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letter from america Arrow vol 4 no 1 contents
About borderlands Volume 4 Number 1, 2005


Letter from America: Still the Land of the Free?

Barbara Franz
Rider University


1. "Targeting the people, money and materials that support terrorist and criminal networks." That is the guiding slogan of the U.S. Immigration and Customs Enforcement (ICE), charged with the tremendous task of addressing vulnerabilities in the nation's border, economy and infrastructure. ICE and the Bureau of Citizenship and Immigration Services (BCIS) are the two principal successor institutions of the Immigration and Naturalization Services (INS), both now housed in the Department of Homeland Security (DHS).

2. Sometimes the ICE works in strange and bizarre ways. An article in the August 2004 issue of American Bar Association Journal noted, for example, that ICE agents assumed they had spotted a "red flag" while screening the passenger list of a cruise ship docked in Miami in June (ABA Journal 2004). They noticed a warrant for the arrest of one Hope Clarke, stemming from a 2003 incident at Yellowstone National Park. What type of mayhem or crime could a 32-year-old teacher's aide from Riverton, Wyoming, have been involved in? According to the journal, Clarke was rousted from her cruise ship cabin at 6:30 a.m., handcuffed and taken to jail. The reason for her warrant, it later turned out, was that she had left a bag of marshmallows on the ground at her campsite (ABA Journal 2004). Not all of ICE's actions are a laughing matter however.

The Details: Ankle Bracelets and Total Surveillance

3. Lately the ICE and DHS have been experimenting with a controversial new method of keeping track of immigrants who are applying to remain in the United States: They are requiring aliens in eight cities to wear electronic monitors 24 hours a day. National Public Radio's (NPR) Daniel Zwerdling explains that these ankle bracelets are the same monitors that some rapists and other convicted criminals must wear while on parole (Zwerdling 2005). However, the DHS's pilot project is putting monitors on non-citizens who have never been accused of a crime. So far, the Department of Homeland Security has put electronic monitors on more than 1,700 immigrants. In his radio report Zwerdling cited the director of ICE's subdivision of Detention and Removal Operations (DRO) Victor Cerda, arguing that the anklets are designed to help prevent tens of thousands of immigrants who are ordered to leave the country each year from "absconding"—that is, going into hiding to avoid deportation.

4. This experimental initiative is based upon a 2003 Report by the Justice Department's Office of Inspector General which found that 85 percent of the non-apprehended and incarcerated aliens who were scheduled for removal, were in fact not deported (Department of Justice 2003). The DHS used this study to justify its new experimental electronic monitoring program. In reality, however, the 2003 Report criticized the INS itself for causing at least part of the problem. Of a random sample of 308 non-detained aliens who had received final removal orders, only 40 aliens, or 13 percent, were actually removed. The report found that the INS is even less successful in removing aliens from countries that the Department of State lists as state sponsors of terrorism. And the lowest success rate (3 percent) was found for the removal of non-detained asylum seekers. However, for these failures, the report blames to a large part the INS's lack of coherent operating procedures—its records remained largely disorganized to the point that the office often did not know to what address to send the alien's final removal orders. Thus, the DRO initiated its latest experimental program, forcing immigrants and refugees to wear electronic bracelets 24/7 to keep track of these removable aliens.

4. In his NPR report, Zwerdling tells the story of an immigrant named Amilcar Daros, who owns a house, has a good job as an assistant manager in the restaurant Old Country Buffet, supervising 50 employees, pays taxes and has never been accused of a crime. Five years ago, Daros came to the United States from the Central American country of Belize. While he arrived legally, and then applied for permanent residence, the immigration officials denied his application. Instead he was served his order of deportation. Daros is currently appealing his case in court. While his appeal is pending, DHS officials have ordered him to wear the electronic monitor and put him under a curfew. He is to stay in his house from 6 p.m... to 6 a.m... every single day. If Daros tried to sneak out of his house during those 12 hours, his black solid plastic ankle bracelet would sound an alarm at a national computer center in Indiana and he would be in trouble. Moreover, three times a week at noon he has to rush out of the restaurant to report to a case officer at the security company Behavioral Interventions. DRO attests that the program has its advantages: it is cheaper than detention, and it allows the immigrants to maintain their regular lives and provides them with the great opportunity to continue working (Zwerdling 2005). Never mind their restricted civil liberties! If this pilot program is successful DHS might require every non-citizen who is applying for residence to wear an electronic monitor.

Mass Incarcerations

5. The electronic monitoring initiative is just the latest of the DHS's efforts to restrict the civil liberties of non-citizens. The 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA) and the 1996 Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) mandated the detention of certain immigrants and asylum seekers. Consequentially, prior to September 11, 2001 the INS had already detained more than 200,000 immigrants and refugees annually at more than 900 sites, the majority of which were county and local jails. The chair of the American Bar Association's Immigration Pro Bono Development and Bar Activation Project, Llewelyn G. Pritchard argued in February 2001 that "immigration detainees have become the fastest growing segment of the incarcerated population in the United States" (Pritchard 2001). (The AEDPA combined with IIRIRA made it virtually impossible for a lawful permanent resident who had committed a crime to remain in the United States. Under IIRIRA, most immigrants subject to deportation for crimes also became subject to mandatory detention for 90 days following the issuance of a final removal order. IIRIRA permits the INS to detain immigrants for a period beyond 90 days. This gave rise to the population of detainees known as "lifers" because the INS interpreted the law to allow indefinite detention. According to INS regulations, published in December 2000, the detainee has the burden of convincing the INS that she poses no "danger to public safety or a flight risk" in order to be considered for release. If the INS does not believe that the detainee has offered convincing evidence, detention can continue indefinitely. The regulations prohibit appeal of a denial of release to the Board of Immigration Appeals (USCR, 2004; Pritchard, 2004). Even prior to the terrorist attacks, the INS budgeted approximately one billion dollars for refugee and immigration detention and removal (Ibid). After September 11, 2001, detentions of aliens were encouraged for, as Mark Dow put it, "essentially PR purposes," although the Justice Department almost immediately stopped releasing numbers of detained persons (2004: 26).

6. ICE's DRO claims to promote public safety and national security by ensuring the deportation of all removable aliens through the enforcement of immigration laws. Since March 1, 2003, the DRO division has removed "more than 52,684 criminal aliens and an additional 40,802 non-criminal aliens" (ICE 2004). In 2003 DRO detained more than 230,000 immigrants and refugees. It has also created more than 18 fugitive absconder teams across the nation, whose mission is to seek out the more than 80,000 criminal absconders and the remaining 320,000 non-criminal absconders over the next six years. In the past year, DRO created a "Most Wanted" list of "criminal aliens" and a "Most Wanted Human Smugglers" list to solicit public assistance in locating the worst criminal immigrant fugitives. It seems of lately, however, that the enormous costs of incarcerating thousands of people became too expensive for the Bush administration.

7. With the $11 million electronic monitoring pilot project, the administration is in the process of releasing an estimated 24,000 of these illegal immigrants and refugees who are detained in Minneapolis, St. Paul, Baltimore, Philadelphia, Miami, Denver, Kansas City, San Francisco and Portland, Oregon (Associated Press 2004). The administration hopes that it will save about $550 million  while also "providing less restrictive alternatives to incarceration—such as electronic ankle bracelets, home visits and telephone check-ins" by private surveillance companies (Ibid). Immigrants and refugees, being under total surveillance 24/7, might be more likely to show up for court hearings or comply with deportation orders. DRO's director Cerda argues "We [the administration] do view this as a compassionate alternative" (Ibid). At a closer look, the release of thousands of immigrants from prison seems to be more an outsourcing of surveillance to private contractors, the privatization of the security apparatus, than a decision based on compassion.

The Selectivity of Total Surveillance

8. However, this is only one of the Administration's widespread current efforts to create a selective surveillance state by outsourcing and thus privatizing supervision and scrutiny. The circumstances under which detainees are incarcerated at Guantanamo Bay, Cuba, have been widely criticized as falling under neither POW status as defined by the Geneva Convention nor the American Constitution. Removed from law and judicial oversight, Giorgio Agamben emphasizes that the only thing to which the detained "could be possibly compared is the legal situation of the Jews in the Nazi Lager (camps), who, along with their citizenship, had lost every legal identity, but at least retained their identity as Jews" (2005: 4). On March 10, 2005, the Pentagon announced plans to transfer about half of the 540 detainees—all terrorist suspects—still incarcerated in Guantanamo Bay to Saudi Arabia, Yemen, and Afghanistan (Jehl 2005). Although this decision was made after recent court rulings have held that detainees may challenge their detention in federal courts, the underlying rationale is the same as in the DRO program: the outsourcing of surveillance and in this latter case, probably torture. The now infamous U.S. practice of "outsourcing torture" to allies and so-called rouge states such as Syria with its "extraordinary rendition" program is another macabre example of the outsourcing of the security apparatus (Mayer 2005).  

9. While the latest estimations assume, according to the New York Times, that twenty-six prisoners died in acts of "criminal homicide" in detention camps in Afghanistan and Iraq, the practical foundations for prisoners' abuse have long been laid in domestic American prisons (Jehl and Schmitt 2005). The INS has run a secret and repressive prison system for more two decades within the United States (Dow 2004). Moreover, a number of volunteer programs such as the Minuteman Project have become extremely popular particularly in the Southern border states. Nine hundred Minuteman Project volunteers conducted round-the-clock patrols in the San Pedro Valley, Arizona, which is a popular smuggling corridor, during April 2005, when the tide of immigrants crossing the U.S.-Mexico border supposedly peaked (LoMonaco 2005). All of these programs point toward the rise of a selective surveillance state—operated by private agents—that is hailed by many as the latest domestic component of the righteous "homeland defense" response to terrorist threats.

The Collective: The Garrison State

10. What is happening to the land of the free? In the United States, as Judith Butler has put it in another context, the state has begun to "withdraw the guarantees of legal protection and entitlement, at once abandoning its subjects to the violent whims of law and intensifying state power" (cited in Agamben 2005). What we see are elements of the growing authoritarian rule in the United States: the rise of the garrison state! The concept of the garrison state has been attributed to Harold Lasswell who in 1941 wrote about a future in which "specialists of violence are the most powerful group in society" (1941: 455).   Vernon Dibble elaborated on Lasswell's concept and wrote that the "garrison society" is:

(1) a large and powerful military that penetrates deeply into civilian life; (2) the great importance of civilians in military affairs, the increasing resemblance between military officers and civilian executives in politics and business, and the greater contact and cooperation between officers and civilians in politics, in science and in business; such that (3) the traditional boundaries between civilian and military society break down; and (4) the military are blended into an alliance with government and with large corporations, whose goals include (a) counter revolution and American hegemony abroad and (b) a large dose of centralized executive control of the economy and of politics at home (Dibble 1968: 273).

11. In the current war on terror, the domestic and international expansion of the military-industrial complex rests on a military budget that is as large as the next 15 countries' combined. The administration's proposed budget for 2006 includes increases of 4.8 per cent for the Department of Defense and of 6.8 per cent for the Department of Homeland Security, totaling $455.4 billion (of which $421.2 billion alone is allocated to the Defense Department). Among Defense budget line items funded are $40 billion to modernize the U.S. nuclear arsenal; $7.8 billion to develop and test the missile defense system; $9.4 billion to build a new generation of warships; $4.3 billion for F/A-22 Raptor fighters; $5 billion for the new Joint Strike fighter; $3.7 billion for the C-13 military transport; even $3.4 billion for new Army uniforms ("The Bush Budget: Misplaced Priorities" 2005). The rise of Halliburton and similar companies within the framework of the 'rebuilding' of Iraq, exemplifies the new military-industrial complex in which military, political and corporate players become one single group of decision makers and benefactors.

12. Surveillance is a quintessential element of this garrison society. Michel Foucault's theory of the surveillance state claims that the state capitalizes on a power-knowledge nexus through the implementation of a large surveillance apparatus (Foucault 1979). Matthew Morgan clarifies that surveillance, although a passive activity that does not always necessary physically restrict individuals, is a form of repression (Morgan 2004: 8). Consider a modern airport in the United States:

Uniformed and armed security personnel roam the premises. Citizens are subjected to numerous searches of their persons and effects. Multiple forms of personal identification are required for all seeking access. Metal detectors, X-ray machines, and other instruments directed at the prevention of violence are commonplace. Rigorous screening procedures control the movement of individuals through areas of varying levels of restriction. Loudspeakers with synthesized voices routinely announce warnings such as the consequences of leaving baggage unattended due to the possibility of bombing (Morgan 2004: 5).

While at certain public locations, such as airports, government buildings, and Wal-Marts, surveillance seems total—a pan-opticon where everyone is watched—some individuals are certainly under closer scrutiny than others.

Selective Scrutiny and State-sanctioned Violence

13. Initiated one year after the 9/11 terrorist attacks, on September 11, 2002, the National Security Entry-Exit Registration System (NSEERS) requires non-citizen (including students) from over 150 countries to register, provide biometric data (fingerprint), and attend annual interviews with ICE (ICE 2003). Moreover, a number of post-9/11 inter-agency operations were disastrous for particular immigrant and refugee communities. In practice, the efforts of cracking down on terrorists suspected within American territory soon degenerated into witch-hunts for immigrants accused of criminal offenses or whose records simply indicated processing irregularities. Many immigrants who have been arrested in the aftermath of 9/11 and in the continuing investigation of that day's crimes were incriminated with immigration charges, such as visa violations.

14. In the mass media, however, the detainees were frequently portrayed as possible "sleeper" terrorists, but little was known initially about the actual treatment and accusations. Some were held for months in solitary confinement. Others suffered physical and psychological torture, such as being beaten by INS guards, kept in cold cells and refused further blankets, and receiving no halal food or toilet paper for weeks. One detainee died of a heart attack while imprisoned (Cusac 2002: 24-28). In June 2003, the USA Justice Department's Office of the Inspector General (OIG) released its first special report outlining the FBI-led terrorism investigations following the attacks. The report criticized the treatment of 762 Arab and Muslim immigrants. It documented how detainees were beaten, kept from contacting lawyers and family members, and jailed for months under an official "no bond policy" (OIG 2003). The FBI and INS cooperated to detain immigrants by labeling the detainees "of interest" to the terrorism investigations, thus violating their due process rights, even when there were no grounds for suspicion.

15, This is a form of state-sanctioned and even state-initiated violence, which in turn legitimizes the terrorizing of entire populations. State-initiated violence against immigrants and other non-citizens is currently extensive and remains—it seems—widely accepted by the mainstream population. Immigrants currently live in a climate of uncertainty, which as Aimee Carrillo Rowe shows, among other things "undermines their capacity to organize, thereby (re)producing a docile, readily exploitable labor force" (2004: 130).   This in turn, benefits the American majority because its members can "move freely, buy cheaply, and retain social control, all the while believing it is they who are under siege" by terrorists and illegal parasitic aliens (Ibid).

The State Under Siege

16. It seems that after September 11, 2001, the historic opportunity arose to turn the U.S. into a garrison state, based on the perfect interplay of mass paranoia, progressively infused with rising nationalism and nativism, almost total corporate media control, the securitization and militarization of society, and a weak and insecure opposition, all of which lie at the fingertips of the Bush administration.

17. In the direct aftermath of the terrorist attacks on September 11, 2001, the notion of being in a state under siege was widespread and allowed for the creation of a state of exception in the U.S. (Agamben 2005). Within hours of the attacks it became clear, at least in the mainstream mass media that America's response to these horrific attacks ought to be free from moral responsibility for the consequences of its future actions. Indeed, the U.S. government was widely seen to be able to do anything with the (nearly total) support of its population. The tragic events of 9/11 quasi-incited the proliferation of a moral legitimacy to defend the threatened American society under the banner of righteous nationalism, against enemy regimes and their collaborators who were perceived as a Fifth Column infiltrating the homeland. Thus it became the patriotic duty of citizens, gripped and infatuated by old fears and nationalist feelings to engage in the defense of America.

18. As Anatol Lieven makes clear in America Right or Wrong, the nativist and nationalist outbursts following 9/11 engendered the resurfacing of old prototypical feelings. Lieven emphasizes "not only the strength of this nationalism and its alternation between messianic idealism and chauvinism, but also its highly unreflective character" (2004: 222). Tom Nairn underlines this point by explaining that Americans still find it hard to reflect on their national identity; it is difficult for them to "step outside American national myths and look at the nation with detachment, not as an exceptional city on a hill, but as a mortal nation among other nations"(2004). Nairn stresses that after 2001 the "messianic Creed—a mixture of Enlightenment motifs with Christian fundamentalism—and 'right or wrong' chauvinism achieved critical mass as never before, and generated a chain reaction or historical pattern" whose costs and consequences could be ominous and menacing for the country and the world (Ibid).

19. This popular climate allowed the administration to begin to infringe upon individual immigrants' and aliens' rights and liberties, in the name of protecting the American society and the homeland, while initially at least muting dissent successfully as unpatriotic and subversive in the post-9/11 state of exception (Ausnahmezustand). Through the thorough management of fear und unease, the administration created and maintained a garrison state by initiating a number of sweeping legislative acts, the most infamous of which are the Patriot Act (passed in October 2001) and the Enhanced Border Security and Visa Entry Reform Act (passed May 2002) and extensive structural changes.            

The Fox News Phenomenon

20. The administration's accomplice in the management of fear and unease, the mass media cartels have since continued "their role as lapdogs of the Bush administration and the military-industrial complex" (McLaren 2005). One of the primary ideological vehicles of the new garrison state is Rupert Murdoch's Fox News Corporation. Fox News is rapidly gaining a wide and committed audience on the basis of its appeal to right-wing viewers. McLaren emphasizes that Fox News' "political catechism is spiked with testosterone and rage and gives ballast to the logic of transnational capitalism and US militarism" (Ibid). One of Fox's flagship news shows, the O'Reilly Factor is hosted by Bill O'Reilly, who is stubbornly convinced that "unsupported opinions presented in a mean-spirited fashion are preferable to complex analysis" (Ibid). In the September 17, 2001 broadcast of his show, O'Reilly put forth a plan of action if the Taliban did not hand over bin Laden:

If they don't, the US should bomb the Afghan infrastructure to rubble—the airport, the power plants, their water facilities and the roads. This is a very primitive country. And taking out their ability to exist day to day will not be hard. Remember, the people of any country are ultimately responsible for the government they have. The Germans were responsible for Hitler. The Afghans are responsible for the Taliban. We should not target civilians. But if they don't rise up against this criminal government, they starve, period (Ibid).

21. But according to popular and extremely simplistic representations of the "war on terror," the enemy can be found not only outside but also inside U.S. borders. Immigrants, asylees, refugees, human smugglers, and terrorists have been included in one category of "evildoers" within Fox's simplistic worldview. Fox News frequently includes immigration stories that focus on the nexus of illegality, crime and terrorism. For example, in March 2005 the network broadcasted a number of news stories with such headlines as "Illegal Alien Influx May Compromise Security," "Border States Grapple with Alien Criminals," and "Customs Agents Look for Convicted Criminals" (Fox News March 16, March 17, March 24, 2005). While Fox News remains one of the most popular news sources, it is only one (maybe particularly colorful) example of many. All the main news outlets, including CNN, CBS, ABC and MSNBC are, if not collaborators, then mouthpieces of the administration. Within this framework, the administration could argue successfully that security, and in particular internal security, must be understood as the militarization and securitization of society at large, because righteous American citizens must be protected from terrorists and other evildoers. Civil liberties and individual rights need, if necessary, to be sacrificed for the larger goal of security.


22. The United States is gradually turning into a garrison state. Certain groups of aliens have experienced the selective elimination of their civil liberties—which left some in a perpetual state of surveillance and others in a legal limbo that Agamben for example compares to the legal situation of Jews in Nazi Camps. While the entire society has experienced increased surveillance and scrutiny in public places, large multi-agency operations have also engaged in the mass incarceration and registration of immigrants and other foreigners since September 11, 2001. The U.S. government was able to construct the legal ground for the creation of a garrison state in the aftermath of the terrorist attacks because a general paranoia allowed on the one hand, for the enactment of a number of legal instruments that severely restrict civil rights, particularly of foreigners. On the other hand, the post-9/11 paranoid and nationalist climate and corporate ownership of the mass media allowed for a nearly complete management of fear und unease and a substantial militarization of society. Critical voices were branded as disloyal anti-American traitors and terrorist collaborators. Thus, it is the ano dato successful implementation of the garrison state that allowed this administration to subvert human and civil rights at home and abroad, and sabotage the international human rights institutions with very little domestic resistance. Much hope for a future reversal to a more civic-minded administration and society rests now with the courts. No wonder then, that they are fiercely attacked by some of the right-wing henchmen of this administration.


Barbara Franz teaches Political Science and International Relations at Rider University, USA, and has published a number of articles on refugee (re)settlement in Europe and the United States and the post-9/11 politics of national security and immigration. Her book Unwanted and Uprooted: Bosnian Refugees in Austria and the United States was published by Texas A & M University Press in spring of 2005. E-mail:


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