itself was shaped by the dimensional jurisdictional consequences of the nonentry fiction, which placed these excludable Haitians beyond the gate, juridically speaking, with all the attendant disadvantages that such a position vis-­à-­vis the geographical pivot entailed. Moreover, the nature of the statutory grant of discretion combined with the dimensional consequences of the nonentry fiction restricted the relation between the INS and the judiciary in segmentary space under an Administrative Procedure Act that constrained judicial review in such instances.35 There was, then, a good deal to support the thesis that these inspectors were largely unfettered by law and insulated within a de facto exceptional geography of devolved discretion. The jurisdictional configurations were, however, more complicated even than this. In spite of all these factors cordoning off the inspectors from external constraints on their ultimate power to decide the fate of the Haitian parole applicant before them, the detention regime was a domestic one, and therefore one where the Administrative Procedure Act (APA) still placed structural limitations on the ways the INS could launch new policies or how far low-­level officials could stray from the regulatory and guidance dictates formulated by their superiors and the statutory frameworks in which they were ensconced. Litigators for the Haitians seized on this weapon, arguing that the shift from a policy of presumptive parole to one of presumptive incarceration was not carried out in accordance with the rulemaking requirements of the quasi-­constitutional (cf. Eskridge and Ferejohn 2001) APA. The courts agreed, releasing the Haitians and repairing the caesura of segmentary jurisdiction between the judiciary and the various levels of the INS hierarchy that the Justice Department had attempted to formalize.36 However arbitrary and

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capricious these inspectors may have been for a time, in the end, the courts reined in their discretion. Of course, these jurisdictional cartographies were not self-­activating. They had to be imagined and performed through litigation in order to be actualized, an onerous process during which the INS inspectors did govern like de facto petty sovereigns. The de facto element is crucial here, however, because it emphasizes the myth of a true devolution of sovereignty, in the sense of “ultimate legal authority” (Moore 2000, 7). These bureaucrats acted in the shadow of jurisdictional paradigms that became thinkable within a preexisting geography of legality and legitimacy, the intricacies of which—including its consequential delineation of insides and outsides—approaches like Butler’s fail to recognize. Turning from detention in the early 1980s to the case of offshore interdiction, it is easy to discern the importance of the wider cosmologies of law to these questions of where and how sovereign power is constituted and made manifest. As I highlighted in the previous chapter, the eventual delegation down of “credible fear” determinations to the corps of INS interdiction inspectors in the Windward Passage was extreme. In many ways, it resembled the intra-­agency subject matter and segmentary configurations on display in the case of the INS inspectors exercising parole powers in the United States. The similarities are revealed as superficial, however, when one takes the perspective of a larger scale—that is, the framing of the plausible within geographies coded as domestic and external within the overarching cosmologies of law’s rule. Out on the sea, far beyond the nation’s gates, interdiction’s formal legitimacy rested on an elaborate legal architecture of legislative delegations, legislative restrictions, executive promulgations, and executive orders, themselves propped up by constitutionalized spatial imaginaries long in the making. This often invisible juridical edifice, which I excavated in chapter 4, evolved to shield the flexible, liquid stage on which interdiction unfolded from the jurisdiction of the courts while also drawing on the distinction the materiality of ocean spaces provided. By now, this should be clear, and I will not repeat myself by delving into its technical specifications once again. What also should be clear is that although this structure permitted the kinds of delegations that Butler views as characteristic of sovereignty’s governmentalization, it also fostered the rapid and drastic revocation of such petty sovereignty and its reinstantiation in the figure of the president. Bush’s 1992 order to dismantle the entire high seas screening apparatus and substitute it with a policy of direct return—the Kennebunkport Order discussed in earlier chapters—­exemplified

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that very form of “political power” (power in its “unitary and causal form”) that Butler dismisses as largely irrelevant. With the stroke of a pen, Bush disbanded his corps of peripheral screeners and, as the “sole organ” of the nation in a vast and dangerous “external realm,” substituted his own sovereign will for theirs, commanding that all fleeing Haitians, refugees or not, be returned to Port-­au-­Prince. The vulnerability of these petty de facto sovereigns to the reorganization of segmentary jurisdiction at a moment’s notice belies the utility of Butler’s too exaggerated approach and demonstrates the continued relevance of archic centers of power in a postmodern world. Perhaps more interesting is what it reveals about a geography of expectation and the thinkable (cf. Trouillot 1995). To put it another way, it tells us something about a geography of the normal. Interdiction belongs on the high seas; it is not out of place there. More subtle, layered adjudicatory practices, however, are at home in the domestic sphere. There, they are made to seem natural. This is the structuring of sensibilities at work. It is the effect of a mutable cosmology made real through narrative and practice, ink and steel.

Exceptional Jurisdictions As shown in the introduction, the turn to sovereignty as an object of theoretical inquiry in anthropology and other related disciplines over the last two decades (Hansen and Stepputat 2005) has involved a focus on the relationship between authority, power, and “states of exception.” Unsurprisingly as I also noted, this shift in focus has led to an interest in sovereignty’s most notorious theorist, Carl Schmitt, and the recent reengagement with his writings in the works of Giorgio Agamben (specifically 1998; 2005) and others (e.g., Hansen and Stepputat 2005; Comaroff and Comaroff 2006; Fassin 2005; Galli 2010; P. Kahn 2010; Scheppele 2004; Ticktin 2006). In much of this literature, the exception rests on a problematic fiction: a conceptualization of the space of sovereign power as a “normative void” (Hansen and Stepputat 2005, 16) where a pure will exists outside reason, culture, and the social. By rooting their theory of sovereignty in the mythic possibility of this radical emptiness, Agamben (2005, 6) and others have grounded their approach in metaphysical abstraction. The results are troubling. Whatever the Haitian refugee camps at Guantánamo or high seas interdiction might have been, the concept of the normative void does little to unravel their secrets (cf. Benton 2010). There is, however, a way around this problem. One can eschew the question of the ontology of law and its absence and focus instead on how concep-

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tions like sovereign power take on meaning within spatial stories and spatial practices. This approach is not a search for transhistorical roots but an exploration of historically unfolding processes. It is an invitation to excavate the landscapes that law produces and from which law emerges. Some scholars writing this history posit the imperial as alien to liberal democracy (R. Smith 1997). Others see the two as intertwined (Rana 2010). Building on the latter view, I have explored liberal constitutionalism’s dynamic aporias and their modulation through spatial fixes (cf. Harvey 2001). The mediation of crisis governance with spatial idioms of, for example, ocean exceptionalism and “the offshore,” create a fragmented geography of legitimacy across which the tensions of this constitutionalism are spread and managed. These regimes of normalized expectation give meaningful order to physical worlds, spinning out new built environments, fictions, and practices in the process. My goal has been to distill the abstract conceptualizations of jurisdictional registers from the complexity of legal practices and imaginaries in a way that allows one to excavate the shifting ground of an American juridico-­political landscape and its uncanny foundations. It is this historical anthropology of jurisdiction and not a metaphysics of sovereignty that holds the key to charting the shifting contours of the nation-­state in the border-­ bending world of neoliberal fragmentation that the exceptional responses to Haitian migration helped to launch.

Conclusion The reaction to the Haitian threat in its various imagined forms (economic, biomedical, cultural) was more than a mechanical insertion of new practices into existing juridico-­spatial models. The creation of the maritime border and migrant detention reshaped older practices, institutions, and their legal scaffolding, remaking them and the contours of the nation-­state itself beginning in the “long” decade of the 1970s. The practices of state spatialization unfolding in this period emerged out of the concrete manufacture of new citational edifices, as shown in chapter 4, and the grander, more diffuse cosmologies that they drew on and, however modestly, refashioned. The jurisdictional concepts I have enumerated as spatial registers allow us, I argue, to see this interaction more clearly, revealing the effects of these shifting citational chains on the configuration of sovereign power’s expression. Now that I have so closely examined the infrastructure of interdiction and the juridically inflected cosmos of which it is a part, I would like to turn back to the seascapes of the northern Caribbean, this time with an eye to something

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more than the types of entextualization power that operate within its adjudication encounters and the citational threads they trail behind them. To provide a fuller sense of the practical and practiced aesthetics of state form that have been remade here, this next chapter itself pivots toward the manifold ways the waters of the northern Caribbean have been transformed in the decades since interdiction unleashed its cutters, surveillance aircraft, and tethered, dirigible drones upon it. Once again, we will find our answers at sea.

Chapter 6

Interdiction Adrift

In late November 1991, the Harriet Lane, a 270-­foot medium-­endurance Coast Guard cutter, departed Portsmouth, Virginia, and sailed over one thousand nautical miles to Guantánamo Bay to relieve another cutter, the Dallas, as the mobile coordinating center for the massive interdiction effort then unfolding in the Caribbean.1 After briefings at the naval station, the Harriet Lane headed out into the Windward Passage to begin patrolling for migrant vessels. At the time, the postcoup exodus was already in full swing. Coast Guard officials had interdicted over five thousand Haitians during the previous few weeks and more than four thousand of them were already being detained at Guantánamo, some in camps and others on ships moored at the naval station’s windward piers.2 Over the next month, the Harriet Lane would crisscross the Windward Passage and the Gulf of La Gonâve (at times penetrating deep into Haitian territorial waters), interdict seven Haitian vessels, manage the activities of twenty-­eight additional Coast Guard assets (both surface vessels and aircraft), and serve as a mobile hub for interdictee offloads from smaller patrol boats working the same waters.3 By mission’s end, the Harriet Lane had traversed thousands of nautical miles, consumed nearly seventy thousand gallons of fuel, and housed nearly one thousand Haitians on its decks.4 More than a dozen other Coast Guard surface vessels were also cruising the waters around Haiti, the Bahamas, and Cuba in November and December 1991. The Thetis, another medium-­endurance cutter, had interdicted a Haitian vessel off Playa Santa Lucía, Cuba, in the Old Bahama Channel by November 25, interdicted several vessels off Haiti’s northern coast, not far from Jean-­Rabel and Île de la Tortue, by the thirtieth, and made its way around

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Môle-­Saint-­Nicolas and into the Windward Passage for another interdiction by December 10.5 Meanwhile, the Escanaba had interdicted a Haitian vessel in the middle of the Windward Passage between Point Maisí and the Môle by November 15, was deep into the Gulf of la Gonâve by the nineteenth, returned to Guantánamo, where it awaited processing of its onboard interdictees, by the twentieth, and then headed deep into the Gulf of la Gonâve and Haitian territorial waters once again for an interdiction by the thirtieth.6 The Dauntless in turn had interdicted several sloops off Cape Dame Marie on Haiti’s southwestern peninsula by the eighteenth, sailed one hundred nautical miles to the north for another interdiction off Point Maisí by the twentieth, and then returned to Cape Dame Marie for an interdiction by the twenty-­eighth.7 The Legare, Nunivak, Petrel, Padre, Steadfast, Confidence, Northland, Tampa, Mohegan, Maui, and other cutters were also circulating in these waters during November and December 1991, interdicting numerous vessels, large and small, along the way.8 In the final months of 1991, the seas around Haiti were crowded (compared to years prior) with cutters, wooden sailing vessels, and motorized tramp freighters alike. One could look out from the coastal towns of Haiti’s southwestern peninsula and see the white hulls of patrolling Coast Guard ships in the distance. A Haitian captain I spoke with in 2011 recalled sailing out from one such small town after the ouster of Jean-­Bertrand Aristide twenty years prior and seeing a cutter in the distance, what he called the Amintonn—a local dialectal variant of the more widespread term Amiltonn, itself a Haitian pronunciation of Hamilton, one of the first Coast Guard ships assigned to conduct interdiction patrols in the Windward Passage during the early 1980s. This captain explained how he “saw the Aminton passing through the channel,” approached it, but was told to return to shore by Coast Guard officials, and so never made it to Guantánamo. Other Haitians who actually made it aboard a cutter but failed to be screened in knew that more patrol vessels lurked beyond those visible from the shoreline, and they shared this knowledge with others upon their return. Radio messages broadcast throughout Haiti, some crafted by media specialists in the US Department of State, confirmed as much, warning Haitians to remain on firm land.9 In short, the cutters were literally and discursively in full view: one could observe them working a swath of ocean and one could hear stories of their presence just beyond the horizon. In the decades since interdiction began, this vision of a maritime border between Haiti and the United States infused the Haitian oceanic imagination. This is no accident; the creation of a sense of containment was one of the

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stated aims of the program at its inception. Beginning in the spring of 1981, Coast Guard and Department of Justice testimony before congressional committees emphasized the importance of maximum visibility and publicity with regard to interdictions.10 In a 1981 report to the White House, a Coast Guard captain from the Office of Law Enforcement noted that “seeing a Coast Guard cutter steaming into Port au prince [sic] or Port au pai [sic] is noticed by the people of Haiti. It has an effect on them.”11 Over the past three and a half decades, the Coast Guard has continuously demonstrated a commitment to creating these “effects.” As a result, the sense that the United States has erected a sea border engulfing Haiti has become widespread among Haitians, particularly along the coasts, although reactions to this mode of encompassment have been creative and far from fatalistic (the nature of these responses are the focus of the companion volume to this text). Moreover, in recent years, prominent cutter traverses of the Canal de la Tortue (some of which I have witnessed firsthand) and regular surveillance flights over the northern coast have served to remind potential smugglers and migrants of the barriers that await them should they head seaward. Sensory cues of this type are unremarkable visual and aural elements of Haitian sea and airscapes in the Northwest. Elsewhere in Haiti, they are felt as an absent presence—an imagined surveillance regime of satellite, aircraft, and seacraft remote-­sensing technology, which, although invisible, is discursively prominent within Haitian narratives of American power. This movement of Coast Guard vessels across the waters of the northern Caribbean has operated as a mode of seafaring enunciation—the maritime counterpart to Michel de Certeau’s “pedestrian enunciation” (1984, 99)—through which the partially scripted itineraries of these vessels bound together a new oceanic spatial order. Here, de Certeau’s “rhetoric of walking” (99) gives way to a rhetoric of sailing and interdiction—a “long poem of ” maritime mobility (101) and engineered blockage, which unfolded within the choreographed movements of numerous vessels at once instrumental and reflexively expressive. This last point is important. Certainly, the cutters patrolling the Windward Passage were there to interdict fleeing Haitians, but they were also there to signal a new geography of American migration policing, and, in the process, to bring that geography into existence as something more than a dead letter. In previous chapters, I parsed the jurisdictional elements that have given shape to the shifting cosmologies of American power. This involved a close examination of how various actors produced geographies of discretion through the manipulation of a host of citational architectures and multiple registers of

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juridical space. I also explored, briefly, how these unstable structures reconfigured and connected with other material entities, such as ships, seawater, and earth, to produce the exceptional as a place (both virtual and concretely material) and a mode of action. Throughout, I have conceived of the exceptional relationally: it has always emerged with reference to a set of ethnographically particular normative ideals—here, the constraining legalities of liberal constitutionalism and its embrace of the primal oppositional pairing of reason and will. In this sense, it is worth reiterating, the exceptional is often less about a given temporality (a moment of crisis) and more about a structural relation of valorized norms and standardized deviation from them within an imaginary that codes certain practices and procedures as other than. My concern with oceanic exceptionalism as a spatialized dimension of this process of signification has thus been intertwined with my interest in the pragmatics of the possible—the thinkability of particular exceptional spaces and the legitimation of specific practices within such spaces once their anomalous status has been routinized. In attending to the ways various scales of practice and textual codifications articulate with one another, I have also trained an eye, sometimes obliquely, sometimes directly, on the aesthetics of state practice. Form has been central. This has been true in my discussions of the rending of border space, of the indexical infrastructure of screening micropractices, of the doctrinal language of “gates” and “insular empire,” and of the emic (or insider) visualizations of subject matter mappings and institutional segmentation. Throughout, I have argued that the ordering embodied in the explicit textual codification of space and its actualization in practice (as well as the manufacture of potential codifications from practice) exists as an embodiment of a wider liberal cosmology. At times, this ordering generates an aesthetics of built environments—for example, the aforementioned gates and shielded lands—but also, as I showed in chapter 3, an organic aesthetics of the sovereign body. With regard to the latter, the affective entailments of the “domestic analogy” (Bull 1977, 44)—where nation-­states become as bodies politic—are entangled with the technocratic specificities of engineered discretion. Calls for spaces of exceptional flexibility often emerge under the banner of biopolitical exigency (for my purposes, the “threat” of Haitian contagion and social pathology, as seen in chapter 3). In the discursive register of “life” and the national body, however, the technical specificity of juridical scaffolding often fades into the background; legal infrastructure becomes ossature; administrative ossature is enfleshed in the suturing of nation and state; and border disjunctures are remade into selectively permeable social skins (cf. T. Turner 1980). As I noted

Interdiction Adrift 219

earlier, this aesthetics of the corporeal plays a central role in stabilizing the fictional cohesiveness of the nation-­state, drawing dispersed institutions and their topographies of interaction together into spatiotemporally enduring Leviathans. The alchemy of such “effects” (Mitchell 1999, 78; Trouillot 2001, 126), as anthropologists are well aware, is always partial. What often goes less remarked on, however, is that, at times, the incompleteness of this imagined cohesion is often intentional. As any consumer of political oratory knows, state agents and other commentators deploy various styles when narrating the nation (Bhabha 1990; Mbembe 2001, 102), switching registers depending on context and audience. This is true for narrations of selfhood as well. And just as atomistic notions of the individual may give way to discourses of either disaggregated or distributed personhood (Gell 1998, 140; cf. Haraway 1991; Strathern 1988, 13)—for example, the networked actor who exists as much within her own skin as in the constellation of subjects through which she is attached via social ties—so may imaginaries of the self-­contained, national “geo-­body” (Winichakul 1994, 16–17) yield to an aesthetics of institutional disaggregation and spatiotemporal dispersion (cf. Mezzadra and Neilson 2013). This may seem uncontroversial given that the assemblages stitched together at the scale of the nation are perhaps more unwieldy than those operative at the scale of specific bodies. Leviathans depend on the metaphor of the sovereign individual to bolster their coherence more so than the reverse, which is not to say that political metaphors do not also play a role in conceptualizing microlevel corporeal wholeness. Although bodies are good to think with when it comes to polities, the poetic craftsmanship involved in transforming institutional networks into “artificial animal[s]” (Hobbes [1651] 1998, 7) frequently, and unsurprisingly, shows its seams. To be clear, dismantling the fiction of nations as individuated selves by pointing out their “biographical illusion[s]” (Bourdieu 2000) is not my goal here. Rather, I hope to achieve something far more interesting than unmasking the “fantasy” of “the state” qua object (P. Abrams [1977] 1988, 63): I aim, instead, to reveal the ways an aesthetics of sovereign cohesion and fragmentation may be produced such that both may appear as complementary, rather than antagonistic, visions of ideal form, each foregrounded or backgrounded depending on context. This concern with form leads me, here, to examine the qualities (Chumley and Harkness 2013; Harkness 2015; Munn 2013) of “state spatialization” (Ferguson and Gupta 2002, 982) evinced in the seafaring enunciation of interdiction. Specifically, I will look at how configurations of mobile ships, cuttermen

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(as the officers and crew of the Coast Guard ships are called), and INS officers embody features like depth and layering as signifiers of socioaesthetic value (Munn 2013, 140). One of the goals is to grasp how sovereign feeling—the sense of secure insulation associated with clearly demarcated boundaries at the edges of national territory—is revitalized through the creation of thickened (Andreas 2003, 79), disarticulated border zones. By examining the literal circulation and aesthetic framing of the interdiction fleet, I can see the aporetic conviviality of modern and postmodern borders and their place in larger-­scale maritime imaginaries of spatiotemporally extended state networks at sea. Aqueous outsides emerge as practiced spaces of state excess, and not-­so-­external realms are remade as cutters, planes, and helicopters expand outward from the “homeland” into disciplined, yet stubbornly liminal, watery realms. With this oceanic turn, I can see a refashioning of the spatiality of the American nation-­state in ways both strange and familiar.

H i g h way s , P i p e l i n e s , a n d Z o n e s In March 1987, several years before the ouster of Jean-­Bertrand Aristide sent tens of thousands of Haitians seaward, the commanding officer of the Harriet Lane submitted what’s known as an “after-­action” report for a patrol he and his crew had recently completed in and around the Windward Passage.12 In it, he bemoaned the amount of time spent ferrying seized Haitian freighters back to Port-­au-­Prince while the Windward remained unguarded, an issue he referred to as the “ ‘paradox of success.’ ”13 What is perhaps most intriguing is how this “success” was made possible by a particular sense of ocean space. At one point during the mission, the Harriet Lane “went up and sat on a part of the ‘Haitian Highway,’ just to the northwest of Northwest Point, Great Inagua,” an island in the Bahamas around sixty nautical miles from Haiti’s northwestern coast.14 The phrase, “Haitian Highway,” appears to have been coined based on officers’ experience with these particular waters. “It seems,” the commanding officer noted in the report, that “many of the Haitian freighters pass through this area on their trips to Florida as they make up their course for Miro Por Vos Passage after rounding Southwest Point, Great Inagua.”15 Not long after situating themselves on what they understood to be a highly trafficked route, the action began: The first three vessels we saw, all Haitian freighters, we boarded, eventually interdicting the three of them in 23 hours. We didn’t want to head directly back to Port au Prince after the first of the three seizures because we had

Interdiction Adrift 221

just arrived back in the area after having returned another earlier interdiction. Consequently, we had our prize crew take the interdicted vessel to a point 3-­plus NM [nautical miles] off Northwest Point, Great Inagua, where they found a comfortable lee while we ranged a few more miles offshore waiting for the next freighter to come along. We maintained visual/radar/communications contact with our prize at all times to ensure the safety of our prize crew and that the prize remained outside Bahamian waters. When another Haitian freighter inevitably came along, 15 hours later, we boarded and, once our INS team determined there were economic migrants aboard, interdicted it. Seven hours after the second boarding, along came a third freighter, which we also boarded and again, once the INS team determined the presence of economic migrants, we interdicted it. With three prize crews assigned we headed back to Port au Prince.16

From this description, one gets the impression of a continuous parade of Haitian freighters along a relatively defined sea lane; of an American patrol vessel, hundreds of miles from US territory, manned by officials with knowledge of these passageways; and of a wider set of more formal spatial codifications (Bahamian territorial waters and the like) hemming in these vernacular sea mappings. The juridico-­political architectures that placed the Harriet Lane in this site with the task of surveilling, stopping, and, in some cases, seizing Haitian ships made possible a whole new set of spatial sensibilities and imaginaries on which the efficacy of interdiction in large part depended. A bit more about these Haitian ships. The smaller tramp freighters were based primarily out of Port-­de-­Paix in Haiti’s Northwest Department and had been making the several-­day journey along the “Haitian Highway” in significant numbers starting in the early 1980s. On the northbound voyages, cargo consisted primarily of agricultural goods, such as yams, plantains, and, in some instances, bulgur wheat, originally shipped to Haiti from the United States as food aid and re-­exported for retail in Haitian groceries in Miami.17 On the return trips, the vessels would be weighed down with sundry items, including used mattresses, buckets, water jugs, and bicycles (see figure 6.1). By the late 1990s, between 60 and 150 vessels participated regularly in the trade according to various estimates.18 Merchants carried on a similar trade with the Bahamas prior to the takeoff of the Miami connection, and I have sat through an unloading process in northwest Haiti of similar goods (mattresses, secondhand doors, metal window frames, buckets) as recently as 2014. During the 1980s, the freighter captains developed a reputation for transporting contraband on both lengths of the voyage (marijuana and migrants

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6 . 1  Wooden Haitian “coastal” freighter, early 1980s. A US Coast Guard cutter can be seen in the background. Courtesy of the US Coast Guard Historian’s Office, Washington, DC.

on the northbound leg and stolen goods on the southbound stretch). Captains docked their wooden ships, referred to locally as “river rats,” in clusters along the Miami River after paying fees to small-­scale terminal operators who specialized in catering to vessels of this sort from Haiti and elsewhere in the Caribbean (Dunlap 1987). Reports suggest that the freighters would arrive in the evening and unload their clandestine human and nonhuman cargo prior to a customs inspection the following morning.19 At times, smuggled migrants would be brought along as “extra crew,” a technique known in Haiti as arriving sou koulis. Others would hide away in secret compartments within the freighters, another, more dangerous method of travel known to Haitians in the Port-­de-­Paix region as transiting nan bitak. By 1983, US Migrant Interdiction officers were filing activity reports that included an entire section on “Miami River Ops.”20 Despite the prominence of the people smuggling carried on by Haitian traders in these immigration reports, this particular means of transport remained largely distinct from the “sail freighter” migration voyages that had begun in the 1970s and that were, ostensibly, the primary target of interdiction operations. In contrast to the “Haitian coastal traders,” as the INS called them, the kanntè, or virewon, trips, which could carry more than one hundred passengers to the Florida

Interdiction Adrift 223

coast, specialized exclusively in shuttling people, rather than goods, and supported a much larger percentage of undocumented migration out of Haiti. Nonetheless, the vibrant and consistent freighter commerce along the so-­ called Haitian Highway kept the Coast Guard busy throughout the 1980s as well. The Harriet Lane after-­action report quoted earlier and other reports of freighter interdictions document a conflicting set of itineraries driven by vastly different visions of desirable mobility. The freighters, working to link up Haitian, US, and Bahamian ports in networks of licit and illicit commerce, created various ocean “highways,” in the words of the Coast Guard, through their repetitive sea traverses, month after month and year after year. Coast Guard officials, in turn, developed a familiarity with northern Caribbean seascapes through the proximate encounters of air and surface patrols and the mediating remote-­sensing technologies that accompanied them, including ship and aircraft-­mounted radar. Additionally, the cutters relied on unmanned dirigibles, known as aerostats, which also used remote-­sensing technologies to provide them with extended “sight” while tethered to mobile ship platforms circulating in the Caribbean.21 As interdiction events accumulated in the memories of cutter crews and as officials inscribed their longitude and latitude coordinates in bureaucratic archives, liquid routes and choke point barriers took shape in mental and concrete cartographies of interdiction. The recursive interactions of Haitian and US ships, in other words, generated a living, at times, embodied mapping of ocean space, plotted with shifting sites of potential movement and obstruction. The image that emerges out of these encounters is not that of the sea as an in-­between space that is empty, “frictionless, undifferentiated” (Benton 2010, 105), and smooth (Steinberg 2001). Rather, there is friction (Tsing 2005) here, and turbulence (Starosielski 2015, 17), but more important, instead of the archetypal blue vastness of the oceanic sublime (Connery 1996)—at once nowhere because all-­encompassing—there is a sense of place that comes to the fore. In contemplating the tours of these ships, both the cutters and freighters, I am reminded of de Certeau’s observation that the phatic function—that “binding tissue of words” oriented more toward creating linkages of social “communion” than conveying literal information (Malinowski [1923] 1936, 315)—is not restricted to verbal signs. Through ambulation or, in our case, ocean navigation, the phatic “dances and walks about . . . like a series of ‘hellos’ in an echoing labyrinth” (de Certeau 1984, 99, emphasis added). Each ship calls out, “I am here” with its material copresence with other seafaring agents but also, in the case of the cutters, through formulaic repetitive

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call-­and-­response procedures carried out in cable transmissions and various forms of radio contact, the tedium of which I will not bore you with. At times, Haitian ships also conveyed this sense of prior presence at sea to various audiences by their current presence ashore (the freighter tied up in the Miami River or the sailing vessel aground at Pompano Beach) or through their possession of goods from elsewhere (the bicycles and mattresses of Miami, for example, on the deck of a ship anchored in a smugglers’ cove in Haiti). The Haitian ship in Miami indexes the route traveled as much as the ship bearing Miami-­bought goods moored in Haitian waters signals a completed voyage abroad. I will look at this process of reading ship materiality and seafaring bodies for traces of paths traveled in a moment. It is important to note here that whatever the vehicle of the message, the effect is an incremental buildup of interwoven itineraries imagined inductively out of a host of concrete encounters and spatial stories (both ex ante and ex post) accumulated over years of practice. While the wakes of these vessels may fade away in the liquid medium that keeps them afloat, the paths they trace are not invisible. Seafaring enunciation leaves its performative marks in thought, narrative, and material representations, producing “phatic topoi” (de Certeau 1984, 99)—places made through the pragmatics of circulation-­qua-­semiosis—across this vast, aqueous materiality. The appeal of infrastructural metaphors suggests as much, with the toponymy of phrases like “Haitian Highway” and, another informal Coast Guard term, the “Bimini pipe line,” pointing to the practiced actuality of these passageways.22 The discourse of existing, and somewhat durable, routes also conveys a sense of a particular “oceanic feeling” (Connery 1996): one can experience the topographic density of the space—the lamination of paths ceaselessly inscribed on charts or recalled in memory—not as a limitless expanse, à la Freud (1961, 11, cited in Connery 1996, 289), but as sites of shifting relations, interactions, and evasions. As one Coast Guard commander I spoke with put it, the cutter is like a “giant nerve ending” through which one senses and becomes familiar with the characteristic water temperatures, currents, debris, and vessel traffic of a particular sea space. Sea lanes are, for some, not voids, or vacant interstitiality, but a felt assemblage of routes and places (cf. Appadurai 1996, 178). The discursive genres of bureaucratic reporting, however, are not, as a general matter, designed to foreground an embodied sense of place. As expected, they are more suited to capturing standardized codifications of space, which often make their appearance in the documentary record in more obvious ways than do traces of oceanic feeling or the nuances of particular sea-

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scapes. It should come as no surprise that the individual confrontations between Haitian and US ships generated by interdiction have, over the years, produced standardized mappings of Caribbean seascapes that work alongside and orient the shifting itineraries of the individual vessels making their way through these waters. One prominent example of this routinizing mode of spatial thinking was the division of interdiction, and by extension the offshore maritime border itself, into southern and northern segments, known in Coast Guard jargon as Haitian Migrant Interdiction Operations (HMIO)-­ North and HMIO-­South.23 HMIO-­North emerged as the designation for a choke point between the Bimini island chain of the Bahamas and the South Florida coast when two Haitian sailboats were spotted off the coast of Hollywood and Islamorada, Florida, in April 1983.24 The sudden arrival of these vessels carrying over one hundred asylum seekers in US territorial waters caused a stir, suggesting “a breech [sic] in the [interdiction] program,” to quote an anxious cable sent from the US embassy in Port-­au-­Prince following the incidents.25 Working in damage control mode, Coast Guard and INS officials came to a different conclusion than the embassy personnel after examining the boats and the bodies aboard and failing to find signs of long journeys at sea that would confirm gaps in interdiction’s surveillance of the Windward Passage. Specifically, a heavily redacted cable transmitted from the Coast Guard’s Seventh District in Miami noted the lack of barnacling on the hulls of the vessels, the presence of fresh tar (a sealing agent) on the planking, the lack of salt encrustation and sores on the bodies of the voyagers, the presence of Cuban medicine in the boat that reached Islamorada, and a lack of interest in food on the part of the passengers after being taken into Coast Guard custody.26 For Coast Guard officials, these were clear indicia of multistage voyages, which they spun as evidence less of a “breach” in coverage of the Windward Passage and more of Haitian efforts to circumvent that space entirely by taking advantage of a “Cuban buffer zone” (Cuban territorial waters) inaccessible to the cutters and, presumably, though this portion of the cable is elided, stopover sites and smuggling chains routed through the Bahamas.27 The latter possibility, likely bolstered by media speculation, prompted Florida senator Paula Hawkins to push for increased policing in the wake of the April arrivals. The Coast Guard obliged by creating an HMIO-­North program focused, as mentioned earlier, on the stretch of water off the Bimini Islands.28 The original patrols in the Windward Passage in turn became HMIO-­South. Hawkins did not mince words regarding the jurisdictional arbitrage the patrols were meant to achieve, telling the Miami Herald, “Inter-

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diction means that since judges are ruling against the administration, we are going to stop them [the Haitians] before they get here.”29 Moreover, she reiterated the expressive, performative dimensions of the program in a letter to Coast Guard admiral James S. Gracey, noting that this second layer of patrols closer to US territory would “send a message back to Haiti and stop the future onslaught of new arrivals,” a phrasing that recalls the communicative “effects” engineered as a core outcome of interdiction from its inception.30 The result was a bureaucratized ordering of sea space, informed in part by an inductive reading of the boats (lack of barnacling) and bodies (absence of salt sores) of the April 1983 seafarers, as well as the concrete itineraries these signs indexed. The operational categories, HMIO-­North and HMIO-­South, transposed the messy work of vessel hunting at sea and the semiotics of discovering migration routes into new, standardized spaces around which the Coast Guard and INS would organize ship patrols, personnel assignments, and administrative reporting over the coming decade. In this way, ocean routes became administrative zones, enshrined in bureaucratic discourse. HMIO-­North and South mapped directly onto the “Bimini pipeline” and “Haitian Highway” referenced above, although I cannot say whether the concentration of policing efforts in these sites produced the sense of these passages as infrastructure-­like or their existence as infrastructure-­like passages preceded and gave rise to the creation of new policing zones. What is clear, however, is that there was an interplay of routes and zones, the existence of the former justifying the administrative creation of the latter, and that the dynamic between the two exists apart from the nature and timing of the specific metaphors in use. Furthermore, this interaction of two registers of space-­making—the route and the zone—transformed seascapes and certain actors’ capacity to experience them. The perception of traffic in particular zones precipitated a clustering of not only cutters and INS personnel but also other assets, like the aerostats mentioned above and their strategically placed, land-­based counterparts in the Bahamas and the Keys, which during the late 1980s and early 1990s, offered surveillance coverage over hundreds of square nautical miles of ocean space around South Florida (R. Adams 1990).31 These standardized zones, however, were not fixed. Although not as flexible as the itineraries of individual freighters or sailing vessels, their contours could shift in response to the density of traffic along existing routes and the vagaries of policy orientations dictated from above. The early 1990s, postcoup circulation of cutters described at the beginning of this chapter is an example of such a transition in the tasking of specific assets (both in terms of the number of cutters on patrol and their location) and a higher-­order spatial

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Turks and Caicos Islands The Bahamas Guantánamo Bay Cuba

Haiti

AREA S1

AREA S2 AREA S3

6 . 2  US Coast Guard migrant interdiction surface patrol areas, circa the spring of 1992.

modification of the positioning of the interdiction fleet—an actual change in the contours of the zones patrolled. By maintaining a cutter presence at multiple sites abutting the Haitian coast from Cape Dame Marie all the way to Fort Liberté, the Coast Guard pivoted from the HMIO-­North/HMIO-­South model, with its two-­zone imaginary (proximate and distant), to a patrol configuration that covered much of Haiti’s coastline as well as the Old Bahama Channel. The pathways of individual cutters may have been variable and responsive to the contingency of evolving encounters at sea, but they were also framed by an array of more stable, zonal codifications disseminated via Coast Guard cables. The result was a series of surface patrol and fixed-­wing search areas that enveloped Haiti in a great arc of surveillance and policing (see figures 6.2 and 6.3). This cartographic consciousness of patrol mapping established the limits within which the chorographic—that is, descriptive (Pickles 2004, 97)—feeling generated by the lived practice of cuttermen’s actual sea ranging would continue to emerge. The precisely charted coordinates and the

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Turks and Caicos Islands The Bahamas Guantánamo Bay Cuba

Haiti

RICKY LUCY FRED BABALOO

6 . 3  US Coast Guard migrant interdiction air patrol areas, circa the spring of 1992. The shaded area represents the coverage area code named “Babaloo,” which overlaps with “Lucy” and “Fred.”

polygons of responsibility inscribed in cable messages became higher-­order referents in the making of this border space. As cutters began to circulate more widely and in greater numbers in response to increasing departures from Haiti, they also stimulated new techniques, temporalities, and itineraries on the part of Haitian captains, who no longer regarded Coast Guard ships exclusively as barriers. For many Haitians, the cutters became entry points to the US offshore border apparatus. With these vessels in full view a short distance from the coast, Haitians no longer needed to plan for long trips at sea. The older method of migration voyaging, known variously as kanntè vol direk (“direct flight” kanntè) or virewon, could now be supplemented with a new tactic, the kanntè baz, or “base” kanntè, a term that referred to Haitians’ intent to be interdicted and taken to the Guantánamo Naval Base for an asylum prescreening interview. As noted in chapter 1, these kanntè baz were meant to be shorter voyages and were di-

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rected at cutters that Haitian captains could see on the horizon. When the cutters were not within view, captains would navigate toward anticipated patrol routes. In certain regions with uninhabited offshore islands, groups embarking on kanntè baz might set up camp and venture out on multiple trips before encountering a cutter. Other launching points in more populated sites subject to policing by Haitian military and paramilitary forces did not, however, allow for such repeat attempts, making each foray a risky endeavor: once at sea, captains had armed adversaries at their backs and an open, potentially tumultuous, ocean ahead. A trace of the kanntè baz tactic appears in a recently declassified cable from the Office of the Commander in Chief of the Atlantic Fleet in Norfolk, Virginia, which included the following spare notation: “Campbell [a Coast Guard vessel] reports 400+ migrants in boats around cutter.”32 The message is terse, certainly, but it clearly identifies a phenomenon that had not existed previously; unless in distress, Haitian sailing vessels would rarely seek out cutters and certainly not in large numbers. The move toward kanntè baz and this crowding of cutters signaled the evolving dialectical complexity of the maritime border and its continuous remaking of ocean space. By 1992, a synthesis of border enforcement objectives as well as humanitarian obligation (the latter often emphasized to sanitize the former) had swelled the active interdiction fleet and provoked a radical change in the forms of migration voyages coming out of Haiti, but the Haitians’ reimagining of cutters as entry points would soon be thwarted, at least temporarily.33 As I explained in chapters 2, 4, and 5, George H. W. Bush suspended all asylum prescreenings for Haitians in an executive order issued while vacationing at his family home in Kennebunkport, Maine, in May 1992. With the stroke of a pen, Bush had transformed the cutters from intermediate gateways into what the legal team from Yale, the ACLU, and the Center for Constitutional Rights would call a “floating Berlin wall” encircling Haiti.34 This new metaphor of oceanic infrastructure was evocative and, with the dismantling of the actual Berlin Wall still fresh in the public memory, quite sticky, cropping up in editorials, reportage, and congressional testimony until Bill Clinton reinstituted screening in 1994, initially aboard anchored ships off Kingston, Jamaica, and, later, at Guantánamo (Reynolds 2003). The metaphor was also rhetorically subversive, inverting the affective designs of maritime securitization by remaking what the Bush administration hoped to pre­sent as comforting insulation into something more akin to imperial containment. The suspension that brought this protean “wall” into existence also enabled a temporary settling of the coordinates for patrols into a particular ad-

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ministrative form—the great arc, mentioned above, that enveloped much of Haiti during this time (see figures 6.2 and 6.3). Underneath the neat polygons of patrol mappings, however, the improvised itineraries of cutters, kanntè ships, and tramp freighters did not abate. These vessels continued to mark out their paths within the limitations of material seascapes and the juridical layerings that infused them. As captains persisted in their ranging and traversing, they reinscribed old and generated new orientations toward sea space in registers both formal and vernacular.

Thickened Borders In a speech to the Conference of Delegates of Coalowners and Miners in the fall of 1942, Winston Churchill remarked that the “mighty power” of the United States “is restricted, it is restricted by those very oceans which have protected them. The oceans which were their shield have now become a bar, a prison house, through which they are struggling to bring armies, fleets and air forces to bear upon the great common problems we have to face” (1943, 258). The ironic undertones of Churchill’s statement derive from the two edges of an American insularity (in both the literal and figurative senses of the term) that both protected and isolated the nation. The comment also targets an American “terrestrial habit of thinking” long associated with the continental aspirations of land-­bound manifest destiny in which oceanic surrounds had been construed as “protective moat[s]” (A. Lipman 2015, 8) rather than Hegelian stimulants to heroic risk-­taking (Connery 1996, 297). Franklin D. Roosevelt acknowledged a similar notion in a radio address issued two days after the Japanese military strike on Pearl Harbor, proclaiming that the lesson “that our ocean-­girt hemisphere is not immune from severe attack” would not be forgotten (1931, 133). In one sense, these rhetorical flourishes operated to naturalize an American interwar isolationism as a particular form of geographic sensibility contrasted with an alternative mode of oceanic agency exemplified in the mythology of Britannia’s “empire of the seas” (Armitage 2000, 100). Central to this distinction was the pairing of passive and active modes of instrumentalizing ocean space, the former leading to inward-­looking complacency and the latter to world-­historical interconnection—in this instance, British imperial cosmopolitanism. Whatever histories these stylized imaginaries erased—from the early republic’s engagement with the Barbary states in the Mediterranean (Lambert 2005) to the US acquisition of overseas territories less than half a

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century prior—they conveyed a meaningful difference between the passive reliance on the ocean qua natural shield and the engaged mastery of the sea as field of defense and outward-­oriented action. They also projected an implicit aesthetic vision of national spatiotemporality tied to the reach and speed of maritime extension, something we will turn to in greater detail below. In the aftermath of World War II, the United States emerged as what Carl Schmitt called “the greater island” ([1950] 2003, 355), its navy, in the words of a young Samuel Huntington, “float[ing] in virtually solitary splendor upon the waters of the earth” (1954, 484). This singularity of American naval power generated a crisis of purpose: unmatched on the high seas, with whom would this great fleet do battle? Given this exaggerated tilting of the scales, it is unsurprising that over the course of the next half century, naval strategy would eventually move away from a “fleet vs. fleet” model of blue water naval conflict. Key to this transformation was an emphasis on consistently forward-­ deployed assets thousands of miles from US territory, the power projection such positioning entailed (Haynes 2015), and, over time, a turn toward agile, sea-­based ground interventions independent of infrastructurally robust but potentially vulnerable fixed ports (Parker 2010; Till 2007). The post-­9/11 reworking of American and other nations’ security apparatuses (Scheppele 2006; 2004) along with a renewed concern with “irregular warfare” and asymmetric threats (Bucchi and Mullen 2002, 59) marked a key pivot point in this longer history of naval strategy. In the early days of the post-­9/11 experimental ferment—a moment of strange symmetry with the lost innocence (A. Kaplan 2003, 83) that followed Pearl Harbor—the trope of the “sea shield,” an echo of an older Churchillian rhetoric, circulated once again in official military discourse, though not with the same pejorative sense of the double-­edged American isolationism of that earlier era. Heralded by navy vice-­admirals as a core “operational concept” (Bucchi and Mullen 2002, 56), the “sea shield” took shape as an element of sea power at once defensive and aggressive (a method for repulsing as well as launching attacks). Although this particular metaphor would shortly be dropped as a formal orienting term, its emphasis on “layered defense” and the abstract quality of protective “depth” it produced, to use the language of its official proponents (Bucchi and Mullen 2002, 56), would endure within the expressive repertoire of twenty-­first-­century naval strategy. With it came a more coherent, if not entirely new, aesthetics of American power, which visualized and valorized as essential the extraterritorial excess of the militarized state in the nation-­state conjuncture. The very conditions of possibility of securitizing the nation and

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its territorial core, in other words, required this extension into the beyond, and the new language of depth worked to bring the qualities of these arrangements of fixed and mobile assets into expressive focus. The formal culmination of the post-­9/11 reframing of American maritime security came in 2007 with a report titled A Cooperative Strategy for 21st Century Seapower. The report, the first to be jointly authored by the Marine Corps, Navy, and Coast Guard, was heavy with the Friedmanesque globalization speak of the previous decade, which the authors interwove with a by then familiar “language[] of counterterror” (Masco 2014, 1), characterized by its frequent references to the asymmetries and irregularities already alluded to above.35 The document was an attempt to theorize (and sell to constituencies in Washington) an agile, “postmodern” navy (Till 2007, 574) that would be attuned, in the characteristically histrionic phrasing of dystopian prognosticator Robert Kaplan, to the “dense, pulsing demographic ganglia near the seas” (2007). Most interesting, for my purposes, was the strategy’s spatiotemporal vision of the American nation, conceived of as a core “homeland” whose continued existence in time depended on a spatially engineered “defense in depth,” itself a reformulation of the discourse of “layer[ing]” recently articulated in the sea-­ shield concept.36 National territory, in this cosmology, existed as an insulated core within bands of increasingly “forward”-­positioned, securitized oceanic zones, themselves interconnected by “lily-­pad” bases (Bélanger and Arroyo 2012, 60)—twenty-­first-­century equivalents of Mahan’s coaling stations— and mobile sea platforms, the latter largely independent of fixed ports (Parker 2010, 26). This was a world of multiple, disaggregated, modular peripheries in flux around and in excess of a territorial nucleus. At least, that is how it was imagined. Depth was perhaps the central aesthetic quality of the state spatialization being peddled by the maritime-­oriented armed forces. It branded, by classifying and distinguishing (Nakassis 2012, 627–28), configurations of land, military assets, and people. These constellations indexed formal, instrumental properties (thickness, flexible recombination, speed) geared toward a desired end—securitization. Together, they also instantiated a valued aesthetic orientation: a properly sovereign American state had a particular look or feel, exhibited variously in infographic artifacts, spectacular realist visuals (photographs of fleets in transit), and narrative description. As metalevel frames for ongoing or potential actions, they could serve as “affective recruitments” (Masco 2014, 6–7)—entry points into a world of normalized anxiety and sovereign feeling, vulnerability and security.

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The rhetoric of “depth” was also bound up with the rhetoric of “homeland” in that depth’s protective raison d’être implied a “something” around which this “depth” had accreted—the valued object encased in layered defense. As one of the “new words” of post-­9/11 public discourse, “homeland” evoked, as Amy Kaplan has noted, an uncanny combination of both the security afforded by extraordinary measures and the hidden dangers that necessitated them (2003, 82, 89), and this in spite of its intended allusion to comforting domesticity. The sudden mainstream uptake of “homeland” as synonymous with the nation following 9/11 struck certain audiences as strange for other reasons as well; the term’s association with the language of political exile, South African apartheid, Russian nationalism (85–86), and, according to conservative Wall Street Journal columnist Peggy Noonan, Teutonic fascism, were, at first, unsettling for many (2002). The term homeland, was not, however, as new as all that. It had been circulating within American military and political discourse for some time, as had the phrase “defense in depth.” Both, initially, had been used to describe the Soviet military strategy of enveloping its territory in defensive perimeters during the 1980s.37 In a post–­Cold War recalibration, however, both terms were retooled and became associated with US territory in the subject-­specific argot of missile defense—a key symbol of the neoliberal commitment to downsizing social service programs while fattening defense and policing bureaucracies, however ineffective they might be.38 By the end of the 1990s, “homeland security” had, within certain policy circles, become synonymous with national security, or, at the very least, certain aspects of it. The phrase appeared in the reports of the Hart-­Rudman Commission, a body created at the behest of then Speaker of the House Newt Gingrich to assess the emerging national security environment, and in pre-­9/11 congressional hearings concerning a proposed National Homeland Security Agency.39 What was new about the post-­9/11 moment, however, was the widespread adoption of the term. Despite initial uneasiness, “homeland” became a staple of both official and popular discourse during the first decade of the millennium. Nearly two decades on, its normalization is nearly, if not entirely, complete. It bears noting that there is a certain synonymy between the idea of the “domestic,” which I discussed in chapter 5, and that of the “homeland,” though each predominantly operates within different speech registers, the former being more juridically significant in the American law of empire and the latter serving more as rhetorical flavoring, even today. The two concepts differ in other ways as well. One of the key distinctions between them is the nature of the wider geographies they index through their embeddedness at

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various times in larger assemblages of spatial tropes. The aesthetic vision of the “domestic,” for example, entailed such spatial forms as the “gate” and the “vast external realm” that I discussed in the previous chapter. The rhetoric of the gate emphasized a clear demarcation between an interior and its outsides. And yet, the idea of domestic space, a term that became central in the Insular Cases also discussed in the previous chapter, was coupled with the legal fictions of empire and their projection of fluid boundaries out into foreign lands and inward toward territorial interiors through “nonentry” fictions. Still, a vision of neat dividing lines was able to prevail. Ambiguities of this sort were suppressed through a willful ignorance regarding the “insular” as an anomalous category within legal practice and scholarship for much of the twentieth century. This, along with the continued reliance on the trope of the gate and its fantastical evocation of neat borders—despite the actual physical geographies of the exclusion regime—demonstrated a preference for the feel of tidy sovereign containerization. “Homeland,” however, emerged as a spatial trope within the more overtly dispersed vision of state form at work in the language of “layered defense.” The imagery of the domestic and the gate deemphasized the ambiguities of imperial landscapes and shifting immigration borders. In contrast, the concept of “homeland” brought this preexisting, but backgrounded, thick (Andreas 2003) structure to the fore by openly acknowledging, even emphasizing, that its own securitization depended on it. Under the sign of “depth” as a valued quality, a novel (because now overt) aesthetics of layering took hold. The slick rebranding of state spatialization after 9/11 gathered together earlier interventions, like interdiction, under this new qualisign of depth— that is, depth as a conventionalized mediator indexing a specific type of institutional form. The remaking of ocean space in the laboratory of Haitian rights litigation, however, presaged this transition with its disarticulated, forward-­ projected maritime borders. The Coast Guard had emphasized these formal properties as early as the late 1980s with its own talk of “depth of force” and layered “detection zones,” phrases that, although evinced as part of the agency’s air strategy, mapped onto their surface sea deployments in both discursive framings and infographic artifacts as well (see figure 6.4).40 Despite lamentations about “ ‘doorstep’ thinking,” in contrast to “layered defense,” along the US southern border (broadly conceived) as recently as 2006 (Cope 2006, 20), the staggered barriers of HMIO-­North and HMIO-­South, the willingness to police Haitian territorial waters, and the explicitly performative, distal “effects” imagined as the result of highly visible cutter traffic off Haitian

Interdiction Adrift 235

6 . 4  US Coast Guard air detection areas and air trafficking routes, 1989. The different patrol areas were meant to create “depth of force.” US Coast Guard Air Interdiction Program, March 16, 1989. Courtesy of the US Coast Guard Historian’s Office, Washington, DC.

coasts reveal the presence of a rudimentary aesthetics of extraterritorial power dispersion since the early years of interdiction.41 When we look at interdiction and other forms of American power projection in sea spaces across the globe, we start to see a Leviathan that is more dividual (that is, divisible) than individual (cf. Strathern 1988, 13, 348n7).42 Smooth, singular surfaces yield to multiple exteriors, many of which are fragmented and shifting. And yet, the “homeland” imagery of rustic domesticity is maintained at its center: there must be a “there there,” to riff on Gertrude Stein, to be protected. As we have seen, the pivot point of the gate also still matters. This is not a story of eroding borders, either through sovereign expansion into global war (cf. Galli 2010) or sovereign disillusion in the face of market fundamentalism. Rather, it is a story of proliferating borders (Mezzadra and Neilson 2013). The “gate,” so central to the exclusion calculus of the 1980s, continues to function as the desideratum of exceptional flexibility,

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as I have shown, but its identity and distribution has shifted along with the evolving border struggles that have produced it, as will become clear in just a moment. Screening standards like “credible fear” that emerged in the laboratory of interdiction, for example, have moved inward as the relevant criteria in what, following the 1996 immigration reforms, became known as “expedited removal”—a form of processing that offered less procedural protections than domestic asylum adjudication while still maintaining a veneer of fairness when compared to the exclusion regime of the 1970s or the rapid screening aboard Coast Guard cutters during the 1980s (Pistone and Hoeffner 2006). By bringing maritime screening techniques ashore, a bit of the ocean came to the land. Moreover, the exceptionalism that defined these procedural sea experiments in the first instance seemed almost premade for the new segmentary disembeddedness of expedited removal’s screening bureaucrats, who manned border checkpoints and airport inspection rooms across the country. This was possible because expedited removal, like exclusion, was self-­consciously other, its procedurally thin version of asylum screening rendered thinkable as a result of its interstitial positioning at the border. But where was the “gate” (chapter 5) of expedited removal? As with exclusion, expedited removal’s borders multiplied under the banner of new fictions. Take, for example the case of individuals who traverse the US-­Mexico land border without inspection. For them, the immigration border is pushed inward, taking shape as a one-­hundred-­mile frontier of expanded discretion extending into the interior.43 If an Immigrations and Customs Enforcement or Customs and Border Protection official arrests a border crosser within this zone, it is as if, procedurally speaking, they are standing on the Mexican side of a border checkpoint in Brownsville or Laredo, at least insofar as asylum screening is concerned. Similarly, boat migration from Haiti following 9/11 led to the Department of Homeland Security (DHS) issuing regulations that would render expedited removal applicable to all who entered by sea no matter where ICE agents apprehended them.44 This was no hundred-­mile band of insulation. With virtually a stroke of the pen, DHS had transformed the entire interior into a potential quasi-­exterior for oceangoing migrants.45 These formal reconfigurations amounted to an internal “thickening” (Andreas 2003, 79) that achieved a muted version of the once abrogated exclusion regime (muted because not quite as procedurally adumbrated as its predecessor). The transformation of insides into outsides and the importation of outsides inward is dizzying. Certainly, when one focuses on the potential sites that look, at least somewhat, like outsides while remaining physically in-

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side, one might develop the sense that the nation’s borders have become unmoored entirely. And yet, the “gate” remains as a juridically relevant, albeit mobile, geographical pivot around which configurations of dimensional, subject matter, and segmentary jurisdictional edifices take shape (see chapter 5). Moreover, the distinction between inside and outside persists in other ways: Interdiction screenings and expedited removal are not equivalent as jurisdictional arrangements, the former remaining far more disembedded than the latter. In other words, the administrative hierarchies, the text trajectories that link them, the institutional subject matter competencies they possess, and the spatial purviews they control are still largely pegged to the “gate” in all of its iterations. Moreover, the gate remains, at times, geographically stubborn and materially defined—think rocky shores and border walls. Interdiction’s continued reliance on the brute apartness of sea spaces (the way such expanses physically distance offshore adjudications from the boundaries of firm land) to lend force to its jurisdictional arbitrage confirms as much. These manipulations have become part of the repertoire of techniques used to produce depth as a valued quality. In the wider tableau of security practices, other qualities cluster with depth as well, including “mobility” (Chu 2010)—the quality of being in motion—“speed,” “flexibility,” and “agility.”46 Rather than an already firm “single symbolic system” (Munn 1986, 268)— a stable spatiotemporal framework in which the nation’s endurance in time is bound up with the qualities of its spatial form—one finds here an assemblage that is recombinant and emergent, taking shape at various levels of explicit articulation across multiple scales of encounter and narration (more on this shortly). Despite its incomplete absorption as hegemonic orientation, the spatial stories that official actors tell here are part of an attempt to conjure “an engrossing aesthetic whole” (Munn 2013, 145) out of the bits and pieces of citational chains, freighter routes, and aerial patrols, to name only a few of its many component elements. One can see here the reifying (Ferguson and Gupta 2002) and fetishizing labor that goes into stitching the nation-­state together under a particular valorized form and its role in attempts to reframe the experiential conditions of lived worlds.

S ta t u s a n d P r o p e r t y At the conclusion of their patrols, commanding officers of Coast Guard cutters wrote after-­action reports in which they would describe the details of various encounters with vessels at sea. Similarly, INS officers assigned to such patrols would also file “interdiction summary sheets” following an interdic-

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tion event. In the Coast Guard reports, such accounts often began with language like this: “On 05 March HARLAN intercepted a 40 ft. Haitian sailing vessel 6 NM west of Great Inagua Island.”47 The INS reports similarly emphasized the nationality of the vessel, with statements like the following: “On February 24, 1986, approximately 12 miles of[f ] Matthewtown, Great Inagua, the USCGC Steadfast intercepted the 30’ haitian [sic] S/V Dieu Pa Nou.”48 In other instances, the nationality of the vessel was noted in a special section of the summary sheet designated for a description of the boat and its equipment.49 While the INS officers did not always convey information on where the vessel was flagged, often relying on notations regarding the port of departure and the description of the boat itself (for example, “35’ Wooden hull”) as a proxy for nationality, they were nonetheless keen to remark when and how a non-­Haitian vessel was boarded.50 For instance, in one case involving a Haitian-­owned but Honduran-­flagged metal freighter, the INS agent opened his incident summary by stating that “the Vessel [was] boarded by the cutter South after obtaining permission of the Honduran Captain.”51 Documenting permission was key here because the vessel was not Haitian-­flagged and thus not subject to the bilateral exchange of notes on which interdiction, as a legal edifice, had depended throughout the 1980s (see chapters 2 and 4). The power to interdict, in many instances, depended on the status of the vessel in question, or the willingness of its captain to voluntarily permit a boarding when Coast Guard officials could not board as a matter of right. Although these details may sound trivial, they are important archival traces that index the complex web of relations out of which the aesthetics of protective “depth” discussed above were constituted. It is true that the designations of HMIO-­North and South, the subsequent mapping of air and surface patrol areas (figures 6.2 and 6.3), and the circulation of qualisigns of layered defense have lent a zonal quality to the remaking of maritime space in the Caribbean. Nevertheless, the emergence of this zonal effect is somewhat misleading in that it threatens to eclipse the characteristically nodal structure on which it rests—that is, the instantiation of a pointillist border through punctuated actualizations of authority rather than through the creation of any fixed, clear line defining a field of exclusive control.52 And herein lies one of the more fascinating dimensions of this reimagining of seascapes. Interdiction as a modality of power operates at the intersection of nonterritorially and territorially oriented sets of potential interaction, mediated by international contract (treaty), animated by status-­based positionality (citizenship and vessel flagging), and layered on other, fixed territory-­like cartographies (sovereign seas, contiguous zones, and exclusive economic zones).53 And yet the world

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of possibility it created, its aesthetics, and its feeling, evince something closer to a mare clausum than a latticework of dispersed, concentrated points of expressed power at sea. Before getting into the why of this tension, I must look to the how of it. To begin, by contrasting what is concealed and revealed in the rhetoric of depth, one can see two orientations, the first governed by a logic of status (or, alternately construed, status-­based relations) and the second by a property logic. The distinction mimics, in a caricatured way, one of modernity’s foundational divisions—that between feudalism and sovereign statehood as two modes of political organization (Kockelman 2007; Maine [1861] 1986; Sassen 2006; Spruyt 1994). The former has long been imagined as a system of “multiple crisscrossing jurisdictions” (Sassen 2006, 32) and a “matrix of personal ties” that remained more salient than geographic location (Spruyt 1994, 35). Sovereignty qua juridical concept, on the other hand, “was developed by legal scholars such as Grotius, [Samuel von] Pufendorf, and [ John] Selden as a rule-­constituted practice analogous to private property in Roman law” as so-­called feudal polities were replaced by the bounded territorial logic of the modern state (Kratochwil 1995, 22; see also D. Lee 2012; B. Holland 2010).54 Although the actual role the international law publicists of the seventeenth century played in inventing the sovereign political form is not settled, these jurists did create a language with which to express sovereignty’s then novel structure, drawing on the Roman jurisprudence of dominium, with its notion of exclusive control over a parcel of earth and those objects and persons on it (D. Lee 2012, 88). This identification of property and sovereignty has been overshadowed by the public-­private binary around which discussions of property law have unfolded within the legal academy over the past century, particularly in the United States (for example, Westlake 1904, 84–87), and yet some version of the equation still animates, at times sub silentio, the more conservative dimensions of liberal philosophers like John Rawls and Michael Walzer’s justifications for exclusive territoriality, tethered as they are to a particular vision of the benefits of private versus common ownership of resources (Rawls 1999; Walzer 1983).55 Much ink has been spilled contrasting the sovereign model of “exclusive territorial authority” with the feudal mode of organization. With an eye to the problematic temporalities of widely entrenched mythologies of modernist breaks and great divides (Habermas 1990; Latour 1993), one should, however, avoid viewing territorial and status-­based models as moments within an evolutionary teleology of state transformation (contra Maine [1861] 1986).56 As with the Maussian gift and the commodity form ([1950] 1990), both status-­

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based ties and property regimes endure, with status driving, much to the chagrin of liberal contractarians, the very system of political belonging—that is, ascriptive citizenship by descent—at the core of the modern nation-­state (Schuck and Smith 1985; cf. Shachar 2009). Interdiction has functioned as a peculiar hybrid of these status and property orientations. From its inception, the program was tied to the status of vessels. The exchange of notes between the American ambassador and the Haitian secretary of state in 1981 established the Coast Guard’s capacity to board “Haitian flag vessel[s]” to “examine documents and take such measures as are necessary to establish the registry, condition and destination of the vessel and the status of those on board.”57 In this sense, a decision to interdict depended on the juridical identity of the vessel and thus, derivatively, on the ascriptive status of those it carried—that is, their identification as passengers of a Haitian vessel and thus with a subject position open to American extraterritorial policing. Interdiction, however, was also about an extension of a particular type of subject matter authority over a particular physical space—a ship. That space, unlike a plot of earth, was mobile and, despite its immediate durability, transient. Captains could sail it across ocean surfaces. Deckhands could haul it up onto beaches. Cutters could burn and sink it. Waves, wind, and currents could rip it asunder. It is true, as Lauren Benton has noted with regard to European vessels operating during the sixteenth and seventeenth centuries, that ships have existed, in part, as “representatives of municipal legal authorities—vectors of law thrusting into ocean space” (2010, 112). Indeed, these ships also appear as circulating bits of Haitian space opened up through partial sovereign cession to a foreign power. Yet, they do not conform, even aspirationally, to the property logic of sovereign territory, which contains within its imaginary the presumption of columns of control extending upward to the sky and down into the earth at a fixed, mathematically calculated set of longitude and latitude coordinates. The mode of policing authorized by interdiction—with both its material vehicles and its partial and fluctuating jurisdictional palimpsests—suggests something other than a system based exclusively on status or property: its structure is, rather, somewhere between those two ideal types. Instead of a sea transformed into sovereign territory, one can discern here a multilayered space in which border sites emerge as localized events—the meeting of cutter and freighter, for example. In this way, sovereign power goes nodal, depicted in this interdiction map compiled from archival records (figure 6.5). This is the pointillist border to which I have been referring. As I revealed earlier, the punctuated nature of this power expression is

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Turks and Caicos Islands The Bahamas

Cuba

Haiti

Guantánamo Bay

6 . 5  The pointillist border. This figure depicts a selection of interdictions that occurred between May 1983 and May 1992. Each dot that appears at sea represents an interdiction event.

inscribed in bureaucratic archiving practices, participants’ memory, and ex post narration in ways that both presume the border as a pointillist constellation but also exceed it. This excess derives from the ways such imaginings and representations are concerned with more than the interdiction event; they capture the process that makes the event possible, which, in the case of interdiction, involves lengthy, meandering patrols, repeated season after season, and year after year, across wide swaths of the northern Caribbean. In fact, as I noted above, the temporally and spatially extended nature of these practices are constitutive of such seascapes in official and vernacular imaginings as much as the encounters themselves. The punctuated and zonal dimensions of the border are thus interdependent. The thickness of the policing endeavor, for instance, is made possible by the material and juridical form of maritime space marked as interstitial space. This is because the in-­betweenness of the sea’s legal and material makeup facilitates wide-­ranging maneuvers that allow for the perception of insulating

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“depth.” This potential presence across vast expanses of ocean surfaces, illustrated in figures 6.2 and 6.3, set the conditions for those interdiction events in which a potential border zone becomes an actually instantiated border with each concrete encounter. The range, or field, of patrols gives way to the point of confrontation, but the point is not reducible to the field, just as the relational logic of status is not reducible to the logic of property. At the same time, however, the success of Haitian interdiction has spawned its replicas that have produced a landscape akin, in many ways, to territory-­ focused control. A host of bilateral agreements between the United States and Caribbean nations now exists. Each, according to its particulars, partially unbundles (Ruggie 1993, 165) sovereign authority over flag vessels and territorial waters. Often, this occurs through what has been hailed as the “shiprider solution,” a “beneficial,” for certain commentators, “erosion of sovereignty” (Abrams 1996) that involves posting representatives of a given nation aboard US Coast Guard vessels for purposes of granting permission to board that nation’s flag vessels and to enter its territorial waters (Frenzen 2010; see also Watson 2003).58 With the accumulation of such agreements, greater numbers of vessel statuses are opened up to American policing, augmenting the potential for encounters. Although this shift does not denote a reorientation toward a territorial logic within US migration patrols, it does, de facto, give the impression of something nearing territorial control, at least with regard to those actors lacking the capital or sophistication to purchase flags of convenience from nations not party to the dense lattice of bilateral contracts in the Caribbean. When nearly all of the vessels transporting migrants across a given seascape are subject to American policing power, a system oriented toward status begins to effectively resemble one oriented toward territory. The complexity of these seascapes is further enhanced by the status regimes’ intercalation with de jure property systems, like territorial waters, which carve out a twelve-­nautical-­mile periphery of sea space as exclusive liquid buffers around national soil, and the Guantánamo Naval Station itself, a creature of a leasehold property interest that has emerged as a carceral appendage of the sea-­based screening regime.59 One can see the continued significance of territorial waters, to begin with, in the following excerpt from an interview I conducted with a Coast Guard commanding officer concerning his recollection of a 2011 interdiction. Setting the scene, he explained: [W]e were operating off the coast of Haiti during that patrol as a deterrent to mass migration, so the Haitians could see us operating and they could tell that if they left, the Coast Guard was there to pick them up and bring them

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back, which was a big part of our strategy. We received a call from an aircraft that they had sighted what looked like an overcrowded boat heading northwest towards the Florida Straits. So we diverted to head over there, and as we’re getting on scene, we’re getting reports from the Coast Guard fixed-­wing aircraft, and then a Coast Guard helicopter arrived on scene to provide even more specific information about the vessel and the passengers, and at that point, we learned that a boat the size of a twenty-­five foot sailing vessel or a thirty foot sailing vessel has what looks like twenty-­five to thirty people on it, which is a typical report from the air. And we get on scene, it’s about, it’s approaching sunset—beautiful—the weather was pretty decent, and it was our ship, and we put two of our small boats into the water, and there was a helicopter overhead, and a fixed-­wing aircraft.

After learning that the numbers on board were closer to ninety-­six, not thirty, the captain ordered the deployment of the small boats, which unloaded all but four passengers—the organizers of the venture. Likely not wanting to risk the loss of their vessel, the smugglers raised the sails and headed toward Cuba. At that point, the commanding officer continued, we’ve got our helicopter overhead, we have two small boats trailing the vessel, we’ve got our ship, a 270 foot ship, very close to the board of the vessel, and our Haitian interpreter is talking with the crew, and trying to influence them to stop the vessel. As we’re doing this, it’s getting dark, and it turns dark, and they [the remaining Haitians onboard] . . . they’re ripping off their shirts in sort of an expression of their machismo . . . . They were furious at us, and they told us, [they] are more afraid of going back to Haiti than they are of the Cuban Border Guard, so they said they’re going to keep going. . . . It’s pitch dark so you can’t see anything other than the boats and the aircraft around us, but we’ve got guys on the bridge calling out the distance to the Cuban territorial seas, because we’re not authorized to go inside twelve nautical miles. So our navigator’s telling us you have two miles, you have one mile, you have 1,900 yards, et cetera. And I’m out on the bridge wing with our ship driver, our officer of the deck, and while the navigator’s yelling out those distances using the radar, and the chart, the officer of the deck and I are doing it in our heads. We know that we’re going four knots, we have two miles to go, that means we have eight minutes before we enter Cuban territorial seas. So we’re doing the math in our head, and our bridge team is doing the distances from the radar, and before we get within five hundred yards of Cuban territorial seas, we stop and turn around.

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Rather than pierce the twelve-­nautical-­mile limit, the cutter retreats. The image one is left with is that of a physically invisible yet consequentially palpable barrier at sea. In this instance, it attracts the Haitian sailors as much as it repels their Coast Guard pursuers. The wall of territory, here made real through the mediation of remote-­sensing technologies, monitor screens, and on-­the-­fly calculations, disrupted the power that had been vested in the cutter force by status-­based governance configurations. The smugglers, as a result, were able to slip across the sea border with Cuba and disappear into the night.

Conclusion Routes, itineraries, highways, pipelines, areas, zones, relations, and territories are just some of the features of the complex terrain of ocean space I have examined in the preceding pages. These seascapes are simultaneously a buffer, a layer, a nodal matrix, and an assemblage of lived places. The fact of this variegation, its lumpiness, and its cross-­cutting jurisdictional complexity is not entirely new, of course (Benton 2010). And yet it is not merely derivative of the legal forms of imperial pasts, though it selectively draws on earlier symbolic geographies and articulates with juridical edifices that endure as infrastructures both in ruin and ascendance—a nearly century-­old opinion on the legality of fruit tariffs, a coaling station lease, an unpublished guidance protocol pegged to a shifting immigration border. More interesting than questions of minimal continuity or difference, perhaps, are the ways in which these spaces come into being through the interaction of different genres of spatial practice and narration, from the targeted ranging of cutter sentinels to the valorization of asset configurations and their technomediated sensorium. This expression of aesthetic value, with its hypostatization of qualities like depth (cf. Chumley and Harkness 2013, 6), points to a paradoxical blending of different models of state form—the containerized kernel of the homeland and the sprawling excess of dividuated layering. The smooth lines of terrestrial borders and the pointillist eruption of dispersed and recombinant offshore policing are coproduced in the search for sovereign feeling. Of course, these hybrid forms join structural models in counterintuitive ways, shoring up fixed, terrestrial borders with mobile, aqueous arrangements. Whatever properties interdiction and its kin share with earlier modes of state spatialization, they mark a shift in the practices and imaginings of the American nation-­state along with the dialectical interplay of its cosmological

Interdiction Adrift 245

framings and instantiations. A new mode of “enunciation” (de Certeau 1984, 99) emerged with interdiction, one bound up with an elaboration of excessive state forms—that is, a desirable spatial superfluity measured against a contained sovereign imaginary. In this sense, we are witnessing a remaking, both internal and external, of land and seascapes beyond any singular territorialization. Oceans have been recrafted and revalued, albeit in ways connected to their past location within symbolic geographies and the brute material affordances they offer entities looking to circulate and interact in particular ways. Through this process, new modes of aestheticization have taken root, not as mere reflections of ongoing practices but as orientations that, through the meaningful coherence they extend, have the potential to become a force themselves in discourses of the normal. While this remaking of nation-­state form emerged out of the struggles waged by Haitian asylum seekers in the United States, the effects of this transformation rose above the particularities of that conjuncture. The allure and modularity (Anderson [1983] 1991) of the new forms, which were taken up amid the xenophobic anxiety in Australia and Europe following 9/11 (Mann 2016; Ben-­Yehoyada 2016; Noll 2003; Perera 2009), suggest an even broader transformation of land and sea on a global scale. Under different lexicons of “externalization” (Nessel 2009) and “excision” (Kneebone 2010), interdiction and cognate techniques of jurisdictional arbitrage have been (re-­)sedimented in existing infrastructures—material, juridical, social—and ethical imaginings. Here, I have only scratched the surface of these world-­making processes.

Afterword

Recreation Hill stands about a half a mile from the airport terminal on the leeward side of Guantánamo Bay. Like many other locations at the base, it exudes an aura of quiet abandonment and neglect. The site once boasted a swimming pool, a gym, racquetball courts, and a bowling alley, all cheerily described in the welcome packet given to service members deployed to the base in the early 1990s.1 As I walked the grounds in the summer of 2017, only a few run-­down buildings and some chain-­link fence remained. The sole piece of infrastructure that appeared new was a small, wood observation deck on the north edge of the hill overlooking a relatively flat expanse of grass, dirt roads, and low-­slung concrete structures. A pair of Big Eye surveillance binoculars stood there as well, mounted to the platform via a large metal tripod. But what was there to surveil? A large water-­stained map, captioned “Migrant Tent Layout,” gave a hint of what might lie below. It provided an aerial view of six camps, their outlines clearly traced in bold black lines and their interiors marked with a grid of proposed shelter placements. The camps, however, were nowhere to be found on the landscape. This was a plan for a largely anticipatory tent city, permeated by a ghostly emptiness—the absence of events that might never come to pass—and bolstered by the engulfing white noise of hot winds blowing across the bay. As of yet, there was indeed nothing to surveil. This area of Guantánamo is known officially as the Mass Migration Complex. The apparent torpor that hangs over it is in many ways misleading given the amount of resources invested in its creation. The George W. Bush administration spent $17 million fashioning the existing layout (Rosenberg 2017).

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Following the massive earthquake that leveled much of Haiti’s capital and surrounding cities in 2010, officials at the base rushed to pitch one hundred tents at the site in preparation for a sharp spike in maritime interdictions that never came (Ure 2010). During my own visit, the navy was in the process of soliciting bids for a $25 to $100 million upgrade of the facility that would include new cement tent pads, new roads, and a new communications system. In addition to the labor necessary for these physical improvements, the complex comes alive annually with a large-­scale, interagency mass migration training simulation. The complex is not the only area devoted to holding so-­called migrants, the term of choice since the early 1990s when the military’s casual use of “refugee” to refer to the Haitians provoked the ire of the INS and its attorneys. Off to the side of the observation deck, a narrow dirt path leads down Recreation Hill to the Migrant Operations Center (MOC), a separate fenced-­ in complex run jointly by the Department of Homeland Security (DHS) and the Department of State (DOS) to house interdicted asylum seekers. Whereas the Mass Migration Complex has been constructed as a sprawling site for emergency migrant operations, or “mig-­ops” as base personnel call them, the MOC is small and is used for a less dramatic type of “migrant” warehousing that has become normalized in the aftermath of the base’s large-­scale “crisis”-­ type asylum processing. For years, DHS and DOS have contracted with private prison corporations—including the GEO Group Inc. and MVM Inc.— to handle the mundane aspects of running the facility and its predecessors in which hundreds of Haitians and Cubans have been held since 1996.2 Immigration and Customs Enforcement, which has been the lead DHS agency in charge of the facility, keeps the MOC on a near-­complete media lockdown. It is easier to tour the restricted Detention Center Zone, where “war on terror” detainees are held on the remote windward jurisdictions of the base, than to gain access to the interior spaces of the MOC or to speak with any of the refugees in DHS custody. I was only able to see the perimeter of the facility with its deteriorating privacy tarps and the exterior of what one official informed me was part of the MOC housing units within the nearby marine barracks. Although today some of the refugees are allowed to circulate within the unrestricted spaces of the base, former government officials with firsthand knowledge of migrant detention protocols at Guantánamo have informed me that this was not always the case for all of those in DHS custody there, many of whom were forced into a far more constrained existence in the MOC.

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The strategy of cloaking the MOC in secrecy appears tied to a desire to isolate the refugees from civilian contact. The move from ship to land has always opened up interdiction’s adjudication regime to the vulnerability of possible publicity and attorney intervention as the lawsuits described in earlier chapters show. The MOC administrators appear attuned to those risks and have erred on the side of extreme formal sequestration, isolating this space and its inhabitants with draconian rules regarding their potential contacts with anyone not employed by the government. The MOC and the Mass Migration Complex are geographically distinct from their predecessor camps, which were first pitched aboard ships docked at the eastern piers and then later on the remote grounds of Camp Bulkeley and the tarmac of the McCalla Air Field. These older sites, all of which lie across the bay that splits the base into separate leeward and windward wings, have been colonized over the past fifteen years by Joint Task Force ( JTF) Guantánamo for its “war on terror” detention mission. Camp Bulkeley, where the HIV-­positive Haitians were held from 1992 through 1993, is now “behind the wire,” the term denoting areas of the base within the secured JTF detention zones. It is home to a host of administrative, housing, and recreational structures, including the Camp Bulkeley Lyceum (a movie theater) and Camp America, all of which are tied to the nearby prison complexes. A small portion of McCalla Airfield, where tens of thousands of Haitians were once held, is now host to Camp Justice, the razor-­wire-­encased facility where the JTF holds its military commission hearings. The rest of the McCalla tarmac is a sweltering and, other than some weeds and scrub, empty expanse of deteriorating pavement. For those aware of this history, Bulkeley and McCalla are saturated with an uncanny commingling of the old and the new. The ruins of the now defunct migrant camps on the windward side of the base have been repurposed for this millennium’s seemingly more urgent “war on terror” confinement and intelligence-­extraction agenda, itself deeply reliant on the juridical infrastructure once crafted to insulate the very spaces it had come to subsume. The “imperial debris” here is intensely palpable (Stoler 2008, 193), both in terms of built environments, now decayed and remade, but also in terms of the remnants of their jurisdictional conditions of possibility—in this instance, the transformation of a coaling station lease, itself wrought in a spasm of American overseas expansion, into a series of reimagined legal edifices for detention beyond the reach of US courts. The building of the new legal infrastructure of “war on terror” detention

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out of the remains of its predecessor was explicit, as such projects almost always are. John Yoo, a deputy assistant attorney general in George W. Bush’s Office of Legal Counsel and a law student at Yale when the school’s clinics were waging their own battles over Guantánamo (see chapter 2), knitted the early 1990s and post-­9/11 moments together in a memo penned in late December 2001—two weeks before the first al Qaeda and Taliban detainees would actually arrive at the base (Greenberg 2009). Responding to an inquiry from the Department of Defense’s general counsel as to whether a federal district court would entertain a habeas petition by a detained “alien” held at Guantánamo, Yoo and his fellow deputy, Patrick Philbin, opined that no such jurisdiction existed. In doing so, they drew heavily on the various decisions that had come out of the Guantánamo lawsuits I have examined in the preceding chapters. On the now digitized and widely circulated pages of the memo, the older Haitian and the then still emergent “war on terror” carceral regimes stood intercalated, the one condensed into a series of inscribed citations and the other present as an incipient apparatus of detention. Yoo’s analysis was wrong, of course, and the Bush administration’s aspirational “legal black hole” (Steyn 2004) was largely dismantled, at least formally speaking, over the next seven years. Nonetheless, despite the partial sweeping away of Yoo’s hoped-­for jurisdictional cartography, the physical remnants of the endeavor still dominate large swaths of Guantánamo, from the solemn, weed-­covered grounds of the now abandoned Camp X-­ray to the bustling courtrooms of Camp Justice. Traces of the Haitian camps linger on as well for those who know where to look. To walk the landscapes of Guantánamo is to immerse oneself in the vital afterlives of imperial ruin. Although the “war on terror” facilities rest, literally, on the sites of the Haitian detention grounds of the 1990s and were born out of a similar desire for executive flexibility, the Mass Migration Complex, and, even more so, the MOC, could be called the true heirs to the camps of the early 1990s. Refugee processing at the MOC, for instance, operates with a standardized version of the adjudication model the INS attempted to use with the HIV-­positive Haitians confined to Camp Bulkeley starting in 1992. As I described in chapter 2, the Sale litigation itself began when the INS announced it would hold full-­blown asylum hearings for the Bulkeley detainees at the naval station, as opposed to in the United States where the HIV-­negative “screened-­in” Haitians were transferred to pursue their claims with the assistance of lawyers and access to the full panoply of federal court appeals. Although the pressures of litigation prevented the INS from subjecting the Bulkeley Haitians to these final interviews, those held by DHS at the MOC today are not so lucky:

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they must pursue their asylum claims within the confines of the Guantánamo where DHS maintains complete control over the adjudication process and whatever entextualization regime (see chapter 4) operates within it. Moreover, in an effort to demagnetize the base—to use the DOS’s own argot of deterrence—all refugees held at Guantánamo are now ultimately blocked from resettlement in the United States.3 The idea is that this manipulation of interdiction’s geography and flows will dissuade migrants driven more by economic opportunism than the fear of persecution from taking to the sea: the authenticity of the political, as opposed to economic, impetus is supposedly revealed by a “true” refugee’s sole concern with the possibility of political liberty in the receiving country to the exclusion of all else, including potential future financial stability.4 Knowing that a life in the United States is not in the cards, “economic migrants” will be less likely to take to the seas, or so the logic goes. The bar on transfers from the MOC to US soil thus becomes a means to achieve the aforementioned demagnetization effect. As a result, the circuits of refugee mobility that once connected the offshore spaces of Guantánamo to the mainland have now been hermetically sealed, while at the same time, the adjudication practices challenged in the 1990s reign supreme. This is hardly a picture of a Guantánamo reabsorbed into the empire of law’s rule through progressive litigation, triumphalist narratives notwithstanding. Despite the closure of Guantánamo’s US-­bound refugee pipeline, the MOC, like the McCalla and Bulkeley camps that preceded it, remains deeply networked, its utility dependent on its role as a land-­based appendage of the mobile, pointillist maritime border (see chapter 6) just over the horizon. To put it differently, although its location within interdiction’s existing geographies of discretion renders the MOC island-­like—it is largely severed from the text trajectories and review hierarchies dominant in the “homeland”— in other ways it is deeply embedded in a host of far-­flung bureaucratic and enforcement assemblages. Coast Guard cutters, for instance, supply it with potential refugees, and it operates as a key node in a wider network of resettlement negotiations and refugee swaps, the most recent allowing an antipodal exchange between the United States and Australia. The cutters themselves, which remain bound to the MOC by the invisible tether of potential interdictee transfers, are also deeply networked despite their literal and jurisdictional island-­like qualities, which, as you may recall, mimicked the informal Guantánamo screenings of the 1970s and then later became the model for screenings in the station’s camps during the massive Haitian exodus of the early 1990s—that is, the Guantánamo begets interdiction begets Guantánamo sequence explored in chapter 2. Indeed, it was the

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connectivity between the cutters and Guantánamo that brought me in the sum‑ mer of 2017 to the base, where the interdiction vessels assigned to the Wind­ ward Passage often make port calls. I was meant to rendezvous at the eastern piers with one such ship for an interdiction mission that would take us ranging off the northern coast of Haiti. We left the bay on a Wednesday morning and over the next week sailed in and out of Haitian territorial seas, switching between highly visible transits of the Canal de la Tortue and postsunset “dark” runs—externally visible lights extinguished—farther off the Haitian coast. Although the vessel itself was only thirty-­eight feet at the beam, the path we cut through the sea was at once much larger and more fragmented than our silhouette would indicate. At all hours of the day and night, seamen recruits—enlisted crew members not yet qualified into specialized work—stood watch in the open air of the bridge catwalk. By day, they scanned the horizon with two Big Eye binoculars, monitoring vessel traffic, which they reported to the officer of the deck, often an ensign or lieutenant junior grade standing watch but sometimes the captain himself, depending on the goings-­on of the moment. At night, they switched to night vision scopes and, on occasion, a large pair of night vision Big Eye binoculars, which they attached to mounts on the bridge catwalk railing. During the day, these lookouts could spot large Haitian sail freighters as far as twelve nautical miles out, extending the surveillance reach of the cutter well beyond its steel footprint. The surveillance capacity of the cutter was further enhanced by other technological mediations, perhaps the most important being the forward-­looking infrared (FLIR) camera mounted to the ship’s mast and controlled from the Combat Information Center (“Combat” for short), a secure interior room that operates as the intelligence and navigation hub of the vessel. Using the FLIR, operations specialists could acquire target vessels by laser to assess distance and location and initiate the system’s automated tracking features—that is, as the ship moved, it remained locked on a given target. At night, the FLIR technology could produce thermographic images and reveal heat signatures of bodies, including those hidden below deck, two to three nautical miles out. The infrared optics were essential to the ship’s capacity to monitor suspect traffic after sunset; otherwise, the wood hulls of the sail freighters rendered the craft virtually invisible on the ship’s radar. In combination, the various Big Eye, scope, and FLIR technologies thickened the surveillance reach of the cutter, transforming its narrow course through the waves into a more imposing swath of sensory inputs. Further visualization augmentations came from aerial support in the

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form of a Dolphin helicopter tasked to the cutter itself and two Jayhawk helicopters—the Coast Guard variation on the more widely known Black Hawk—flying out of the Operation Bahamas Turks and Caicos (OPBAT) airfield at Great Inagua, the southernmost island of the Bahamian archipelago. The Dolphin would fly various patterns within a host of designated “boxes” in the Windward Passage and off Haiti’s northern coast reminiscent of, although much smaller than, those depicted in chapter 6. The aircraft would scan the seas with its own FLIR, often from about one thousand feet up, sometimes higher. The Jayhawks in turn would fly two daily sorties doing the same. When everything was working, the “comms” in Combat remained in constant contact with the flight squadrons, sharing and receiving information on possible “cases” across an enormous stretch of sea. At times, fixed-­wing aircraft patrols were added to the mix, including two-­prop Ocean Sentries, although none were tasked to the Windward Passage for AMIO purposes while I was underway with the cutter. Additional information flowed to the cutter from the Seventh District in Miami, which shares intelligence reports gathered from various sources, including partners in the Royal Bahamian Defense Force and the Turks and Caicos police. Presumably, the Seventh District “intelligence shop” along with the Maritime Intelligence Fusion Center based in Virginia Beach, Virginia, also offered analyses of “flow data,” departure points, and landing sites to assist the cutter operations officer and captain in setting the track lines they followed, in creating their patrol “boxes” on the electronic charts of the SeaWatch command and control system displayed on their consoles, and in developing patrol routes for their air assets, although I never had access to the substance of these exchanges while onboard. The picture that begins to emerge from this constellation of actors is that of a dispersed network of sensory nodes, which, through shipboard and air-­based imaging technologies, generates a mutating, partial surveillance portrait of Haitian boat traffic across hundreds of miles of seascape. This is the offshore space of Caribbean interdiction’s outer ring. It exists as a band within a wider geography of layered defense, concentrated, as I have shown, in an arc of patrols that reaches from Guantánamo to the waters off Haiti’s northern littoral and the southern reaches of the Lucayan archipelago. It has endured in various forms for nearly four decades and solidified over the course of six presidential administrations, all of which have embraced it. It has become a fixture of the American borderscape and, in its more abstract instantiations in specialized national security rhetoric, a key element in the socioaesthetic framing of state juridico-­political architecture. It is a pointillist

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maritime border that has been fashioned to recapture the legal insulation of an earlier era in the face of an unprecedented wave of siege litigation. As such, its distance from the terrestrial domesticity it aims to produce as a site of securitized space is a condition of its efficacy. The quality of depth it is meant to generate requires this remove. Similarly, as I have discussed, this cultivation of thickness is also about disjuncture. The border’s form—its actual contours—provides the spatial fix that denatures the sting of constitutionalism’s outsides qua contradictions,5 managing, through fracture, the geographies of law’s rule and the field of paradox bequeathed to us by modern mythologies of reason and will. It is an externalized “excrescence,” to use Lefebvre’s jarring term ([1974] 1991, 23), of liberal sovereignty’s tensions that holds them at bay, at least for the moment, through a remarkable act of jurisdictional engineering. Despite the centrality of performance to its conceptualization, this maritime border often remains invisible to those looking out from the “homeland” it is meant to encase. When it does become visible, the manifestation is episodic, reaching, for the most part, technocratic audiences and, on rare occasions, wider consumers of regional journalism responsive to the press releases of the Coast Guard Seventh District’s public affairs officers. Few of those in whose name this maritime boarder operates as a living, churning sea shield will ever experience it directly by walking the gravel of its roads, standing atop the wooden planks of its observation platforms, or pacing the texturized steel of its bridge wings. There are those, however, for whom the spectacular pageantry of canal transits and low-­altitude helicopter flyovers is more immediate and more visible than a paragraph in a press release or a brief colloquy in a congressional hearing. These are the merchants of Haiti’s freighter fleet, the smugglers of the north coast, and the denizens of seaside towns from the Môle in the west to Fort Liberté in the east. The buzz of a passing helicopter and the towering presence of a 270-­foot cutter cruising within view just off shore have been staged to appear as momentary incarnations of a larger technomediated omniscience. This is, indeed, as I noted in chapter 6, how many Haitians read the cutters and their assets. While it is also how the cutters hope they will be read, the presumption of omniscience is an incorrect appraisal of the capacities these sentinels possess. Despite the impressive imaging power of the interdiction apparatus, it is rife with gaps. Metal shards appear in the gearbox of a Dolphin helicopter, and it is grounded for days, leaving enormous stretches of ocean unmonitored. A fuel coupling is found to be faulty, making it impossible for the cutter

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to travel with its “helo,” as the helicopters are called, and forcing the Dolphin crew to return to Guantánamo each day, thereby limiting the length of time dedicated to targeted sweeps. Delays in information sharing regarding departure sites for vessels that have slipped through the surveillance nets stymy efforts to effectively adjust patrolling tactics. Perhaps most importantly, regardless of the amount of intelligence available, oceanic policing of this sort requires a feel for a space, the routes that carve it up, and the vessels that circulate through those routes. This spatial knowledge can only develop over time, because the ability to read seas and sloops is an interpretive practice that must be cultivated. This learned sense of place is also subject to periodic disruptions as crews rotate and cutters chop in and out of the jurisdiction for interdiction patrols. Still, however subtle these modes of reading become, patrolling is too often limited to the decoding of surfaces—how a sloop rides in the water, how many crew members are visible on its decks, where it sits in relation to land and known sea routes. While inductive policing of this sort is always tied to embodied ways of seeing, themselves connected to larger frames—or profiles—of the normal and the deviant, the constraints of time and mission objectives render these frames quite thin. This accounts for the largest gap in the projected omniscience of interdiction’s surveillance gaze. By design, the models miss much of the worlds of the Haitians who co-­occupy and co-­make the frontier seas alongside the American sentries of defense in depth. The agents of surveillance do not claim to possess such knowledge, and I do not claim to know whether the superficial nature of the knowledge they do have in this regard influences the efficacy of the patrols. But I do know it pre­sents something less complete than the total knowledge often presumed by the Haitians who ply these waters. It also prompts the question: what else is transpiring in these ocean worlds that the view from American sovereignty overlooks? Throughout, I have described the dynamics of liberal sovereignty as world-­ making in part because of the cosmologies and concrete spaces they generate, and yet there are dimensions of these offshore geographies that simultaneously are enveloped by and exceed the American projects of securitization launched from the piers of Guantánamo and the airfields of Inagua. Nor are these hidden aspects of the liquid borderlands exhausted by accounts of Haitian exile activism and its siege litigation—one view from below in the diaspora, so to speak. There is something else going on in these seas. Merchants, migrants, and sailors continue to cast off from Haiti’s shores and the reasons why exceed, just as they always have, Manichean explanations of “poverty” or “politics.” Neither the proximity of the cutters nor their

256  Afterword

modes of imaging can tell us much about various Haitian ways of being in these spaces just as the policing of the Guantánamo camps of old generated little knowledge of its location in wider Haitian imaginaries of stasis, flow, and possibility. The lookouts standing watch on the bridge wings may observe the sun glinting off tin roofs, they may fret over the cramped decks of ferries passing between La Tortue and Port-­de-­Paix, and they may wonder aloud about the columns of smoke that rise up from the hills as they plow through the swells, but to them, Haiti and its seas are at once transparently present and largely mysterious. There are, of course, other cosmographies, as I have hinted, that are built into and upon the ones I have been excavating for the past several hundred pages, and they are as much a part of the story of this seascape as the others despite their imperviousness to FLIR scans, radar, and Big Eye lenses. Just as the preceding chapters have examined the miracle by which jurisdictional scaffoldings are conjured and made to bear the weight of new political enactments, just as they have attended to the haunting logics of the demonologies that helped give these infrastructures shape and urgency, so, too, will future writings turn to the magic of Haiti’s seascapes. But this is a task that must be undertaken with caution, guided by an awareness that the enchantments to be uncovered do not suggest some sociogeographic alterity vis-­à-­vis the liberal alchemy I have been charting, the one a culmination of modernity’s cunning and the other a backwater abandoned by History to the thrall of enchanted mentalités. The latter’s networks are also spun and made real through canny dealings, heavy investments of time and labor, and a historical unfolding that has long tested the limits of capitalist modernity. What is certain is that the itineraries of tramp freighters, acquisitive spirit entities—yes, they are abundant, too—and aspirationally transnational subjects together anchor another dimension of these seas, as do the ideologies of luck, mobility, and wealth bound up with them. There is more to the border dialectics at play here than legal infrastructures reveal, although just what else is transpiring in this maritime world is beyond this text, awaiting its as-­yet-­unwritten companion volume, although each lies in the shadow of the other, the one concrete and the other still in the making.

Notes

I ntrodu c tion 1. My account of this encounter is based on a diplomatic cable recording the event. See message from American embassy, Port-­au-­Prince, Haiti, to secretary of state, Washington, DC, re: “Haitians at Guantanamo Bay Cuba,” August 22, 1979, Box 11, Folder 7, Ira Gollobin Papers, Sc MG 315, Manuscripts, Archives, and Rare Books Division, Schomburg Center for Research in Black Culture, New York Public Library (hereinafter “Gollobin Papers”). 2. Another cable from the same period mentions the existence of “standard handling procedures” for such arrivals. See message from American embassy, Port-­au-­Prince, Haiti, to secretary of state, Washington, DC, re: “Haitian Nationals at Guantanamo,” November 13, 1978, Box 11, Folder 7, Gollobin Papers. The extent of the assistance provided is remarkable, with military personnel engaging in serious repairs of Haitian vessels—including plank caulking, sail mending, and rudder rebuilds. See message from naval base, Guantanamo Bay, Cuba, to commander in chief Atlantic Fleet, Norfolk, Virginia, re: “Haitians at GTMO,” November 13, 1978, Box 11, Folder 7, Gollobin Papers. At the same time, as Jonathan Hansen (2011) has noted, the outcome was almost uniformly different for those Haitians who arrived in vessels deemed unseaworthy. This other incarnation of early asylum processing at Guantánamo is an essential part of the story of the rise of interdiction and the formalization of screening and detention at the base during the 1990s. Although the fact of asylum processing at the base has been noted (albeit by very few authors), its implications for the development of then-­immanent jurisdictional paradigms have not been explored. I turn to the less hospitable version of early Guantánamo processing in chapter 2, revealing a nonlinear genealogy of interdiction and offshore detention at Guantánamo that has until now escaped attention. For additional details on the first group of Haitians to land at Guantánamo during the 1970s, see Bureau of Inter-­American Affairs/Office of the Dir. of Caribbean Countries, Records Relating to Haiti; 1960–1974, Department of State, Record Group 59, National Archives at College Park, Maryland. For video footage of Haitians held at the base in November of 1979, see Film documenting Haitians at Guantanamo Bay,

258  Notes to Pages 1–4 Department of Defense, Department of the Navy, Naval Photographic Center (12/1/1959–­ca. 1998), Moving Images Relating to Military Activities, ca. 1947–1980, General Records of the Department of the Navy, 1941–2004, Record Group 428. 3. Message from American embassy, Port-­au-­Prince, Haiti, to secretary of state, Washington, DC, re: “Haitians at Guantanamo Bay Cuba,” August 22, 1979, Box 11, Folder 7, Gollobin Papers. 4. I date the period of boat migration to the early 1970s because this is the period during which boats began to arrive at fairly regular intervals. One notable exception to this periodization was the arrival of twenty-­four Haitians aboard the Good Fortune in September 1963. See Matter of Haitian Refugees, (BIA Dec. 3, 1963), Box 33, File 13, Papers of Ira J. Kurzban (private collection) (hereinafter “Kurzban Papers”). These Haitians were able to find legal representation, and their case resulted in a decision from the Board of Immigration Appeals (BIA) that would be cited in subsequent litigation to the detriment of later arrivals. Id. The immigration judge (then called a special inquiry officer) ordered all of the passengers excluded from the United States, and the BIA, as well as the US Court of Appeals for the Fifth Circuit, affirmed. Id. 5. See letter from Paul Lehman, chairman, American Committee for Protection of Foreign Born, and Reverend Antoine Adrien, the Haitian Fathers, to Congressman Charles Rangel, September 25, 1975, Box 21, Folder 8, Gollobin Papers. 6. Translated letter from the Haitian refugees at Immokalee to the district supervisor of the Immigration Service, March 4, 1977, Box 32, Folder 1, Gollobin Papers. 7. Press release, Rescue Committee for Haitian Refugees, American Committee for Protection of Foreign Born, New York, Haitian Fathers, Brooklyn, re: “Jailed Haitian Refugee Attempts Suicide,” September 26, 1975, Box 21, Folder 8, Gollobin Papers. 8. For an account of the rise of the American migrant detention system, see Dow (2004). 9. I use the term crisis here in full awareness of its role as a specific temporality with its own orienting structures and effects. As Craig Calhoun has noted, concepts like “emergency,” often used synonymously with “crisis,” “represent as sudden, unpredictable, and short term what are commonly gradually developing, predictable, and enduring clusters of events and interactions” (2008, 86; see also Andersson 2014). More importantly, they validate, and even demand, certain types of action under their name (Roitman 2013), whether it be humanitarian intervention abroad or expanded executive power at home (Fassin 2012; Fassin and Pandolfi 2013). Throughout, I will be exploring various permutations of the idea of crisis as both a time (Koselleck 2006) and a space and its relation to juridico-­political theories of legality, legitimacy, and exception (cf. Agamben 2005; Schmitt [1932] 2004; Schmitt [1923] 1985). 10. See declaration of Captain Roy J. Casto, US Coast Guard, November 29, 1991, Haitian Refugee Center Inc. v. Baker, No. 91-­2653 (S.D. Fla. 1991), HCC Inc. v. McNary case file, Touro Law Center (private collection) (hereinafter “McNary Case File”). 11. Military historians have written official accounts of the creation of the camps (McClintock 1998; Reynolds 2003). My own version of the events presented here draws on these publications as well as interviews with officials involved in camp management; declassified materials from the US Atlantic Command Operation Guantanamo, 1991–1992 COL/72 collection maintained by the Naval History and Heritage Command (obtained pursuant to a mandatory declassification review request I submitted); oral history interview notes maintained by the

Notes to Pages 4–5 259 Marine Corps Archives and Special Collections in Quantico, Virginia; command chronologies from the same facility; discovery documents produced in litigation over the legality of certain forms of detention at the base; and other forms of testimony (depositions and trial) also related to such litigation. 12. The term assemblage “bears the Deleuze trademark,” as Andrew Shryock (2012, s32n4) has noted wryly, but has, of late, become more generic in its uptake by various scholars, including Stephen Collier and Aihwa Ong (2005, 4), for whom it appears to encompass, variably, Foucault’s knowledge/power frameworks and Michel Callon (1986), John Law (1986), and Bruno Latour’s actor networks (1986, 2005). Like Shryock, I find assemblage to be an apt term, regardless of its intellectual genealogy, and often use it, as he does, to signify a “consequential arrangement of parts” (2012, s32n4). One dimension of its allure seems to be its suggestion of configurations less stable than would be implied by the term system and less weighted than the term economy. Moreover, it signals a materialist approach that allows one to focus on the connections between humans and other-­than-­humans while bracketing or eschewing, depending on one’s theoretical orientation, causal and ontological hierarchies that all too often foreclose meaningful debate before it has begun. My own phrasing in the body text paragraph preceding this note was meant to evoke John Law’s now famous essay on “long-­distance control” (1986, 234), which I have found inspiring as an attempt to account for the diverse materialities harnessed in the making of the Portuguese spice trade, despite its occasional lapse into a mechanistic reductivism in which individual actors appear as programmed automatons. I have also found Latour’s work on the Conseil d’État to confirm my own sense of how the calibration of legal argumentation to “webs” of intertextuality (2010, 277) allows a case to move—the literal mobility of files within institutions and the rearrangement of the aforementioned “webs”— and how this calibration relates to the production of felicity, which I come to not through Latour but a different genealogy of semiotic anthropology (Goffman 1983; Povinelli 2002). As Ron Levi and Mariana Valverde have noted, part of the appeal of the actor network approach also lies in its emphasis on the microdetails of fabrication and process (2008, 812), a choice of theoretical and methodological foregrounding I have made as well. At the same time, I find certain variants of actor-­network theory (ANT) approaches to the agency of objects disingenuous given the divergence between what is being suggested by the language used and the limited agency that is actually being asserted. This reticence with regard to ANT should not be taken as a wholesale rejection of the approach but as a sense of caution vis-­à-­vis what I see as its sometimes substitution of rhetorical flourish for analytic substance. Additionally, Latour’s cartoonish rendition of Marxist theories of fetishism should be concerning whether or not one self-­identifies with the Marxist tradition (cf. H. White 2013). As will become clear, in my own approach to objects, whether they be memoranda or ship rudders, I have chosen to draw from what I see as Alfred Gell’s (1998) more nuanced articulation of agency, which carefully acknowledges a distinction between primary and secondary agents while also recognizing the way objects and humans are productively (or destructively) configured in arrangements that transform both. I will continue to address these theoretical questions in the chapters ahead. 13. For accounts of the spread of the Haitian interdiction model (and Guantánamo-­like models of offshore detention) to Australia and the Mediterranean, see Goodwin-­Gill (2011), Goodwin-­Gill and McAdam (2007), Mann (2016), Noll (2003), and Perera (2009). With regard to the elision of the early history of Haitian litigation and activism, there are,

260  Notes to Pages 5–6 I suspect, multiple causes. First, there is a bias in legal scholarship itself toward black letter law—for example, published statutes and legal opinions—with a particular emphasis on the decisions of the Supreme Court. Adrian Vermeule once described his own foray into decisions of the federal courts of appeals, in contrast to the Supreme Court, as a look into “administrative law in the trenches” (2009, 1098). One suspects this was meant facetiously as the courts of appeals are hardly where one would expect to find the ground-­level perspective that the metaphor of the trench suggests. Pertaining to the Haitians specifically, much of the litigation that unfolded over the 1970s yielded little in terms of binding precedent. The 1980s, however, ushered in a proliferation of high-­profile litigation in the circuit courts of appeals and the Supreme Court. This was followed by a further increase in national publicity during the 1990s, particularly with regard to the suits challenging the legality of interdiction and asylum processing at Guantánamo. As one might expect given this description, the litigation during the 1990s has received the most attention, both from the practitioner scholars who participated in the lawsuits (Clawson, Detweiler, and Ho 1994; Koh 1994b; Koh 1996; Koh and Wishnie 2008; Little 1999; Ratner 1998) and others (e.g., Goldstein 2005; Mann 2016). With Guantánamo, the lawyer’s interest in Supreme Court decisions and the general reader’s interest in headline-­ grabbing subject matter intersected. Brandt Goldstein’s (2005) Storming the Court, an assiduously researched creative nonfiction account of the legal battle to close the Guantánamo HIV camp, for example, has done much to emphasize the litigation of the 1990s among a new generation of law students for whom it is held up as the holy grail of public interest litigation in the clinical education context. The history of the early days of Haitian rights lawyering and activism, however, seems to have appeared too niche for most authors, with some interesting exceptions (Hamlin and Wolgin 2012; Hansen 2011; Kawar 2015; Miller 1984; Rey and Stepick 2013; Stepick 1982). As I will show, the original historical research and deeper time horizon I have brought to the questions at issue here do more than provide more historical detail; they offer up an entirely new object of analysis. 14. While Aziz Rana’s arguments (2010) regarding empire and republicanism are well taken—indeed many of them are presumed in my own arguments—I am less sympathetic to Rogers Smith’s approach (1997), which, as Rana has noted, reads more like an attempt at keeping liberal and republican traditions “discrete” and “uncontaminated by practices of racial ascription and status hierarchy” (2010, 7). 15. United States as a Country of Mass First Asylum: Hearing Before the Subcomm. on Immigration and Refugee Policy of the S. Comm. on the Judiciary, 97th Cong. 103 (1981) (testimony of Representative Robert McClory). 16. Stephan Palmié, drawing on Sidney Mintz (1974, 1985), has emphasized the Caribbean’s long-­standing role as a laboratory of the modern (or postmodern, depending on the when and the what of one’s object) (2002, 41–42). The birth of interdiction and its jurisdictional forms fits within this larger historical pattern although in strikingly different ways. Whereas Mintz (1974, 1985), following Eric Williams (1994), focused in large part on the temporality and discipline of the sugar plantations as hallmarks of a Caribbean capitalist proto-­modernity, the novel experimentation in border governance in the region has had more to do with the legacies of colonial and postcolonial political economy and the geographic proximity of two such postcolonies—Haiti and Cuba—to the US southeastern maritime border than with the microphysics of contemporary labor practices. The propinquity of these postcolonies coupled with Cold

Notes to Pages 7–11 261 War political geographies, intimate histories of occupation, and racialized anxieties concerning black bodies provided the conditions for a new laboratory. 17. Quoted in Guillermo Martinez, “Haitian Boats Now Being Stopped off Florida,” Miami Herald, May 17, 1983. 18. Povinelli’s notion of “liberal diaspora” is useful for the way it highlights the “identifications, dispersions, and elaborations” of liberalism qua normative vision (2002, 6, emphasis added). Implicit in Povinelli’s formulation is a wider historically constituted geography. Nonetheless, her articulation of liberalism’s substance as “the enlightenment idea that society should be organized on the basis of rational mutual understanding” is perhaps not specific enough for our purposes (6). My own use of the term liberalism focuses on variations of its legalisms, not in the sense of Laura Kalman’s (1996) notion of left-­of-­center doctrinal commitments, but more along the lines of Paul Kahn’s notion of a “demand for representative government limited by a doctrine of individual rights embodied in a rule of law administered by courts” (2005, 9). Of course, the question of what exactly liberalism is and is not would lead me into debates over an American Lockean consensus (Hartz 1955), republican civic virtue (Pocock 1975), liberal-­ republican hybridity (Sunstein 1988), liberal versus republican distinctness (R. Smith 1997), and the productive tensions of liberal-­republicanism’s internal contradictions (Rana 2010). Such discussions are far afield given my goals here. Within this body of work, however, Aziz Rana’s subtle interrogation of American liberal empire is perhaps closest to my own, despite differences of historical focus, genre, and purpose. To return to the point about liberal diaspora, one must acknowledge the peculiarities of the American case, which Rana elucidates with skill, while at the same time remaining mindful that the phenomena I will be discussing are part of broader historical formations both as outcomes and antecedents, something Povinelli’s framing places front and center. 19. The Federalist consisted of a collection of essays, originally intended as a reasoned argument for adoption of the recently proposed federal Constitution. Three authors contributed to the corpus—Alexander Hamilton, James Madison, and John Jay. The initial essays were first published in various newspapers under the pseudonym Publius and, later, in various collected volumes. Written as they were by key architects of the founding document, they have become a touchstone of constitutional interpretation. Paul Kahn has referred to the collection as “the foundational text of American constitutional law” (1989, 454). 20. Julie Chu conceptualizes emplacement as a narrative framing and embodied sense of legitimate movement and localization—“the entitlement of particular persons to particular locations” (2010, 105). Here, I am riffing on Chu’s idea, applying it not just to persons but to institutional power as well, which, within certain legal ideologies, may be seen as belonging at certain sites within an institutional or interinstitutional hierarchy. I will explore this idea further in chapters 2, 4, and 5. 21. I have described this approach elsewhere ( J. S. Kahn 2017) as a turn away from the metaphysics of sovereignty championed by scholars like Giorgio Agamben and, to a certain extent, Carl Schmitt, although the latter’s project is often more prescriptive than metaphysical and, in certain texts, much more attuned to the historical particularities of actually existing legal structures than Agamben’s (e.g., Schmitt [1928] 2008). The Agamben moment in anthropology began, initially, as the discipline struggled with issues of resurgent executive power in the wake of 9/11 and its own relevance in the face of an expanding so-­called global

262  Note to Page 11 war on terror. Agamben’s (1998) theorization of “bare life”—a life stripped of social and political significance—and its positioning at the heart of modernity’s paradoxical political forms spoke to that historical juncture, which it anticipated by more than half a decade. In particular, the “bare life” formulation suggested the possibility of an anthropology of violent subjectification, encouraged by Agamben’s variable attention to historical nuance and cultural oddments—­werewolves, for example, and even the figure of homo sacer, the supposed juridical embodiment of mere existence and the state of exception. Finally, the uptake of Agamben within anthropology functioned to legitimate certain projects, mine included, concerned with domains traditionally identified as the business of other disciplines—political science and law specifically. Jessica Cattelino describes this shift in the disciplinary sense of what constituted an acceptable research program with reference to her own work on American Indian tribal sovereignty, which, in the eyes of some of her academic interlocutors, transitioned from a subject that was simply not sufficiently anthropological to one that had become the topical “ ‘flavor of the day’ ” (2008, 212n22). More recently, anthropologists have become less sanguine about Agamben’s contributions, offering serious general criticism (Comaroff 2007; Jennings 2011), skeptical assessments of the utility of the “bare life” concept (Das and Poole 2004; Ticktin 2011), and ethnographically grounded alternative approaches more concerned with sovereignty’s circulation as a meaningful concept within local worlds—that is, vernacular sovereignties or nonsovereignties—than its transhistorical ontology (Bonilla 2015; Cattelino 2008). The jurisdictional turn is one law-­ oriented strand within this growing body of work, and it is interdisciplinary, spanning anthropology, law, literature, history, and political science (Benton 2010; Constable 2010; Cormack 2007; Dorsett 2007; Dorsett and McVeigh 2012; Ford 1999; Maurer 2013; McVeigh 2007; Richland 2011, 2013; Valverde 2015). In many ways, it marks a pivot away from what Justin Richland has called “abstract theories of law and legal power” and toward “sovereignty as an active undertaking” that is “(re)constituted in the unfolding, unstable pragmatics of the present” (2013, 213–14). My own approach evinces a similar concern with technicalities (Riles 2005) and pragmatics (more on what this means in note 27) as well as a commitment to investigating the interscalar dialectics of juridical world-­making as an antidote to an exclusive emphasis on microsociological scales of inquiry that my professed concern with legal arcana might imply. The reaction to Agamben and Schmitt can be taken too far, of course. For instance, Lauren Benton’s remarkable work on imperial sovereignty’s intricate jurisdictional frameworks—and its oceanic dimensions—swings in the opposite direction, positing not legal voids, as Agamben does, but “law all the way down” (2010, 290). For Benton, “exceptional moments of apparent legal rupture” are actually not rupture at all but “experiments in other kinds of law” (290). There are, in fact, no anomalies, no “special kind of law,” just “variations in the law of empire” (290). Despite my great admiration for Benton’s work, my own research suggests something a bit different. There are, indeed, ethnographically speaking, special kinds of law, and tracking this markedness of certain jurisdictional forms becomes crucial. So does looking at the symbolic imaginaries of law and disorder, which, despite their papering over of specific juridical intricacies and complications, often take on a life of their own within battles over particular geographies of power and discretion. While it is imperative that we not just examine what people say they do but also what they do, what they say they do can become standard-

Notes to Pages 12–15 263 ized, hypostatized, and mobilized in ways worth attending to as well. The rhetoric of free seas, for example, is more than just a myth to be discounted with historical erudition. It is a genre of imagining that has its own historical force. 22. The phrase external realm comes from United States v. Curtiss-­Wright Export Corp., 299 U.S. 304, 319 (1936), a case that I will return to briefly in chapter 4 and in greater depth in chapter 5. 23. The notion of temporality as socioculturally constituted and its relevance to legal scholarship is not new, of course (Greenhouse 1996; Valverde 2015). Neither are approaches oriented toward legal spatiality. The latter, called “legal geography” by its adherents, has emerged as a body of scholarship united more by its interest in the intersection of law and space than any coherent theoretical paradigm (Darian-­Smith 1999; Blomley, Delaney, and Ford 2001; Braverman et al. 2014). More recently, scholars working on legal geography have acknowledged the necessity of considering space and time together (Braverman et al. 2014; Valverde 2015). The variation within this literature is such that it becomes difficult, as a general matter, to draw parallels and distinctions with it. Suffice it to say, this volume contributes to the legal geography literature by adding its own theoretical and ethnographic reflections on questions of law’s space-­ times, not solely in terms of the space-­making capacities of liberal sovereignty’s paradoxes and their activation through law, but also by developing a framework for grasping the subtleties of the spatial registers of the jurisdictional imagination (chapter 5). 24. One could trace out the conflicting antipolitics of care and humanitarianism (e.g., Fassin 2012; Ticktin 2011; Redfield 2013) at work on both sides of the battles over the treatment of Haitian refugees, although that will not be my primary focus here. 25. The analogy with David Harvey’s conceptual account of capitalism’s management of its “inner crisis tendencies by geographical expansion” is limited by the fact that my use of the phrase does not blend cause and resolution as Harvey’s use of the term does; that is, it diverges from his idea that part of the “fix” is an insatiable and intrinsic drive propelling capitalism forward in space and time—a causal force that both generates contradiction and provides its relief (2001, 24) 26. See my discussion of Lauren Benton’s work, supra note 21. 27. Throughout, I will frequently use the semiotic vocabulary of Charles Sanders Peirce, which is oriented around a trichotomy of the sign as opposed to the dichotomous model offered long ago by Ferdinand de Saussure’s ([1916] 1966) structural linguistics. The basic trichotomy consists of the icon, index, and symbol. Signs are connected to their objects by a “principled linkage,” or “ground” (Parmentier 1994, 4). The nature of this relationship determines the class of sign in question (4). With an icon, for instance, there exists a “formal resemblance” between sign and object. Blades of grass fluttering (sign) in the wind are iconic of the wind (object). Blades of grass that flutter in the wind also index the wind as the cause of their fluttering (4). Symbols are something else entirely in that the nature of the relationship between symbol and object is conventionalized—that is, it would not exist but for an interpretant, another sign, through which the symbol and the object are “represented as being so related” (6). For example, the “phonic form apple” is interpreted, by English speakers, as referring to a material object, not because of any physical connection between the two, but because of the convention of associating one with the other. In other languages, a different phonic form

264  Note to Page 16 (pomme, for example) serves the same purpose in different contexts. This conceptual vocabulary provides an entry point into a subtle semiotic toolkit that is also tied to the pragmatic approach I will be using. Briefly, and I will touch on this further in the body text, pragmatics concerns the presuppositions and entailments that unfold within semiotic interactions—the ways sign activity points to (indexes) not only literal referents but contexts as well, including ideologies that frame expectations as to how the communicative interactions are “supposed” to unfold. As far as the cultural study of law is concerned (and the production of particular law spaces), it is often more important to grasp the ways in which legal language signals (or indexes) what type of context one finds oneself in (and the meta-­level, or metapragmatic, frames that come with that contextualization) than to grasp the literal object of that same language. For instance, a legal brief that notes a regulation was promulgated after notice and comment rulemaking does not merely signal the literal fact that an administrative entity promulgated that specific regulation, although it does do that. It also points to, or indexes, a whole system of regulatory process governed by a statute, the Administrative Procedure Act (APA), designed to confer legitimacy on law-­like rulemaking and a body of legal doctrine that grants administrative agencies extreme discretion, under certain conditions, when such procedures are followed. Statutes, like the APA, and judicial opinions interpreting it, are metapragmatic discourses that suggest how administrative procedures ought to function. Pragmatic signaling like this that presupposes the forms that regiment a set of (legitimate) communicative interactions copresent with the literal referencing that takes place in that communication. When language operates in this manner, one speaks of its nonreferential function (Conley and O’Barr 2005, 146–47; Silverstein 1993)—its capacity to index contextual frames as opposed to mere denotata. This brief introduction is just that. It becomes most relevant in chapter 4, although its influence can be felt throughout. For purposes of clarity and ease of reference, I have been leaning on Richard Parmentier’s (1994) own interpretation of Peirce’s semiotic, as he called it, which provides an excellent primer on this often difficult conceptual lexicon. Volume 2 of The Essential Peirce (1998) provides another, direct source, worth examining. The literature that uses this approach is far too expansive to catalog here. Even if it were possible to provide a “state of the field,” given my own theoretical leanings, I would not be the author to provide one. 28. For scholars of Haitian history, this statement may evoke Michel-­Rolph Trouillot’s relatively obscure but insightful article “The Odd and the Ordinary,” which warned scholars not to adopt the narrative “fiction of Haiti’s exceptionalism” (1990b, 3). By this, Trouillot was referring to those depictions of Haiti, scholarly and otherwise, in which the country and its people appear as “strange, peculiar, freakish, queer, bizarre” (6). More important for Trouillot than the condescension implicit (or explicit) in these accounts of Haitian alterity was its effect: specifically, the resultant portrayal of Haiti as “unexplainable” (6). Darryl Li (2016) has made a similar argument regarding commentary on jihadism, and ISIS in particular, certain strains of which hold their object of study to be simply beyond analysis. Trouillot’s point is well taken, but other scholars who have relied on it in more recent years have too often modified his thesis such that any work asserting Haiti’s “particularism” (1990b, 5) is condemned as reinscribing the narrative Trouillot finds so troubling. And yet, this was not his argument. To the contrary, Trouillot acknowledged that Haiti “is exceptional, the result of a striking convergence of historical particulars” (5). The role of Haitians in the development of new law reform models, new

Notes to Page 16 265 border policing paradigms, and new spatial imaginaries in the United States is also a feature of a “striking convergence.” Noting these exceptional aspects of Haitian history is a far cry from the declarations of freakishness or inscrutability Trouillot so decried. In many ways they are its opposite—an attempt at analysis, not its foreclosure. With regard to the question of aesthetics, I am certainly not the first to note the “ways in which law,” to quote Eve Darian-­Smith, “is intimately connected to visual, sensual, and textural phenomena” (1999, 14). The aesthetics of law extends from the form of its textual artifacts— the “essential shapes . . . of governance” embodied in the form of the constitutional document itself, for example (Tomlins 2007, 982)—to the form of its institutional configurations and spatial properties (Darian-­Smith 1999, 14). My own approach draws inspiration from Nancy Munn’s understanding of the instantiation of socioaesthetic value in specific qualities (2013, 140), a framing that stems from her earlier work on Gawan concepts of spatiotemporal extension as a value parameter and the qualities seen to both index and facilitate it (1986). I will turn to these questions in greater detail in chapter 6 when I look to the remaking of ocean space as a project of cultivating the quality of “depth” in state form. 29. Suvendrini Perera explores this question of insular sovereign feeling in her fascinating examination of an Australian “geopoetics” and the role of island imaginaries within it (2009, 37). Specifically, she notes how an island spatial sensibility “does the work of demarcation, producing order between land and ocean” while also acting as “a container, conceptually, politically, rhetorically, for the tensions between them” (38). Philip Steinberg (2005), as Perera also acknowledges, has posited a similar thesis regarding the role the material qualities of islands and their representation in portolan charts played historically in the development of the sovereignty concept itself. The argument is intriguing, although I am not persuaded of the importance of island thinking in developing a grammar of sovereignty over other spatial reckonings— for example, enclosure (cf. Pickles 2004, 104). As I proceed, I will be looking at how the imaginary of the clearly defined border gave way to something less clearly defined. Like Rachel St. John, I am convinced of the importance of the border itself, as opposed to a more diffuse borderland in which the “boundary line” becomes irrelevant (2011, 5). In the case of this maritime border, however, there is no clear line at all but an infinite possibility of the border’s punctuated emergence across wide swaths of ocean space. For this reason, I can, following Peter Andreas (2003), talk about a thickening of borders, both at sea and on land. Although the valued qualities of these new border forms will be of concern throughout, chapter 6 offers the most thorough discussion of the socioaesthetics of depth and layering that have emerged in discourses of national security over the past several decades. 30. Jean and John Comaroff have described “lawfare” as “the resort to legal instruments, to the violence inherent in the law, to commit acts of political coercion” (2006, 30). Theirs is a dark vision of the juridification of politics, whether in the form of the “displacement” that comes with the “conjur[ing] with legalities” from above or the failure of utopian legal institutions to meet demands for justice from below (30). While I appreciate the coinage and the concept—particularly its attempt to grapple with changing forms of sociality in postcolonial settings of neoliberal transformation—the term lawfare has subsequently been adopted by legal commentators in the United States to such an extent (it is the title of a national security law blog) that it is perhaps best avoided.

266  Notes to Pages 16–24 Although the Comaroffs situate themselves in a genealogy extending from Jacques Derrida (2001) to Walter Benjamin (1978 [1955 essay]), the role of an inherent violence in the law—and its sanctioning of overt violence—has long been a matter of theoretical and empirical concern within a wider body of contemporary legal scholarship. The work of Robert Cover (1986) and his interpreters (Minow, Ryan, and Sarat 1995; Sarat and Kearns 1995) stands out. For my purposes, it will be worthwhile to keep this relation in mind as I examine the unfolding contests over the south Florida immigration border, which utilized the coercive power of the courts to great effect while also pursuing other modes of political action, including beltway advocacy and street-­level protest. 31. See supra note 13. 32. Unlike Timothy Mitchell, I am less concerned with the “effect” of a state-­society divide than with the manufacture of the seeming coherence of a nation-­state entity out of the maddeningly complex landscape of institutions and groups. 33. I use the terms cartography and architecture with the intent of pointing out both how legal edifices are mapped in spaces, virtual and material, and also their structural elements. The choice is more about subtle differences of emphasis than distinct conceptualizations. Architectural drawings, for example, are themselves a form of three-­dimensional mapping in two-­ dimensional space. Nonetheless, I find both terms useful as a means of highlighting different aspects of legal spatiality at different moments in my analysis ( J. S. Kahn 2017, n4). 34. See Goldstein 2005; Koh and Wishnie 2008; Sale v. Haitian Ctrs. Council Inc., 509 U.S. 155 (1993); Haitian Ctrs. Council Inc. v. Sale, 823 F. Supp. 1028 (E.D. N.Y. 1993). 35. See message from US Coast Guard Cutter Dauntless re: “SAR/Aliens,” November 27, 1991, McNary Case File. 36. Kanntè is the Creole term for the Canter model of Mitsubishi truck once prevalent as a mode of transporting market goods within Haiti. In the southwest, where I have conducted much of my fieldwork, kanntè is also used to denote the boat migration voyages that became a regular occurrence in the 1970s. As Karen Richman has observed in her monograph on the ritual economies sustained by Haitian diasporic networks in and around the coastal city of Léogâne, the Canter truck, “[a]n emblem of internal marketing of peasant products[,] . . . became the dominant symbol of ruined peasant laborers risking their lives to sail toward Miami” (2005, 55). In the northwest, the region where more professionalized smuggling rackets developed, virewon seems to be the favored term. 37. The new entity, FIAC, was, however, a different beast from the HRC; it no longer identified as a Haitian organization, and it specialized in a wider range of immigration-­related litigation of both the grinding, so-­called client-­centered type (often mundane, but valid cases) as well as more specialized, impact suits culled from the former. 38. I have included a list of archives used in the references section. 39. Michael Herzfeld’s examination of the “routinization of expressive form” (1992, 19) through the repetitions of bureaucratic ritual and Geertz’s focus on the pomp and circumstance of spectacular ritual theater (Geertz 1983, 143) set up two poles of inquiry that are perhaps overly exaggerated in their mutual distinction—at least as far as subject matter, as opposed to theoretical orientation, is concerned. As a bit of foreshadowing here, my interest also lies, as did Geertz’s, in the charismatic dimensions of political sovereignty. Even Weber ([1919] 1986), theorist of the iron cage, recognized, as a matter of politics, if not theory, the

Notes to Pages 24–31 267 value of the numinous within the political in his advocacy for a plebiscitary Reich president following World War I. And yet much of my time will be spent in bureaucratic peripheries as well as centers. To a certain extent, the use of terms like cosmology and cosmogonic are meant to evoke the dimensions of modern political systems often regarded as antithetical to existing secular state forms—that is, the stuff of sacred kingship, not liberal deliberation. As I delve into the technicalities, such language is a reminder that questions of world-­making are central to this book. Moreover, the impossibility of the legal order’s internal, self-­grounding—whatever its myths of a rational totality—invites such musings. Much like Julie Chu (2010) and Liisa Malkki (1995a), who have also indulged in similar lexical framings, I use the argot of cosmology to signal a rejection of great divides between forms of sovereign power, past and present, here and elsewhere. This is not to suggest a crude analytic of equivalence lacking the nuance of historical particularity. Liberal sovereignty and Fijian kingship are not mere surface-­level variations on an underlying structural theme, whatever similarities one may discern between antipolitical outsider candidates and stranger kings (M. Sahlins 1985). That being said, a barren analytic that views modern liberal regimes as History’s teleological culmination—therefore, both at the end of and out of History and culture—and so-­called premodern arrangements as bound in obscurantist symbolism will not do either. The devil, of course, is in the details of asserting meaningful parallels and divergences (more on this in chapter 5). 40. In part, these methodological contortions are a product of modern law’s “resistan[ce] to ethnographic inquiry” (Darian-­Smith 2004, 555), a feature, among other things, of its “thick[  ] layer[s] of formalism” (Moore [1978] 2000, 30). Grasping the expressiveness of such formalism is, however, part of my task here.

Chapter 1 1. François Duvalier ruled Haiti from 1957 until his death in 1971. His son ruled from 1971 until his ouster in 1986. 2. In Haiti, mulâtre (milat in Creole and mulatto in English) lacks the negative connotations the term holds in the United States and is commonly and uncontroversially used to refer to Haitians with an array of physical and “sociocultural attributes” that include “light skin, valued facial and hair characteristics, and economic and social success” (Trouillot 1994a, 149, 155). 3. As I will show in chapter 2, the INS began the process of screening Haitians for refugee characteristics aboard cutters in the early 1980s and later at Guantánamo. In these offshore spaces, INS officers used what would eventually stabilize as the “credible fear of persecution” standard, which was meant to be less onerous than the actual asylum standard applied in US court and administrative adjudications. These mini-­adjudications would later come to be known as “asylum prescreening” interviews, a phrase that distinguished them from actual asylum interviews to which they were a stepping-­stone. Those who passed the asylum prescreening interviews were classified as “screened in” and those who did not as “screened out,” a vocabulary that will come up repeatedly throughout the book. 4. Between 1965 and 1980, the United States operated with a political refugee definition separate from that of the Convention in that it focused on geographic and political criteria—it

268  Notes to Pages 32–40 applied to individuals from communist countries or the general area of the Middle East (Anker and Posner 1981). At the same time, the “withholding of removal” provision of the INA, which applied to those seeking relief from deportation within the United States, repeated the language of the Convention and made it applicable without any official geographic or political limitations. Although Alexander Aleinikoff (1991) has argued that the original Convention definition was not meant to provide an exclusive list of “types” of persecution, more often than not it has been interpreted that way with the effect of excluding “economic migrants” from protection. 5. I am using “society” here in the broad sense of the term that encompasses the political. 6. The Supreme Court’s 1905 decision in Lochner v. New York, 198 U.S. 45, overturning a state regulation limiting the number of hours bakers could work in a week came to symbolize the Court’s embrace of an economic laissez-­faire ideology. The Lochner period met its end, formally speaking, with the Court’s 1937 decision in West Coast Hotel v. Parish, 300 U.S. 379, to uphold a minimum wage law for women (Sunstein 1987). 7. Neoliberalism has become a catchall term in the academy for economic policies guided by market fundamentalist principles, including tariff reductions, privatization of state-­owned industries, and rollbacks of government services (see, e.g., Gledhill 2004; Stiglitz 2003, 74). As Aihwa Ong has noted, in the global South, neoliberal reforms, which often arrive in the form of conditions imposed on aid disbursements or loans, have been construed as the means to “pry open small economies” for the economic benefit of the member states that hold sway on the boards of the major international financial institutions (2006, 1). On the other hand, as Jean and John Comaroff have pointed out, neoliberal discourses and their implementing practices have also been perceived by both their authors, and in some instances their targets, as having a messianic dimension that invests this particular form of capitalist reform with “the capacity wholly to transform the universe of the marginalized and disempowered” (2001, 2). For much of the 1980s and 1990s, the consensus in economic development discourse revolved around a neoliberal core, whether captioned as such or under a different name, and the export-­led development policies pursued in Haiti, as I will show, fell squarely within this rubric (see Dupuy 1997). As will become clear, my interest in this chapter is not simply to revisit this already well-­ trodden ground, but rather to focus on how the logics of the pairing of market fundamentalism and penal investments—what Bernard Harcourt has called “neoliberal penality” (2011, 38)— operate when unleashed beyond the confines of any one nation-­state (more on this shortly). What the concept of neoliberal penality can tell us about the rise of interdiction and what the rise of interdiction as a transnational phenomenon can tell us about it (and its explanatory limits) is central to this chapter. 8. Although there is a distinction between refugees and asylees—the former often referring to individuals processed overseas and the latter to those processed within the United States— the legal definition is now virtually identical, and for brevity’s sake, I will often use “refugee law” to encompass both frameworks. 9. Affidavit of Raymond Joseph, June 28, 1974, Box 27, File 4, Kurzban Papers. 10. Id. 11. Affidavit of Antoine Adrien, June 28, 1974, Box 27, File 4, Kurzban Papers. 12. Frank L. Kellogg, special assistant to the secretary for Refugee and Migration Affairs,

Notes to Pages 40–50 269 US Department of State, to Mr. W. Sterling Cary, president, National Council of the Churches of Christ, July 29, 1974, Box 31, Folder 2, Gollobin Papers. 13. Id. 14. Id. 15. US Department of State Information Sheet, attached to letter from Linwood Holton, assistant secretary for Congressional Relations, US Department of State, to Representative Matsunaga, May 17, 1974, Box 31, Folder 2, Gollobin Papers. 16. While Loïc Wacquant (2011) uses this terminology as well, his framework is not attuned to the same intellectual genealogies of the policy discourses in question, nor is it focused on the same type of “regulation” to which Harcourt refers. 17. The previous reference to Harold Demsetz and Garrett Hardin concerns the ways both authors have theorized mechanisms of incentivizing productive stewardship of natural resources. Demsetz asserted in his well-­known 1967 article “Towards a Theory of Property Rights” that actors would be pushed to internalize externalities—in his example, the costs of depleting stocks of fur-­bearing animals—by a legal regime of private land ownership where individual or corporate title-­holders, as opposed to all fur-­harvesters, would bear the direct cost of overexploitation, making it likely that they would sustainably harvest stocks under such conditions. Hardin, in his 1968 article “The Tragedy of the Commons,” pointed to a similar problem of atomized, rational maximizers of utility unsustainably exploiting natural resources in common absent effective social controls. Formal membership in the polity, the temporally deep attachments it is meant to entail in its ideal-­typical versions, and the regulated access to state resources it is meant to foster offer an analogue to these authors’ views on the incentive structures of private ownership—views that have, in a much simpler version, infused the popular imagination. 18. With regard to Boyce’s employment experience, see affidavit of Harold Boyce, Nov. 13, 1981, Box 88, File 1, Kurzban Papers. For the report containing the language quoted in the body text, see memorandum from Harold L. Boyce, chief interdiction officer, to Delia B. Combs, assistant commissioner, CORAP, re: “HMIO Activity Report August 1985,” Sept. 10, 1985, Box 88, File 1, Kurzban Papers. 19. The Aristide phenomenon has been the subject of much commentary and has stimulated its fair share of quarrels in the academy and among journalists, a limited sampling of which includes Farmer (2003), Deibert (2005), Dupuy (2007), Fatton (2002), Hallward (2007), A. Wilentz (1989), and A. Wilentz (2000). 20. Compare United States Coast Guard, Alien Migrant Interdiction, Total Interdictions— Fiscal Year 1982 to Present, accessed at http://www.uscg.mil/hq/cg5/cg53/AMIO/FlowStats /FY.asp, last accessed on May 27, 2009, with declaration of Robert S. Gelbard, principal deputy assistant secretary of state for Inter-­American Affairs, HRC v. Baker, No. 91-­2653-­CIV-­ATKINS (S.D. Fla. Dec. 1, 1991) (stating that approximately 1,300 interdictions occurred during President Aristide’s tenure), Kurzban Papers. 21. William O’Neill, then of the Lawyers Committee for Human Rights, estimated that extrajudicial killings reached 1,500 or higher by 1993 (1993, 110). 22. See “Return to the Darkest Days: Human Rights in Haiti since the Coup,” Americas Watch, National Coalition for Haitian Refugees, Physicians for Human Rights (Dec. 30, 1991).

270  Notes to Pages 50–56 23. See id. 24. Declaration of Robert S. Gelbard, Dec. 1, 1991, HCC v. McNary Case File. 25. Deposition of Gunther O. Wagner, May 5, 1992, HCC v. McNary Case File. 26. Certainly, a rich literature already exists on the topic of the effects of neoliberal development policies on Haiti, although some of it precedes the use of that term. Many of these authors have already been cited, including Farmer (1988), DeWind and Kinley (1988), Dupuy (1997; 2007), Schuller (2012), and Lundahl (2013). That being said, scholars like DeWind and Kinley who do draw the connection between migration deterrence and the state subsidization of free market solutions (to great effect) do not dwell on the broader implications of the pairing of penal investment and laissez-­faire ideologies. Neither do they concern themselves with the ways in which notions of economic naturalism have inflected narrations of political persecution in Haiti. Other scholars, like Dupuy and Lundahl, for example, have focused their work on the implications of free market development interventions in Haiti for the Haitian economy (with drastically different recommendations), but they have largely ignored the novel ways in which penality and neoliberalism have emerged as twin concepts operative within the United States generally and within US policies of containment vis-­à-­vis Haiti in particular. And why would they have? Their projects had other aims. At the same time, scholars like Bernard Harcourt (2011) who have so eloquently tracked the entanglements of carcerality and market naturalism within the United States have not explored its implications for transnational migration policing or how it might operate differently on supranational, as opposed to domestic, terrain, as I have begun to do here.

Chapter 2 1. All quotes are from, First Draft, Fact Film Format, Haitian Immagrant [sic] Documentation, Aug. 26, 1981, Box 254, Folder “Immigration, Haiti: 1981, Documentary Film, Fact Film Format,” Coast Guard Historian’s Office, Migrant Interdiction Collection (hereinafter CGHO MIC). It is unclear if the film was ever made. 2. See id. (emphasis added). 3. There is a rich and extensive literature on borderlands, frontiers, and borders, almost exclusively terrestrial as opposed to aquatic in focus, that has informed my reading of the evolution of this maritime space and its relation to larger political formations (Adelman and Aron 1999; Donnan and Wilson 1999; Prescott 1987; P. Sahlins 1989; Rachel St. John 2011; R. White 1991). Throughout this chapter and the book, I shift between the use of border, borderland, and frontier, often to highlight different aspects of the land and seascapes I am exploring. The use of the term border, for example, conveys how a Coast Guard cutter can instantiate the point of contact with the full power of nation-­state sovereignty, even if that site of contact is unmoored from the juridically fixed, territorial “line” normally imagined as the border proper. On the other hand, the use of the terms frontier or borderlands highlights the interstitial nature of the maritime landscapes in which this offshore policing is taking place and the thicker (Andreas 2003) more zonal (P. Sahlins 1989) characteristics of its spatial form (see also Rachel St. John 2011). 4. It is also frontloaded in its details as the story of the origins of the political and legal para-

Notes to Pages 57–60 271 digms that would be so central to the remaking of the border have not been as fully and accurately explored as the later phases in the struggle for Haitian rights. 5. Borders, of course, are always creatures of law, as is the modern nation-­state itself, erected as it is on a “scaffolding of legalities” (Comaroff and Comaroff 2006, 22). What is unusual in this instance is the way that litigation, and the violent forces it unleashed, drove the space-­making processes that produced a new American borderscape. 6. US immigration law distinguishes between refugees and asylum seekers. Although both terms refer to individuals fleeing persecution, a refugee, as a technical legal matter, is someone whose case was adjudicated abroad, whereas an asylee is someone whose case was adjudicated in the United States (D. Martin 1990, 1261n37, 1295–96). The Cold War geographies alluded to above were expressed in the formal categories of the law governing refugees, which, at the time, defined a refugee as an individual fearing persecution in a “Communist or Communist-­ dominated” country or the “general area of the Middle East” 8 U.S.C. § 1152(e)(7), § 1153(a) (7) (1976). With regard to asylum, this geographic influence, although not formal, was equally influential. 7. As I showed in the previous chapter, the Duvalier regimes were highly skilled manipulators of this politicogeographic paradigm. 8. Although realism is normally associated with a politics devoid of moral constraints, I call it “moral” here because of the way it blended a utilitarian calculus with a normative rhetoric that hinted at the kind of “moral geography of tyranny” Didier Fassin has described elsewhere (2012, 147), albeit one severely circumscribed by the procrustrean bed of its existing politicized orientations. 9. I place “land” in quotes here because the territorial seas, of course, are also part and parcel of the territorial imaginary and, though liquid, are an extension of this regime of firm land. 10. A brief note here on the US legal regime regarding adjacent ocean spaces. Since 1988, the United States has recognized the customary international law norm of a twelve-­nautical-­ mile limit for territorial waters (as measured from the low tide baseline) (see Proclamation No. 5928 [Dec. 27, 1988], 54 Fed. Reg. 777 [1988]). Prior to that, the relevant territorial limit was three nautical miles (see memorandum from Walter Dellinger, acting assistant attorney general, Office of Legal Counsel, Department of Justice, to Janet Reno, attorney general, US Department of Justice, Immigration Consequences of Undocumented Aliens’ Arrival in United States Territorial Waters [Oct. 13, 1993]). As a matter of international law, this boundary demarcates sovereign US territory. As a general matter, prior to 1993, the INS considered that Haitians interdicted within the three-­nautical-­mile limit, and later the twelve-­nautical-­mile limit, had reached US territory, therefore triggering the protections of the Immigration and Nationality Act’s exclusion provisions (see id). Faced with refugee outflows from Haiti and Cuba, the US Department of Justice changed its opinion on this matter in October 1993 (see id). Beyond the territorial seas is the contiguous zone, which creates an additional twelve-­nautical-­mile stretch within which the United States is able to exercise an array of powers, including those related to law enforcement. Beyond the contiguous zone is the exclusive economic zone (EEZ), which extends two hundred nautical miles from the baseline. Within the EEZ, the United States is able to exercise certain “sovereign rights for the purpose of exploring, exploiting, conserving

272  Notes to Pages 61–66 and managing natural resources” (see Proclamation No. 5030 [March 10, 1983]). I will return to these territorial ways of imagining ocean space in chapter 6. 11. For a discussion of theories of legal violence, see note 30 of the introduction. 12. At least one vessel preceded the Saint Sauveur by nearly a decade. The Good Fortune arrived in Miami with twenty-­five Haitians in September 1963. All of the passengers were denied asylum and deported (see In re Haitian Refugees [BIA Dec. 3, 1963]). 13. Haitian Refugee Information Center, Historical Sketch of the Haitian Refugee Information Center (hereinafter Historical Sketch), Box 22, Folder 22, n.d., Gollobin Papers. 14. Id.; see also Dr. Byron L. Schmid, consultant for immigration policy and law, Lutheran Immigration and Refugee Service, Lutheran Council in the United States, “Report on the Haitian Refugee Situation” at 5, February 1976 (hereinafter Schmid Report), Box 40, File 1, Kurzban Papers. 15. See Schmid Report, supra note 14; Historical Sketch, supra note 13. Regarding the arrival of additional boats in the spring of 1973, see Robert Woytych, letter to US Department of State, n.d. (hereinafter Woytych Letter), Box 33, File 14, Kurzban Papers. 16. See National Council of the Churches of Christ in the USA, “Resolution in Support of Haitian Refugees,” Feb. 28, 1974 (hereinafter NCC Resolution), Box 21, Folder 17, Gollobin Papers. 17. Gerard Leandre to “Lawyer,” n.d., Box 33, File 8, Kurzban Papers. 18. See Schmid Report, supra note 14, at 5–6; “Evaluation of the National Council of Churches Response to Haitian Refugees in this Country,” n.d., Box 40, Folder 3, Kurzban Papers. The CCSA had already been working on refugee resettlement issues since the 1960s, albeit with refugees from Cuba, a group that received an entirely different reception than the Haitians and that tended to be more politically conservative as well (see Louise Leyden, “Cubans with Problems Given Aid by Agency,” Miami News, April 22, 1967, 4A). 19. See NCC Resolution, supra note 16. 20. NCC Resolution, supra note 16, at 2. 21. Id. at 3. 22. Antoine Adrien obituary, Associated Press, May 14, 2003. 23. The emphasis on Creole was itself a radical act signaling a democratic enfranchisement of the Haitian masses (see Schieffelin and Doucet 1994, 191). 24. See testimony of Ira Gollobin, trial transcript, Louis  v. Meissner, No. 81-­1260 644 (March 17, 1982), Kurzban Papers. 25. Invitation from W. Sterling Cary to Ira Gollobin et al., April 1, 1974, Box 21, Folder 18, Gollobin Papers. 26. “Action Undertaken in Response to Each Task Force Recommendation,” n.d., Box 21, Folder 17, Gollobin Papers. 27. See id. 28. Lucius Walker Jr., general secretary, Division of Church and Society, National Council of Churches, to Ira Gollobin, June 1, 1974, Box 1, Folder 6, Gollobin Papers. Walker was known for his role mediating between “black militant groups” and the NCC leadership over the issue of James Forman’s Black Manifesto—a document demanding billions in reparations from white churches, which then NCC president Cary had signed—and for his commitment to devoting NCC resources to organizing in minority communities (Findlay 2006, 153–54). My

Notes to Pages 66–69 273 own conversations with Haitian activists who would take on leadership roles in the mid-­1970s reveal that they viewed Walker as a staunch ally within the NCC. 29. Michael Krinsky to Donald Bierman, Jan. 21, 1975 (confirming Rabinowitz firms involvement in the litigation), Box 1, Folder 6, Gollobin Papers. The lawyers at the Rabinowitz firm were well known for their long history of representing trade unions and for their civil rights docket, which included path-­breaking efforts to establish the right to travel in the face of government denial of passports to suspected Communist Party members (Rabinowitz 1996, 24; J. Kahn 2011, 874). 30. Gollobin had participated in immigration matters that had come before the Supreme Court (Neuborne 2006), as had the attorneys in the Rabinowitz firm working on Haiti matters via the NECLC (Rabinowitz 1996). 31. There was a provision in the Immigration and Nationality Act (INA) for withholding of removal, although the Supreme Court had interpreted it to be inapplicable to asylum seekers placed in exclusion proceedings (D. Martin 1990). 32. As late as 1979, the INS’s associate regional commissioner for examinations for the southern region of the United States was describing asylum adjudication criteria with regard to the Refugee Convention and Protocol and not merely domestic regulatory provisions. See William E. Zimmer memorandum re: “Applicants for Asylum Under 8 C.F.R. 108 or for Classification as Refugee Under the Proviso to Section 203(a)(7),” June 1, 1979, Box 36, File 3, Kurzban Papers. 33. See, e.g., report of Paul Dejean, Bureau de la Communauté Chrétienne des Haitiens de Montréal, submitted to Sue Sullivan, NCC, Oct. 1976 (hereinafter Dejean Report), Box 40, File 3, Kurzban Papers. 34. Marti Coppleman memorandum re: “Affidavit Taking,” May 1, 1976, Box 33, File 3, Kurzban Papers. 35. See Ira Gollobin and Donald Bierman to clerk, US Court of Appeals for the Fifth Circuit, July 3, 1974, Box 1, Folder 6, Gollobin Papers; affidavit of Fr. Antoine Adrien, June 28, 1974, Box 1, Folder 6, Gollobin Papers; affidavit of Raymond Alcide Joseph, July 13, 1976, Box 19, Folder 1, Gollobin Papers. For an account of the rise of human rights activism during this period, see Keys (2014, 89–90) and Moyn (2010, 3). 36. See, e.g., Marie Pierre et al. v. United States, 525 F.2d 933 (S.D. Fla. 1976). 37. See Sannon v. United States, 427 F. Supp. 1270, 1273 (S.D. Fla. 1977). 38. The Ketley Jean-­Baptiste case was later consolidated with Sannon. See Sannon et al. v. United States, 427 F. Supp. 1270 (S.D. Fla. 1977). 39. “Memorandum of Law in Support of Application for Temporary Restraining Order,” in regard to the matter of Marie Pierre et al., No. 73-­1689 Civ. (n.d. S.D. Fla.), Box 2, Folder 1, Gollobin Papers. 40. See Schmid Report, supra note 14 at 16. 41. Lionel Delencourt, Church World Service, special consultant, memorandum re: “Haitian Refugee Program,” May 17, 1978, Box 32, File 1, Kurzban Papers. 42. See Dejean Report, supra note 33. 43. Haitian Refugee Center Report, June 1982 (mentioning Konbit Libète as “sister organization” to the Haitian Refugee Center Inc.), Box 63, File 1, Kurzban Papers. The term konbit is used in Haitian Creole to refer to the peasant work groups convened to clear fields or har-

274  Notes to Pages 70–74 vest crops in Haiti’s rural communities ( J. Smith 2001). Its use here signaled the populist orientation of the organization. Its members self-­described as “militant,” which conveyed a willingness to “speak truth to power” and engage in confrontational, though always nonviolent, forms of civil disobedience. From my conversations with the leaders of Konbit, they, and the larger democratic movement, appear to have been influenced in part by the student radicals who had participated in the strikes of 1968 in Paris and then brought that political sensibility with them to the Haitian diaspora in the Americas following the death of Papa Doc in 1971 (see also Charles 1996). 44. The hydrodynamic metaphor here of swirling complexity alludes to a Latourian rejection of overly simplistic models of rupture and the liquid tropes of eddies and whirlpools meant to trouble them (Latour 1993). While I find this imagery useful and evocative, its deployment here is not meant to signal a wholesale endorsement of the wider Latourian project. 45. See Leonel Castillo, INS commissioner, memorandum re: “Changes in Procedures Relating to Asylum Claims by Applicants for Admission into the United States,” Nov. 3, 1977, Box 10, Folder 4, Gollobin Papers. 46. Memorandum of Phil Buskirk, American Friends Service Committee, to Barbara Moffet re: “Haitian Refugees,” Dec. 1, 1974, Box 40, File 1, Kurzban Papers. 47. With regard to the use of the phrase Haitian threat, see minutes of meeting with Deputy INS Commissioner Mario Noto, August 16, 1978 (hereinafter Noto Meeting), Box 36, File 3, Kurzban Papers. More common were INS bureaucrats’ reference to a “Haitian problem.” See M. H. Landon Jr., director of intelligence, INS, report on “Haitian Problem,” July 11, 1978, Box 39, File 2, Kurzban Papers. 48. Alex Stepick (1982), Gil Loescher and John A. Scanlan (1986, 174–78), Norman and Naomi Zucker (1996, 70–72), and, separately, Naomi Zucker (1983) have all written interesting, well-­documented accounts of the “Haitian Program.” 49. Charles C. Sava, associate commissioner of enforcement, INS, memorandum to Mario Noto, deputy commissioner, INS, re: “Processing of Haitian Cases in Miami District,” July 14, 1978 (hereinafter Processing of Haitian Cases Memo), Box 36, File 3, Kurzban Papers. 50. See Noto Meeting, supra note 47 at 6. 51. Id. 52. Id. 53. See Noto Meeting, supra note 47, at 5. 54. For a description of the Haitian democratic movement in New York, see Charles (1996) and Antonio (1984). 55. One concrete example of the mounting concern over “illegal” immigration was Congress’s decision to create the Select Commission on Immigration and Refugee Policy in 1978, a move that signaled both a growing anxiety over the state of the country’s immigration laws and an attempt to temporarily stem the tide of restrictionist sentiment in Washington (Tichenor 2002, 249). Haitian community leaders, asylum seekers, and their attorneys testified before the commission during its visit to Miami in December 1979. See “Refugee Policy Examined in Miami,” Select Commission on Immigration and Refugee Policy Newsletter, December 1979, Vol. 2, Box 32, File 2, Kurzban Papers. 56. Of particular importance were Rick Swartz at the Alien Rights Law Project, who would contribute to much of the lobbying efforts in DC, and Peter Schey of the National Center for

Notes to Pages 74–75 275 Immigrants’ Rights, an already seasoned immigration expert and law reform litigator who had worked on such landmark cases as Plyler v. Doe. Leila Kawar (2015, 2012, 2011) has written an illuminating account of this particular moment in the development of immigrant rights litigation in the United States, shedding light on its funding sources and effects. Although Kawar’s careful, sophisticated analysis has much to commend it (and its contributions extend far beyond its account of this particular historical moment), I offer a different reading of the elite-­ grassroots interactions within the Haitian rights movement and the relationships between the particular institutions that composed it. This divergence in interpretation may stem from the extent of primary source materials I consulted insofar as the Haitian litigation efforts were concerned as well as the nature of the oral history accounts I collected, all of which I describe at length in the introduction. Moreover, my own focus brings to the fore a different set of conceptual questions and historical linkages, including the wider implications of concrete shifts in state spatialization and their relation to long-­standing, but not immutable, American cosmologies of the rule of law. 57. Minutes of Haitian Refugee Steering Committee, January 30, 1979 (mentioning formal nomination of Fr. Jean-­Juste to directorship of the HRC), Box 32, File 2, Kurzban Papers; Fr. Thomas Wenski to Marie Potier, Haitian Refugee Center Steering Committee chair, May 26, 1980 (complaining of Jean-­Juste’s activism and criticism of the Catholic archdiocese of Miami), Box 32, File 3, Kurzban Papers. 58. See, for example, the motions for preliminary injunctive relief in the challenge to the Haitian Program, Complaint for Declaratory Relief, Injunctive Relief, and Relief in the Nature of Mandamus, Haitian Refugee Center v. Civiletti, No. 79-­2086 (S.D. Fla. July 23, 1979), and in the suit seeking work authorization for Haitians paroled into the United States pending the completion of their exclusion proceedings following the collapse of the bargain struck between the NCC and Castillo, Complaint for Declaratory, Injunctive, and Mandatory Relief and Specific Performance Class Action, National Council of Churches v. Egan, No. 79-­2959 (S.D. Fla. 1979), Box 29, File 1, Kurzban Papers. 59. See HRC v. Civiletti, 503 F. Supp. 442, 512 (1980). See Stepick (1982) for a detailed account of the suit. 60. There is significant body of literature on litigation as a tool for progressive social change (Galanter 1974; Tushnet 2004), the effects of elite and professional organization participation on radicalism within social movements (Hilbink 2006; Mack 2006), and cause lawyering and social movements more generally (Kawar 2015; McCann 2004; McCann 2006; Sarat and Scheingold 2006; Scheingold and Sarat 2004). The larger corpus of writing on these topics is voluminous and far exceeds these meager citations, listed here only to give one a lay of the land. Legal liberalism, described by Laura Kalman (1996, 2) as “the trust in the potential of courts, particularly the Supreme Court, to ‘bring about those specific social reforms that affect large groups of people such as blacks, or workers, or women,” and its conservative reimagining (Teles 2008), have also received a good deal of scholarly attention. Of course, as I explain in the notes to the introduction, I use the terms liberal legalism and liberal legalities both more broadly and more specifically than Kalman to refer to a certain anthropology, in the philosophical sense of the term, of human reason and desire and its inscription within a political and legal cosmology riven by foundational tensions. Though this chapter and the larger work are informed by the wider, interdisciplinary literature on law and social movements, my goal,

276  Notes to Pages 75–79 as should be clear by now, is not to resolve the question of the transformative capacity of law with any positivist empirics, in the limited sense of that term (cf. Suchman and Mertz 2010). I do not intend to provide a clear policy prescription or normative evaluation. Rather, I am interested in the ways law has emerged as an engine in the production of new political spatialities that are remaking the modern nation-­state in monumental ways. 61. Certainly there had been significant victories on the side of those seeking relief from deportation in the past, but none had been as successful in shutting down bureaucratic apparatuses from the outset to the degree that occurred with this litigation campaign. For example, the successful litigation waged on behalf of Wong Kim Ark in the context of the Asian exclusion policies of the late nineteenth century established birthright citizenship for the children of Chinese noncitizens born in the United States, permitted the reentry of such citizens into the United States after trips abroad, and shielded others from deportation (Salyer 1995, 99; McClain and McClain 1991). The difference, however, is that the Wong Kim Ark litigation did not involve the disruption of an ongoing removal program through restraining orders and injunctions applicable to large classes but rather relied on a single habeas suit and the Supreme Court’s eventual articulation of the norm of birthright citizenship. 62. The term chronotope is a neologism coined by Mikhail Bakhtin to describe the “temporal and spatial relationships that are artistically expressed in literature” (1981, 85). The concept has been applied more generally within semiotic anthropology to refer to the socioculturally constituted spatiotemporal envelopes through which all people experience the world (Silverstein 2011, 65). I will examine the usefulness of the concept in greater depth in chapter 3. For an exploration of its applicability to sociolegal studies specifically, see Valverde (2015). 63. Memorandum of Mario T. Noto, INS deputy commissioner, to Leonel Castillo, INS commissioner, re: “Haitian Undocumented Aliens,” July 20, 1978 (hereinafter Haitian Undocumented Aliens Memo), Box 36, File 4, Kurzban Papers. 64. Id. at 2. 65. Stopping “Mother Ships”—A Loophole in Drug Enforcement: Hearing Before the Subcomm. to Investigate Juvenile Delinquency of the Comm. on the Judiciary, 95th Cong. 2 (1978) (testimony of Senator Strom Thurmond). 66. See Administration’s Proposals on Refugee and Immigration Policy: Joint Hearing Before the Subcomm. on Immigration, Refugees, and International Law of the House Comm. on the Judiciary and the Subcomm. on Immigration and Refugee Policy of the Sen. Comm. on the Judiciary, 97th Cong. 29 (1981) (hereinafter Administration’s Proposal Hearings) (testimony of Representative Bill McCollum). 67. See Haitian Undocumented Aliens Memo, supra note 63 at 3. 68. See various State Department cables, 1978–79, Box 11, Folder 7, Gollobin Papers. 69. See id. 70. See, for example, message from American Embassy, Port-­au-­Prince, Haiti, to secretary of state, Washington, DC, re: “43 Haitians at Guantanamo,” July 1979, Box 11, Folder 7, Gollobin Papers; message from secretary of state, Washington, DC, to American Embassy, Port-­au-­ Prince, Haiti, re: “Haitians at GTMO,” July 1979, Box 11, Folder 7, Gollobin Papers. 71. United States as a Country of Mass First Asylum: Hearing Before the Subcomm. on Immigration and Refugee Policy of the S. Committee on the Judiciary, 97th Cong. 6 (1981) (testimony of Senator Alan K. Simpson).

Notes to Pages 79–82 277 72. Looming changes in the landscape of immigration law further added to the atmosphere of transition. For example, the congressional Select Commission on Immigration and Refugee Policy was touring the country during these tumultuous years, gathering data for its final report to the president (see newsletter of the Select Commission on Immigration and Refugee Policy, no. 2 [December 1979]). Around the same time, Senator Ted Kennedy and Congressman Peter Rodino had introduced the Carter administration’s new refugee legislation, which, when passed in the spring of 1980, would formally, though not in practice, unmake the realist geography of alliance that had dominated refugee and asylum policy for decades by removing any reference to communism or the Middle East in the refugee definition and adding value neutral language concerning asylum hearings (Loescher and Scanlan 1986, 154–55; Tichenor 2002, 247). Based on my own interviews with individuals present during the drafting of the legislation, Michael Posner, the founding director of what was then the Lawyers Committee for International Human Rights, and the supervisor of that organization’s 1978 investigation of the Haitian Program, was instrumental in inserting the language regarding asylum into the proposed bill and did so with the Haitian situation in mind, another contribution of the campaigns to the evolving frameworks of US asylum law. 73. Larry G. Willet memorandum re: “Monthly Entrant Report for February,” Department of Health and Human Services, March 11, 1981, Kurzban Papers. 74. Ronald Reagan, “Address Accepting the Presidential Nomination of the Republican Party,” July 17, 1980, available at http://www.presidency.ucsb.edu/ws/?pid=25970. 75. Declaration of Bernard W. Aronson, January 29, 1992, HRC v. Baker, No. 91-­6105 (11th Cir. Jan. 29, 1992), McNary Case File. 76. Proclamation No. 4865, 46 Fed. Reg. 48107 (Sept. 29, 1981). 77. The Marielitos, unlike previous refugees from the island who had come by sea or by plane, were stigmatized as the dregs of the Cuban prisons and asylums Castro had opened in an effort to rid the country of thousands of “undesirables” (Fernández 2007, 604, 605, 609; see also Masud-­Piloto 1988, 93–97). For the idea that the arrival of both the Marielito Cubans and the Haitians threatened American democracy, see Administration’s Proposal Hearings (testimony of Attorney General William French Smith), supra note 66. 78. See Administration’s Proposal Hearings, supra note 66. 79. Gregory Bateson developed the concept of schismogenesis in the 1930s to supplement existing models of culture contact with an account of escalating disequilibrium between groups (1978, 68). For purposes of this chapter, the term is useful as a way of thinking through dynamic change that emphasizes iterative and agonistic confrontations and the “extreme rivalry” they produce (68). In particular, I am interested in revealing the spatial practices and effects of this “excessive emphasis” of an adversarial pattern (68). 80. See also Benjamin Hiller, special assistant to the attorney general, memorandum re: “Meeting of the President’s Task Force on Immigration and Refugee Policy,” May 19, 1981, Box 50, File 1, Kurzban Papers. 81. Up until the early 1980s, Haitian migration never amounted to more than 2 percent of unauthorized migration more generally (see Coast Guard Oversight Part 2: Hearings Before the Subcomm. on Coast Guard and Navigation of the Comm. on Merchant Marine and Fisheries House of Representatives, 97th Cong. 13 [Sept. 17, 1981, testimony of David Hiller, special assistant to the attorney general, Department of Justice]). This suggests, of course, that the Haitian

278  Notes to Pages 82–85 policy was driven by powerful anxieties and other affective mobilizations rather than the self-­ evident and impartial technocratic calculus that the officials involved presented as the logic behind the programs. 82. Office of Foreign Operations, Immigration and Naturalization Service, “The U.S. Immigration and Naturalization Service Alien Migrant Interdiction Operation,” n.d., McNary Case File (also located in Box 88, File 2, Kurzban Papers). 83. “An Aggressive and Effective Approach to Litigation,” INS Reporter, Fall/Winter 1983/1984, 22–23. 84. Deposition of Rudolph W. Giuliani, Louis v. Nelson, No. 81-­1260 Civ EPS (S.D. Fla. March 5, 1982), Box 50, File 2, Kurzban Papers. This “task force” method should not be confused with the President’s Task Force on Immigration and Refugee Policy mentioned earlier. 85. The litigation and political strategies developed by the Haitians and their collaborators would serve in many respects as a model for future litigation brought on behalf of Salvadorans and Guatemalans in subsequent years (cf. Coutin 2000, 2011; Churgin 1996) in major lawsuits in which OIL also became the primary adversary. The role of the Haitian movement as a precursor to these later campaigns is often overlooked. 86. Minutes of Haitian Refugee Steering Committee, Jan. 30, 1979 (mentioning formal nomination of Fr. Jean-­Juste to directorship of the HRC), Box 32, File 2, Kurzban Papers. 87. A board member of the HRC at the time of the transition confirmed that the NCC continued to support the new, Haitian-­run center. See also board meeting minutes, Haitian Refugee Center, July 6, 1981 (showing continued NCC funding), Box 63, File 1, Kurzban Papers. 88. Processing of Haitian Cases Memo, supra note 49. 89. The administration’s legislative proposals also contained language that would remake the asylum-­processing regime in the image of exclusion as it existed before the 1977 Castillo compromise with the NCC, though, in the end, Congress refused to indulge this attempt to gut the asylum adjudication regime of procedural protections (Zucker 1983, 159–60). 90. See Louis v. Meissner, 530 F. Supp. 924, (S.D. Fla. 1981). 91. The spatial reach of the pro bono project can be seen in the planning documents coordinating representation across the United States, from Miami to San Diego. See memorandum of John B. Arango to coordinators of Haitian Refugee Project, re: “Steps to Be Taken to Avoid a Lifting of the Injunction Prohibiting the INS from Proceeding against Unrepresented Haitians,” May 12, 1983, Box 54, File 2, Kurzban Papers. 92. See minutes of meeting of Interfaith Committee for Haitian Refugees, Dec. 18, 1981, Box 24, Folder 7, Gollobin Papers. 93. See “Organizations Attending Coalition Formation Meeting,” n.d., Box 24, Folder 7, Gollobin Papers; National Emergency Coalition for Haitian Refugees mailing, n.d., Box 25, Folder 10, Gollobin Papers. 94. Most Haitians from this and earlier groups eventually received legal status through the Immigration Reform and Control Act of 1986. 95. Coast Guard Oversight—Part 2: Hearing Before the Subcomm. on Coast Guard and Navigation of the H. Comm. on Merchant Marine and Fisheries, 97th Cong. 7 (1981) (statement of David Hiller, special assistant to the attorney general, Department of Justice). 96. Id. at 10. 97. See id. at 9.

Notes to Pages 85–88 279 98. United States as a Country of Mass First Asylum: Hearing Before the Subcomm. on Immigration and Refugee Policy of the S. Committee on the Judiciary, 97th Cong. 6 (1981) (statement of Thomas O. Enders, assistant secretary of state for Inter-­American Affairs). I use “quarantine” here both because it has operated as a legal euphemism in the past, for instance in characterizing the blockade of Cuba during the Cuban Missile Crisis of 1962 (Chayes 1974, 6), and because of the implicit metaphorical significance of this medical term, which will become clearer in chapter 3. 99. Coast Guard Authorization and Oversight: Hearing Before the Subcomm. on Coast Guard and Navigation of the H. Comm. on Merchant Marine and Fisheries, 97th Cong. 103 (Feb. 24, 1982) (testimony of Admiral John B. Hayes, commandant, Coast Guard); Department of Transportation and Related Agencies Appropriations for Fiscal Year 1985—Part 2: Hearings Before Subcomm. of the S. Comm. on Appropriations, 98th Cong. 787 (1984) (testimony of Senator Lawton Chiles and Admiral James S. Gracey, commandant, Coast Guard). 100. Lawyers Committee for Human Rights, “Refugee Refoulement: The Forced Return of Haitians under the U.S.-­Haitian Interdiction Agreement” 3 (March 1990). 101. Memorandum from Henry Chomentowski, interdiction officer, INS, to Ricardo Inzunza, deputy commissioner, INS, re: “Response to Report on the Alien Migrant Interdiction Operation by Lawyers Committee on Human Rights,” March 7, 1990, Box 86, File 3, Kurzban Papers. 102. See 5 U.S. Op. Off. Legal Counsel 242 (1981). The Office of Legal Counsel (OLC) is a Justice Department entity that issues binding legal opinions on executive policies as an internal agency check. For a description of the OLC’s duties and a critique of its susceptibility to capture from the power brokers it counsels, see Morrison (2010). 103. Transcript of proceedings, in re: “Order to Show Cause, Haitian Centers Council, No. 92-­1258 30, 34 (E.D. NY. March 18, 1991),” Haitian Centers Council Inc. v. McNary Case File, National Archives and Records Administration Branch, New York (hereinafter McNary NARA). 104. Lizette Alvarez, “Haiti Coup Puts Refugees in Limbo with INS,” Miami Herald, Oct. 23, 1991, Section B, pp. 1, 2; message from US commander in chief, Atlantic Command, Norfolk, Virginia, Dec. 4, 1991, McNary Case File. 105. Howard W. French, “U.S. Is Holding 200 Haitians on 2 Ships,” New York Times, Nov. 8, 1991. 106. Cable from secretary of defense re: “Public Affairs Guidance—USINCLANT Establishment of a Joint Task Force,” Nov. 1991 [date unclear], McNary Case File. 107. Seventh Coast Guard District Law Enforcement Brief re: “Alien Migrant Interdiction Operations VICN Haiti,” Nov. 25, 1991, McNary Case File; US Coast Guard Escanaba, “Situation Report,” Nov. 24, 1991, Box 256, Folder 3, CGHO MIC. 108. On the Confidence’s repatriation mission, see commanding officer, US Coast Guard cutter Confidence, “After Action Report—Checkmate 7,” Nov. 24, 1991, McNary Case File. For the announcement of the policy and a description of the failed efforts to find third-­country processing sites, see Howard French, “U.S. Starts to Return Haitians Who Fled Nation After Coup,” New York Times, Nov. 19, 1991. 109. HRC v. Gracey, 809 F.2d 794 (D.C. Cir. 1987). 110. “INS Revises Policy for Screening Haitians Interdicted at Sea,” 793, 794 Interpreter

280  Notes to Pages 89–90 Releases, 794 July 1, 1991. Besides the suit in the DC Circuit and the Lawyers Committee report, there was one additional frontal assault on interdiction. Approximately one year before the coup, Peter Schey, who had been selected by Gollobin to work with Kurzban and Swartz on the Haitian Program litigation in the late 1970s, filed a petition with the Inter-­American Commission on Human Rights on behalf of the NCHR challenging the interdiction policy. The effort yielded little in terms of enforceable relief (see NCHR v. U.S. Coast Guard, 1996 IACHR 150 [March 13, 1997]). The use of the term “screen-­in” in the body text is a reference to the technical vocabulary of interdiction’s asylum prescreening procedures, as noted in chapter 1. Haitians who failed to meet the modest “credible fear” standard developed during the interdiction processing reforms of 1990 were “screened out.” Those who passed were “screened in” and brought to the United States where they could pursue their asylum claims further. Being “screened in” was no guarantee that one would eventually be granted asylum; it only offered an opportunity to pre­sent one’s case before administrative adjudicators, and, to pursue judicial review in the federal courts. I explore these legal categories and the details of the high seas screening practices in greater detail in chapter 4. 111. HRC v. Baker, 1991 WL330942 (S.D. Fla. Nov. 19, 1991). 112. See HRC v. Baker, 789 F. Supp. 1552, 1557-­58 (S.D. Fla. Dec. 3, 1991); HRC v. Baker, 789 F. Supp. 1579, 1580 (S.D. Fla. Dec. 20, 1991); HRC v. Baker, 1991 WL 330943 (S.D. Fla. Dec. 23, 1991); HRC v. Baker 502 U.S. 1083 ( Jan. 31, 1992); HRC v. Baker, 953 F.2d 1498, 1504 (11th Cir. Feb. 4, 1992). 113. One document produced during discovery in the Haitian Centers Council Inc.  v. McNary lawsuit that followed the Haitian Refugee Center’s suit challenging the legality of interdiction suggests that there were some repatriations during this period, though it is unclear under what circumstances they occurred. See “Movement of Migrants from GTMO,” McNary Case File. It is possible that some of the returns were voluntary repatriations or that others, like the one that occurred on December 23, 1991, were the result of brief gaps between the Eleventh Circuit’s dissolution of a district court injunction and the district court’s entry of a replacement order enjoining the cutters once again. 114. The official military history of the event (Reynolds 2003, 5) and my own conversation with one of the Marine Corps officers present at the planning meetings leading up to the use of the base for detention purposes confirm that the decision to warehouse Haitians at Guantánamo rather than transfer them to the United States hinged on this question of Guantánamo’s location in American jurisdictional cartographies. By keeping the Haitians offshore, the administration of George H. W. Bush hoped to shield the screening program from judicial scrutiny. In many ways, this was nothing more than a riff on an older pattern of law evasion that had characterized the INS’s response to the Haitians since the early 1970s. 115. Refugee processing had already been simulated at the base in 1991 in anticipation of a potential future Cuban exodus (see command chronology, Period 1 January–31 December, 1991, February 28, 1992, Marine Corps Historical Center Archives [hereinafter MCHCA]). Nonetheless, it appears that in the days following the initial temporary restraining order, the joint task force was still struggling to stage tent cities of sufficient size to house the Haitians then being held in Guantánamo harbor. See message from USCINCLANT, Norfolk, Virginia, to Joint Task Force GTMO, re: “Operation Safe Harbor,” Nov. 25, 1991, US Atlantic Com-

Notes to Pages 91–95 281 mand Operation Guantanamo, 1991–1992, COLL/72, Naval History and Heritage Command, declassified pursuant to author’s Mandatory Declassification Review request (hereinafter NHHC MDR). 116. “AMIO Stats,” Nov. 26, 1991, McNary Case File. 117. I use the term foreign loosely here, given that the base was effectively US territory and would be recognized as such a little more than a decade later. See Rasul v. Bush, 542 U.S. 466 (2003); Boumediene v. Bush, 128 S.Ct. 2229 (2008). Moreover, the trope of the “foreign” and variations on it (for example, the Supreme Court’s characterization of certain US “possessions” as “foreign in a domestic sense”) have played a central role in the crafting of an American insular empire of plural jurisdictions and graduated sovereignty that would provide the framework for interpretations of Guantánamo’s legal identity in both the early 1990s and early 2000s (see chapter 5; cf. Stoler 2006). 118. Defendant’s Emergency Motion for Stay of Preliminary Injunction Pending Appeal, Haitian Refugee Center Inc. v. Baker (hereinafter “HRC v. Baker”), No. 91-­2653 (S.D. Fla. Dec. 3, 1991) (mentioning General Starr’s argument in district court), Box 90, File 1, Kurzban Papers. 119. Declaration of Robert Wolthuis, acting assistant secretary of defense for International Security Affairs, HRC v. Baker, No. 91-­6105 (11th Cir. Nov. 20, 1991), Box 83, File 1, Kurzban Papers; declaration of Bernard Aronson, assistant secretary of state for Inter-­American Affairs, Jan. 29, 1992, HRC v. Baker, No. 91-­6105 (11th Cir. Jan. 29, 1992) (hereinafter Aronson Declaration), McNary Case File. 120. See Aronson Declaration, supra note 119. For an insider’s account of these events, see Little (1999). 121. See HRC v. Baker, 953 F.2d 1498 (11th Cir. Feb. 4, 1992); see HRC v. Baker, 502 U.S. 1122 (Feb. 24, 1992). 122. Justice Blackmun penned the lone dissent to the court’s denial of certiorari (HRC v. Baker, 502 U.S. 1122 [1992]). 123. INS/GTMO statistical summary, Feb. 2, 1992, McNary Case File. 124. See “GAO Examines INS Detention Policies,” I69 No. 24 Interpreter Releases 772 ( June 29, 1992). 125. See declaration of Captain Roy J. Casto, United States Coast Guard, Nov. 29, 1991, HRC v. Baker, No. 91-­2653 (S.D. Fla), McNary Case File. For statistics on the joint task force as of the end of 1991, see Reynolds (2003, 8–9). 126. For an account of the founding of the Yale clinics and their progressive roots, see Wizner and Curtis (1980) and L. Holland (1999). For a history of the Lowenstein International Human Rights Clinic at Yale, which assumed primary responsibility for bringing the suit, along with its partner institutions, the Center for Constitutional Rights and the ACLU’s Immigrants’ Rights Project, see Goldstein (2005) and Scheffey (1991). Deena Hurwitz (2003) has also provided an illuminating account of the broader landscape of human rights clinics in the United States along with details on the Lowenstein Clinic’s place within it. 127. As noted, I will have a chance to delve into the creation of the HIV camp, the histories that made it thinkable in the first instance, and the litigation surrounding it in chapters to come. For accounts of the Yale team’s involvement that fit within the genre of legal academic and legal practitioner pieces, see Clawson, Detweiler, and Ho (1994), Koh (1994b), Koh and Wishnie

282  Notes to Pages 95–107 (2008), and Ratner (1998). Brandt Goldstein (2005) has written an assiduously researched, creative nonfiction account of the lawsuits as well. 128. HCC Inc. v. McNary, 969 F.2d 1350 (2d Cir. 1992). 129. Sale v. Haitian Centers Council Inc., 509 U.S. 155, 187 (1993). 130. The connection I draw here between the Guantánamo of the early 1990s and that of the post-­9/11 world is not meant to suggest that the covert and public aspects of the “war on terror” detention project of the early twenty-­first century were envisioned long before. Rather, I suggest that the types of extraterritorial freedom, itself a juridical construct, formalized in an earlier phase of empire and honed in the various Haitian refugee crises was often nearsighted in its inception and then impossibly vague in the imagined ends of its retention, maintained because of the immense possibility that its flexibility offered, whether it be with colonial subjects, Haitian asylum seekers, or “enemy combatants.” 131. See “Haitians to Be Processed in Jamaica for 6 Months,” Miami Herald, June 2, 1994, Sec. A p. 14. Curiously, in the aftermath of the 2010 Haitian earthquake, the Comfort provided medical assistance to Haitians injured in the disaster from its anchorage near Port-­au-­Prince. Its use in this context speaks to the potential repurposing of these infrastructural forms. 132. See Cuban American Bar Association v. Christopher, 43 F.3d 1412, 1417 (11th Cir. 1995). 133. See id. 134. “Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations,” Feb. 23, 1903, U.S.-­Cuba, T.S. No. 418. For further context on the drafting of the lease, its language, and its nineteenth- and twentieth-­century imperial analogues, see Press (2013). I will discuss these issues further in chapter 6, including the relation between sovereignty and property, here encapsulated in the possibility of maintaining complete jurisdiction and control over a swath of territory through a leasehold interest. 135. Cuban American Bar Association v. Christopher, 43 F.3d 1412, 1425 (11th Cir. 1995). 136. The chapter’s title derives from this sense that the crucible of legal conflict can be highly generative, its violent forces producing a laboratory of novel experimentation and replicable, modular forms. For a related discussion in the context of colonial governance, see Arendt (1976, 206).

Chapter 3 1. The capitalist component of this description is by no means essential. Socialist regimes offer their own teloi of modernity as well (Donham 1999; J. S. Kahn 2011). 2. For a discussion of a similar dynamic between Indian coastal spaces, temporal classifications, and development interventions relevant to the maritime imaginaries to which I will turn in later chapters, see Subramanian (2009). 3. The racist and paternalist aspects of the regime were of a piece with the American idea of the “negro problem” in general, which encompassed not only Haitians but all those of African ancestry (Schmidt 1995, 63). 4. In some quarters, justification for the occupation could be found in the idea that Haiti’s problems had developed because “[b]lack democracy had failed” (Fletcher 1930, 533). From this perspective, Haiti’s civil strife and bankrupt government were evidence of the failure of black Haitians to properly govern themselves since their independence in 1804.

Notes to Pages 107–117 283 5. Michel Foucault’s notion of “biopolitics” or “bio-­power” has been much described and much used by anthropologists, but it is worth including a brief description of its basic attributes here for those less familiar with the concept. Foucault considered biopolitics to be a politics whose target was the life processes of populations—that is, “the birth rate, the mortality rate, longevity, and so on . . . together with a whole series of related economic and political problems” (2003, 243). More famously, perhaps, he described it as the power that “brought life and its mechanisms into the realm of explicit calculations and made knowledge-­power an agent of transformation of human life” (1978, 143). In one version of his periodization of the development of western modernity, Foucault emphasized the rise of biopolitics and of discipline (those techniques of self-­care and self-­restraint that targeted individuals, not populations) as part of a shift in the progression from an older sovereign power (that operated with the threat of death) to a new governmentality (that worked through defining normativity and through the manipulation of life). In this scheme, “law operates more and more as a norm” and less and less as an institution rooted in the “sword” and “death” (1978, 144; see also Santner 2011). 6. Variants of the type of regimentation of biosocial spacing that these inspections achieved had been deployed in other US imperial sites (the Philippines, Cuba, Puerto Rico, Hawai’i, and the Panama Canal), which were then imported to the United States only to be re-­exported, in this case, to Haiti (Stern 2005, 21). 7. While the use of the term biosecurity might seem out of place here, these early biomedical screening techniques and their goal of protecting a sanitized labor supply are indeed examples of early biosecurity measures, albeit rudimentary ones not yet linked to the weaponization of disease agents that would become a primary concern of the early Cold War (see, e.g., Fidler 2006; Wald 2008, 165–70). 8. In 1952, the incidence rate for yaws in Haiti was 4,982.0/100,000. The next highest rate in the Americas occurred in French Guyana and amounted to 413.0/100,000 (or nearly one-­ twelfth of the incidence in Haiti) (Ronald St. John 1985, S267). 9. The Foreign Affairs Operations Administration replaced the Inter-­American Institute and was another predecessor organization of USAID (Soper 1956, 2). 10. Fairchild describes a “cleansing and scrutinizing process” on the US-­Mexico border “that was unparalleled in any other region” (2003, 153). And on the West Coast, unlike at Ellis Island, “all second-­class and steerage passengers” were separated for an intensive exam involving “inspection of the stripped body, stethoscopic examination of the chest, eversion of the eyelids, a salutatory test for the detection of beriberi, and microscopic examination of the centrifugalized feces” (134). Asians were separated from white passengers and also subject to intensive screening (134). 11. Quoted in Jeffery Kahn, “Tragedies Will Continue Officials Warn,” Palm Beach Post, Oct. 27, 1981. 12. Fears of a “Mexican invasion” via the Southwest border had erupted periodically during the twentieth century, but politicians, for the most part, did not view the influx from Mexico in the same way as they did the arrival of Haitians, Cubans, Guatemalans, and Salvadorans in the late 1970s and 1980s. In part, this is because the violence-­fueled exodus of Mexicans in the early 1900s (Rachel St. John 2011, 176) occurred under a different international legal regime than later mass migrations. By the 1980s, the problem of Mexican migration was considered to be largely economic in nature and did not have the same political, moral, or legal significance

284  Notes to Pages 117–123 as the arrival of thousands of asylum seekers looking for refuge from violence in their countries of origin (cf. Ngai 2004; Chavez 2008). 13. Meeting notes, “Meeting with Deputy Commissioner Noto—August 16, 1978” (original capitalization), Box 30, File 2, Kurzban Papers. 14. M. R. Stierheim, county manager, Dade County, Florida, Human Services to Haitian Aliens, urgent update, Jan. 18, 1979, Box 10, Folder 4, Gollobin Papers. 15. For further details on the history of Krome, see J. Lipman (2013). 16. “Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction,” Graham v. Smith, No. 81-­1497-­Civ. JE (S.D. Fla. n.d.), in appendix to United States as a Country of Mass First Asylum: Hearing Before the Subcomm. on Immigration and Refugee Policy of the S. Committee on the Judiciary, 97th Cong. 171 (1981). 17. Id. at 186. 18. Of course, the idea of “sexual disorder” to which Brandt refers has given birth to numerous racial stereotypes, such as hypersexualized “blacks” (1987, 116, 157) and “Jews” (Gilman 1985, 111). 19. Mary Douglas’s now classic formulation of “dirt as matter out of place” relies on the idea that in an ordered system, that which defies the ordering principle of the system is classified as a threatening “uncleanness” (1966, 36, 41). Povinelli has expanded on this, albeit in a quite different theoretical frame, with regard to the circulation of certain biomedical conditions between medically marked spaces, which can create a “biosocial fold of the Third World within the imaginary healthy body of the First World” (2006, 81). 20. See also Allen Feldman (1997, 34) and Elizabeth Povinelli (2006, 81) on bodies in and out of place. 21. It should be clear by now that the “Haitian threat” was more than inflammatory rhetoric. It was an “interactive” classification (Hacking 1999: 31) that not only constituted a particular public (Warner 2002) but also the social fields in which that public was embedded (Hacking 2006). Interactive “classifications do not exist only in the empty space of language,” Ian Hacking reminds us, “but in institutions, practices, material interactions with things and other people” (1999, 31). By aggregating a variety of characteristics, some real, some invented, under the label the “Haitian threat,” the INS framed interactions with Haitians in light of their “threatening” traits, giving both the “threat” category and the group status a social reality independent of the characteristics of actual, individual Haitians. Whether a particular group of Haitian asylum seekers was in fact “threatening,” their classification as such likely shaped interactions with them and certainly produced a wide array of institutional projects and interventions—for example, medical screening, policing, detention, exclusion, and deportation—­ oriented around their perceived undesirability. 22. Swine Health Protection Act: Hearing Before the Subcomm. on Department Investigations, Oversight, and Research of the H. Comm. on Agriculture, 96th Cong. 14, 16, 36, 49 (1980). 23. See Louis v. Nelson, 544 F. Supp. 1004 (S.D. Fla. June 29, 1982); Jean v. Nelson, 711 F.2d 1455 (11th Cir. April 12, 1983). 24. 8 U.S.C. § 1182(a)(6) (1988). 25. See 52 Fed. Reg. 21607-­01 ( June 8, 1987) (the full list included chancroid, gonorrhea,

Notes to Pages 123–131 285 granuloma inguinale, lymphogranuloma venereum, infectious syphilis, infectious leprosy, and active tuberculosis). 26. Tuberculosis was the only disease on the list that required potentially complicated and expensive treatment, and it is the only disease that the secretary of the Department of Health and Human Services proposed to retain when overhauling the list in the early 1990s (McCormick 1993, 158). 27. Cong. Rec. S14285 ( June 2, 1987) (statement of Senator Helms). 28. Id. at 14286, 14290. 29. 52 Fed. Reg. 32540 (Aug. 28, 1987) (emphasis added). 30. Cong. Rec. S14289 ( June 2, 1987) (statement of Senator Simpson). 31. Reference to the uncanny here is not meant to signal an effect of repression but rather the disorienting sense of encountering a set of practices coded as belonging to the past but that have appeared, remade, in the present (cf. Munn 2013). 32. Other writers have explored the HIV camp from various perspectives, including detailed analyses of the battles over the legality of the camp (Clawson, Detweiler, and Ho 1994; Koh 1994b; Koh and Wishnie 2008; Powell 1993; Ratner 1998), a comparison of American and Cuban approaches to HIV quarantine (Farmer 2005), and a creative nonfiction account of both the legal struggles and the experiences of the detained Haitians (Goldstein 2005). None, however, have taken the approach I use here, situating the camp within the longer history of chronotopic imaginaries and jurisdictional transformations that remade American sovereignty and the US immigration border. 33. Deposition of Grover Joseph Rees III at 19–20, March 31, 1992, HCC v. McNary (E.D. NY.), McNary Case File. 34. The actual HIV tests were performed in laboratories in the United States. See id. 35. Dr. Michael Mann, the founding director of the World Health Organization’s AIDS program, stated during the Haitian Centers Council trial that at the time, the estimated number of HIV-­infected individuals in the United States was approximately 1 million. See testimony of Michael Mann, Haitian Centers Council Inc. v. McNary, No. 92-­1258 371 (E.D. NY. March 10, 1993). This meant that a decision to allow the detained HIV-­positive Haitians to enter the United States would have increased the number of infected individuals in the United States by less than 0.03 percent. 36. “Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Temporary Restraining Order and for Preliminary Injunctive Relief, and in Support of Defendants’ Motion to Dismiss the Complaint” at 81, Haitian Centers Council Inc. v. McNary, No. 92-­1258 (E.D. NY. March 20, 1992) (emphasis added), McNary Case File. 37. Cong Rec. S2863 (Feb. 17, 1993) (statement of Senator Helms). Helms identified the social welfare programs with which he was concerned explicitly elsewhere in his testimony, mentioning “Medicaid and AFDC and other support funds on down the line.” Id. Senator Helms’s estimate of a 15 percent infection rate was exaggerated. The actual rate was more likely 10 percent in urban areas and 5 percent in the rural interior (Pape and Johnson 1993). 38. Id. at 2860 (statement of Senator Nickles). 39. Michael D. Shear and Julie Hirschfeld Davis, “Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda,” New York Times, December 23, 2017.

286  Notes to Pages 131–137 40. Josh Dawsey, “Trump Derides Protections for Immigrants from ‘Shithole’ Countries,” Washington Post, January 12, 2018. 41. Liminality has long been one of the key words within the discipline of anthropology. Victor Turner (1967) explained the concept this way: “If our basic model of society is that of a ‘structure of positions,’ ” then liminality is “an interstructural position” (93), a “betwixt-­ and-­between” state, period, or place (110). Turner’s original elaboration of the concept drew heavily on Arnold van Gennep’s own model of “rites of passage” and focused to a large degree on rituals of transition—for example, first fruits ceremonies, chief installations, circumcisions. Anthropologists working on questions of migration have found the concept to be a useful tool for thinking through what sociologist Roberto Gonzales (2016) has described as the “passage migrants make as they transition from one society to another” (100) and the potential of becoming “locked” in a juridically marginal status that may follow from such a transition (2; see also Chavez 1998). Liisa Malkki has used the term to wrestle with the entailments of refugee status under a “national order of things” that locates the displaced as interstitial within that order (1995a, 4). In an interesting twist, Julie Chu has explored the liminality not of those subjects who have become mobile but of those who have remained in place, perpetual migrants “in waiting” in a milieu where stasis equals stagnation (2010, 1, 11–12). Here, I am interested in the conditions of possibility and implications of coding sites like Guantánamo as in-­between spaces within certain instantiations of an existing legal cosmology, a topic I will return to in chapter 5. 42. In re D-­J-­, 23 I&N Dec. 572, 579 (BIA 2003). 43. Id.

Chapter 4 1. Such stops were a fairly common occurrence for voyages of this sort, many of which would not have been possible without the hospitality offered in port towns like Maisí and other settlements along Cuba’s northern coast. 2. Quotations have been drawn from In re SS et al., Exclusion Hearing Transcript, Immigration Court, Miami, FL, Judge Mattingly, July 27, 1973, Box 33, File 14, Kurzban Papers. The pickup location was identified in a message sent from the district director to the director of the Office of Refugee and Migration Affairs of the US Department of State. See letter from Robert L. Woytych, district director, Immigration and Naturalization Service, Sixth District, to Office of Refugee and Migration Affairs, US Department of State, re SS et al., n.d. (hereinafter “District Director Letter re SS et al.”), Box 33, File 14, Kurzban Papers. The departure location was identified in an affidavit filed by one of the Miss Nee applicants. See affidavit of WL, Sept. 28, 1975, Box 1, Folder 3, Gollobin Papers. 3. This quotation is not drawn from the letter sent to William Joseph, which I was not able to locate, but to another Haitian asylum applicant. See “Notice to Applicant for Admission Detained for Hearing before Special Inquiry Officer,” May 30, 1973, Box 33, File 17, Kurzban Papers. At the time, however, Haitian asylum seekers in exclusion proceedings received identically worded letters. 4. Supra note 2, District Director Letter re SS et al. (accents in the term “resume” added). 5. I find Hull’s phrase graphic artifact useful as it emphasizes the materiality of inscription

Notes to Pages 139–146 287 and the relevance of objects’ “non- and para-­linguistic semiotic functions,” although my own focus in this chapter deals less with the mediating effects of the physical form of documents (2012a, 259n1). Still, at times I use the more conventional (within linguistic anthropology, that is) phrase “text artifact.” For a discussion of the potential implications of using one phrase over the other (or rather, a lack of implications), see Nakassis (2013b). In spite of the appeal of Hull’s approach, I am a bit hesitant about certain aspects of his version of actor-­network theory, including his reluctance to engage with the unrealized potentialities of material affordances (Hull 2013, 445). 6. See affidavit of William Joseph, n.d., Box 1, Folder 3, Gollobin Papers. 7. Matthew Hull specifically emphasizes the importance of avoiding just such a framing of ethnographies of bureaucracy around the spatial concept of a “terrain of operations” (2012a, 21). While Hull’s own ethnography, which was made possible by such an orientation, is deeply compelling, I fear his foregrounding of the circulation of document-­actants, to which he gives primacy over the aforementioned terrain, does not translate to instances where, as here, that terrain plays such an enormous role. 8. Declaration of Eric M. Lieberman, Dec. 15, 1976 (hereinafter “Lieberman Declaration, Dec. 15, 1976”), Box 28, File 1, Kurzban Papers. 9. See Bob O’Steen, “Haitians Get Food, Beds as Legal Fight Goes On,” The Voice, July 12, 1974; Church World Service, “Haitian Refugees Need Asylum: A Briefing Paper,” April 1980, pg. 10, Box 40, File 2, Kurzban Papers. 10. Lieberman Declaration, Dec. 15, 1976. 11. See id. 12. See supra note 2, District Director Letter re SS et al. 13. See supra note 2, District Director Letter re SS et al. The term “reported speech” refers to the act of “represent[ing] the speech of others,” through direct quotation, paraphrase, or other means (Conley and O’Barr 1993, 53). 14. For an account of multiple voicings pursued through the conceptual lens of “translation,” see Giordano (2014, 165). 15. As noted in the introduction, a focus on language in its “referential,” or denotative, mode, is a focus on literal meaning—that is, what a given strip of discourse is literally referring to as opposed to the context it implies or helps constitute. I use the term here to suggest that there was an assumption of an unproblematic correspondence between the entextualized version of the interview and what actually happened to the Haitian applicant whose narrative, and by extension, whose life, it was meant to denote. 16. Years later, INS officials struggling to discern credible asylum claims in the wake of the Aristide coup began to fixate on the purity of the narratives they were encountering aboard the cutters and at Guantánamo. Their skepticism crystallized as the notion that many of the stories the INS screeners heard during the brief interview sessions were “camp stories”—that is, successful asylum narratives shared between Haitians who had already undergone interviews and those still awaiting screening. See memorandum of Gregg A. Beyer, director of Asylum, Immigration and Naturalization Service, Nov. 12, 1991, re: “Continuing Interdiction of Haitians: Suspension of INS Pre-­screening,” Exhibit 5 to Gregg A. Beyer Deposition, HCC Inc. v. McNary No. 92-­1258 1 (E.D. N.Y. May 4, 1992), McNary Case File. The fear that “screened-­in” Haitians would share their stories with unscreened Haitians who would then use them to craft

288  Notes to Pages 146–154 their own narratives led to recommendations to suspend prescreening altogether and eventually shaped the regimentation of space aboard the cutters, the built environment of confinement at Guantánamo itself, the access the Haitians detained there had to media, and the access their attorneys had to information regarding the INS’s criteria for determining a valid asylum claim. These are, unfortunately, topics that I cannot attend to fully here. 17. “Notice to Applicant for Admission Detained for Hearing before Special Inquiry Officer sent to MJP,” May 30, 1973, Box 33, File 17, Kurzban Papers. 18. See Immigration and Naturalization Service Operations Instructions § 108.1 (1974). 19. Id. (emphasis added). 20. The reference to “discourse managers” is an allusion to Judith Irvine’s work on how “the management of discourse”—in the sense of the “appropriate use of language” in a given context—may involve a set of techniques that are both scarce within a population and, as such, may exist as marketable “economic resources” (1989, 256). 21. Transcript of Hearing, In re JP et al. 10 (Miami Immigration Court, Jul. 31, 1973) (hereinafter “In re JP Transcript”), Box 33, File 11, Kurzban Papers. 22. See id. at 19. Regarding Judge Monsanto’s involvement in the Beauvil v. Ahrens case, see In re Haitian Refugees, 8 (BIA Dec. 3, 1963). I use Beauvil as the shortened form of the case caption throughout to refer to both the Board of Immigration Appeals (BIA) opinion, just cited as In re Haitian Refugees, and the ultimate per curiam opinion of the court of appeals that affirmed the district court’s denial of a writ of habeas corpus, although the appellate opinion contains little in the way of legal reasoning when compared with the opinion of the BIA. I have chosen this labeling because it appears, based on trial transcripts, that this was how the immigration judges referred to the various opinions related to this particular group of Haitians at the time, not quite specifying whether they were referring to the opinion of the BIA or the opinion of the court of appeals. The BIA opinion appears as Beauvil v. Ahrens as well in figure 4.3, as will become apparent shortly. 23. See In re JP Transcript, supra note 21. 24. 357 U.S. 185, 187 (1958). 25. To quote Wittgenstein, “[a] totality of judgments is made plausible to us,” not rules in isolation (1969, 21e). Even when submerged or felt only as an unspecific presence, a haze in the distance, such judgments form part of a larger assemblage. Often in legal practice, the full depth of citational interconnection does not come to the surface, and yet, in many instances legal commentators do follow such indexical chains across centuries, theorizing doctrinal consistencies and aberrations, and, at times, historicizing their emergence. Work of this sort has the capacity to inflect the professional “common sense” cultivated as part of elite legal education, particularly through its distillation of numerous cases into pithy statements of doctrinal summation. For legal scholarship in this vein related to the bodies of law discussed here, see Aleinikoff (2002), Cleveland (2002), Koh (1990), and Motomura (1990), to name only a few. 26. The 1967 UN Refugee Protocol incorporated by reference the substantive definition of refugee, persecution, and the bar on refoulement contained in the 1951 UN Convention Relating to the Status of Refugees, albeit without the dateline that restricted the Convention’s applicability to events occurring prior to 1951 (D. Martin 1990, 1259). For a discussion of the refugee definition, see chapter 1.

Notes to Pages 155–166 289 27. Memo to “Instructions” File re “Affidavit-­taking” at 1, May 1, 1976, Box 33, File 3, Kurzban Papers. 28. Id. at 5–6. 29. The dramaturgical aspects of legal presentation are not unique to litigation in the asylum context; to the contrary, the idea of trials as performances (Merry 1994, 36) is commonplace and has informed the training process of effective lawyering in general (Alper et al. 2005). 30. See Eric Lieberman, National Emergency Civil Liberties Committee, to Richard H. Gullage, acting district director, Immigration and Naturalization Service, re: “Marie Sannon, et al. v. U.S.A., No. 74-­428-­Civ.-­JLK,” Nov. 23, 1976, Box 28, File 1, Kurzban Papers. 31. Affidavit of Eric M. Lieberman at 11, Dec. 15, 1976, Box 28, File 1, Kurzban Papers. 32. Edward T. Sweeney, district director, Sixth District, Miami, Immigration and Naturalization Service, to Eric Lieberman, re: “Marie Pierre . . . ,” Dec. 15, 1976, Box 28, File 1, Kurzban Papers. 33. Eric M. Lieberman to Edward T. Sweeney, district director, Immigration and Naturalization Service, re: “letter dated Dec. 15, 1976,” Jan. 13, 1977, Box 28, File 1, Kurzban Papers. 34. An alternative interpretation of the INS approach would involve ascribing bad faith to those who created the screening procedures—that is, the INS was aware that it had created a series of justifications for its procedures designed to merely cloak them in legitimacy without providing actual meaningful review. Certainly, some involved may have viewed the process in this way. Nonetheless, the screeners and their supervisors relentlessly presented themselves as acting in good faith in the media and the courts. If we are to take their self-­presentation seriously, then we must also take seriously the notion that they had adopted, consciously or not, some variation of the inscription and evaluation ideology I have laid out in the text. 35. See Petition for Writ of Habeas Corpus, In re Ketley Jean-­Baptiste, No. 75-­2124-­Civ-­JE 6 (S.D. Fla. Oct. 2, 1975), Box 28, File 9, Kurzban Papers. The earlier habeas petition filed by Bierman and Sonnett (see chapter 2) also attacked the structure of exclusion, although not by reference to the UN Protocol. Instead, it focused on the US Constitution itself. See Petition for Writ of Habeas Corpus, In re Pierre, Civ.-­JLK-­428 4 (S.D. Fla. April 4, 1974), Box 27, File 2, Kurzban Papers. 36. See Petition for Writ of Certiorari, Marie Pierre v. United States of America, No. 77-­53 (March 7, 1977), Box 27, File 2, Kurzban Papers. 37. Id. at 20. 38. Transcript of Proceedings, Matter of Pierre, 3 (Miami Immigration Court, May 24, 1973), Box 33, File 19, Kurzban Papers. 39. See, e.g., Matter of Pierre et al., 14 I&N Dec. 467 (BIA 1973). 40. Marie Sannon v. United States, 427 F. Supp. 1270, 1277 (S.D. Fla. 1977). 41. By habitus, I am referring to an embodied tendency toward a feeling of the “real”—an ingrained apprehension of a baseline of shared understandings that often requires no further reasoned elaboration (Bourdieu 1977). 42. For other, less-­developed uses of infrastructure-­like analogies in the social analysis of law, see Susan Coutin (2011, 570) and Sally Merry’s archaeological metaphors (2004, 570). 43. See memorandum from David Hiller, special assistant to the attorney general, to the secretary of state et al. re “Meeting of the President’s Task Force on Immigration and Refugee

290  Notes to Pages 168–174 Policy, Thursday, May 21, 1981, 10:​00 am, Office of the Attorney General,” May 19, 1981, Box 50, File 1, Kurzban Papers. 44. Proposed Interdiction of Haitian Flag Vessels, 5 Op. Off. Legal Counsel 242, 245 (1981). 45. See id. at 244. 46. Id. at 243. 47. Id. 48. Memorandum from Larry L. Simms, deputy assistant attorney general, Office of Legal Counsel, to the associate attorney general re: “Status of Guantanamo Bay,” Oct. 27, 1981, released pursuant to author’s FOIA request. 49. Id. at 244. 50. 8 U.S.C. § 1182(f ) (1981). 51. See Agreement Effected by Exchange of Notes, Sept. 23, 1981, US-­Haiti, 33 U.S.T. 3559. 52. See Proclamation No. 4865, 46 Fed. Reg. 48,107 (1981); Exec. Order No. 12, 324, 46 Fed. Reg. 48,109 (1981). 53. Memorandum from Doris M. Meissner, acting commissioner, INS, to all INS employees assigned to duties related to interdiction at sea, re: “INS Role in and Guidelines of Interdiction at Sea,” Oct. 6, 1981 (hereinafter “1981 INS Guidelines”), Box 88, File 3, Kurzban Papers. 54. Message from Coast Guard commandant re: “Haitian Interdiction Operation: Implementing Order,” Oct. 1, 1981, Box 34, File 2, Kurzban Papers. 55. J. E. Shkor, legal officer, US Coast Guard, memorandum to chief, Operations Division, US Coast Guard, re: “Haitian Interdiction,” Oct. 5, 1981, Box 34, File 2, Kurzban Papers. 56. 1981 INS Guidelines, supra note 53. 57. See Transcript of Hearing, Matter of Nelson Thomas, 12–13 (Miami Immigration Court, June 8, 1973), Box 33, File 12, Kurzban Papers; see also Raymond W. Laugel, director, Office of Refugee and Migration Affairs, US Department of State, to Robert Woytych, district director, Sixth District, INS, re: “twenty-­one Haitian nationals who arrived in Miami on May 27, 1973,” June 1, 1973, Box 33, File 12, Kurzban Papers. 58. For a description of these migration circuits and the conditions in which the Haitians lived, see Richman (2005, 34, 62). 59. See INS Interview Record of Nelson Thomas, May 11, 1982, Box 33, File 12, Kurzban Papers. 60. See id. 61. See id. 62. 1981 INS Guidelines at 2, supra note 53. 63. Memorandum of Sandra Stevens, special assistant to the deputy commissioner, INS, to Andrew J. Carmichael, associate commissioner, Examinations, re: “Processing of Haitian Asylum Claimants—Interdiction Program,” Aug. 25, 1982, Box 33, File 12, Kurzban Papers. 64. Lawyers Committee for Human Rights, Refugee Refoulement: The Forced Return of Haitians under the US-­Haitian Interdiction Agreement 3 (March 1990). 65. Pointing to these statistics is not meant to refocus attention on propositional content— the “truth” of the asylum narratives at issue. Instead, the purpose is to show how overdetermined the evaluation outcomes were. Given what we know of the political situation in Haiti, one would imagine that screening in accordance with the less stringent criteria ostensibly in use would have identified more cases for transfer to the United States than it did, regardless

Notes to Pages 174–176 291 of the “truth” of the narratives elicited in such instances. For example, we know that between 1981 and 1988, admittedly a different time period than that covered by the Lawyers Committee report statistics cited earlier, INS district directors, not known for their leniency toward Haitian claims, granted approximately 2.7 percent of applications filed. See “Statistics re: Haitian Asylum Claims before the District Director and Immigration Judges,” McNary Case File. Moreover, in such instances the district directors were applying the tougher criteria of domestic asylum law, not the “suggest[ion]” of “a legitimate claim to refugee status” standard supposedly being used by interdiction officers. See 1981 INS Guidelines, supra note 53. Still, district directors granted these claims at a rate of 100 times that of offshore interdiction screeners, who transferred approximately .027 percent of those screened to US soil for further hearings. With regard to immigration judges, I was only able to locate statistics for 1987 and 1988, although those data are revealing as well. During that time period, the grant rate for Haitian asylum claims in immigration court was 3.9 percent, or 144 times what it was aboard the cutters. See “Statistics re: Haitian Asylum Claims before the District Director and Immigration Judges,” McNary Case File. These figures do not include any successes on appeal to the federal courts, nor do they account for the Haitians who received legal status through the Immigration Regulation and Control Act of 1986. One purpose of these comparisons is to show that rather than a regime of arbitrary offshore adjudications, one finds in interdiction a screening regime designed to create a flexibility in which a predetermined outcome became possible. In other words, the power that was operative on the cutters was anything but arbitrary. Its results were engineered. Given the political climate in Haiti during the 1980s, it is reasonable to assume that even an arbitrary system would have produced more than a .027 percent screen-­in rate, regardless of the actual—in the realist sense of that term—life events of those making such claims. My more general aim is not to reveal what a “correct” screen-­in rate should have been, however, but to explore how an adjudication regime so skewed in its results was created. 66. Since the early 1990s, the “credible fear” standard has been adopted as the relevant screening standard for asylum seekers at US border checkpoints and others who have been apprehended under specific conditions within the interior. See memorandum from Luis R. del Rio, director, International Affairs and Outreach, INS, to James A. Puleo, associate commissioner, Examinations, INS, re: “Asylum Pre-­Screening: Training and Implementation,” Oct. 31, 1991, McNary NARA. In the later 1990s, it was expanded further (see chapter 6). 67. For other discussions of the materiality of documents, see Guillory (2004), Hull (2012a), Kafka (2012), Riles (2006), and Vismann (2008). 68. This is exactly the perspective that Lauren Benton argues against (2010, 105) and that journalists like William Langewiesche posit (2004, 61). More on this contrast shortly. 69. See, for example, Amiria Henare, Martin Holbraad, and Sari Wastell’s description (2007, 11) of this particular kind of constructivism, which they contrast with their own radical constructivism. 70. See memorandum from Rudolph W. Giuliani, associate attorney general, US Department of Justice, to Doris Meissner, acting commissioner, INS, re: “Interdiction,” Oct. 2, 1981, Box 88, File 1, Kurzban Papers; “Message to All Regional Commissioner [sic],” from Andrew J. Carmichael Jr., re: “INS Role in Coast Guard Interdiction at Sea,” Oct. 2, 1981, Box 88, File 1, Kurzban Papers.

292  Notes to Pages 176–183 71. Affidavit of Harold Boyce, assistant regional commissioner for Inspections and Adjudications, Eastern Region, INS, November 13, 1981, McNary Case File. 72. Id. at 4. 73. Rudolph W. Giuliani, associate attorney general, US Department of Justice, to Hon. Gerry E. Studdes, chairman, Subcomm. on Coast Guard and Navigation, Comm. on Merchant Marine and Fisheries, US House of Representatives, re: “INS Procedures for Screening Individuals Aboard Vessels Interdicted at Sea by the United States Coast Guard,” March 23, 1982, Box 88, File 3, Kurzban Papers. 74. This is not to say that objects simply provoke the mental materialization of abductive chains of indexical connection between themselves and the moment of their creation that reveal the full detail of such moments whenever one encounters them. To the contrary, they often impede such abduction as Marx noted long ago in elaborating his theory of commodity fetishism ([1867] 1990: 164–65). 75. “Interdiction Policy Defended,” New York Times, Oct. 29, 1981, A22. 76. Id. 77. Hearings Before the Subcomm. on Imm., Refugees, and Int’l Law of the H. Comm. on the Judiciary, 97th Cong. 576–77, 589–91 (Oct. 28, 1981) (testimony of Alan C. Nelson, deputy commissioner, INS; Rear Admiral Donald C. Thompson, US Coast Guard; Stephen E. Palmer Jr., acting assistant secretary of state for Human Rights and Humanitarian Affairs, US Department of State). 78. Constantine Nakassis notes that citation always involves both indexicality and iconicity (2013a, 57). So it is here, where the location of the cutter in relation to other geographic and institutional features of the landscape draws one’s attention to and resembles—although much has been “bracket[ed],” to use Nakassis’s term for the ways citation “suspends . . . something of what it cites” (57)—a set of authorizing legal texts. I am referring here to the spatial form that can be seen in the assemblages of legal inscriptions and official speech that provide the legitimation of the cutter’s routes. In other words, the cutter’s existence in a particular location instantiates and re-­presents the chains of mutually referencing texts that lead to its being out there, offshore: it exists at the end of a chain of material and verbal connections just as its textual authorization extends outward from a core body of law in a chain of intertextual reference. Its being there, out at sea in the Windward Passage, “looks” like what is depicted in the texts that allow it to be so emplaced. 79. Stefan Helmreich has also written of just this kind of problematic view of the sea as “ontologically unpredictable” and the ways it erases its own status as a “culturally specific vision” (2011, 135). 80. Certainly this sort of abduction can undo such assemblages as well. That is, perhaps, the more obvious interpretation. Examining how it may bind them is, I think, slightly more interesting. 81. Interdiction Interview Excerpts, Exhibit 2 to deposition of James Baker III, Haitian Refugee Ctr. Inc.  v. Bakers, No. 91-­2653 (S.D. Fla. Nov. 28, 1991) (original capitalization), McNary Case File. 82. Deposition of James Baker III, Haitian Refugee Ctr. Inc. v. Baker, No. 91-­2653 41-­44 (S.D. Fla. Nov. 28, 1991), McNary Case File. 83. The INS elaborated on these criteria in a guidance memorandum issued in January 1992

Notes to Pages 183–189 293 that was meant to clarify the “credible fear” standard then in use (although still only recently implemented) for asylum prescreening. In it, Gregg Beyer, the INS’s new head of asylum, spoke of “internal consistency,” “detail,” “plausibility,” and “demeanor.” See memorandum from Gregg Beyer, head of asylum, Asylum Branch, INS, to John W. Cummings, acting assistant commissioner, Central Office for Refugee and Asylum Processing, re: “Credible Fear of Return: Assessing Credibility,” January 28, 1992, McNary Case File. With regard to the variation in length of interviews, see deposition of John B. Baker, Haitian Refugee Ctr. Inc. v. Baker, No. 91-­2653 11, 14–15 (Nov. 28, 1991), and exhibit one to that deposition. 84. Commanding officer, USCGC Confidence, to commander, Seventh Coast Guard District, re: “After Action Report—Checkmate-­7; 22 Oct–24 Nov 91,” at 3, Nov. 24, 1991, McNary Case File.

Chapter 5 1. When I speak of political theology here, I am not using the term in quite the same way as Carl Schmitt did when referring to the modeling of political power on theological concepts ([1922] 1985), or as Clifford Geertz did when emphasizing the enduring relevance of the intoxications and exaltations of political authority to anthropological analysis (1983), or even as John Comaroff does when attending to the millenarian-­like rise of the rule of law’s salvific promise (a turn, he suggests, that requires a shift from political to legal theology) (2009). Nor am I concerned here with expounding the scripts of sacrifice and redemption that structure an often unacknowledged American political religion (cf. Rogin 1987). At the same time, my own approach does recognize, as do the authors just cited, the importance of the numinous within not only American politics but American jurisprudence (as if the two could be separated so easily). In that sense, there is a kinship here with these scholars, although I shy away from Schmitt’s perhaps too simplistic political origin story (not to mention other issues), Geertz’s focus on pomp at the cost of the mundane, and Comaroff ’s interest in the juridification of the religious. Like others, I argue that, despite an American exceptionalism that remains obsessed with the mythology of a radical break from Europe’s mystical monarchism, the charismatic, the transcendent, and the groundless ground (those incidents of sovereignty that just are without reasoned explanation) live on, not as vestigial, premodern traces yet to be expurgated but as central aspects of American juridico-­political forms. More importantly, every theology has its cosmology, its vision of the world’s contours and the thinkable endeavors meant to unfold within it. It is this cosmology, or cosmography rather, that concerns me, as well as the impossibility of reducing it to reason’s expression, at least that version of reason that looms so large in this volume’s introduction. 2. At this moment, the United States was a formal, settler empire, complete with territories administered by federal entities vested with a plenary power to rule over them (Burnett and Marshall 2001, 4). 3. Chae Chan Ping v. United States, 130 U.S. 581, 603-­04 (1889) (hereinafter the Chinese Exclusion Case). 4. According to Sarah Cleveland, the self-­evident nature of the exclusion power Justice Field asserted was more qualified in the international legal texts that he himself drew on in naturalizing a robust version of American territorial sovereignty (2002, 127).

294  Notes to Pages 189–204 5. See The Chinese Exclusion Case, supra note 3, at 607. 6. Id. at 605. 7. Id. 8. Ekiu v. United States, 142 U.S. 651 (1892); Fong Yue Ting v. United States, 149 U.S. 698 (1893). 9. Shaughnessy v. U.S. ex rel Mezei, 345 U.S. 206 (1953). 10. Id. at 212 (emphasis added) (internal quotation marks omitted). 11. The Chinese Exclusion Case, supra note 3, at 606. 12. United States v. Curtiss-­Wright Export Corporation, 299 U.S. 304, 316–17 (1936). 13. Id. 14. Id. at 319. 15. Id. 16. For a discussion of how sovereignty is often defined as a self-­referential power, see Thomas Blom Hansen and Finn Stepputat’s introduction to Sovereign Bodies (2005, 8). 17. Transcript of Proceedings, In re Order to Show Cause, Haitian Centers Council, Nov. cv. 91-­1258 39-­40, 43 (E.D. N.Y. March 18, 1992), McNary NARA. 18. Id. at 43. 19. The term insular was borrowed from the Spanish, who used it with reference to the governments of these island possessions (Ramos 2007). 20. For Hegel, as Christopher Connery has observed, the sea was an elemental force impelling nations into the currents of History (1996, 296–97). Its vastness offered a sense of the “Infinite,” and its openness invited both “piratical plunder” and “honest . . . commerce” (Hegel [1837] 1902, 147). The sea, for Hegel, was a path to civilization (147). One finds hints of that oceanic sense of History here as well. 21. Downes v. Bidwell, 182 U.S. 244, 341 (1901) ( J. White concurring). 22. Here I am referring to Michel Foucault’s third principle of heterotopia—a space’s capacity to juxtapose a series of other spaces within itself, as occurs in those imperial sites at once within and without the legal framework associated with the metropolitan core, depending on the criteria in question (1986, 25). 23. See Boumediene v. Bush, 553 U.S. 723 (2008). 24. The choice of terminology here is meant to evoke a particular type of extension or scope while also allowing for its expression in more than one dimension (think of the “dimensions” of a piece of furniture). One could easily call it extensional jurisdiction as well. To be clear, it is not meant to be synonymous with space, for if it were, the other registers would simply be encompassed within it, which, as I will show, they are not. 25. Dimensional jurisdiction is significant in another way as well. It is common knowledge that certain courts have reputations as being more conservative or more progressive than others such that, for example, the Fifth Circuit might develop a draconian reading of the Immigration and Nationality Act while the Ninth Circuit might exhibit a more forgiving approach. Securing a change of venue at an early phase in one’s immigration proceedings would allow one to position oneself within the dimensional jurisdiction of another court of appeals and could thus potentially change the legal regime applicable to one’s case. Forum shopping, as this technique is known, is the manipulation of dimensional jurisdiction to one’s benefit. 26. The use of the term segmentary here is inspired in part by anthropological accounts of

Notes to Pages 206–216 295 the jural nature of segmentary lineage systems, their fractal forms, and, perhaps most importantly, their diagrammatic visualization within British social anthropology (Evans-­Pritchard [1940] 1969, 192–203). 27. Here, I am not using poetic in the Jakobsonian sense—with its focus on ritualized metricality—but more in the de Certauian sense of expressive communication (but see J. S. Kahn 2017). 28. 1 Cranch 137, 163, 166 (1803). 29. Administration’s Proposals on Immigration and Refugee Policy: Hearing Before the Subcomm. on Immigration, Refugees, and International Law of the H. Comm. on the Judiciary and the Subcomm. on Imm. and Refugee Policy of the S. Comm. on the Judiciary, 97th Cong. 11 (1981) (statement of William French Smith, attorney general of the United States). 30. See Jean v. Nelson, 711 F.2d 1455, 1469 (11th Cir. 1983) (vacated as moot). 31. See id. at 1482. 32. Id. at 1468. 33. Deposition of Joe D. Howerton, Louis v. Nelson, No. 81-­1260 57 (S.D. Fla. March 10, 1982), Box 51, File 3, Kurzban Papers. 34. Deposition of Leonard E. Rowland, Louis  v. Nelson, No. 81-­1260 116 (S.D. Fla. March 8, 1982), Box 51, File 3, Kurzban Papers. 35. The Administrative Procedure Act (APA) is a quasi-­constitutional statute designed in part to ensure equal application of administrative law and to protect against agency bias while remaining sensitive to preserving congressionally endorsed agency autonomy (Mashaw 2010, 1367). Under the APA, plaintiffs cannot seek judicial review of agency actions when such actions are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). There is a complicated case law regarding when such discretion exists and its extent that I will not go into here. 36. On its face, the APA does not end at the edge of territory, but in the context of Haitian interdiction, with which I will compare the domestic detention regime in a moment, the discretion granted by Congress to the executive vis-­à-­vis the closure of the nation’s borders has been found by at least one court to limit the capacity of aggrieved individuals to seek judicial review under the APA. See Haitian Refugee Center Inc. v. Baker, 953 F.2d 1498, 1507-­1508 (11th Cir. 1992).

Chapter 6 1. See commanding officer, USCGC Harriet Lane, “After Action Report—Checkmate 7 Patrol—AMIO Operations in the Windward Pass—23 Nov 91–31 Dec 91,” Jan. 7, 1992 (hereinafter Harriet Lane Report Nov. 91), McNary Case File. 2. See message from US commander in chief, US Atlantic Command to Joint Staff, Washington, DC, Nov. 28, 1991, US Atlantic Command Operation Guantanamo, 1991–1992, COLL/72, document received pursuant to author’s mandatory declassification review request. 3. See Harriet Lane Report Nov. 91, supra note 1. 4. See id. 5. See message from US Coast Guard cutter Thetis re: “Law Enforcement—Aliens—­ SITREP Two—S/V Saint Michael,” Dec. 1, 1991, Box 256, Folder 2, CGHO MIC; message from US Coast Guard cutter Thetis re: “Law Enforcement—Aliens- SITREP—S/V Avaendu,”

296  Notes to Pages 216–222 Dec. 1, 1991, Box 256, Folder 2, CGHO MIC; message from US Coast Guard cutter Thetis re: “Law Enforcement—Aliens—SITREP One—S/V N4 Dieu-­Pas-­Noos,” Nov. 26, 1991, Box 256, Folder 3, CGHO MIC. 6. See message from US Coast Guard cutter Escanaba re: “Law Enforcement—Aliens— SITREP 1 S/V Min Dieu Mercie,” Nov. 15, 1991, Box 256, Folder 3, CGHO MIC; message from US Coast Guard cutter Escanaba re: “Law Enforcement—Aliens—SITREP 1 Unnamed HA s/V,” Nov. 19, 1991, Box 256, Folder 3, CGHO MIC; message from US Coast Guard cutter Escanaba re: “Law Enforcement—Aliens—SITREP 05-­02,” Box 256, Folder 3, CGHO MIC; message from US Coast Guard cutter Escanaba re: “Law Enforcement—Aliens—SITREP 1 S/V Mercdest,” Nov. 30, 1991, Box 256, Folder 3, CGHO MIC. 7. See message from US Coast Guard cutter Dauntless re: “SAR/Aliens,” Dec. 1, 1991, Box 256, Folder 2, CGHO MIC; message from US Coast Guard cutter Dauntless re: “SAR/Aliens,” Nov. 29, 1991, Box 256, Folder 3, CGHO MIC. 8. See various documents, CGHO MIC. 9. See message from the secretary of state, US Department of State, to all American Republic diplomatic posts re: “Direct Repatriation of Haitian Boat People,” May 24, 1992, Box 258, CGHO MIC. 10. Coast Guard Oversight, Part 2: Hearing Before the Subcomm. on Coast Guard and Navigation of the H. Comm. on Merchant Marine and Fisheries, 97th Cong. 7 (1981) (statement of David Hiller, special assistant to the attorney general, Department of Justice); United States as a Country of Mass First Asylum: Hearing Before the Subcomm. on Immigration and Refugee Policy of the S. Committee on the Judiciary, 97th Cong. 6 (1981) (statement of Thomas O. Enders, assistant secretary of state for Inter-­American Affairs). 11. Haitian Immigration White House Report, transcript, Capt. Shoengeart, OLE, Box 254, CGHO MIC (emphasis added). 12. See commanding officer, USCGC Harriet Lane, “Checkmate-­7 After Action Report for 28 Dec 86–20 Feb 87,” March 6, 1987, McNary Case File. 13. Id. at 3. 14. Id. 15. Id. at 3. 16. Id. 17. Andy Rosenblatt, “Grain for Haiti’s Hungry Detours to Dade,” Miami Herald, Dec. 19, 1982. 18. Kevin G. Hall, “U.S. Rules May Sink Wooden Freighters,” Journal of Commerce, April 28, 1997, 1A. 19. See, e.g., memorandum from Harold L. Boyce, chief interdiction officer, Miami, FL, to Delia B. Combs, assistant commissioner, Central Office for Refugees, Asylum, and Parole, Washington, DC, re: “HMIO activity report for April 1986,” May 8, 1986, Box 88, File 1, Kurzban Papers; memorandum from Harold L. Boyce, chief interdiction officer, Miami, FL, to Delia B. Combs, assistant commissioner, Central Office for Refugees, Asylum, and Parole, Washington, DC, re: “HMIO activity report for November & December, 1985,” Jan. 2, 1986, Box 88, File 1, Kurzban Papers; memorandum from Harold L. Boyce, chief interdiction officer, Miami, FL, to Delia B. Combs, assistant commissioner, Central Office for Refugees, Asylum,

Notes to Pages 222–229 297 and Parole, Washington, DC, re: “HMIO activity report for June and July, 1985,” Aug. 12, 1985, Box 88, File 1, Kurzban Papers. 20. Memorandum from Harold L. Boyce, chief interdiction officer, Miami, FL, to Diana L. Zanetti, assistant commissioner, Refugee Asylum and Parole, re: “HMIO Activity Report,” Oct. 10, 1983, Box 88, File 1, Kurzban Papers. 21. Other aerostats were tethered to fixed sites as well, including at Grand Bahama Island and Georgetown in the Bahamas. See Richard Adams, “Lighter Than Air,” Aerospace America, December 1990, 19. 22. Regarding the “Bimini pipe line,” see memorandum from Harold L. Boyce, chief interdiction officer, Miami, FL, to Delia B. Combs, assistant commissioner, Central Office for Refugees, Asylum, and Parole, Washington, DC, re: “HMIO Activity Report for April 1985,” April 4, 1985, Box 88, File 1, Kurzban Papers. 23. Memorandum from Harold L. Boyce, chief interdiction officer, Miami, FL, to Delia Combs, assistant commissioner, Central Office for Refugees, Asylum, and Parole Washington, DC, re: “HMIO—Overview and Future,” April 8, 1985, 3–4, Box 88, File 1, Kurzban Papers. 24. For a description of the North/South division, see id. For a description of the incident that led to the creation of HMIO-­North, see Helga Silva, “New Haitian Refugees Could Renew Asylum Battle,” Miami Herald, April 6, 1983. 25. Message from Coast Guard District Seven, Miami, FL, to commandant, Coast Guard, Washington, DC, re: “HMIO-­83 Effectiveness,” April 1983, at 3, Box 88, File 1, Kurzban Papers. 26. See id. at 4. 27. Id. 28. Guillermo Martinez, “Haitian Boats Now Being Stopped Off Florida,” Miami Herald, May 17, 1983, 1A. 29. Id. 30. Id. 31. Memorandum from Carl B. Harris to Ambassador Jewel S. Lafontant re: “Screening Process for Interdicted Haitians,” Dec. 20, 1989, 4, Box 88, File 1, Kurzban Papers. 32. Cable from USINCLANT Norfolk, VA, to Joint Staff Washington, DC, Jan. 25, 1992, released pursuant to author’s mandatory declassification review request. 33. Certainly, Coast Guard cutters saved the lives of many Haitians who would have otherwise been lost at sea over the course of interdiction’s existence. The Haitians with whom I spoke were fully aware of this fact and grateful for it. Nonetheless, Admiral John B. Hayes, who was commandant of the Coast Guard when the Reagan administration commenced interdiction, was candid about the primary motivation behind the program—that is, law enforcement. In an interview conducted in October 1985, he stated: First of all, there was no background nor were there any specific incidents that led to the Coast Guard’s involvement off Haitian shores that dealt with search and rescue or safety of life and property at sea. We would never have gone into that situation at all had it not been for a violation of the immigration and customs laws of the United States. Haitians in poorly constructed boats off their own shores are clearly not a responsibility of the United States. So at no time did the safety predicament of those people off their own shores enter into the

298  Notes to Pages 229–235 decision to conduct this patrol. It was strictly to try to stop emigration from taking place at the source, rather than at the arrival point. “The Reminiscences of Admiral John Briggs Hayes, USCG (ret.), Commandant, U.S. Coast Guard, 1978–1982,” U.S. Coast Guard Oral History Program, interview conducted by Lieutenant ( junior grade) Michael Mansker, USCG, Oct. 8, 1985. 34. See Harold Maass, “Lawyers Clash, More Haitians Sail,” Miami Herald, May 30, 1992, 16A; David G. Savage, “Return of Haitian Refugees Upheld by Supreme Court,” Los Angeles Times, August 2, 1992, A15. For a description of how the lawyers and law students challenging the Kennebunkport order hatched the idea for the “floating Berlin Wall” language, see Goldstein (2005, 136). 35. US Marine Corps, US Navy, US Coast Guard. “A Cooperative Strategy for 21st Century Seapower,” Oct. 2007 (hereinafter “21st Century Seapower”). 36. For references to “homeland” and variations of the concept “defense-­in-­depth,” see 21st Century Seapower and Bucchi and Mullen (2002). For references to “layer[ing],” see Bucchi and Mullen (2002). 37. “The Maritime Strategy, 1984,” in U.S. Naval Strategy in the 1980s: Selected Documents, ed. John B. Hattendorf and Peter M. Swartz, Naval War College Newport Papers 33 (2008): 45–104; “The Amphibious Warfare Strategy,” in U.S. Naval Strategy in the 1980s: Selected Documents, ed. John B. Hattendorf and Peter M. Swartz, Naval War College Newport Papers 33 (2008): 105–36; “Looking beyond the Maritime Strategy [1986],” U.S. Naval Strategy in the 1980s: Selected Documents, ed. John B. Hattendorf and Peter M. Swartz, Naval War College Newport Papers 33 (2008): 259–68. 38. There were some references to US defense in depth during the 1980s as well, but it appears that the term began to take on new import during the 1990s. With regard to the use of the term homeland, see 141 Cong. Rec. S1572 (daily ed. Jan. 26, 1995) (statement of Sen. Thurmond); 142 Cong. Rec. H10356 (daily ed. Sept. 12, 1996) (statement of Rep. Dornan); National Security Interests in the Post Cold War World: Hearing Before the H. Comm. on National Security, 104th Cong. (1996) (statement of Rep. Spence, Chairman, House Comm. on National Security). 39. See Homeland Defense: Exploring the Hart-­Rudman Report: Hearing Before the Subcomm. on Technology, Terrorism, and Government Information of the S. Comm. on the Judiciary, 107th Cong. (2001); National Homeland Security Act, H.R. 1158, 107th Cong. (2001). 40. “U.S. Coast Guard Air Interdiction Program” (March 16, 1989) (copy on file with author). 41. John A. Cope, a former US Army colonel, has referred to Mexico, Central America, and the Caribbean as the “southern approach,” a rhetorical choice that transforms entire regions into offshore gateways to the US homeland (2006). In another framing, the Caribbean has become a “third border,” a target of the “third border initiative” law enforcement and AID funding programs post-­9/11 (Sullivan 2006). 42. As I already noted in the introduction and in chapter 4, pointing out the dividual nature of the state is in many respects banal. A good bit of scholarly effort has gone into showing how states create the effect of their own coherence. Viewing the recognition of distributed personhood as insightful and distributed statehood as banal, however, reinscribes a distinction be-

Notes to Pages 236–239 299 tween “natural” and constructed entities—the human form appearing as a natural container and the nation-­state as a constructed one. There is, however, merit to this distinction—to a certain extent. Whatever work has gone into constructing ideologies of sovereign selves (Markell 2003, 11) and atomistic individualism, the materiality of human bodies has lent itself to naturalizing narratives of this sort in ways that the materiality of past political forms have not. That being said, my aim here is not to simply defetishize states by revealing their fragmentation. The point is to show how certain qualities of fragmentation, dispersion, and mutability are valorized and instrumentalized in service to containerized visions they would seem to otherwise subvert. 43. See 69 Fed. Reg. 48877 (2004). 44. See 67 Fed. Reg. 68924 (2002). These spatial regulations also had temporal elements as well. With regard to entry by sea, for example, one could be placed in expedited removal so long as one could not prove continued presence for a period in excess of two years. See id. 45. This extension of the immigration border inward for those arriving by ocean routes was designed specifically to target Haitians; Cubans, the second-­largest group of seafaring migrants entering the United States, would be protected by the Cuban Adjustment Act and the wet foot/ dry foot policy, the latter operative from 1995 until 2017 (Volpp 2012, 4). 46. See 21st Century Seapower, supra note 35. 47. Commanding officer, US Coast Guard cutter Harriet Lane, “Checkmate-­7 After Action Report for 13 Feb–12 Mar 88,” March 24, 1988, McNary Case File. 48. Haitian Migrant Interdiction Operation, Interdiction Summary Sheet, Feb. 24, 1986, Box 88, File 1, Kurzban Papers. 49. Haitian Migrant Interdiction Operation, Interdiction Summary Sheet, June 2, 1985, Box 88, File 1, Kurzban Papers. 50. Haitian Migrant Interdiction Operation, Interdiction Summary Sheet, Feb. 15, 1986, Box 88, File 1, Kurzban Papers. 51. Haitian Migrant Interdiction Operation, Interdiction Summary Sheet, April 1, 1986 (emphasis added), Box 88, File 1, Kurzban Papers. 52. While this book was in press, I became aware of William Rankin’s (2016) fascinating study on mapping, shifts in the nature of territory, and the rise of global positioning system (GPS) technologies in the twentieth century. Rankin also makes reference to the “pointillist space of GPS” (15), positing that it has unbundled the “tight relationship between geographic legibility and political authority” (4). While Rankin’s intriguing arguments deserve closer attention than I can offer here, it is worth noting that, despite my interest in the technological mediation of border surveillance (see this chapter and afterword), my own argument emphasizes the importance of jurisdictional technologies in the production of this pointillist border. 53. For a description of this tripartite scheme, see chapter 2, note 10. 54. Whereas Kratochwil’s emphasis on Hugo Grotius, Samuel von Pufendorf, and John Selden (although, curiously, not Jean Bodin) as the key theoreticians of the modern grammar of sovereignty focuses attention on the seventeenth century, Daniel Lee’s account of long-­ standing debates over the Roman law vocabulary of imperium and dominium covers much wider terrain, offering a far more complex portrait of the concept’s emergence (2012). 55. I discuss this issue in chapter 1 as well. For an account of the relation of individual and state sovereignty to property, see P. Kahn (1999, 63) and Markell (2003, 11). For a more anthro-

300  Notes to Pages 239–242 pological approach to understanding vernacular sovereignties and ecological stewardship, see Folch (2016). 56. Henry S. Maine is, of course, most famous for his formulation of modernity as a “movement from Status to Contract” ([1861] 1986, 141). My own approach to status is perhaps a bit less rigid than Maine’s. As a purely legal matter, the Haitian vessels I have been discussing may have been able to contract with other nations to register their vessels as foreign flagged, raising difficulties for the interdiction teams wishing to board them. In this sense, shipowners could contract away the “Haitian status” of their vessels, substituting it for another. As a practical matter, this was impossible—those who owned these vessels often lacked the social and real capital to facilitate transactions of this sort. Rather than a purist vision of status, however, I am offering an approach that contrasts property logics with relational logics—regimes oriented around fixed territoriality and regimes organized around geographically disbursed networks of relation. 57. See “Agreement Effected by Exchange of Notes,” September 23, 1981, US-­Haiti, 33 U.S.T. 3559. 58. In the early days, a Haitian official was often posted to the interdiction cutter. See memorandum from Ellis B. Linder, acting director, Refugee, Asylum and Parole, to Harold Boyce, immigration inspector, re: “Association by INS Personnel with Haitian Liaison Officers,” July 27, 1983, Box 88, File 1, Kurzban Papers. 59. Steven Press (2013) has written a fascinating account of the origins of the Guantánamo lease and its antecedent—a German lease over Kiautschou Bay “negotiated” with the Chinese in 1898. Both the Guantánamo and Kiautschou leases did not effectuate full sovereign cession to the United States and Germany, respectively; instead, Cuba and China retained something similar to a reversionary interest in ultimate sovereignty while the United States and Germany would exercise full legal authority during the pendency of the lease. In the Guantánamo lease, this was effectuated by terms that maintained Cuba’s “ultimate sovereignty” while providing the United States with “complete jurisdiction and control.” See “Lease of Lands for Coaling and Naval Stations,” February 23, 1903, US-­Cuba, Art. III. T.S. No. 418. This unbundling of sovereignty interests resembles the unbundling of private property interests in many respects that is commonplace within the American law of trusts and estates. This is unsurprising, given, as we already observed, that state sovereignty was explicitly modeled, in part, on Roman law concepts of private property (Kratochwil 1995; D. Lee 2012; B. Holland 2010) and that state territoriality is itself premised on a notion of eminent title to national territory retained by the sovereign and, in many ways, superordinate to the private property interests of that state’s citizens (Grotius [1625] 2005, 140; Vattel [1758] 2008, 232). With regard to Guantánamo, the US Supreme Court’s decision to extend the writ of habeas corpus to the base as a matter of constitutional law hinged on the court’s reading of the lease itself and the degree of control it afforded US forces there. See Boumediene v. Bush, 553 U.S. 723, 768–69 (2008). Related questions have arisen with the lease for Bagram Air Base in Afghanistan, which contains similar terms. See Al Maqaleh v. Gates, 604 F. Supp. 2d 205 (D. D.C. 2009).

Notes to Pages 247–254 301

Af terword 1. Bienvenido, July 1989 (partially revised September 1991), McNary NARA. 2. The role of contract workers in building and maintaining the base has a long history, as Jana Lipman (2009) has shown in her work on Cuban laborers at Guantánamo. 3. Cable from US secretary of state to American embassy, Paris re: “Resettlement of Haitian Migrants from GTMO,” Sept. 4, 2003, obtained pursuant to author’s Freedom of Information Act Request. 4. Id. 5. The strikethrough here is meant to indicate both the existence of the contradiction and its management through the aforementioned spatial fix, a concept explored in greater depth in the introduction, chapter 2, chapter 4, and chapter 5.

A r c h i va l S o u r c e s

Papers of Ira Kurzban (private collection) Contains papers of the National Council of Churches Haitian Refugee Task Force, the National Emergency Civil Liberties Committee, and the Haitian Refugee Center, including litigation and advocacy case files for the 1970s through the early 1990s. Haitian Centers Council Inc. v. McNary litigation case file (private collection) (Touro Law Center) Contains discovery materials, filings, correspondence, and other materials related to the lawsuit challenging the legality of interdiction procedures and the detention of HIV-­positive Haitians at Guantánamo. Florida Immigrant Advocacy Center papers (private collection) Contains papers of the Haitian Refugee Center and the Florida Immigrant Advocacy Center regarding Haitian detention at the Krome Detention Center and at Guantánamo Bay. US Coast Guard Historian’s Office, Washington, DC Alien Migrant Interdiction Operations collection National Archives and Records Administration, College Park, MD Record Group 59 Record Group 428 National Archives and Records Administration, New York, NY Haitian Centers Council Inc. v. McNary files Marine Corps History Division, Quantico, VA Command chronologies for Guantánamo Bay Oral history interview notes related to Operation Safe Harbor and Operation GTMO Naval History and Heritage Command, Washington, DC US Atlantic Command Operation Guantanamo, 1991–1992, COLL/72 (selections released pursuant to author’s mandatory declassification review request)

304  Archival Sources Schomburg Center for Research in Black Culture, New York Public Library, New York, NY Haitian Refugee collection, 1972–2004 Annual Reports of the Public Health Service, Haiti The Tamiment Library and Robert F. Wagner Labor Archives, New York University, New York, NY Ira Gollobin Papers Miami Herald 1970s clippings archive related to Haiti and Haitian refugees US Department of State Documents related to the Migrant Operations Center, Guantánamo Bay, released pursuant to author’s Freedom of Information Act request.

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Index

References to figures are denoted by an “f ” in italics following the page number. Abbott, Elizabeth, 28 abduction, 177–79, 181, 292n74 actor-network theory (ANT), 259n12, 286– 87n5 Adams, Brooks, 194 Adams, John Quincy, 193–94 administrative law, 150, 160–61, 295n35 Administrative Procedure Act (APA), 210, 263–64n27, 295nn35–36 Adrien, Antoine, 37, 64–66 aesthetics: of depth, 234, 238–39; of law, 264–65n28; of nation-states, 145–46, 214, 218–19; of power, 231, 235. See also socioaesthetics Afghanistan, 196 AFL-CIO, 84 Africa, 102–3, 122–23 Agamben, Giorgio, 212, 261–63n21 agency, 259n12 agribusiness, 33–34, 43 aid money, 35, 37, 41, 42 AIDS. See HIV/AIDS Aleinikoff, Alexander, 267–68n4 Alien Migrant Interdiction, 55. See also Haitian Interdiction Program; interdiction

Alien Rights Project (Lawyers Committee for Civil Rights Under Law), 74, 274–75n56 American Bar Association, 84 American Civil Liberties Union (ACLU), 65, 84, 94, 229, 281n126 American Committee for Protection of Foreign Born (ACPFB), 65 American Immigration Lawyers’ Association, 84 amnesty, in US immigration, 123 Amnesty International, 37, 68, 70, 73, 157, 158 Andreas, Peter, 265n29 Angel Island, 80, 108, 126 APA. See Administrative Procedure Act appeals: and deportation, 72; and dimensional jurisdiction, 197–99, 198f, 294n25; and early Haitian activism, 259–60n13; and Eleventh Circuit, 92, 96–97; and entry fiction, 199; and judicial border, 89; and legal experience, 66–67 archives, ix, 19, 22–23, 223, 303–4 Aristide, Jean-Bertrand: first coup against (1991), 3, 29, 87, 127, 216; first term of, 48–50; second coup against (2004), 131–32

338  Index ascriptive citizenship, 239–40 Ashcroft, John, 132 assemblages: and abduction, 179; aesthetics of, 219; and anthropology, 19; and citational architectures, 184, 288n25; definition of, 259n12; framing of, 24; and intertextuality, 176, 292n78; and legal infrastructure, 166; spatiality of, 233–34, 237 asylum affidavits, 136–39, 154–55, 156–57 asylum claims: and bureaucratic channels, 141; credibility of, 287–88n16; following anti-Aristide coup, 50–51; grounds for, 31; judicial review of, 162–63; and Reagan-era interdiction, 171–73; and refugee claims, 271n6. See also political asylum asylum prescreening: and credible fear of persecution, 267n3, 279–80n110, 292– 93n83; and economic migrants, 29; and Guantánamo, 228–29; suspension of, 50, 95–96. See also Kennebunkport Order asylum screenings: and expedited removal, 236; and Guantánamo, 78–79, 87, 127; offshoring of, 14; and screen-in rates, 290– 91n65; suspension of, 51, 94–95 asylum seekers: and deportation cases, 71–72; detention of, 2–3, 16, 44, 80; and dimensional jurisdiction, 197–99; and disjuncture gambit, 82; dismissed as economic migrants, 41–42, 47–48; and Duvalierism, 34, 36–37; and entry fiction, 60; and Guantánamo, 248–49, 250–51; and HRC, 62; and INS discretion, 6; and interdiction, 4, 9; and Papa Doc–Baby Doc continuity, 41–42; and politicized ideals, 117; versus refugees, 271n6; and siege litigation, 61, 73, 75; US rhetoric toward, 12–13. See also boat people; exclusion atrocities, 28, 57–58, 116 authoritarianism, 33, 40 Baby Doc. See Duvalier, Jean-Claude “Baby Doc” Bagram Airfield, 196, 300n59

Bakhtin, Mikhail, 103 Baldwin, Roger, 65 Baptist Friendship Church, 62 Baptist Ministers Council, 62 Bateson, Gregory, 277n79 Beauvil v. Ahrens, 149, 150, 152–53f, 288n22. See also In re Haitian Refugees; Matter of Haitian Refugees Benjamin, Walter, 265–66n30 Bennett, Michèle, 47 Benton, Lauren, 180, 240, 261–63n21 Bevilacqua, Anthony, 84 Beyer, Gregg, 292–93n83 Bierman, Donald, 63, 66–67, 68, 73 Big Springs, Texas, 83 Bimini pipeline, 224, 226 biolegal filters, 123, 124, 129 biomedicine, 102, 104–5, 283n7, 284n19 biopolitics, 283n5 black nationalism, 39 Blommaert, Jan, 141 Board of Immigration Appeals (BIA): and Beauvil v. Ahrens, 149, 153–54f, 288n22; and dimensional jurisdiction, 197; and exclusion proceedings, 160–61, 258n4; and law school clinics, 22 boat migration, periodization of, 258n4 boat people, 30, 40, 48, 79, 125. See also asylum seekers bodies: and biomedical discipline, 107–8; and imaginaries of purity, 100–101; inspection of, 283n10; materiality of, 298– 99n42; nation-states as, 218–19; reading of, 224–26 Bodin, Jean, 299n54 Bontemps, Saint-Ange, 28 border exceptionalism: and cosmology of American power, 140; and disjuncture gambit, 80, 86; documentation of, 176–77; and entry fiction, 149; and exclusion proceedings, 161; and Haitian Program methods, 83; and INS discretion, 87; and INS screening, 139; and legal infrastructure, 164–74; and oceanic exteriority, 180–81;

Index 339 and postcoup repatriations, 88; and siege litigation, 76, 93–94 border policing: and Cold War, 56; and disjuncture gambit, 80; and entry fiction, 60; and floating bureaucracy, 164, 166, 181; and Haitian exceptionalism, 264– 65n28; and Haitian threat, 284n21; and HIV/AIDS exclusion, 123; and legal conflict, 58; and liberal constitutionalism, 5; and maritime interdiction, 13, 77; and neoliberal penality, 113; planes of, 59f, 81f, 90f, 93f; and siege litigation, 61 borders: and chronotopes of contagion, 113– 14; executive authority over, 295n36; literature of, 270n3; proliferation of, 235–36; and siege litigation, 271n5. See also border exceptionalism; border policing; border security; border space; judicial borders; maritime borders; medicalized borders; pointillist border; territorial borders; USMexico border border security, 115, 207 border space: and judicial intervention, 161–62; and maritime interdiction, 227– 28, 227f, 228f; planes of, 59f, 81f, 90f; pointillist nature of, 218, 240–41, 241f, 244; and reaction to siege litigation, 58–60, 86 Boudin, Leonard, 73 Boumediene v. Bush (2008), 281n117 Boyce, Harold, 47–48 Boyce, Henry, 176–77 Boy Scouts, 34 Briggs, Charles, 106, 163 Brownsville, Texas, 108–9 bureaucracy: ethnography of, 287n7; and exclusion proceedings, 157–58; and interdiction, 173–74; and legal infrastructure, 165; procedures of, 145–46; and siege litigation, 61 Burt, Al, 36 Bush, George H. W.: and augmented interdiction, 4, 92–93; and Camp Bulkeley quarantine, 125–26; and executive power,

193; and interdiction, 215–16; and jurisdictional cartography, 280n114; and suspension of asylum interviews, 50; and suspension of asylum screenings, 94–95, 128, 174, 211–12, 229 Bush, George W., 250 Butler, C. S., 100 Butler, Judith, 209–12 Calhoun, Craig, 258n9 Callon, Michel, 259n12 Campbell (Coast Guard cutter), 229 Camp Bulkeley: and chronotopes of contagion, 285n32; closing of, 129; and credible fear of persecution, 127–28; and disjuncture gambit, 90; as HIV quarantine facility, 4, 20, 94; and indefinite detention, 125; resettlement of detainees from, 95; and war on terror, 249; and Yale Law School, 22. See also HIV/AIDS capitalist modernity: and Duvalierism, 34; and Haiti’s seascapes, 256; and historicity, 102; and neoliberalism, 268n7; and political versus economic categories, 25, 30, 32 carceral mobility, 84 Caribbean: and interdiction, 213–14; and spatialization, 225, 238; as third border, 298n41; US desire for control over, 193–94 Carlyle, Thomas, 106 Carter, Jimmy, 70, 207; and Jean-Bertrand Aristide, 48; and atmosphere of selfdoubt, 207; and Leonel Castillo compromise, 70–71; and INS screening, 161–62; refugee and asylum policy of, 277n72; and Select Commission on Immigration and Refugee Policy, 78; and siege litigation, 76; task force of, 166 Cary, W. Sterling, 66 cases, as infrastructural nodes in exclusion regime, 162–63 Castillo, Leonel, 70–72, 76, 82, 162 Castro, Fidel, 79, 96 Catholic Church, 48–49 Cattelino, Jessica, 261–63n21

340  Index CCSA. See Christian Community Service Agency Cédras, Raoul, 49 Center for Constitutional Rights (CCR), 94, 229, 281n126 Centers for Disease Control (CDC), 121, 130 Central America, 79 Chaco war, 191 Chae Chan Ping v. United States, 150, 152– 53f, 188–89. See also Chinese Exclusion Case Charlemagne Peralte Haitian Center, 84 Chase (Coast Guard cutter), 170, 176–79 Chicago School of Economics, 32 Chinese Exclusion Act, 150, 152–53f Chinese Exclusion Case, 188–89, 190, 191. See also Chae Chan Ping v. United States Chinese immigrants, 187–89 Christian Broadcast Network, 125 Christian Century, 37 Christian Community Service Agency (CCSA), 63–64, 68–69, 74, 82–83, 272n18 chronotopes: of contagion, 101–4, 114, 118, 120, 126, 130; and HIV quarantine, 285n32; and modernization theory, 111 Chu, Julie, 261n20, 266–67n39, 286n41 Churchill, Winston, 230 Church World Service, 62–64 citizenship: ascriptive, 238–40; and biomedical discipline, 106–7; birthright, 276n61; and entry fiction, 58–60; and eugenics, 115; and medicalized borders, 120; and private property ownership, 45–46 civil liberties movement, 65 civil rights movement: and embrace of immigrant rights, 74; and Ira Gollobin, 65; and Great Society, 116; and NCC, 64; and Rabinowitz firm, 273n29; and siege litigation, 15, 70 Clark, Tom C., 149, 190 class actions, 75 Cleveland, Sarah, 293n4 Clinton, Bill, 51, 95–96, 128–29, 229

coastal freighters, 221–24, 222f Coast Guard: air patrol areas, 228f, 235f; authority of to board Haitian vessels, 170; and G. H. W. Bush–era interdiction, 183–84, 215–17; and coastal traders, 221– 24; and Cuban territorial waters, 242–44; and depth of force, 234–35; documentation of migration voyages by, 21; fieldwork on, 24; and Guantánamo, 251; and INS, 4; and interdiction, 252–55, 297–98n33; judiciary supervision of, 89; and maritime border, 55–56; and oceanic carcerality, 88; during Reagan administration, 76–77; and Reagan-­era interdiction, 85, 176–79; reports of, 237–38; surface patrol areas, 227f; two-zone imaginary of, 225–29 Cold War: and ACPFB, 65; and adjudication of refugees, 57–58; and asylum claims, 31; and asylum regime, 117; and development, 110–11; and François Duvalier, 34–35; and geography of alliance, 63; and jurisdictional cartography, 190; and legal discourse, 150; and neoliberal penality, 113; and political versus economic categories, 32–33; and US foreign policy, 41; and US refugee definition, 267–68n4; and US refugee law, 271n6 Collier, Stephen, 259n12 Comaroff, Jean, 102–3, 121, 126, 131 Comaroff, Jean and John, 19, 265–66n30, 268n7 Comaroff, John, 293n1 Comedians, The (Greene), 36, 158 Comfort (Navy ship), 95–96, 282n131 commodity fetishism, 292n74 Communist Party, 65 Confidence (Coast Guard cutter), 88, 183–84 Congress: and APA, 295nn35–6; and border control, 199–201; and Leonel Castillo compromise, 278n89; and Chinese Exclusion Acts, 188; and due process, 190; and external sovereignty, 191; and HIV/AIDS exclusion, 130; and INA, 124–25; in legal hierarchy, 166; and Select Commission on

Index 341 Immigration and Refugee Policy, 274n55, 277n72; and UN Refugee Protocol, 160 Congressional Black Caucus, 66 Connery, Christopher, 294n20 conservatism, 207 Constitution: and doctrine, 70, 148, 150, 261n19; and insular space, 195; and legal infrastructure, 165, 166; and legal selfbinding, 8; and liberal constitutionalism, 204; and separation of powers, 9 constructivism, 291n69 containment, 216–17 contextualization: of asylum applications, 156–59, 182; and citational architectures, 142–43, 147, 149–50; and pragmatics, 263–64n27 contraband, 221–22 Convention against Torture, 22 Convention Relating to the Status of Refugees (1951). See UN Refugee Convention Cooperative Strategy for 21st Century Seapower ( joint 2007 military report), 232 cosmology: of capitalism, 45; conceptual grid of, 196; and forms of sovereign power, 266–67n39; and jurisdictional cartography, 192–93; legal, 17; and political theology, 293n1; of sovereignty and jurisdiction, 96–97; and state spatialization, 11–12, 148; structuring of, 212 counterinsurgency, 2, 110, 194 Cover, Robert, 61, 186–87, 265–66n30 credible fear, 127–28, 182–83, 236, 267n3, 279–80n110, 291n66, 292–93n83 crisis: bureaucracy of, 10; of colonialism, 110; definition of, 258n9; as driver of border dialectics, 14; feeling of, 6; and the gate, 190; and jurisdictional cartography, 192, 213; Reagan-era sense of, 79–80, 120; of sovereignty, 101–2; and temporality, 13, 218; US fear of, 72. See also refugee crisis Cuba: and biosocial spacing, 283n6; blockade of, 279n98; and François Duvalier, 35; and Guantánamo, 96–97; and Haitian labor, 108; and HIV quarantine, 285n32;

and hospitality, 286n1; and Mariel-era refugees, 277n77; migrants from, 61, 79, 96, 283–84n12, 299n45; and postcolonial political economy, 261–62n16; refugees from, 61, 64, 79–82, 272n18; territorial waters of, 225, 243–44; US desire for control over, 193–94; and US maritime boundaries, 271–72n10 Cuban Adjustment Act, 299n45 Cuban American Bar Association, 96 Dade County, Florida, 117–18, 119 Darian-Smith, Eve, 264–65n28 Das, Veena, 12 death squads, 50 de Certeau, Michel, 223 decisionism, 9–10, 12–13 declassification review, 23, 258–59n11 democracy, 49, 51 Demsetz, Harold, 269n17 Department of Defense, 88, 250 Department of Health and Human Services (HHS), 123–25 Department of Homeland Security (DHS), 236, 248–49 Department of Justice (DOJ), 82, 87, 167– 68, 192–93 Department of State (DOS): and adjudication of refugees, 58; apologists for JeanClaude Duvalier in, 37; and asylum claims, 31, 141, 142–44; asylum policy statement of, 152–53f; and contextualization of asylum applications, 158–59; and Duvalierism, 36; and Duvalier regime, 67; and Guantánamo Migrant Operations Center, 248–49; and Haitian asylum seekers, 8; and INS, 62–63; and INS screening, 136, 138–39; and Papa Doc–Baby Doc continuity, 40–41; and postcoup repatriations, 88–89; radio warnings to Haitians by, 216; and third countries, 126–27 deportation: and Duvalierism, 35–36; versus exclusion, 147, 148–49, 151, 159, 161, 201f; and Haitian Program, 71–72; and Haitian

342  Index deportation (continued) threat, 284n21; litigation against, 276n61; and Papa Doc–Baby Doc continuity, 37; and siege litigation, 62; and UN Refugee Convention, 267–68n4 depth of force, 234–35, 235f, 241–42, 297– 98n33, 298n38 deregulation. See neoliberalism Derrida, Jacques, 265–66n30 detention: after second Aristide coup, 131– 32; Leonel Castillo’s approach to, 71; and Haitian threat, 284n21; INS policies on, 61; policy shift toward, 44; Reagan-era revival of, 208–10; and siege litigation, 82 development, 110, 268n7, 270n26 dialogism, 144–45 diaspora (Haitian): class hierarchies in, 21; and Duvalierism, 39–40; during François Duvalier’s regime, 35; and Haitian democratic movement, 69; and Konbit, 273– 74n43; liberal, 7, 16–17, 261n18; in New York, 61; in 1970s, 61; and Papa Doc–Baby Doc continuity, 36–37; and siege litigation, 255 Diederich, Bernard, 36 direct action, 66, 69, 75 discourse, 17, 287n15 discourse management, 157, 163, 288n20 discovery documents, 22, 23, 258–59n11, 280n113 disease: eradication campaigns, 111; and exclusion, 284–85n25, 285n26; and Haitian threat, 118, 119–20; and imaginaries of purity, 100–101; racialized concepts of, 106; stigmatization of, 130 disjuncture: and border space, 25, 90f; gambit of, 76–86; of legal infrastructures, 17, 168; routinizing of, 86–97, 93f; and siege litigation, 25 district courts, 162, 163–64, 197–98 Douglas, Mary, 120, 284n19 due process, 66, 67–68, 148, 160, 190 Duvalier, François “Papa Doc”: and Cold War realpolitik, 34–35; human rights

abuses by, 138–39; and William Joseph, 154; and offshore manufacturing, 42–43; rule of, 267n1; and tonton makout, 27–28, 37–38; transformation of political violence by, 39; and yaws control program, 111–12 Duvalier, Jean-Claude “Baby Doc”: fall of, 3, 28, 47–48; John Paul II’s condemnation of, 49; and offshore manufacturing, 43; and US Department of State, 40–41; and US refugee law, 33; US views on, 35–36 Duvalierism, 31, 34–42 economic interventions, 52–53 economic migrants: versus asylum seekers, 283–84n12; G. H. W. Bush–era repatriation of, 95; and Cold War, 32–33; exclusion of, 31; and Guantánamo, 251; and INS screening, 155; interdiction of, 221; and neoliberal reforms, 52; and offshore manufacturing, 44; and Papa Doc–Baby Doc continuity, 40; and persecution fictions, 30; and state investments in policing, 47; stereotype of, 29; and UN Refugee Convention, 267–68n4 economic naturalism, 42 economics, 30–34, 42 Egan, Michael, 71 Eisenhower administration, 35 Eleventh Circuit, 92, 96–97, 208, 280n113 Ellis Island, 80, 108, 115, 126, 190 El Salvador, 79 Elyachar, Julia, 17, 164 emplacement, 11, 45–46, 261n20 entextualizations, 144–45 entitlements. See welfare entry fiction: and deportation versus exclusion, 148–49, 161; and dimensional jurisdiction, 199; and exclusion proceedings, 147; and Haitian Program, 71–72; and INS screening, 159; invention of, 58–60; and parole, 210; and siege litigation, 68 Escanaba (Coast Guard cutter), 216 ethnography, 19–21 Etienne, Jean, 3–4

Index 343 eugenics, 115, 115–16 exceptionalism: and American mythos, 5–6, 207, 293n1; and due process, 148; and exclusion proceedings, 151; and expedited removal, 236; and graduated sovereignty, 174; and legal infrastructure, 168, 170; and liberal constitutionalism, 218 exception and normalization, 13–14 Exchange of Notes, 169–70, 238, 240 exclusion: architecture of, 145–51, 152–53f, 162–63; and bureaucratic channels, 141– 42, 157–58, 160–61; and bureaucratic secrecy, 143–44; versus deportation, 201f; and dimensional jurisdiction, 197–99, 198f, 200f; and entry fiction, 60, 70–71; versus expedited removal, 236; framing dispute over, 159–60; and habeas petitions, 289n35; and Haitian Program, 72; and Haitian threat, 284n21; history of, 114; of HIV-positive Haitians, 128–29; INS discretion over, 62; mass hearings on, 83; and medicalized borders, 116; and oceanic exteriority, 180–81; and racialized pathologization, 15–16, 124–25; and siege litigation, 62, 67, 68, 73. See also asylum seekers exclusive economic zone (EEZ), 271–72n10 executive authority: anxiety over, 207; and citational architectures, 152–53f, 167–68, 170, 176–77; and “crisis,” 258n9; diagram of, 202–3f; and dimensional jurisdiction, 196–97; and Good Neighbor Policy, 150; granted by Congress, 295n36; and Kennebunkport Order, 94–95, 174; in legal hierarchy, 166; after 9/11, 261–62n21; and Office of Legal Counsel, 279n102; and Supreme Court decisions, 189–92, 206 Executive Order no. 12807, 95 executive orders, 94–95, 166, 211 Exorde (interdicted sloop), 176–79 expedited removal, 236–37 expert witnesses, 68–69 export development strategy, 33–34, 41–45, 51–52, 268n7 exteriority, 78

Farmer, Paul, 20, 119, 121 fascism, 36, 38 Fassin, Didier, 271n8 Federalist, The (Hamilton), 7, 9, 12, 165, 261n19 Feldman, Ilana, 145 Ferguson, James, 11 feudalism, 239–40 fiction. See entry fiction Field, Stephen Johnson, 188–90, 293n4 fieldwork, 23–24 Fifth Circuit, 161 Fignolé, Daniel, 138–39 Flatbush, 94 Florida, South: and asylum networks, 2; and backlash against Haitian refugees, 71; and grassroots activism, 69–70; as hybrid labor market, 46; and siege litigation, 73. See also Dade County, Florida; Miami Florida Immigrant Advocacy Center (FIAC), 22–23, 266n37 Florida Straits, 193–94 food riots, 49 Foraker Act, 195 foreign affairs, 12, 64, 152–53f foreign investment, private, 42 Forman, James, 272–73n28 Fort Allen, Puerto Rico, 83 Fort Dimanche, 28, 63 Foucault, Michel, 210, 283n5, 294n22 Fouron, Georges, 119 France, 130 Freedom House, 84 Freedom of Information Act (FOIA), 23 free markets: and development policies, 270n26; and Duvalierism, 33; and penal sphere, 30, 47, 52–53; state investments in, 45 Fried Frank, 84 Froude, James Anthony, 99, 106 “gate,” the, 235–37 Geertz, Clifford, 293n1 Gelbard, Robert S., 51

344  Index Gell, Alfred, 177, 259n12 Gennep, Arnold van, 286n41 geography: and jurisdictional cartography, 185–86; and maritime interdiction, 13–14; and racialized pathologization, 112, 124 Gilded Age, 150 Gingrich, Newt, 233 Giuliani, Rudolph, 79–80, 82, 177 Gobineau, Joseph-Arthur de, 106 Goldstein, Brandt, 259–60n13 Gollobin, Ira: and asylum affidavits, 154; and frame shifting, 160; and HRC, 69, 83; and Ira Kurzban, 73, 74; and NCHCR, 84; and Peter Schey, 279–80n110; and siege litigation, 64–68; and Supreme Court, 273n30 Gonzales, Roberto, 286n41 good neighbor policy, 191 Gore, Al, 128–29 governmentality, 210 Gracey, James S., 226 grassroots networking, 69–70, 73 Greater Miami Ministerial Alliance, 62 Great Society, 47, 79, 116, 207 Greene, Graham, 36, 158 Grotius, Hugo, 180, 239, 299n54 Gruziya (ship), 95–96 Guantánamo Bay Naval Station: and accounts of migration, 21; as anomalous zone, 184, 193; and asylum screenings, 257–58n2; and Clinton-era litigation, 96– 97; and contract labor, 301n2; and disjuncture gambit, 90–91; as extraterritorial detention site, 4; and extraterritorial flexibility, 282n130; fieldwork in, 24–25; following anti-Aristide coup, 50–51; as “foreign,” 281n117; and humanitarian assistance, 1–3; INS screening in, 156; and jurisdictional cartography, 95, 280n114; and kanntè baz, 228–29; leasing of, 300n59; legal challenges to, 20; and liminality, 286n41; and litigation, 259–60n13; and mass detention of asylum seekers, 87– 88, 92–93; Mass Migration Complex, 247–

49; and Migrant Operations Center, 24, 248; and quarantine, 121, 126; and war on terror, 131, 250; from waypoint to dead end, 77–78 Guatemalans, 278n85, 283–84n12 guidance documents, 166–67 Gulf of Mexico, 193 Gullage, Richard, 158 Gupta, Akhil, 11 Guttentag, Lucas, 94 habitus, 289n41 Hacking, Ian, 284n21 Haiti: and 2010 earthquake, 248, 282n131; association of with Africa, 103; and offshore manufacturing, 42–43; US occupation of (1915), 39, 99–100; and yaws, 283n8 Haitian activists, 2–3, 36, 57, 82, 272–73n28 Haitian asylum seekers. See asylum seekers Haitian Centers Council (HCC), 20–21 Haitian Centers Council Inc. v. McNary, 128, 238n113, 285n35 Haitian exceptionalism, 36 Haitian Fathers, 63–67, 69, 84 Haitian government: and Exchange of Notes, 169–70; human rights abuses by, 2; and INS screening, 156; and yaws program, 111–12. See also specific rulers Haitian Highway, 220–21, 223–24, 226 Haitian Interdiction Program, 171–73. See also Alien Migrant Interdiction; Haitian Migrant Interdiction Operations Haitian Migrant Interdiction Activity Report (1985), 47–48 Haitian Migrant Interdiction Operations (HMIO), 3–4, 225–26, 238. See also Haitian Interdiction Program; interdiction Haitian Neighborhood Service Center Inc., 84 Haitian Program: and economic migrants, 47–48; and evolution of asylum law, 277n72; formation of, 71; and Guantánamo, 77–78; and Haitian threat, 117; and James Lawrence King, 161; and Ira

Index 345 Kurzban, 73; Reagan-era revival of, 83; and siege litigation, 75; and “task force” method, 82 Haitian Refugee Center (HRC): archives of, 155; and CCSA, 82–83; and Florida Immigrant Advocacy Center, 22–23, 266n37; founding of, 62; and Guantánamo litigation, 96; and William Joseph, 136–39; and jurisdictional cartography, 88; and Ira Kurzban, 73; and NCC, 278n87; and NCHCR, 84; and siege litigation, 74, 280n113; and Yale Law School, 94 Haitian rights movement: and disjuncture gambit, 78–79, 80; and frame dispute, 159–60; and Guantánamo, 96; and INS, 9; leftist core of, 66; as model for immigrant rights litigation, 274–75n56, 278n85; and siege litigation, 8, 72–73; US response to, 6 Haitian threat, 117–21, 129, 213, 274n47, 284n21 Haïti Observateur, 37 Hamilton, Alexander, 7, 190–91, 261n19 Hamilton (Coast Guard cutter), 55–56, 85, 170, 172–73, 216 Hansen, Thomas Blom, 294n16 Harcourt, Bernard, 45, 268n7, 269n16, 270n26 Hardin, Garrett, 269n17 Harriet Lane (Coast Guard cutter), 215, 220– 21, 223 Hart-Rudman Commission, 233 Harvard Law Review, 186–87 Harvey, David, 263n25 Hawai’i, 193–95, 283n6 Hawkins, Paula, 7–8, 116, 225–26 Hayes, John B., 297–98n33 Helmreich, Stefan, 292n79 Helms, Jesse, 123–24, 129, 285n37 Helton, Arthur, 88 Herzfeld, Michael, 266–67n39 HIV/AIDS: association of with Africa, 102– 3; association of with Haiti, 121–25; and chronotopes of contagion, 113, 119–20;

number of cases of, 285n35; and racialized pathologization, 15, 94; stigmatization of, 130–31. See also Camp Bulkeley; quarantine HIV-positive Haitians, 20, 94, 121–30, 193, 249 HIV testing of asylum seekers, 4, 20, 94–95 HMIO. See Haitian Migrant Interdiction Operations homeland, 233–34, 298n38 Honig, Bonnie, 8–10 hot zones, 112 Howerton, Joe, 209 HRC. See Haitian Refugee Center Hull, Matthew, 144–45, 287n7 humanitarian approach, 68–69, 73 humanitarian assistance at Guantánamo, 1–3 humanitarianism, 12–13, 64, 263n24 human rights: antipolitics of, 22; and Aristide, 49; Jimmy Carter’s embrace of, 70; discursive frames of, 74; postwar negotiations of, 32; and siege litigation, 68 Human Rights First, 74, 88, 277n72, 279– 80n110, 290–91n65 human rights reports, 157–58 Hurbon, Laënnec, 36 Hurwitz, Deena, 281n126 hygiene practices, 106 Immigration Act of 1990, 124–25 Immigration and Customs Enforcement (ICE), 236, 248 Immigration and Nationality Act (INA): and citational architectures, 146, 152–53f; and entry fiction, 148; and exclusion proceedings, 273n31; and medicalized borders, 123; and presidential power, 168–70; and territorial waters, 271–72n10; and UN Refugee Convention, 267–68n4 Immigration and Naturalization Service (INS): apologists for Jean-Claude Duvalier in, 37; and G. H. W. Bush–era interdiction, 183–84; and carceral mobility, 83–84; and Clinton-era oceanic carcer-

346  Index Immigration and Naturalization Service (INS) (continued) ality, 96; and Department of State, 31; discretion of, 6, 13; and due process, 66; and Duvalierism, 35–36; and evasion of judicial oversight, 8–9; and exclusion proceedings, 62; and Guantánamo screening, 78; and Haitian asylum seekers, 2; and Haitian Program, 71–72; and HMIO, 4; inscription monopoly of, 142–44, 146, 164, 173–74, 183; judiciary supervision of, 89; and mass detention of asylum seekers, 92–93; and medical screening, 126; and oceanic carcerality, 87–88; and oceanic exteriority, 180–81; “Operations Instructions” of, 67, 141, 147, 152–53f, 161, 163; organizational chart of, 204, 205f; and political versus economic categories, 41, 51; and Reagan-era interdiction, 85–86, 170–71; and Red Scare, 189–90; reports of, 238; and rule of law, 10–11; screening process of, 135–36, 155–60, 267n3, 289n34; and screen-in rates, 50, 290– 91n65; and siege litigation, 68, 73, 75–76, 82; and skepticism of asylum narratives, 287–88n16; and Nelson Thomas interdiction, 171–72 immigration court: and asylum review process, 162–63; and citational architectures, 148, 152–53f; and dimensional jurisdiction, 169; versus exclusion, 151; and exclusion proceedings, 160–61; and law school clinics, 22; versus offshore screening, 290–91n65; OLC avoidance of, 169 immigration policing. See border policing; Haitian Migrant Interdiction Operations Immigration Reform and Control Act (1984), 278n89, 278n94 immigration reforms of late 1990s, 3, 236 imperialism, 195–96 implied constitutional power, 168 INA. See Immigration and Nationality Act indexical-icons, 14–15, 115, 263–64n27, 292n78

indirect taxation (Haiti), 38–40 Indochinese refugees, 48 Influence of Sea Power upon History, 1660– 1783 (Mahan), 194 information routes, 141–42 infrastructure. See legal infrastructure; social infrastructure injunctions, 75 In re Haitian Refugees, 272n12, 288n22. See also Beauvil v. Ahrens Insular Cases, 193, 195–96 Inter-American Commission on Human Rights, 279–80n110 interdiction: and Aristide first term, 49–50; of coastal freighters, 221–24; and Coast Guard, 252–55; and decisionism, 10–11; divisions of, 225; as evasion of judicial oversight, 8, 207; and Exchange of Notes, 238, 240; and Guantánamo, 96, 251; and Haitian officials, 300n58; and INS screening, 156; judiciary legitimation of, 93–94; as jurisdictional arbitrage, 7; and legal infrastructure, 167–68; legal infrastructure of, 211–12; legitimation of, 176–79; and manipulation of borders, 58; and narrative of economic causality, 52–53; and neoliberal penality, 268n7; and oceanic exteriority, 180–81; publicizing of, 85, 216–17; purpose of, 3; and racism, 173f; and rule of law, 6; and screen-in rates, 279–80n110, 290–91n65; and secrecy, 249; and separation of powers, 9; and siege litigation, 57; spread of Haitian model concerning, 259– 60n13; and state spatialization, 244–45. See also Alien Migrant Interdiction; Haitian Migrant Interdiction Operations International Ladies Garment Workers Union, 84 international law, 67, 70, 271–72n10 International Monetary Fund, 51 interpreters, 73 interviews. See asylum prescreening Irvine, Judith, 288n20 isolationism, 230–31

Index 347 Jay, John, 261n19 Jean-Bart, Rulx, 69, 73 Jean-Juste, Gerard, 74–75, 82–83 Jean v. Nelson, 208 Jefferson, Thomas, 193, 194 Jenkins, James, 62 Jérémie. See vespers of Jérémie Jeune Haiti, 27–28, 30 John Paul II (pope), 49 Johnson, Lyndon B., 35, 116 Johnson-Reed Act, 115–16 Joint Task Force ( JTF), 249 Joseph, Raymond, 37 Joseph, William: affidavit of, 137f, 138f, 154; asylum claim of, 135–39; INS file of, 142– 43; interview résumé of, 140–41, 174, 181– 83 judicial borders, 58, 59f, 60 judicial opinions, 166–67 judicial review: APA constraints on, 210, 295nn35–36; and disjuncture gambit, 82; and Guantánamo, 97; HMIO evasion of, 4; OLC avoidance of, 169; of screened-in asylum cases, 279–80n110 judicial sovereignty, 75 judiciary, maritime extension of, 88–89, 174 jurisdiction: and American exceptionalism, 212–13; and asylum review process, 162– 63; and decisionism, 10; dimensional, 197–98, 294n25; and disjuncture gambit, 89; emplacement of, 11; and exclusion proceedings, 198f; extensional, 294n24; and geography, 13–14; and Guantánamo, 280n114; and Guantánamo litigation, 96– 97; and insular space, 196; and oceanic exteriority, 180–81; over political asylum, 160–61; and parole, 210; segmentary, 204; segmentation of, 294–95n26; and sovereignty, 185–86; and subject matter, 201, 202–3f jurisdictional arbitrage: and HMIO, 4; and maritime interdiction, 7–8; after 9/11, 245; and the offshore, 12 Justice Department, 71

Kahn, Paul, 5, 261nn18–19 Kalman, Laura, 261n18, 275–76n60 kanntè (migration voyages), 21, 266n36 kanntè baz (migration with Guantánamo as destination), 29, 228–29 Kaplan, Amy, 233 Kaplan, Robert, 232 Kawar, Leila, 274–75n56 Kellogg, Frank, 40 Kennebunkport Order, 95, 128, 174, 211, 229. See also asylum prescreening Kennedy, John F., 35 Kennedy, Ted, 277n72 Kenney, B. H., 55–56 Ketley Jean-Baptiste et al. v. United States, 68, 273n38 Keynesianism, 32, 110 Kim, Jim Yong, 20 King, James Lawrence, 75, 161–62 Koh, Harold, 94, 125 Konbit Libète (work group for freedom), 69, 73–74, 273–74n43 Koselleck, Reinhart, 102 Kurzban, Ira, 73–74, 83, 89, 96, 182 labor markets, 42, 45–46 laissez-faire capitalism, 42, 45, 268n6, 270n26. See also neoliberalism Langewiesche, William, 180 Latin America, 15, 105, 113, 191, 194 Latour, Bruno, 259n12 Law, John, 259n12 lawfare, 265–66n30 Lawyers Committee for Civil Rights Under Law, 74 Lawyers Committee for International Human Rights. See Human Rights First Leandre, Gerard, 63 Lee, Daniel, 299n54 legal fiction. See entry fiction legal geography, 72, 93–94, 263n23 legal infrastructure: architecture of, 140; and border dialectics, 256; and border exceptionalism, 95, 139; and citational recon-

348  Index legal infrastructure (continued) figuration of exclusion, 161–62; and documental hierarchy, 166; documentation of, 176–79; framing of, 165; and liberal sovereignty, 17–18; and OLC memorandum, 169; self-referentiality of, 170; and war on terror, 249–50 legal liberalism, 275–76n60 legal scholarship, 259–60n13, 288n25 Legal Services Corporation, 74 legal spatiality, 266n33 Leng May Ma v. Barber, 149–50, 152–53f, 160 Levi, Ron, 259n12 Lévi-Strauss, Claude, 14, 101 Li, Darryl, 264–65n28 liberal constitutionalism: critiques of, 9–10; and duality of reason and will, 7; and executive power, 206; and jurisdictional cartography, 212–13; and maritime border, 16; and rule of law, 5 liberal diaspora, 7, 16–17, 261n18 liberal internationalism, 110 liberation theology, 48–49, 65 Lieberman, Eric, 142, 157, 160 liminality, 286n41 Lincoln, Abraham, 187 linguistic anthropology, 286–87n5. See also qualisigns; semiotics Lipman, Jana, 301n2 litigation: archives of, 23; and jurisdictional cartography, 210–11; and legal activism, 22; and maritime border, 16; and maritime interdiction, 56–57; and mass detention of asylum seekers, 44; as tool for social change, 275–76n60 Little Haiti, 119 lobbying, 66, 69, 70 Lochner v. New York, 32, 268n6 Lodge, Henry Cabot, 194 Lowenstein International Human Rights Clinic, 281n126 Lutheran Immigration and Refugee Service, 84

Madison, James, 7–8, 60, 206, 261n19 Mahan, Alfred Thayer, 194, 232 Maine, Henry S., 300n56 Malkki, Liisa, 266–67n39, 286n41 Maltidor, Alix, 199 Manigat, Leslie, 36 Mann, Michael, 285n35 Marbury v. Madison, 206 Mariel boatlift, 6, 79–80, 161, 207, 277n77 Marie Pierre et al. v. United States, 68 maritime borders: and biopolitical containment, 130; and globalization, 44; and Guantánamo, 87; and kanntè baz, 229; and Kennebunkport Order, 94–95; and liberal sovereignty, 55–56; litigation over, 16; and mass detention of asylum seekers, 92–93; and migration policing, 3; pointillist nature of, 251; and postcolonial political economy, 260–61n16; segmentation of, 225; and siege litigation, 82; socio­ aesthetics of, 265n29; stabilization of, 12; and state spatialization, 213, 234; visibility of, 85, 216, 254. See also pointillist border market liberalization, 32, 270n26 Marshall, John, 206 Marx, Karl, 292n74 mass incarceration, 80, 208 Mass Migration Complex, 24 materiality, 104, 224, 298–99n42 Matter of Haitian Refugees, 258n4. See also Beauvil v. Ahrens Mazzarella, William, 144 Mbembe, Achille, 38 McCalla Airfield, 91f, 249 McClory, Robert, 6 media, 119–22, 126 medical inspections, 108–9 medicalized borders, 15–16, 113–16, 119, 123, 284n21 medicine, causal models of, 104–5 metapragmatics, 146, 163 Mexican migration, 283–84n12 Mezei, Ignatz, 196

Index 349 Miami: and backlash against Haitian refugees, 71; as destination for Haitian asylum seekers, 1–3, 272n12; district court of, 166; and exclusion proceedings, 148; and Haitian activists, 23; and Haitian ships, 221–26; and Haitian threat, 117–19; and HIV cases, 122; and Mariel-era refugees, 96; and postcoup asylum seekers, 132f; and Select Commission on Immigration and Refugee Policy, 274n55; and siege litigation, 66, 68, 72–75, 84; and support for Haitians, 61, 63–64; University of, 74 Miami Baptist Ministers Council, 63–64 Miami Herald, 173f, 225–26 “migrant,” as term, 248 Migrant Operations Center (MOC), 24, 247– 51 miliciens. See tonton makout military coups, 49–50 military intervention, 110–11 military spending, 207 Mintz, Sidney, 260–61n16 Mitchell, Timothy, 266n32 modernity. See capitalist modernity modernization, 110–11 Mompremier, Jacques, 62, 69, 155 Monroe Doctrine, 191 Monsanto, Joseph, 148–50, 288n22 Moore, Sally Falk, 11 Morin, Jim, 173f moun andeyò (rural peasants), 40 mulâtres, 27–28, 267n2 Munn, Nancy, 264–65n28 Nakassis, Constantine, 292n78 National Archives, 23 National Coalition for Haitian Refugees/ Rights (NCHCR), 84, 88, 279–80n110 National Commission on AIDS, 124 National Council of Churches of Christ (NCC): and asylum affidavits, 154–55; and Leonel Castillo compromise, 275n58, 278n89; and Haitian refugee political movement, 62–70; and HRC, 83–84,

278n87; and NCHCR, 84; and Lucius Walker, 272–73n28 National Emergency Civil Liberties Committee (NECLC): and contextualization of asylum applications, 157–58, 160; and Ira Gollobin, 65–68; on INS screening techniques, 155–56; and Ira Kurzban, 73; and Supreme Court, 273n30 National Front for Democracy and Change (FNCD), 49 National Immigrant Rights Project, 74, 274– 75n56 nationality: ascriptive status of, 239–40; in INS boilerplate notice, 135, 146; INS emphasis on, 238; and Johnson-Reed Act of 1924, 115–16; and medicalized borders, 114; and persecution, 31 National Lawyers Guild, 65 national security, 132–33 nation-states: aesthetics of, 145–46, 214, 218– 19; in American context, 12; and the body, 100; as constructed, 298–99n42; and dimensional jurisdiction, 197–98; and neoliberal fragmentation, 212; after 9/11, 231–32; spatiality of, 5–6, 15–16, 57 NCC. See National Council of Churches of Christ NCHCR. See National Coalition for Haitian Refugees/Rights Nelson, Alan, 178 neoliberalism: and capitalist modernity, 268n7; and demonization of welfare, 15; development orthodoxy of, 44; and market fundamentalism, 32; versus modernization theory, 113; and political versus economic categories, 33, 52–53; and US intervention, 30. See also laissez-faire capitalism neoliberal penality, 16, 45, 113, 207, 268n7 networks: access to, 23; of activists and attorneys, 57; and political approach, 69; response to carceral mobility by, 84; and siege litigation, 63–64 New Deal, 32, 110, 116, 207

350  Index New York Times, 118, 131, 178 Nicaragua, 79 Nickles, Don, 129 Nickles amendment, 129–30 9/11. See post-9/11 era Nishimura Ekiu v. United States, 150, 152– 53f, 168 Nixon administration, 35, 64 nonrefoulement, 86 normalization, 13–14, 233 Noto, Mario, 72–73, 77–79, 87, 89, 117 oceanic carcerality, 88, 96 oceanic surveillance, 8–9, 44, 217, 225–27, 252–53, 255 oceans: and interdiction, 10, 174; and judicial intervention, 89; and jurisdictional cartography, 196; symbolic geographies of, 245; and US expansionism, 194; and US power, 230 Office of Haitian Refugee Concerns, 69, 74 Office of Immigration Litigation (OIL), 82, 278n85 Office of Legal Counsel (OLC), 86, 167–68, 177, 250, 279n102 offshore manufacturing, 33–34, 42–43 OLC. See Office of Legal Counsel Olson, Theodore, 167–70 Ong, Aihwa, 259n12, 268n7 open borders period, 114 Operation Bootstrap, 42 “Operations Instructions” of INS: and citational architectures, 152–53f; and entry fiction, 147; and exclusion proceedings, 148; in legal hierarchy, 141; as node in exclusion regime, 163; versus UN Refugee Protocol, 67, 161 Organization of American States Human Rights Commission, 37 Our Lady of Good Counsel Church, 63–64 Palmié, Stephan, 260–61n16 Panama Canal, 283n6 Pan American Sanitary Bureau, 112

Papa Doc. See Duvalier, François “Papa Doc” Parmentier, Richard, 263–64n27 parole: of Camp Bulkeley detainees, 130; delegation of responsibility for, 208–9; of HIV-positive Haitians, 20; and HIV testing, 127; and intra-INS disagreements, 50; jurisdictional landscape of, 210; and work authorization, 275n58 Partners in Health (PIH), 20 Pearl Harbor, 230 Peirce, Charles Sanders, 263–64n27 Péligre Dam, 43 Pentagon Papers, 207 Perera, Suvendrini, 265n29 Petit Séminaire Collège Saint Martial, 65 Philbin, Patrick, 250 Philippines, 115, 194–95, 283n6 Pierre-Charles, Gérard, 36 plenary power, 168, 189, 199, 293n2 Plyler v. Doe, 274–75n56 Point Four, 110–11 pointillist border, 238–39, 240–42, 241f, 265n29 Policy Coordinating Committee, 50 political asylum, 2, 35–36, 40, 117, 156, 160– 61. See also asylum claims political persecution: and capitalist modernity, 33–34; and deportees, 74; versus economic migration, 29–30; INS dismissal of, 86; and international refugee definition, 31; and neoliberal reforms, 52; of returnees, 48 political theology, 24, 37, 191–92, 293n1 politics: and bureaucracy, 266–67n39; and Duvalierism, 41; versus economics, 30–34, 251; versus humanitarianism, 68–70, 74– 75; and the nation-state, 5–6, 18 Poole, Deborah, 12 Port-au-Prince: death squads in, 50; and offshore manufacturing, 33–34, 42; and US aid, 35 Port Isabel, Texas, 2 Posner, Michael, 277n72

Index 351 post-9/11 era, 231–36, 245, 261–62n21, 282n130 Povinelli, Elizabeth, 7, 261n18 pragmatics: of doctrinal mobilization, 150; and exceptionalism, 218; of expression, 151; and jurisdictional architectures, 163; of litigation, 192–93; and phatic topoi, 224; of the present, 261–63n21; of screening, 181; and semiotics, 263–64n27; of worldmaking, 17–18. See also semiotics precedent, 150 Preeg, Ernest H., 169–70 prejudgment, 72 presidential power, 206–7 Press, Steven, 300n59 prison corporations, private, 248 Progressive era, 9, 32, 111 property and sovereignty, 46–47, 239–40, 269n17, 300n59 public health: and biomedical discipline, 102; during Cold War, 111; and development, 112; and Haitian threat, 119; and HIV/AIDS exclusion, 125; and immigration control regimes, 108, 114, 120, 126; policing of in Philippines, 115; and US occupation, 105–7 Public Health Service, 4 public-private binary, 33, 239 Puerto Rico, 42, 193–95, 283n6 Pufendorf, Samuel Von, 239, 299n54 qualisigns: and aesthetics of law, 264–65n28; of depth, 234, 244, 254; and interdiction, 237–38; of layered defense, 238; and materiality, 298–99n42; and mobility, 19; after 9/11, 231–32; and state spatialization, 219–20 quarantine: and Haitian threat, 121; history of, 114; and HIV camp, 285n32; as legal euphemism, 279n98; and medicalized borders, 108–9; and war on terror, 132–33. See also HIV/AIDS Rabinowitz, Boudin, and Standard (law firm), 66, 273nn29–30

racialized chronotopes, 76 racialized pathologization, 14–15, 94, 106, 114 racial stereotypes, 284n18 racism, 173, 282n3, 282n4 radicalism, 65 Rana, Aziz, 260n14, 261n18 Rankin, William, 299n52 Rasul v. Bush, 281n117 Ratner, Michael, 94 Rawls, John, 47, 239 Reagan, Ronald, 207; and asylum adjudication, 278n89; and chronotopes of contagion, 119–20; and Coast Guard screening, 78, 236; and disjuncture gambit, 80–81; and Haitian Program methods, 83; and HIV/AIDS exclusion, 123; and interdiction, 297–98n33; and legal infrastructure, 166; and Mariel-era refugees, 79–80; and maritime interdiction, 167–70, 176–79; and market fundamentalism, 32; and mass detention of asylum seekers, 207–8; and offshore manufacturing, 44 Red Scare, 65, 189–90 Rees, Grover Joseph, III, 127 refoulement, 288n26 refugee crisis: American narratives of, 120; following anti-Aristide coup, 3, 50; and Guantánamo, 282n130; and Haitian Program, 72; and neoliberal penality, 45; as political issue, 79. See also crisis refugees: versus asylees, 268n8; versus asylum seekers, 271n6; definition of, 31, 288n26; and Guantánamo, 248–51; processing of, 280–81n115 regulations: and Carter administration, 161; and expedited removal, 236, 299n44; in legal hierarchy, 17, 166; and legal infrastructure, 165; as node in exclusion regime, 162–63; on political persecution, 154; and statutory goals, 167 repatriation: and Coast Guard, 183–84; and disjuncture gambit, 82; of HIV-positive Haitians, 127–29; and siege litigation,

352  Index repatriation (continued) 87–89, 280n113; and Kenneth Starr’s pressure, 92 restraining orders, 75, 88–89 Richman, Karen, 266n36 Robertson, Pat, 125 Rockefeller, Nelson, 42–43 Rodino, Peter, 277n72 Rogin, Michael, 187 Roosevelt, Franklin D., 110, 191, 230 Roosevelt, Theodore, 191, 194 Rosen, Lawrence, 16 Rossiter, Clinton, 10 Rotberg, Robert, 36 Rowland, Leonard, 209 rule of law: and American exceptionalism, 5–6, 212; critiques of, 9–10; and exclusion proceedings, 60; and liberal constitutionalism, 7–8; and manipulation of borders, 58 rural-urban labor migration (Haiti): following US invasion of 1994, 52; and offshore manufacturing, 33–34, 43–45; and US aid, 40–42 Saint Sauveur (Haitian migration vessel), 61–63, 65–66, 199, 272n12 Salvadorans, 278n85, 283–84n12 Sam, Vilbrun Guillaume, 39, 105 Sanitary Service (Haiti). See Service ­d’Hygiène sanitation, 106, 109–10 Sannon et al. v. United States, 68, 273n38 Sansaricq, Guy, 84 Saussure, Ferdinand de, 263–64n27 Sava, Charles, 72, 83 Schey, Peter, 274–75n56, 279–80n110 Schiller, Nina Glick, 119 schismogenesis, 277n79 Schlesinger, Arthur, Jr., 10 Schmitt, Carl, 9–10, 185, 196, 212, 261–63n21, 293n1 securitized space, 2, 232, 254 Sèl (Haitian Fathers periodical), 65

Selden, John, 239, 299n54 Select Commission on Immigration and Refugee Policy, 78, 166, 274n55, 277n72 semiotics: and bureaucracy, 226; and chronotopes, 286–87n5; and felicity, 259n12; and juridico-spatial framing, 186; lexicon of, 276n61; and normalization, 14; vocabulary of, 263–64n27. See also linguistic anthropology; pragmatics; qualisigns separation of powers, 7–9, 148, 161 Service d’Hygiène, 100, 106–10 Shachar, Ayelet, 60 Shafer, N. Mendal, 203–4 Shaughnessey v. United States ex rel. Mezei, 150, 152–53f, 189–90 Shryock, Andrew, 259n12 siege litigation: archives of, 23; backlash against, 57, 78, 86, 253–54; and disjuncture gambit, 80–82; and rule of law, 6; tactics of, 61–76 Simpson, Alan K., 79, 125, 127 skin color, 27–28 Smith, Rogers, 260n14 social infrastructure, 17, 164 sociality, 122 socialization, into legal profession, 22, 24 social movements, 275–76n60 socioaesthetics, 265n29. See also aesthetics Sonnett, Neil, 63, 66–68, 73, 148–49 South Florida. See Florida, South sovereign feeling, 6, 102, 220, 265n29 sovereignty: and American mythos, 101–2; and anxiety, 15, 79; and bilateral agreements, 242; and border control, 6, 76, 270n3; and cosmogony, 191; dynamics of, 255; grammar of, 299n54; and Guantánamo litigation, 96–97; and imperial exceptionalism, 174; and INS discretion, 209; and jurisdictional cartography, 192; and legal constraint, 168, 189–90; and legal infrastructure, 17–18; and Leng May Ma, 160; and manipulation of borders, 104; and medicalized geographies, 113–14; of the people, 207; and private property

Index 353 ownership, 239–40, 300n59; as self-­ referential, 294n16 Spanish-American War, 194 spatial fix, 13, 60, 212–13, 263n25 spatialization: and interdiction, 53, 244–45; and legal geography, 263n23; and legal infrastructure, 213; and the nation-state, 5–6; and proliferating borders, 235–37; as response to siege litigation, 82; and rhetoric of homeland, 233–34; and rule of law, 274–75n56; of sovereignty and jurisdiction, 96–98; of the state through interdiction, 219–20 stagflation, 207 Starr, Kenneth W., 92 state violence, 38–39, 48 statutes: and INS discretion, 210–11; in legal hierarchy, 166; and legal infrastructure, 165; as metapragmatic discourses, 263– 64n27; as node in exclusion regime, 162–63 Steinberg, Philip, 180, 265n29 Stepputat, Finn, 294n16 stereotypes, 106, 284n18 Stevens, Sandra, 172 stigmatization, 15, 21, 130–31 St. John, Rachel, 265n29 St. John, Spencer, 106 Storming the Court (Goldstein), 259–60n13 subsistence farming, 33–34, 43 Sullivan, Sue, 69, 83 Sunstein, Cass, 9 Supreme Court: and Chinese Exclusion Case, 188–89; and dimensional jurisdiction, 198; and exclusion proceedings, 148–50; and executive power, 12; and Guantánamo, 95, 97; and injunction against repatriations, 92; and Insular Cases, 193; and legal scholarship, 259–60n13; and Red Scare, 190; and sovereignty, 191–92 surveillance regime: evasion of, 255; and juridico-political architectures, 221; and jurisdictional cartography, 8–9; and offshore manufacturing, 44; and reading of

bodies, 225–27; technology of, 252–53; visibility of, 217 Sutherland, George Alexander, 191–92 Swartz, Rick, 274–75n56 Sweeney, Edward, 158 swine fever, 121–23 tariffs, 195 Task Force on Immigration and Refugee Policy, 78–79, 81–82, 166 temporality, 263n23 Tennessee Valley Authority, 110 territorial borders: and disjuncture, 90f, 93f; and geographies of power, 185–86; as plane of border space, 59f, 60, 81f; and spatialization, 58 territorial waters, 271–72n10 terrorism, 131–32. See also war on terror Thailand, 48 Thetis (Coast Guard cutter), 215–16 thinginess, 165, 175–76 Thomas, Nelson, 171–73 Thompson, Donald, 178 Ti Legliz (“little church”), 49–50 tonton makout (Duvalier militia): in The Comedians (Greene), 158; and William Joseph, 139; and Papa Doc–Baby Doc continuity, 36–38; and postcoup repression, 29; and racialized voyeurism, 34; and vespers of Jérémie, 27–28 tragedy of the commons, 46 travel ban, 10 Treaty of Paris, 195 Treichler, Paula A., 121 Trouillot, Michel-Rolph: on abortive rituals, 159; on geographies of imagination, 104; on Haitian employment, 43; on Haitian exceptionalism, 36, 264–65n28; on object of study, 24; on pre-Duvalier violence, 39; on regimes of historicity, 102; on tonton makout, 38 Trump, Donald, 10, 130–31, 169 tuberculosis, 285n26 Turner, Victor, 286n41

354  Index underdevelopment, 33–34 United Fruit Co., 108 United Nations Children’s Fund, 112 United Nations Protocol Relating to the Status of Refugees: and citational architectures, 152–53f; versus INS “Operations Instructions,” 161; and INS screening, 273n32; and William Joseph affidavit, 154; and NECLC frame shifting, 160; and nonrefoulement requirement, 86; and offshore screening, 168–69; on refoulement, 288n26; and siege litigation strategy, 67; Supreme Court on, 95 United Nations Refugee Convention (1951), 31, 67, 267–68n4, 273n32, 288n26 United States: and HIV/AIDS, 285n35; and medical exclusions, 114–15; and oceanic agency, 230–31. See also Constitution; US foreign policy; US immigration law; US imperialism; US invasions of Haiti; US occupation of Haiti; US tariff laws United States ex rel. Knauff v. Shaughnessey (1950), 150, 152–53f, 168 United States v. Curtiss-Wright Export Co. (1936), 150, 152–53f, 168, 190, 191–92, 263n22 USAID (United States Agency for International Development), 43–44, 47, 111, 283n9 US Catholic Conference, 84 US Centers for Disease Control, 15 US Constitution. See Constitution US Foreign Affairs Operations Administration, 112 US foreign policy: and adjudication of refugees, 57–58; and Carter administration, 207; during Cold War, 110–11; and NCC, 64; and Papa Doc, 34–35; and US refugee law, 41 US immigration law, 65 US imperialism, 105 US Institute for Inter-American Affairs, 111– 12

US invasions of Haiti: of 1915, 39, 99–100, 105; of 1994, 51 US-Mexico border, 115, 236, 283n10, 283– 84n12 US occupation of Haiti: and control of shipping lanes, 105; justification for, 282n4; and medicalized policing, 101, 106–10; pretext for, 39; and yaws, 111 US tariff laws, 42 Valverde, Mariana, 259n12 Vermeule, Adrian, 259–60n13 vespers of Jérémie, 27–29, 39 virewon (northwestern term for migration voyages), 266n36 Volontaires de la Sécurité Nationale (VSN): and black nationalism, 39; and Papa Doc– Baby Doc continuity, 37; and tonton makout, 38 “voodoo,” as derogatory term, 120, 122 Wacquant, Loïc, 269n16 Wagner, Gunther, 51 Walker, Lucius, Jr., 66, 272–73n28 Walls, George H., Jr., 4 Wall Street Journal, 37 Walzer, Michael, 47, 239 war on terror: and anthropology, 261–63n21; and extraterritorial flexibility, 282n130; and Guantánamo, 1–2, 131; and Insular Cases, 196; legal infrastructure of, 249–50 Washington Consensus, 32 Watergate scandal, 207 Watney, Simon, 102–3 welfare: and biolegal filters, 129; and economic migrants, 32; and Haitian threat, 117–18; Jesse Helms on, 285n37; and immigration restriction rhetoric, 46 West Coast Hotel v. Parish, 268n6 wet foot/dry foot, 299n45 White, Edward Douglass, Jr., 195 Williams, Eric, 260–61n16 Wilson, Monica, 101, 131

Index 355 Wilson, Woodrow, 203 Windward Passage: air patrol areas, 228f, 235f; and pointillist border, 241f; and Reagan-era interdiction, 85; surface patrol areas, 227f Wong Kim Ark, 276n61 work authorization, 61, 68, 71, 275n58 World Bank, 43–44, 51

World Health Organization, 111, 112, 285n35 Woytych, Robert, 136, 138–39, 141, 143, 145, 154 Yale Law School, 22, 94–96, 229, 281n126 yaws, 111–12, 283n8 yellow fever, 112 Yoo, John, 250

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