Migrant Protest and Democratic States of Exception 9781032245607, 9781032245591, 9781003282679

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This activism creates a “democratic state of exception,” interrupting the legal process, altering discretionary forms of sovereign power, and enacting rights not formally granted; these efforts go beyond the assertion of liberal rights or merely restoring the rule of law (even if these are goals), challenging the warfare state while constituting a demos that is formally illegible. Migrant Protest and Democratic States of Exception will be of interest to scholars, migrant advocacy professionals (including INGO and IGO officers), graduate students, and advanced undergraduate students in a variety of fields from legal studies to forced migration and refugee studies; political science, human rights, protest history and contemporary movements.

Kathleen R. Arnold is Director of the Refugee and Forced Migration Program at DePaul University. She is a political theorist who has written extensively on statelessness, displacement, and poverty. This is her sixth single-authored book.

KATHLEEN R. ARNOLD

POLITICS / CURRENT AFFAIRS

ISBN 978-1-03-224559-1 www.routledge.com Routledge titles are available as eBook editions in a range of digital formats

MIGRANT PROTEST AND DEMOCRATIC STATES OF EXCEPTION

Recognizing the radical disparity between migration/border policy and constitutional law “inside these borders.”, Kathleen R. Arnold focuses on two main forms of migrant protest to explore the meaning of resistance in a sovereign context: self-harming protest by detainees and faith-based sanctuary of individuals scheduled for detention.

9 781032 245591

KATHLEEN R. ARNOLD

MIGRANT PROTEST AND DEMOCRATIC STATES OF EXCEPTION

MIGRANT PROTEST AND DEMOCRATIC STATES OF EXCEPTION

Recognizing the radical disparity between migration/border policy and constitutional law “inside these borders,” Kathleen R. Arnold focuses on two main forms of migrant protest to explore the meaning of resistance in a sovereign context: self-harming protest by detainees and faith-based sanctuary of individuals scheduled for detention. This activism creates a “democratic state of exception,” interrupting the legal process, altering discretionary forms of sovereign power, and enacting rights not formally granted; these efforts go beyond the assertion of liberal rights or merely restoring the rule of law (even if these are also goals), challenging the warfare state while constituting a demos that is formally illegible. Migrant Protest and Democratic States of Exception will be of interest to scholars, migrant advocacy professionals (including INGO and IGO offcers), graduate students, and advanced undergraduate students in a variety of felds from legal studies to forced migration and refugee studies, political science, human rights, protest history, and contemporary movements. Kathleen R. Arnold is Director of the Refugee and Forced Migration Program at DePaul University. She is a political theorist who has written extensively on statelessness, displacement, and poverty. This is her sixth single-authored book.

MIGRANT PROTEST AND DEMOCRATIC STATES OF EXCEPTION

Kathleen R. Arnold

Designed cover image: © Getty Images First published 2024 by Routledge 605 Third Avenue, New York, NY 10158 and by Routledge 4 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 Kathleen R Arnold The right of Kathleen R Arnold to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. ISBN: 978-1-032-24560-7 (hbk) ISBN: 978-1-032-24559-1 (pbk) ISBN: 978-1-003-28267-9 (ebk) DOI: 10.4324/9781003282679 Typeset in Sabon by Deanta Global Publishing Services, Chennai, India

To Hannah with my love

CONTENTS

Acknowledgements Preface Introduction

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1 Understanding migration policy as foreign policy

56

2 Self-harming protest

99

3 Faith-based sanctuary: Creating spaces of democratic exception

136

4 Sovereignty and counter-sovereignty: Is democratic sovereignty possible?

192

Conclusion: States of democratic exception: migrant agency and resistance to the warfare state

230

Index

255

ACKNOWLEDGEMENTS

I have worked on sections of this book for years and am grateful to all interlocutors who helped shape my research and community participation. Due to space limitations, I will only name a few people, but please know that I am grateful to all. Thanks to my political science honors students who took my sanctuary seminar during the pandemic—we could have lost hope but instead formed a community. Together with passionate students in my immigration law classes, we formed DePaul Sanctuary and Sanctuary Now! Since that time, we have formed meaningful ties to our community and supported forced migrants. In particular, Katie Crosby, Gurvir Gill, Dilpreet Kaur, and Avery Tunstill helped to found these groups and Katie and Avery have been there every step of the way, as colleagues and friends. You all make my job more meaningful and have enriched my life. I thank John French (DePaul) for early insightful remarks on my chapter on hunger strikes and lip-sewing; Karen Zivi (Grand Valley State) for discussions about different parts of this book in its early stages; Michael Feola (Lafayette) for very brief but helpful communication; political science conference panelists and discussants; and two anonymous reviewers whose constructive and helpful remarks truly aided this project. Thanks to Veronica Zebadua-Yañez for reading a draft of my work on sanctuary and for suggesting the term “democratic state of exception,” which is a central concept in this project. I have published on faith-based sanctuary in PRQ (Political Research Quarterly), and while my current chapter is very different from the article, I want to acknowledge that there is a small overlap in the texts.

Acknowledgements ix

While less directly related to my academic work, I am also thankful for conversations at conferences in the past few years, including the detention panel I moderated at the DePaul Migration Collaborative Conference in April 2022, with migrant advocates who continue to inspire me (Fred Tsao of ICIRR, Ruben Loyo of NIJC, and Sister JoAnn Persch of Sisters of Mercy). All three helped to end adult detention in Illinois. Sister Pat Murphy was also in attendance, and together, she and Sister JoAnn are incredibly generous, supportive role models who “heard the call” and encourage others to fght for social justice whenever they can. Similarly, I am grateful for the conversations and presentations at the World Refugee Day Conference that Moshood Olanrewaju and I organized (June 2022)—I thank Nicholas de Genova, who followed up by sending some of his work that he thought I should read, noting affnities in our concerns. This was very helpful as I was fnishing this project. I am grateful for the supportive editors at Routledge, Charlie Baker and Natalja Mortensen. Finally, I am always grateful to my daughter Hannah who has attended protests, marches, meetings, and more since she was little. She has sorted clothes and food, passed out fyers, shared holidays with refugees, and largely has done so without complaining (aside from having to hear about details about torture and displacement at breakfast). I have written this book in solidarity with all forced migrants who risk so much to fnd freedom and safety. All mistakes are my own.

PREFACE

Although a number of countries host refugees, roughly 20 are wealthy democracies that have signed the 1951 UN Convention and Protocol Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. While many of these countries use detention or “welcoming centers” to process migrants arriving without prior authorization, Australia and the United States are distinguished by their implementation of mandatory detention for many of these foreign arrivals (including refugees), often lasting from a year to two years. The circumstances of these detention centers are such that individuals feel disappeared, neglected, and sometimes tortured. Most detainees interned at border sites have undergone arduous journeys, and detention exacerbates mental and physical trauma. Both countries regularly violate norms of refoulement by deporting the same individuals to a country where they have experienced persecution or fear future persecution. While the Australian and US governments view themselves as fairer, more transparent, and tied to the rule of law in comparison to some of the dominant host countries, both migration systems are deeply unjust.1 Each government consolidated federal power at the end of the 1800s precisely through establishing plenary powers over migration, which were viewed as part of foreign policy. Through case law and border enforcement, both systems asserted national sovereignty over and above foreigners’ inalienable rights and, more recently, human rights. Both systems emerged with and are implicated in eugenic racism, only very briefy making concessions to human rights claims in the 1960s and 1970s and then authorizing mass detention in the 1980s (Australia) and 1990s (United States).

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Both governments interpret migrant detention as distinct from prisons, and so the criminal rights, transparency, and other checks and balances that criminal justice has provided (at least hypothetically) are nearly or entirely absent. While a prison sentence entails reasonable suspicion, transparent evidence, charges, a trial, and more, internment in detention essentially lacks the procedural and democratic safeguards of the criminal justice sphere. If there has been any convergence of the two systems (e.g. as “crimmigration”), the undemocratic aspects of migration systems have increasingly affected prison administration. 2 Thus, while I focus exclusively on migrant detention in this book, any comparisons to prisons should not be interpreted as an idealization of the criminal justice system in either country. Australia and the United States have different approaches to the “immigration crisis”—for example, the United States has created a mass detention and deportation system that not only detains many new arrivals but also interns long-term residents. In both cases, many individuals have been deported after spending time in detention, as the mass detention system acts in tandem with mass deportation.3 Australia has developed similar legal tools to detain and deport long-term residents but, thus far, has not done so to the degree the United States has. Nonetheless, the two countries have interesting and signifcant commonalities which are revealed when protesters expose the harms of these policies and demonstrate how these policies undermine democratic institutions and norms. Migrant protest is an important instantiation of democratic activity, even if self-harming protest is not desirable outside a context of desperation and coercion. In this book, my primary focus is on two forms of protest by people in detention or those scheduled for detention: detainee hunger strikes and lip-sewing in detention and faith-based sanctuary, which involves someone scheduled for detention who interrupts the process by feeing to a religious structure. On the one hand, with some authors like Andrea Pitzer, I want to warn readers of the dangers of tolerating mass detention and deportation.4 These two policies are only possible through adopting “totalitarian” policies and enforcement—something Hannah Arendt warned about regarding states that used mass denationalization as a tool of political and social control, allowed migration policing to become part of daily life, and established camps to forcibly detain civilians without trial. 5 In raising awareness about state preparations for atrocity crimes, the United Nations lists certain legal provisions as a warning that atrocity crimes will be committed. These moves include arresting civilians/non-combatants in great numbers; arbitrary arrest; “policies or enforcement that affects the reproductive rights of women; or which separates and/or forcibly

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transfers children away from parents/groups”; and refusing to allow outside observers to enter into these centers.6 Both countries have engaged in these practices. On the other hand, numerous protests challenge this system, altering sovereign power in ways I don’t think many people necessarily consider. These protests are important to maintaining and yet reconfguring democracy, but they do not draw on liberal rights; rather, they are forms of counter-sovereignty. They expose important connections between the constitutional state and the state powers dealing with foreign policy of which we should all be more aware. In this preface, I limit myself to explaining certain key terms I employ in this project, issues in researching this particular subject, and my participation in the faith-based sanctuary and other grassroots protests. In the following chapters, I historicize and theorize the meaning of migration policy and protests against these two systems. First, I would like to explain how diffcult it is to get information about detention centers and detainee protests. Both countries view migration policy as foreign policy, and since each country implemented mass detention policies, they have used secret evidence to detain individuals, refused to comply with freedom of information requests (or made it diffcult), refused to keep open records, and engaged in other secretive practices. Because of this lack of government transparency, many of the sources I use are thus popular ones or information derived from civil society groups. Very few outsiders are allowed in detention centers, and most are required to go through federal background checks, training (depending on the reason they want to enter the center), and more before they can enter. Both countries have often cut off groups’ access to these centers if they become whistleblowers. In the past year, a prominent US political science professor asked me if I could get him into a center—most people do not understand how diffcult it is even for UN observers to enter these spaces or outside doctors and/or therapists. While some communication depends on the detention center’s administration, it is often diffcult if not impossible for journalists or Amnesty International or Human Rights Watch personnel to gain regular access to detainees. When they can, there has been retaliation against the detainee after a report has been fled or a critical article published. For this reason, a researcher of this subject must have years of experience, learning which civil society groups collect the information each government refuses to reveal, which groups aid detainee protesters, and/or what popular sources provide rigorous information. Grassroots activity in this feld can greatly aid this research, allowing someone to understand the grayer dynamics of resistance to state agencies and appreciating the small, local victories that often occur. These “micro” successes chip away

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at and alter the purported monopoly of violence the state exerts in matters of foreign policy. Because migrants in detention or those slated for detention do not have many rights, quite a lot of tactics that grassroots organizers and human rights advocates employ are similarly off-book. I cannot reveal the most radical tactics, but I can assure readers that most faith-based activist leaders and human rights–centered organizations do not support a bordered world, they do not view or simply act in the host country but also seek to democratize transnational politics and/or repressive systems in sending countries, and they do not seek liberal solutions except as a temporary measure while they pursue more radical ends. Essentially, they do quite a lot that undermines the claims that NGOs, human rights groups, and/or civil society are simply “liberal” or they tacitly support borders.7 For these reasons, I fnd many critiques of these protest forms as not refecting the reality of grassroots activity in both countries since the 1980s (I discuss these critiques in Chapter 3). A few examples will have to suffce: sanctuary movements in both countries have never merely sheltered people once they arrived in the host country but have often facilitated unauthorized transportation and entry when possible. The history of these movements has always involved criticisms of neo-imperialist foreign policy while they have fought to regularize the status of refugees who have been deemed unauthorized. Certain fgures I know have fought for pastoral care in detention centers—this was not a short or easy battle. But they have never merely complied with federal authorities: rather, they have worked to abolish these centers and have provided unauthorized information, which they communicate verbally. Very broadly, prayers with detainees can include phone numbers to call when detainees are dumped off in deserted areas on the US southern border; advocates often use other languages when discussing sensitive information and aid; and many of these groups have aided transportation to these host countries and/or within the country. I have worked for several years at the grassroots level (e.g. activist groups) and participated in community organizations in Chicago that aided faith-based sanctuary (e.g. migrant supporting groups). In the past year and a half, I have formed a campus group (DePaul Sanctuary) and linked NGO (Sanctuary Now!) with my undergraduate students, graduate students, and some alumni to support forced migrants. Without this participation, I do not think I would have had the resources or knowledge to write on this subject. My activities have not been aimed at research, but they have enabled me to learn more about these protests on the ground, to meet key fgures in the movements for faith-based sanctuary and ending detention (often the same fgures do both), and to work both underground and at the nonproft policy level. I have also begun doing expert witness

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work over the past few years, which has allowed me to conduct in-depth research on political dynamics uprooting people who seek refuge in other countries. University law centers that collect the data, substantive case information, and court decisions, for example, that the government refuses to make public are absolutely crucial for this type of work. While other migration scholars face the same obstacles and often rely on the same tactics, I should note that one thing might differentiate us. As a political theorist, I make explicit arguments, using political language to characterize certain practices as unjust, undemocratic, and/or rendering a person rightless. While making arguments is a standard practice in my academic area, it is certainly not the same in other felds. Perhaps the absence of an explicit argument produces the appearance of neutrality and self-evidence of the subject matter. With Natasha Behl, Colette Guillaumin, Max Weber, and many others, I do not believe that a stance of neutrality is possible when discussing a political subject, nor is consensus, easy familiarity, or facial neutrality my goal.8 Colette Guillaumin has critiqued certain Global North canonical theory texts as the: sacred verbiage of those who dominate them—from those who dispose of power (tools, weapons, police, army) and nourishment (wages, lands, goods, etc); power, goods, freedom determined by majority. Therefore theory is the institutionalized expression of their consciousness and their view of the situation is the only one to be transmitted, diffused and expounded.9 By the same token, the “anger of the oppressed” is worth exploring for its political import and readers can recognize that anger, mental dysregulation, and illness (for example) are valid modes of political expression revealing how migrant trauma is situated in public health and a political sphere.10 Some notes on my terminology: I will use refugee, asylum seeker, and forced migrant interchangeably and in an informal sense. I am referring to the lived experiences of forced migrants and not the governmental classifcation of their migration status. When I use the term faith-based sanctuary, readers have assumed I mean “Christian”—I purposely use the term “faith-based” to include any religion (per Max Weber’s defnition of religion) and want to tell readers that synagogues in the United States have historically been involved in the US Sanctuary movement since its beginning (but particularly in the New Sanctuary Movement beginning in 2006–2007) and some mosques (granted, more recently).11 “Faith-based”

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is not code for “Christian,” and in fact, this movement has always included members of the public who do not attend any religious services. I use the term personhood as a legal concept that confers protective (inalienable) rights but not necessarily positive freedoms of citizenship. Monica Varsanyi’s term non-personhood is a legal term indicating that an individual has no legal persona when confronting sovereign authorities.12 As Hannah Arendt has famously argued, this sort of person not only lacks positive freedoms but negative ones—that is, they “lack the right to have rights.”13 I should also note that I will argue throughout the book that migrants in detention or scheduled to be detained are rightless. I use this term as a simple way to express de facto, informal power dynamics even if these individuals technically have rights to fle grievances, limited forms of appeal, and some hope that discretionary decisions will be concluded positively. One can point to minimal due process rights, but what I’m arguing is that these are largely meaningless and trumped by other power dynamics. Moreover, depending on the governmental administration in each country, there have been some chances to appeal cases—but, as I argue in another work, this is not due to “rights” but mercy and discretion. To argue otherwise is to confate the immigrant judicial system with (ideally) normal civil and criminal procedures based on the same constitutional guarantees, protections, or rights that someone born in the country would have. I argue that detention is a camp (see Chapter 1) but it is not an encampment. For the purposes of this book, detention is a guarded structure that holds civilians (non-combatants) who have not been arrested on criminal charges nor been given access to a meaningful trial. Individuals in these types of camps—from detention centers to “welcoming centers” to “shelters” for children—are not free to leave. Detention is not an encampment— for example, the “Jungle” in Calais and various Roma encampments are not detention centers and, therefore, not “camps” as I am defning the term.14 This distinction is important to challenge what some authors view as a faw in Giorgio Agamben’s work: migrants and other displaced peoples can exercise choice and have mobility in an encampment unless and until the government chooses to bulldoze it. A detention center—even if tents are used—involves forcible internment of a civilian population based on a discretionary system dialectically opposed to criminal rights. Because Agamben’s characterization of camps accounts for force, lack of mobility, and arrest for a status violation rather than a criminal one, arguments about encampments do not prove him wrong. By the same token, I do not believe that his negative characterization of migrant policies and border policing necessarily mean that the target of power is abject. What I believe Agamben is doing, and what I am trying to do, is to expose how

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these systems are thanatic or “necro.”15 Accordingly, if protest against this system is necro-protest and/or thanatic, it is not the protest that makes these circumstances destructive and deathlike. It is the state’s power used forcefully against refugees—from the use of military force and violence on boats full of refugees to patterns of guard assaults, gender violence, and child abuse against migrant detainees. Detention and deportation are not supposed to be punishment, but ironically, they entail the most severe penalties: forced displacement, disappearance, torture, and forcible return to a country where an individual fears harm. Indefnite terms of detention are the equivalent of a life sentence, and deportation is equivalent to exile, a life sentence, or the death penalty—something Daniel Kanstroom has argued for years.16 As these systems have developed in each country, but particularly in the United States (because of the signifcant numbers of long-term residents detained and deported), the policy is no longer gatekeeping to the degree it once did. By “gatekeeping” I mean only partially enforcing seemingly tough laws but allowing other foreigners into a country to perform low-tier labor. The balance has tilted in both countries such that enforcement mechanisms have become more pervasive, more refugees are turned away at borders, and security frms and technologies are gaining while low-tier worksites are struggling. I employ the term bio-power as Foucault theorized it because it is a more intersectional term than racism alone, but for stylistic reasons, I use the two terms interchangeably. Bio-power rests on biological determinism and historically signals not just the politicization of biological matters but also a biologization of political categories, discourse, and political membership (see Chapter 1). For these reasons, bio-power cannot be recuperated in any positive matter nor affrmed through protest. If “the political” entails a public involved in projects of justice, egalitarian notions of human belonging, and positive interdependence, bio-power undermines and destroys these efforts.17 Finally, when I refer to migrant protest on behalf of “rights” or egalitarian principles, I am referring to post-national rights. Post-national rights are not “post” in a temporal sense indicating rights claims and public-making when the nation-state model ends.18 When I suggest that these two governments should guarantee and view as an obligation to implement human rights, inalienable rights, protective rights (due process equal protection), and civil rights, I am frst indicating that even the status quo would be better than the current situation. Second, I am suggesting, per Yasemin Soysal’s earlier work on post-national citizenship, Peter Westoby’s analyses of justice-oriented community formations, and Patricia Williams’ advocacy of rights that when the dispossessed exercise these rights, upending conventional narratives, decentering nationalizing

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and denationalizing power dynamics, and challenging their relegation to bare existence, that “rights” change.19 They can be formulated in terms of duties and relationships—not just possessions that individualize and pit individuals against individuals. 20 The protest methods I discuss radically challenge citizenship as the marker of belonging, they breach borders demonstrating their malleability, and they undermine the primacy of the nation-state. Sanctuary politics operates on these two different registers: sanctuary localities assert the primacy of inalienable rights and positive liberties granted to all “persons” under the purview of a specifc state. While this might appear to be a reformist political task that leaves intact the internal imperialism of the warfare state, Lasch and others argue that with each struggle, the power, scope, and legitimacy of federal authorities acting in a discretionary, abusive manner are put into question.21 I argue that faith-based sanctuary is more radical than sanctuary localities for several reasons, including because it offers new claims to space and alternative discourses that do not merely fll in more information but explode commonly held views, terms, and justifcations for harsh migration treatment. Faithbased sanctuary relies on a heterogeneous community, connecting people of various migration and/or citizenship statuses. It does not call for reinstating the law but creates new, unauthorized spaces led by people whose status is legally illegible. In noting these two different political registers, I am not suggesting that there are stages of political activity nor any nested hierarchy between the two types of sanctuary. Rather, we can consider how this is a signifcant case in which the call for constitutional protections against arbitrary policing challenges the legitimacy of the warfare state—in this way, the premises of reinstating the rule of law and personhood cannot merely reform but must unsettle current policies. Nevertheless, faith-based sanctuary models new types of positive freedoms that go beyond life-sustaining concerns, invigorating civil society through fugitive tactics. These groups must engage in a deconstructive episteme, given hostile, biologically deterministic discourses, but this is not simply to dismantle but to effectively create plural, democratic communities. Whether or not the reader agrees with my approach, my aim is to unsettle current thinking about these important issues. As Colette Guillaumin argues, non-canonical texts are not merely additions to current thinking but instead ensure that “it will never again be possible to view the problems in the same way as before.”22 Notes 1 For example, see the Danish Refugee Council, “Which Country Hosts the Most Refugees?,” 2022, https://www.drc.ngo/our-work/resources/faq -on-refugees/which-country-hosts-the-most-refugees/#:~:text=At%20the

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2

3 4 5 6

7

8

9 10 11

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%20moment%2C%20Turkey%20is%20the%20country%20that,refugees %20and%20close%20to%20320%2C000%20of%20other%20nationalities.. Turkey and Colombia are two of the top refugee-serving countries. Kathleen Arnold, Arendt, Agamben and the Issue of Hyper-Legality: In Between the Prisoner-Stateless Nexus (New York and London: Routledge, 2018); Colin Dayan, The Law Is a White Dog (Princeton: Princeton University Press, 2011); Juliet P. Stumpf, “The Crimmigration Crisis: Immigrants, Crime and Sovereign Power,” American University Law Review 56 (2006): 367–418. These policies were authorized in 1996 but only implemented large-scale beginning in 2003 and notably expanding in 2006. Andrea Pitzer, One Long Night: A Global History of Concentration Camps (Boston: Hachette/Little Brown, 2018). Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979). UN, “Framework of Analysis for Atrocity Crimes: A Tool for Prevention,” UN website, 2014/2018, 21–22, https://www.un.org/en/genocideprevention/documents/publications-and-resources/Genocide_Framework%20of%20Analysis -English.pdf; UNHCR, “Monitoring Asylum in Australia,” https://www .unhcr.org/asylum-in-australia.html. Please see Bosniak for a compelling and yet fawed argument regarding the sanctuary movement: Linda Bosniak, “Sanctuary and the Contested Ethics of Presence in the United States,” Borders and Boundaries: Mapping Out Contemporary Societies, ed. Didier Fassin (Berkeley: University of California Press, 2018), ch. 10 (189–213). See Natasha Behl, “Situated Citizenship: Understanding Indian Citizenship Through Women’s Exclusion,” Politics, Groups and Identities, June 17, 2014, https://www.academia.edu/7406815/Situated_Citizenship_Understanding _Sikh_Citizenship_through_Women_s_Exclusion?auto=download; Colette Guillaumin, Racism, Sexism, Power and Ideology (New York: Routledge, 1995); Max Weber, “Objectivity in the Social Sciences,” in The Methodology of the Social Sciences, ed. Edward A. Shils, trans. Henry A. Finch (New York: Free Press, 1969). Guillaumin, Racism, Sexism, Power and Ideology, 153. See Guillaumin, Racism, Sexism, Power and Ideology, 153–157. Max Weber, From Max Weber: Essays in Sociology, ed. H.H. Gerth and C. Wright Mills (New York: Oxford University Press, 1958); Dora Ballew, “The Man Trying to Turn Mosques Into Places of Sanctuary,” Ozy, February 7, 2017, https://www.ozy.com/the-new-and-the-next/the-man-trying-to-turn -mosques-into-places-of-sanctuary/75559/; Renee Montagne, “Mosques Consider Sanctuary For Immigrants,” NPR, March 4, 2018, https://www.npr .org/2018/03/04/590670163/mosques-consider-sanctuary-for-immigrants; Sean Rehaag, “Bordering on Legality: Canadian Church Sanctuary and the Rule of Law,” Refuge: Canada's Journal on Refugees 26, no. 1 (Spring 2009): 43–56 (see p. 53, n. 6); Imam Omar Suleiman–his website: https://imamomar.com/about/; Kimberly Winston, “First to Join Sanctuary Movement,” Sojourners, January 23, 2017, https://sojo.net/articles/ohio-mosque-frst-join -sanctuary-movement. Monica Varsanyi, “Rescaling the ‘Alien’, Rescaling Personhood: Neoliberalism, Immigration and the State,” Annals of the Association of American Geographers 98, no. 4 (2008): 877–896; Arnold, Arendt, Agamben and the Issue of Hyper-Legality, ch. 1; Karen E. Bravo, “On Making Persons: Legal

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15 16 17 18

19

20 21 22

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Constructions of Personhood and Their Nexus with Human Traffcking,” Northern Illinois University Law Review 31 (Summer 2011): 467–500. Arendt, The Origins of Totalitarianism, ch. 9. For these reasons, I characterize a “camp” differently than: Akhil Gupta, Red Tape: Bureaucracy, Structural Violence, and Poverty in India (Durham: Duke University Press, 2012); Kim Rygiel, “Bordering Solidarities: Migrant Activism and the Politics of Movement and Camps at Calais,” Citizenship Studies 15 (2011): 1–19; Miriam Ticktin, “Calais Containment Politics in the ‘Jungle’,” https://www.academia.edu/28005497/CALAIS_CONTAINMENT _POLITICS_IN_THE_JUNGLE. On this characterization, see Rygiel, “Bordering Solidarities”; Banu Bargu, “The Silent Exception: Hunger Striking and Lip-Sewing,” Law, Culture and the Humanities (May 24, 2017): 1–28. See, e.g., Daniel Kanstroom, “Deportation as a Global Phenomenon: Refections on the Draft Articles on the Expulsion of Aliens,” Harvard Human Rights Journal 30, ILC Forum Essays (March 1, 2017): 49–75. See Bargu, “The Silent Exception,” 14–15. See Yasemin Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago, 1994); see also Katherine Tonkiss, “‘A Baby Is a Baby’: The Asha Protests and the Sociology of Affective Post-Nationalism,” Sociology 55, no. 1 (2021): 146–162. See also Tonkiss, “‘A Baby Is a Baby’.” As Tonkiss summarizes the points of her important article: “The analysis of this case demonstrates that affect performs a dual function in the practice of post-nationalism, to catalyse action in solidarity with the noncitizen informed primarily by the emotional resonance of a particular rendering of vulnerability, and in re-imagined solidarity with the co-citizen around a post-national community of feeling.” (146). As Marx analyzed issues with liberal rights in “On the Jewish Question.” Friedrich Engels and Karl Marx, The Marx-Engels Reader, 2nd ed., ed. Robert C. Tucker (New York: W.W. Norton, 1978). Christopher N. Lasch et al., “Understanding ‘Sanctuary Cities’,” Boston College Law Review 59, no. 5 Article 5 (2018): 1702–1775. Guillaumin, Racism, Sexism, Power and Ideology, 157.

Select Bibliography Arendt, Hannah. The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979). Arnold, Kathleen. Arendt, Agamben and the Issue of Hyper-Legality: In Between the Prisoner-Stateless Nexus (New York and London: Routledge, 2018). Bosniak, Linda. “Sanctuary and the Contested Ethics of Presence in the United States.” In Borders and Boundaries: Mapping Out Contemporary Societies, edited by Didier Fassin (Berkeley: University of California Press, 2018), ch. 10 (189–213). Dayan, Colin. The Law is a White Dog (Princeton: Princeton University Press, 2011). Guillaumin, Colette. Racism, Sexism, Power and Ideology (New York: Routledge, 1995). Pitzer, Andrea.  One Long Night:  A Global History of Concentration Camps (Hachette/Little Brown, 2018).

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Soysal, Yasemin. Analysis in Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago, 1994). Stumpf, Juliet P. “The Crimmigration Crisis: Immigrants, Crime and Sovereign Power.” American University Law Review 56 (2006): 367–418. Weber, Max. From Max Weber: Essays in Sociology, edited by H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1958).

INTRODUCTION

I.1 Introduction to puzzles in this book

In 2017, after Trump has put new orders in, my stay of removal was denied. After discussing it with 17 different attorneys, nobody was even trying to take my case because of the new administration’s rules. It was either go to the immigration offce and report to them and get detained and deported or go into the sanctuary and have some hope that you’re going to resolve your case. And I could see my children (a son, then 10, two daughters, then both age 4) and my family. That was the most important thing. Irida Kakhtiranova, sanctuary participant1 ~ For over three years, Maria Macario has been too afraid to leave the white steepled First Parish Church just outside Boston. The 55-yearold Guatemala native moved in to avoid deportation, living in a converted Sunday school classroom with a kitchenette. Her isolation has only been compounded by the coronavirus pandemic. Gone are the regular church gatherings and volunteers stationed around the clock in case immigration offcials come. To keep her spirits up, singers gather outside to serenade her. Mara Macario, sanctuary participant 2 ~

DOI: 10.4324/9781003282679-1

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Introduction

In the face of the coronavirus pandemic, undocumented immigrants at a Georgia detention center [Irwin County Detention Center], are staging a strike, refusing to go to work in the kitchen, laundry room or commissary or accept meals from the facility … The immigrants begged for help over the weekend and on Monday, posing with signs and handwritten letters, and reading petitions through a video communication service …‘HELP US / IMMIGRANTS LIFES MATTER,’ read one of the signs that a group of men, who wore masks fashioned out of disposable plastic meal containers and strips of fabric …‘WE ARE NOT SAFE HERE / AFRAID OF COVID-19,’ another read. In a video provided by one of the relatives of detainees, women held signs reading ‘our children need us,’ and ‘please help us.’ ICDC hunger strikers3 ~ ‘We want freedom or die,’ read the handwritten note smuggled out from Woomera, an immigration detention centre in the South Australian desert where three children were found yesterday to have joined about 70 adults who have sewn their lips together in a hunger strike by Afghan asylum-seekers. Woomera lip-sewers4 These epigraphs indicate a somewhat new reality in Australia and the United States, two wealthy democracies that have instituted policies treating migrant arrivals without documents not as potential refugees but rather as enemy invaders. Both countries have implemented mandatory detention and deportation policies such that detention and deportation are dominant elements of migration policy, affecting masses of people rather than one or two individuals. While other host countries have also implemented detention and deportation policies, these two stand out in their mass apprehensions of “unauthorized” arrivals and mandatory arbitrary jailing. As I discuss throughout the book, detainees, including people scheduled for detention and deportation, are effectively rightless and so they have engaged in radical forms of protest. In this book, I examine the theoretical and practical concerns revolving around these two broad types of migrant resistance: (1) migrant detainees’ self-harming protests, particularly hunger strikes and lipsewing, and (2) faith-based sanctuary, which I defne as a protest form distinct from sanctuary localities. The frst type of protest is conducted by foreign detainees with heterogeneous background factors and multiple aims. These protesters include undocumented migrants apprehended while attempting to cross a border without prior authorization, would-be

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refugees hoping to petition for refugee status, and unaccompanied minors who have often been traffcked to border sites. In the United States, many detainees have been long-term US residents who are detained before they are deported. 5 This outfow also occurs in Australia, but the numbers are lower; rather, most detainees have been apprehended at border sites and are hoping to enter the country.6 What all these individuals have in common is that they have been jailed or will be jailed based on their status rather than a crime, and all suffer much more than a liberty deprivation in detention. Many detainees have already experienced persecution, violence, and starvation in their countries of origin. Their journeys to US and Australian border sites are often similarly characterized by coercion, fear, and need. They are then jailed at border sites after being apprehended as “outlaws,” in Hannah Arendt’s words—their existence largely constitutes the “crime”—and they are arrested and confned like prisoners.7 The key difference, however, as Arendt points out, is that a criminal has more rights, at least ideally.8 The stateless lack the “right to have rights,” and this rightlessness is compounded once they are detained.9 Frequently, these foreigners are not acknowledged by detention personnel as being physically ill, otherly abled, children, or elderly, for example. Their trauma(s) is not recognized by state offcials either. Once jailed, they are simultaneously treated as alien enemies and yet abandoned by the state—their childhood status is not addressed, nutritional needs are ignored, and they are often exposed to vermin and the elements.10 This abandonment is something that Giorgio Agamben has explored in Homo Sacer and State of Exception: state policies that surveil and control detainees and yet abandon them; that is, they overly individualize the processing of these detainees (thus, depoliticizing their status) and yet also overly homogenize them by ignoring particular mitigating circumstances (over-determining the political meaning of their country of origin).11 Although these migrants might have a passport, they are not protected by any state while detained—this makes them de facto stateless, even if both of the countries discussed in this book refuse to recognize them as such.12 This is partly because although each country seemingly adheres to UN defnitions of a refugee, they narrowly interpret this defnition.13 This refusal is also due to the arbitrary nature of immigration policy in each country, as each wields this authority as if it were foreign policy, deploying plenary powers that are normally thought to be used in war or making treaties. Since the late 1800s, both countries notably created federal power over foreigners as an exercise of power over people as if they were on foreign soil. More recently, as each country has developed mandatory detention for unauthorized arrivals, the confuence of their historically

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liminal status has converged with creating a mass detention and deportation system to make detainees and would-be detainees stateless.14 Legally, the treatment of detainees and would-be detainees as “nonpersons” is an admission that they are stateless. Monica Varsanyi has conceived of the term “non-personhood” in the context of US policy, referring to the language of the 14th Amendment, which provides for due process and equal protection of all resident “persons.”15 This personhood has been upheld by the Supreme Court to protect individuals who are undocumented long-term residents (as in the Plyler case) or legal residents subject to racist policies (as in the Yick Wo case and many others). Nevertheless, since 1996, personhood rights and protections have been under attack, which I will explain in greater detail in the next chapter.16 Australia has recently implemented a “character test” similar to US policies from 1996, such that minor crimes and infractions trigger the deportation of long-term residents.17 Those slated for deportation, who are arriving at borders, or detainees are all non-persons for several reasons; effectively, they have lost their claims to residency and have had any long-term ties erased by their impending removal. Most importantly, the United States and Australia have designated certain geographical zones as part of the border (the United States), which is “Constitution-free” or as outside of the “migration zone” (Australia) and, therefore, outside of constitutional scrutiny.18 In these zones, foreigners are not “persons” except for minimal due process rights, often trumped by national security policies.19 Laws are applied to these people who are not counted as refugees, migrants, or even “persons.” Instead, their detained status is accounted for over and above all other elements of their background, and therefore, they are not ignored but rather cast as an existential enemy. Their status, including their country of origin and/or lack of documentation, becomes the “crime” that cannot be named, charged, or tried. Thus, as numerous scholars have pointed out (in ostensible opposition to Agamben), detainees and people in camps are acknowledged by the law through their non-recognition. 20 I would suggest that this interpretation would be more accurate if the scholars conceived of detainees as “outlaws” and enemy invaders. That is, laws do recognize these people but in an extraordinary way: outside of legal personhood and constitutional rights. Their status is thus a “non-status,” which is what Agamben was indicating when he conceived of “bare life.”21 Although I do not examine his work in depth in this book, I interpret Agamben’s work to encompass both sets of dynamics: foreigners who are both abandoned and yet over-policed, who are non-persons and yet subjects of a nearly total power exercised by apparently democratic states. 22

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Detainees protest their conditions, their legal limbo, and migration policies more broadly and they protest quite frequently, but it is hard to gain this information because neither government considers matters of foreign policy open to constitutional scrutiny in the way even a prison would be. This means that it is very diffcult for outside medical personnel, therapists, journalists, lawyers’ groups, and NGOs (non-governmental organizations that advocate on behalf of migrants) to fully know what occurs in detention. 23 In the past, authors like Kitty Calavita have had to sue the US Immigration and Naturalization Services (INS) to get records at any level, and when she received these records, they were disorganized and did not adhere to the institutional standards of other US agencies. 24 Today, groups like the ACLU (and their regional branches) continue to have to sue the government under the Freedom of Information Act (FOIA) to get records in the United States, and Australia has notoriously blocked or limited the time that various aid groups can enter centers and camps. 25 It is important to know that both countries allow detainees to fle grievances, but it is equally important to know that these documents do not often lead to change except when outside groups have access to this information. 26 Most detainees have reported that fling these forms has led to very little response—even requesting dental help or a pain-killer requires bureaucratic processes that often lead to the individual waiting and suffering. In fact, they can experience retaliation for complaining at all, which can include beatings, denial of services, or being secretly transferred to another detention site. 27 Disease, mental illness, and self-harming acts are quite high in these centers as a result, and COVID spread quickly in many of these centers during the height of the pandemic. 28 There is a lack of oversight of these centers and so guards’ abuse and sexual assault of these foreigners often goes unremarked; solitary confnement is frequently used, even with minors for slight to non-existent infractions; and conducting life-sustaining activities is made diffcult if not impossible.29 As detainees realize that fling grievances will not get them what they need, some turn to protests through self-harming methods. Outside of detention, those who are about to be deported have similarly had bad luck when complying with bureaucratic norms. Individuals who have appeared at migration offces in the United States for mandatory check-ins have suddenly been informed they will be detained and deported; U-Visa victims who have complied with all provisions in their cases have still been denied this visa if a bureaucratic agent fails to certify the case; and in certain localities (often suburbs or rural areas), random police stops can trigger deportation, even if no infraction was committed. In Australia, expiring visas can trigger detention, even as the paperwork has been fled. If these individuals have the support of a religious

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institution, and sometime before they are put into removal proceedings, they can move into a faith-based institution until their case is reopened and reconsidered.30 In both cases of protest, they end up taking matters into their own hands, even if the protest could lead to coercion and lethal violence. I investigate these particular forms of protest because they are the specifc, dominant methods that detainees and would-be detainees use, in contrast to protest marches, strategic litigation, or self-immolations.31 Both protest forms emerge directly from captive or would-be captive circumstances and mirror the precise forms of state control that are exercised (or potentially deployed).32 They also symbolize their formal powerlessness—each protest form is exercised by individuals who are not legally recognized as rights-bearing individuals but rather are wielding the “weapons of the weak.”33 James Scott’s famous term can be modifed, however—these are the weapons of those who have been formally marginalized but can wield a sort of sovereign power (discussed below)—the power of their own life and death, confnement and exile, exercising a form of autonomy in near-total circumstances—which is informal, i.e., not state-sanctioned. Very often, detainee protests occur when individuals are also literally weak in some way. Signifcantly, as I discuss in Chapter 2, protest often occurs while detainees are sick, traumatized, and otherwise dysregulated. Unfortunately, political leaders in both countries have argued that these protests demonstrate their criminal tendencies (in the case of faith-based sanctuary), lack of assimilation, or deeply primitive pathologies (in the case of self-harming protest).34 Outward manifestations of disease or mental illness have been alleged to be further proof that certain foreigners are not ft for residing in either of these countries. 35 However, while sickness and mental instability have historically been posited as undesirable traits for democratic rationality and agency, I believe that we must regard their protests as valid and as communicating something urgent.36 To do otherwise is to pathologize and individualize their efforts to expose the suffering that occurs with poor detention conditions, an arbitrary migration and refugee system that approves very few valid cases, and the harsh treatment by state agents and sometimes the general populace.37 I interpret these efforts as important forms of communication to the public, holding that to pathologize or ignore hunger strikes and lip-sewing is to refuse to “listen” to this communication.38 We can understand these forms of protest as demanding institutional change and communicating feelings of trauma. As Fierke argues, expressions of pain, loss, and numbing or emotional withdrawal draw on societal concepts and commonly understood terms—in this way, a condition

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normally viewed as wholly irrational (trauma) is not. Fierke defnes trauma as a form of “narrative incoherence” and “incomplete mourning.”39 The loss of meaning can lead to “hardened boundaries” and isolation, but as she argues, even using language to express this loss of meaning is a form of “evaluative judgement,” a term she borrows from Martha Nussbaum. Using judgment and language to express pain presupposes rationality and a community; therefore, I argue that self-harming protest cannot be viewed as wholly irrational, abject, reactive, or purely individual.40 Extending Fierke’s discussion of the evaluative and public elements of expressions of pain and trauma, I am contending that the embodied and spatial elements of each protest form express what is hard to communicate verbally.41 For all of these reasons, self-harming protest and/or faith-based sanctuary can be interpreted as rational and dialogical. Yes, these protest forms can make us uncomfortable and create a tense situation—they force guards and other personnel to suffer with the detainee as they must often clean up blood, broken lightbulbs, or vomit, for example.42 Pictures and reports of these protests can cause distress. That is the point—detainee protest aims at dissensus, producing a constructive but uncomfortable set of visceral and epistemological circumstances (as MLK has characterized unwanted civil disobedience which is aimed at producing “creative tension”).43 Dissensus involves “processes that effect a suspension of the logic that institutes politics,” and it can be contrasted to an easy consensus that is achieved among friends—rather, dissensus identifes a community that does not want to or has yet to be identifed.44 This could be called a moral community because it calls for action on behalf of others; it invokes connections that some members of the public have not yet made and, as Peter Hodge argues, creates a “body politic of ‘being-in-common’ contrasting this to the logic of national body politics and governmentality characteristic of administrative interview processes and categorisations.”45 In this way, these protests do not claim rights or political powers to preserve the status quo but to pose an alternative to nation-state affliations.46 As Ranciere contends, dissensus involves destabilizing what is taken to be “self-evident” through “counter-narratives” challenging pathologizing interpretations.47 This is something that Australian researcher Lucy Fiske has found in working with detainees who have practiced self-harming protest.48 Creating dissensus through protest invokes a public when political leaders often attempt to individualize what happens to detainees, including their disease, malnutrition, and captive circumstances.49 In contrast to assumptions and literature that ignores or pathologizes self-harming protest (even if empathetically), detainees who have engaged in self-harming protest report feeling better once they conducted these protests—they felt

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“human” and a connection with other displaced suffering foreigners.50 As Sayed, a refugee in Australia, argues: You gain self-confdence because in the environment you are in, you are depending for everything and you abide by the rules, so you have to like they tell you to do. They set the time for food, you don’t have control on anything. When we do something like that [self-harm] … it’s like a self-independence type of thing. That’s what happens. That’s why we protest like, because you are achieving something, even though you’re not, in the short term, yes you are, but in the long run you won’t, but still you will say, you will gain the self-confdence.51 As indicated by Sayed, detainee protesters report feeling as if they took action and fnally received the attention they needed.52 Behrouz Boochani has noted that Australian leaders and conventional media outlets portray these protests as simply trying to improve conditions in detention, misunderstanding protesters’ broader aims: The issue is plain and simple. We did not come to Australia to live in a prison. The peaceful protest by refugees is not because we want to remain in this prison. We are resisting because we want freedom in a safe environment. The core concern is freedom … only freedom. The rest of what you hear are just peripheral issues.53 This might not mean success in terms of formal policy change or border abolition, but as Michael Feola argues: from this vantage point, the deepest work of political agency is not necessarily to present a specifc, delimited claim that would give rise to policy outcomes; rather, it is to destabilize the economies of appearance according to which some are viewed as legitimate claimants to social goods and others are not.54 Dissensus, creative tension, and producing counter-narratives are key goals of these two forms of migrant protest. However, perhaps surprisingly, these protests often lead to fles being opened, cases reconsidered, and delays in deportation.55 Hunger strikes, lip-sewing, and faith-based sanctuary have often led to a review of individuals’ cases, improvements in detention conditions, and in one case, shortened times in detention.56 They also bring attention to circumstances invisible to the public, educating the demos about undemocratic state policies. Some famously abusive centers have been shut down because of

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protests—from Artesia in New Mexico to Nauru and Woomera centre closures run by or in partnership with Australia—and they have also led to positive policy change. However, the degree of sacrifce required to effect change should not be necessary: people should not have to starve themselves, cut themselves, or sew their lips and ears to fnally get the medicine they needed, the legal help they requested, or to have their case reviewed. However, absent meaningful rights, even the right to exist, these methods are their tools to communicate. This is particularly true in two countries that view themselves not merely as democracies but as leaders of “the free world.” The second type of protest I discuss is faith-based sanctuary, which might not seem very much like a self-harming protest of detainees, but there are important commonalities. I should note that this discussion is mostly limited to the US case, and as I explain in Chapter 4, while the Australian faith-based sanctuary movement bases many of its tactics on the US model, there is no systemic use of sanctuary by migrants at this moment.57 In the United States, those who take up residence in faith-based institutions are migrants who have been scheduled for deportation, which means that like detainees they have lost most residential claims and personhood rights. While quite a lot of migrant statuses in the United States are merely based on the “privilege” and not “the right” to reside in the United States, this privilege has been revoked when they receive a notifcation of impending removal.58 This is not the case for most resident foreigners in Australia except for foreigners whose visas have expired— in this event, they have been detained and scheduled for deportation. In both countries, low-level crimes can trigger deportation even when the individual has resided for most of their life in the host country. 59 Many of these crimes would be classifed as misdemeanors in the United States if committed by a citizen, while Australia arguably has a higher bar for what constitutes a crime.60 Even so, legal scholars and historians consider deportation the legal equivalent of the death penalty, particularly for long-term residents with signifcant ties to these countries.61 When individuals are slated for removal, they are often (but not always) detained and then deported. In the United States, those who request sanctuary from a faith-based group move into a religious structure before they can be detained or removed. They must live in the religious part of the structure, and normally, they are surrounded by clergy, migrant advocates, and other supporters. Most often, months of negotiation and planning have taken place when sanctuary is offered to an individual or family slated for detention—this includes convincing the faith community that sanctuary itself is worthwhile and that the particular circumstances of the individual merit this support. There is often a press release day with

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supporters forming a chain around the structure in order to demonstrate to ICE that the would-be deportees have a community and long-term ties to the country and to inform the public about the types of individuals slated for detention and deportation. Again, like detainees, the legal status of the individual slated for deportation is of a “non-person” and “outlaw” in the United States. As stated above, this is because, despite the 14th Amendment rights that often include a review of the individual’s community ties, including considerations about how a family would be affected if the individual is removed, these ties are no longer under consideration when they have been put in removal proceedings. In sanctuary, sanctuary participants advocate having their cases reopened and reconsidered, while their community educates the public on the nuances of their case that cast into doubt discourses on migrant illegality.62 The sanctuary participant describes their long-term ties to the national or local community and any harm their removal will cause.63 NGOs working in this area have also advocated for policy change, including foreign policy, dating back to the 1980s.64 While faith-based sanctuary allows for much more freedom than being in detention, it involves a choice to be confned and, sometimes, isolated.65 Like hunger strikes and self-harming protest, it is a form of dissensus, which importantly: involves a mode of emancipation, [and] is inseparable from the construction of sensible frames in which bodies are torn from their assigned places, and exhibit verbal competences and emotional capabilities they are not supposed to have by virtue of the space-time they occupy. At the heart of dissensus, therefore, are processes of dis-identifcation, or of the undoing of the bonds tying bodies to specifc places, of the various forms of privatization of speech or emotion.66 Although I will focus specifcally on this form of sanctuary, informal encampments and the Sans Papieres movement’s occupation of churches and public buildings in Europe have drawn on the same tools as faithbased sanctuary, affrming the importance of place in exercising countersovereignty.67 That is, protest is not merely effective in verbal or written communication but in terms of enacting alternative geo-spatial claims.68 In both cases—detainee protest and faith-based sanctuary—individuals are not confronting the “welfare state,” as Sheldon Wolin has defned the term.69 That is, they are not challenging a state that acts on behalf of their welfare according to the rule of law.70 Rather, they are confronting the “warfare state,” which is legally authorized and yet acts outside of constitutional norms and protections.71 This branch of the state seeks

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total control over non-person foreigners: from displacing and confning them to controlling their life-sustaining activities, to exposing them to violence, rape, and disease. Both protest methods directly respond to this treatment using techniques of segregation and isolation, food withdrawal, and physical pain primarily exercised and defned by the “non-person” protester. The communicative elements of each protest form replicate and hyperbolize the seemingly extraordinary circumstances the foreigner experiences, responding directly to state agents but also gesturing to a broader public. Forced displacement and breaking up communities are hyperbolized in faith-based sanctuary; silencing, micro-management of bodily functions, and disappearing people are theatricalized in self-harming protests. While, on the face of it, it may seem that these two forms of protest draw on existing rights and protections, it is important to understand that each protest form is practiced by or on behalf of individuals who are (again) stateless. Both types of protests question mass detention and deportation policies that these two countries have implemented in the context of anti-immigrant backlash in the 1980s and then as a reaction to terrorism from the 1990s on. To make people into non-persons, a signifcant diminishment of rights, transparency, and constitutional scrutiny had to occur, particularly as each system became a “mass” system.72 The mass element of each system has the characteristics of a raid: in the United States, great numbers of resident foreigners have been picked up on a daily basis and put into detention without meaningful evidence, reasons, or sentencing—there is little to no investigation of individual circumstances when this occurs.73 A similar process occurs at Australian borders, where each arriving boat of refugees is treated as if they are potential invaders and terrorists. The mass element signifes a homogenizing, criminalizing process— they become a “swarming” mass of “unidentifable beggars.”74 Arendt explains the difference between exile of the past and mass exile: “A refugee used to be a person driven to seek refuge because of some act committed or some political opinion held,” but when refugee fows began to involve large numbers of people, there was no single act or opinion that could explain why they were displaced.75 Indeed, she says of the refugee groups of which she was a part: “we committed no acts and most of us never dreamt of having any radical opinion”; “now ‘refugees’ are those of us who have been so unfortunate as to arrive in a new country without means and have to be helped by refugee committees.”76 Aligned with Arendt’s claims, Edward Said also analyzed this twentieth-century change from individual exile to a time when mass displacement became the norm. Said argues that in the past, certain writers embraced their

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identity as exiles, but this can no longer be the case. To understand how masses of refugees efface all individual characteristics, “you must frst set aside Joyce and Nabokov and think instead of the uncountable masses for whom UN agencies have been created.”77 Rather than focusing on individual accounts of alienation and isolation, we must “think of refugees with a ration card, an agency number.”78 Accordingly, we “must leave the modest refuge provided by subjectivity and resort instead to the abstractions of mass politics.”79 This abstraction, he suggests, explains why others who have enjoyed the privilege and stability of citizenship do not often understand the pain involved in displacement and criminalization on the basis of one’s status, including ethnicity, poverty, gender, or age. While these two authors are discussing the losses involved when large numbers of people have been geographically displaced and made into “the people” in its most derogatory sense, my attention is on a system that maintains the “mass” element of these fows by indiscriminately and arbitrary jailing them without paying attention to their background or unique characteristics (or even their human needs).80 To confne and criminalize people who have already been through so much and lost so much is to perpetuate their persecution—to fail to legally process their cases and/or to make it hard to be recognized as an individual with a story is to depoliticize their circumstances, including in detention. To many, this is a form of disappearing people—a term repeatedly used by detainees and migrant advocates.81 To explain the context in which this protest occurs, in Chapter 1, I focus on state sovereign powers that both Australia and the United States established in the late 1800s to racialize foreigners and treat them as politically undesirable. In this chapter, I explain how these early migration policies created a legal state of exception that provided the context for more recent policies of mandatory detention and mass deportation. In the following chapters, I examine the unique elements of these two forms of protest—they are two very different forms of protest but united in that they do not draw on existing rights, and both confront the warfare state, altering sovereign power at micro and sometimes macro levels. As legal scholars—notably Daniel Kanstroom—remind us, indefnite detention and deportation are very harsh penalties for minor to non-existent migration infractions, the latter of which (deportation) has been equated with a life sentence and/or the death penalty.82 The protesters whose activism I explore in this book are highly aware of these stakes and work to reverse the processes or—at the very least—die on their own terms.83 For these reasons, the protest of the formally rightless cannot be analogized to mass street demonstrations, as the state these protesters confront is a sovereign one that aims at total control, even if its goal is never achieved.

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As I explore in Chapters 1 and 2, there are two primary reactions to these systems. There is a conventional “optimistic” view that migrants who arrive at the border without prior authorization or who reside in either country undocumented are “illegal” and “criminals.” When they are surveilled, detained, and/or deported, optimists believe they are therefore criminals or prisoners rather than stateless people in legal limbo.84 This is optimistic in its faith in the state to formulate policy in adherence with the rule of law and democratic guarantees. Relatedly, there is an assumption that de facto stateless people have a clear set of rights and are treated fairly, according to the rule of law, and that all processes are fully adherent to constitutional or common law guarantees.85 The shorthand expression for this view is that individuals who are threatened with detention and deportation, or who are experiencing this confnement and displacement, are frst criminals and second prisoners. Efforts to bypass the law (as with faith-based sanctuary) or refuse cooperation with migration agents (as with sanctuary localities)—according to this view—would also be illegal, irresponsible, and complicit with harboring “aliens” and human traffcking.86 This is the sort of reasoning Attorney General Jeff Sessions used about any form of sanctuary under the Trump administration: that it aided harboring, smuggling, and traffcking of foreigners.87 The language of human smuggling is ubiquitous in elite-level Australian political debates also. Detainee protests are similarly pathologized and individualized as a product of cultural primitivity, evidence of irrationality, and rooted in mental illness for which neither country bears any responsibility.88 In brief, those who hold these beliefs or formulate policy and enforcement based on these beliefs are deeply ignorant of the extent to which migration is foreign policy and, therefore, evades any constitutional scrutiny.89 The context is much more rightless and abusive, albeit legally authorized, than they understand. Biological determinism, sexism, class bias, and neo-imperial assumptions contribute to this conventional wisdom and serve as forms of projection onto forced migrants, allowing optimists to ignore long-standing, institutionalized democratic defcits. This is one side of the discursive binary I have found in researching these matters, and it could be characterized as overly “positive,” even though the consequences of this view have led to even more human suffering than in the past (i.e. before these harsh policies were implemented). The opposite view is wholly “negative.” It is based on research and substantial knowledge of day-to-day occurrences in detainee or about-tobe-detained individuals’ lives. This is the perspective that the state powers that authorize arbitrary policing, imprisonment of forced migrants, and a mass deportation system have made those caught up in this system so utterly rightless and “ungrievable” that no one is on their side, no

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change has occurred, and protests are desperate, futile, and ultimately self-destructive.90 Debates about how to understand the subjects of the warfare state have hinged on understanding detainees or those slated for detention as abandoned by states, fgures who are essentially disappeared and unaccounted for by legal processes.91 This point of view tracks onto broader claims that certain lives are absolutely ungrievable and/or unnoticed by the state.92 The optimists are incorrect that detainees are merely criminals and that detention is simply a prison. As discussed above, foreigners have been confgured as “non-persons” in case law, policy, and enforcement in various ways and their categorization as such has involved high court decisions, reservations to key human rights provisions, and extensive bureaucratic networks that make these processes invisible. This is evidence that nonpersonhood is not founded on mere abandonment. Terrorist watch lists, travel bans, and COVID bans all serve as a pretext to cast certain individuals all over the globe as security threats before anyone has met them or considered their case. I use the term bio-power to capture the intersectionally discriminatory policies based on biological determinism (which cannot be limited to “race”).93 Just as the Eternal Feminine essentializes women before they are born, formulating policies and norms that create social truths that seemingly provide material justifcation for these terrorist watch lists, travel bans, and “designated persons” lists all construct the fgure of an enemy invader who has yet to commit a criminal action. At the same time, the pessimists have a correct diagnosis of the state’s aims for total power exercised coercively and sometimes lethally, but they do not account for agency in any positive sense.94 Broadly, interpreting power in this way just “recapitulate[s] the one-sided reifcation of power as synonymous with domination and sovereignty as an exclusive preserve of the state.”95 In particular, as Banu Bargu discusses, some important interlocutors do not recognize self-harming acts as protest: “Border zone and detention centers are often characterized as spaces that concretize a permanent ‘state of exception’ where resistance is deemed unlikely.”96 As she explains, detainee protests in camps and centers “are rarely granted the attention they deserve” because migrants/refugees are treated like mute victims lacking political agency.97 These pessimists do not recognize that state powers are fragmented and even in opposition to one another, as the goal of total power in a liberal representative democracy is merely a wish.98 Alternatively, they do not discern gaps in power relations or the positive outcomes of self-harming and sanctuary protest practices. Again, this is not to say that either protest method is desirable on its own but that, given the circumstances, they each respond to the attempt

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to wield total state power over relatively rightless targets. Resistance demonstrates that even these powers can be challenged, questioned, and altered. In turn, the tragedy of each of these methods is not the abject state of stateless peoples but rather the thanatic context each of these liberal representative states has established since the 1980s (Australia) and the 1990s (the United States)—that is, when detention and deportation became mass policies.99 I.2 The meaning of mass detention and deportation policies

Australia and the United States arguably criminalize refugees more than most other wealthy democracies: bio-political techniques and legal enforcement are evident in the treatment of would-be refugees as they are regarded as security threats and detained in legally lawless conditions often before they have been screened for refugee status. This criminalization, Arendt has aptly noted, and I have discussed above, is the status of an outlaw—someone entirely outside of normal law and, therefore, falling under exceptional status, as opposed to the criminal who is acknowledged as a legal subject of the law.100 Again, to use Wolin’s terminology, refugees are objects of the “warfare state” and subject to sovereign modalities of power exercised as discretion. The type of sovereignty deployed is seemingly low level and banal, legal and yet extra-legal, controlling diet and sleep and curtailing social interaction. Self-harming protest in captive conditions is a logical response to this sovereign, coercive power and often the only means of resistance available to the detainee. As suggested above, detention centers roughly approximate prisons in that they are heavily guarded sites of confnement with no right to exit and limited to no visitation.101 These centers control food, sleep, and access to all human needs. The sphere of authority guiding migrant detention is legally authorized but discretionary, civil, and, again, is interpreted as foreign policy. It is the same power exercised abroad in foreign relations and military confict, treating its subjects as “non-persons.”102 Thus, migration agents are not required to adhere to criminal rights standards, withstand constitutional scrutiny, or operate transparently.103 In effect, this creates a “state of exception,” and for these reasons, numerous human rights violations occur daily, even if they do not appear to be torture (in the next chapter, I argue that, taken together, these practices do amount to torture).104 Centers that run in partnership with private security frms have an even worse record of human rights abuses.105 However, it should be noted that the most important human rights breach is in the mass detention policy itself—jailing asylum seekers and/or migrants on the basis of undocumented status is a serious violation of international protocol, an

16

Introduction

abuse of habeas corpus protections, and creates severe damage to the asylum process broadly conceived.106 Australia and the United States treat detainees like prisoners, including forcing inmates to wear prison jumpsuits and shackling them.107 In both countries, most recreation is curtailed; there is little time outdoors and limited privacy. Centers in both countries are not merely spaces of deprivation, but they are overcrowded, serve rotten food, and are sites of guard violence. Many sites are dirty, with little means to wash hands or protect oneself from the spread of COVID-19 and other infectious diseases.108 Both countries have been charged with ignoring serious physical and mental health conditions in these sites, as there is no outside medical or therapeutic help.109 Refugees, the United Nations, and non-governmental organizations view these conditions as punitive but with no criminal rights to provide relief.110 Detention is a form of arbitrary jailing, per the United Nations, because there are no meaningful charges, there is no examination of evidence, and no court-appointed counsel.111 Children make up a signifcant number of all refugees and yet are often treated as adults.112 With regard to minors, the United States treats teens from age 16 on as adults and even under that age, there is no binding policy on child-sensitive approaches in refugee interviews and migration courts.113 This is signifcant because the government assumes that teenagers have the emotional and intellectual capacity to withstand harsh conditions, adversarial questioning, and illtreatment—however, public health studies indicate the opposite. Unlike children, teens are often more traumatized by this treatment because they fully understand its implications but have few tools or support to process it.114 Australia has similarly been charged with violating international human rights protections for the status of the child, subordinating “best interest of the child” standards to alleged security concerns, and ignoring signifcant neglect of and depression in child detainees.115 With an average of roughly two years in detention in Australia and anywhere from six months to two years in the United States, mental illnesses often become very serious. Although there are some on-site medical professionals, there are reports that these professionals have ignored serious illnesses or participated in forced medicalization (the use of psychotropic drugs to “neutralize” detainees). Human rights abuses range from arbitrary detention itself, indefnite detention, violations of freedom of expression, and violations of the convention on the rights of the child (only applicable to Australia as the United States refuses to ratify this convention). From the events of September 11, 2001, to the present day, Australia has only increased punitive mechanisms of migration control, thereby largely expanding its designation of “excised” territory and

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17

“designated” persons. A key policy they have used and strengthened is to have migrants apply for legal status, including refugee status, from a third country. Often, the government then pressures the individual to apply for asylum in that country.116 Families are allowed to remain intact, but the conditions in these centers and the hardship they endure make parenting diffcult.117 The United States has similarly pushed people into a “third” country—Mexico—to await processing and, in recent years, implemented particularly harsh policies towards families, forcibly separating parents and children at the border, as well as caging children and putting them up for adoption (or deporting them by dropping them in an airport with no one to pick them up).118 Attorney General Jeff Sessions (2017–2018) even argued that parents were “smuggling” their children and, therefore, deserved to be arrested under anti-traffcking laws, which would then justify the forced removal of their children.119 Notably, children were removed before any charges were issued or criminal guilt was proved.120 While parts of this policy were terminated, this enforcement mechanism generated fear and anxiety.121 The message was not merely one of deterrence but that some families do not deserve to be together, and the US government will stop their reproduction while on US soil.122 These policies are legal and yet extra-constitutional; they involve highly rationalized systems (in the Weberian sense) and yet are irrational in that they devalue human life, even though humans are the proper subject of law.123 They are also irrational in that they are arbitrary and entail forced disappearance, displacement, and exile—all matters for a foreign policy that is at odds with the norms and ideal governance of liberal representative democracy. For these reasons, it is imperative to understand the distinction between constitutional law and norms and these sorts of sovereign powers exercised over foreigners. Detention centers—a key geographical site in my analysis—are materializations of this legally gray area.124 Migrant detention and roundups of resident foreigners in detention centers have been conceived of as dialectically opposite of a criminal justice system, even if this opposition is formulated differently in each country.125 Like a sweatshop, these centers can be defned as the “informal analogue” of the formal prison model.126 Detention involves jailing civilians who are criminally innocent, without formal sentencing or meaningful charges, in contrast to the criminal justice system in each country.127 This means that historical decisions founding the legal authorization of these centers have often involved explicit and implicit comparisons to the criminal justice system and prisons. In jurisprudence, a crucial distinction between detention and prison is that prison involves a liberty deprivation and therefore, there must be some justifcation for internment

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Introduction

and a process of investigation, examination of evidence, and more, while detention is not considered a liberty deprivation, partly because the people involved are not “persons” and partly because the system is civil and not criminal.128 In recognizing how detention centers are established and run arbitrarily, we can then appreciate how fling paperwork (including requests and grievances) within this bureaucracy will not necessarily lead to a just outcome. When detainees do fle grievances, speak to reporters, or alert human rights groups about their conditions, they are often retaliated against.129 While there can be exceptions to punitive treatment, Arendt reminds us that in a system such as this, any positive treatment of the stateless is due to “charity and not right.”130 In a context in which there is signifcant evidence of bureaucratic mistakes, improper training of border guards, untrained detention center personnel, and poorly trained immigration judges,131 it is tempting to argue that the state simply becomes more brutal because it can—that there is no meaning behind these mistakes and improper enforcement.132 But from another perspective, bureaucratic ineptitude, imperfect or faulty legal decisions, and human rights abuses by guards are all refective of the denationalizing forces at work (that is, treating certain parts of a territory as constitution-free), the consequences of legal non-personhood and not being bound by the rule of law except in the most minimal sense.133 Judges can constantly make errors in immigration and refugee cases because they are not required to abide by norms of transparency, consistency, equal protection, or due process. Guards can assault, attack, and rape because they are attacking people without oversight. And all agents can abuse power because there is little to no transparency or accountability, much less checks and balances.134 Rather than a series of mistakes, fencing, tough border policing, long lines, and pictures of squalid camps and cages serve as a deterrent and provide an open admission that border policing is harsh and brutalizes children, the otherly abled, traffcking victims, and more.135 Treating criminally innocent groups harshly conveys that even in the face of global fows that spur migration pathways, these two democracies will assert their sovereign power against all. Second, reversing the logic of inalienable and human rights, both countries’ policy enforcement materially demonstrates that no human being has an inherent right to be treated with dignity and respect.136 The spectacle of refugees stuck on boats or lines to apply for refugee status and to gain border admission also aids deterrence goals.137 The stories of past persecution and refugee cases only strengthen the ideological weight of state aims when and if it succeeds in getting public support for criminalizing and brutalizing the already traumatized and vulnerable. The third aim is the most brazen—physically blocking

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19

foreigners from touching US or Australian soil to prevent any sort of rights claims—thus eliminating any pretense of universally available citizenship or claims to human rights. Detention spaces aid these goals. In particular, detention spaces near the border—from government-run encampments under bridges to cages to centers on remote islands—seemingly provide material proof that these individuals, no matter how old and what their story is, are outlaws.138 These spaces appear to be natural and age-old, simply containing an invasion from the Global South and/or the “periphery”—in this way, detention is conceived as an extension of the border. At the same time, the alleged criminality of individuals and groups arriving at or crossing the border is not often questioned139 —if there is partisan debate, it centers on how to contain or deter them humanely or punitively.140 In this way, the debate merely operates according to a binary mode of operation resting on roughly similar assumptions.141 The importance of these observations is that because detention is a site of the legal suspension of the law, it is (again) treated as an extension of the border and material “proof” that foreigners are inherently criminal based on their status (as Arendt argued about camps, particularly camps for stateless people142). Recognizing the camp-like aspects of detention (see Chapter 1) will help us to dismantle misconceptions that justify violating constitutional guarantees and human rights, not to mention traumatizing innocent people—especially children. Borders should not be viewed merely as passive entities that simply physically represent policy outcomes or even informal political activity occurring elsewhere—that is, borders should not be seen as epiphenomenal to other processes. Like prison spaces and detention cells, the border should be considered a geographical site(s) with its own logic that is clearly related to policies regarding political status but which also has its own dynamics. The political signifcance of US and Australian borders is varying, often contradictory, and productive of multiple identities and power relations, all of which challenge the myth of the border as passive, fxed, and inward looking. Wolin’s analysis of the inextricable link between domestic and foreign governance in the contemporary United States helps us to make sense of these undemocratic dynamics in both nation-states (something I discuss in the last section and Chapters 1 and 4). I.3 Trauma, allostatic load, and agency

It is important to note how and why these circumstances are traumatizing and, I argue, how self-harming protest and faith-based sanctuary can restore meaning and serve as forms of counter-sovereignty in these circumstances. Because these bureaucratic institutions lack transparency and

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Introduction

accountability, in addition to treating migrants in dehumanizing ways, extreme forms of protest are logical. Unsurprisingly, those experiencing oppression and coercion are the most knowledgeable about their needs and political circumstances—this is true even when they are traumatized or experience stress-induced physical symptoms.143 These protests demonstrate this frst-hand knowledge as well as communicate the experience of oppression to others.144 I argue that while many of these protesters are suffering from stress-related symptoms, both physical and mental, their resistance is evidence that traumatized individuals can also be agents.145 It is equally important to note that stress-related disease and mental illness in the context of harsh policies are the result of intentional human agency. Edward Vargas et al. have demonstrated a connection between xenophobic rhetoric, punitive laws, and negative health outcomes, even if the effect is not direct.146 Hostility and punitive treatment create stress for migrants, even when they do have legal status because they lose trust in authorities and fear medical personnel.147 The strain of a migrant’s undocumented status or the status of a family member or friend also weighs on people, causing an allostatic load that worsens over time.148 Receiving a notice of removal, being detained, and/or the fear of deportation all contribute to this load and fear is often experienced in people’s bodies as illness. In Sweden, fears of deportation have been felt so intensely that children are falling into a coma-like state.149 These coma symptoms make children unresponsive for months or longer, very often after learning that their family’s refugee claim was denied. We should take these symptoms seriously and as expressing an urgent need to reform these policies. Similar cases have been reported in Australia (as Karin Blight notes), and while there are fewer cases of “resignation syndrome” in the United States, very young people are experiencing health symptoms that can only be attributed to exogenous circumstances.150 Swedish-based researcher Blight has argued that part of the stress that migrants experience is due to feeling misunderstood, ignored, or not being found credible.151 Specifcally, Blight fnds that adjudicators focus more on a migrant’s credibility rather than engaging in critical refection about unrealistic demands in migration and refugee laws and processing.152 She critiques adjudicators who demand documentation from people who fed with nothing or who do not understand that human rights abuses are often wielded against a group, not an individual, and/or who miss gendered elements of persecution. Adjudicators’ blind spots and unrealistic demands contribute to feelings of stress in migrants seeking asylum. Blight also criticizes the overly stark dichotomy between refugees and all others: because the top 20 wealthy host states do not approve most refugee petitions, refugee status is exceptional and not the norm.

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Furthermore, as Blight notes, individuals who experienced persecution and hardship in their country of origin already struggle to understand what happened to them previously—as she states: This is problematic because human rights violations often trigger existential questions such as why the event took place, why the confict arose in the frst place, or most simply, “why me?” asylum seekers themselves may struggle to come to terms with such questions and may never reach conclusive answers.153 Like critics of the Australian and US systems, she contends that interviews should not be adversarial and, in fact, “aggressive questioning reproduces the stance of the perpetrator by implying that the person is dishonest, weak and unwelcome.”154 These criticisms apply to Australian and US enforcement policies in that they have been found to be similarly adversarial, blind to gender and other factors in the examination of refugee cases, and focused on verbal communication of “truth” rather than facts when judging a case. However, it is important to note that these two countries have even more deleterious practices than Sweden because of their mandatory detention policies, which perpetuate persecution, displacement, and human rights abuses. While the Global North—including mainstream therapeutic experts and caregivers—often individualizes trauma and treats the afficted individual as if they were permanently damaged, we can understand that a mass system that condemns people to indefnite detention and exile has established the foundation of public trauma. Public trauma is an indication of “incomplete mourning” and unresolved political issues in society at large.155 Nevertheless, those sympathetic to refugees often view them as experiencing trauma individually. Lacking awareness of societal sources of trauma, including in the host country, in combination with dominant therapeutic methods in the Global North can worsen refugees’ dysregulation. As Peter Westoby argues: Therapeutic culture can medicalize distress such that refugee pain or suffering is located in the individual—refugees are labeled traumatized and diagnosed with PTSD by some clinically and medically oriented professionals or the social body (refugee populations labeled as at risk by community-oriented practitioners) … refugee suffering and pain become issues linked to discrete events of violence and disruption rather than the causes of the event—issues to do with morality, social/ structural dynamics and power.156 As discussed above, Fierke has similarly interpreted trauma as something that is often treated as individual but which should be viewed as public or

22

Introduction

political when the trauma is intentionally inficted by humans on a broad scale.157 Fierke explains how trauma can lead to hardened boundaries and isolation, thus reinforcing the idea that it is individually experienced. However, in the context of policies intentionally inficting harm, trauma should be interpreted as a response to political events, and thus, we must view these reactions in a political context and the context of public health. As other researchers on trauma have found, these psychological symptoms are often more profound when there is a political cause rather than a natural one.158 This is because—as Randy LeBlanc also argues—there is a sense of betrayal and loss when certain agents or a government purposefully infict pain on others.159 The aim at deterring would-be refugees and other migrant entrants is an example of this intentional cruelty as preventing boats with clearly malnourished, desperate people from landing; caging children; and/or whipping young Haitian refugees all demonstrate. The sort of trauma arising in these contexts includes feelings of disbelief, a loss of hope, and/or a sense of humiliation when seeking help from countries that purport to be democracies.160 McAlister et al. assessed detained children’s well-being in post-9/11 Australia, analyzing their words and drawings. Over time, these children moved from a “hopeful” attitude to one of “hopelessness.” Children drew pictures with their faces peering through bars; one child wrote, “Fuck my life,” and many expressed the desire to self-harm. In another study, one child interviewee told a caregiver: All the time I think about how I can kill myself. Life here has no meaning for me, all the time in my mind, over and over, how can I do it? My (younger) brother doesn’t know what fowers look like. This is not a life.161 Another child wrote: you’re nothing but a cult of racist, liers who’s aim is to kill the peoples even children in Nauru. Nauru is heLL and you know everything about it. Don’t pretend that you don’t! … you organized all that cruel, pain and brutality, just imagine we swap places for a minute. Child detainee on Nauru, age and gender withheld.162 These children’s words and drawings demonstrate that the harms of detention extend far beyond a temporary inconvenience or a short stay in an isolated area. For children to reach this point, they had to have experienced considerable instability and insecurity.

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LeBlanc considers Butler’s analysis of “purposefully manufactured precarity,” asking how those targeted by a state authority wielding arbitrary sovereign power can refect or heal in such a situation.163 He argues that under these conditions, one must “re-member” the body that has been “undone” by destructive processes, but this is diffcult when the harm is on-going. In the context of intentional, on-going harm, I contend that selfharming protest in detainee protests and self-confnement in sanctuary each paradoxically “re-member” or “heal” the person through reinstating their autonomy and as a form of counter-sovereignty. Self-harming protest and self-confnement in a religious institution help us to understand these protest forms as operating in the realm of sovereignty and welfare rather than a rights-based context. These protest forms also unite rational and irrational, individual and community, weakness and power. That is, they often involve expressions of pain and trauma but communicate clear and complex messages; they are refective of individual circumstances that need more attention but also invoke a community; and they are staged in a context of near-absolute inequality and yet challenge the most coercive and lethal elements of the state.164 They produce tension, disrupt everyday activities, and exert forms of bodily autonomy when they did not have the right to do so. These protest forms are literally and fguratively “weapons of the weak” but also challenge the notion of absolute victimhood, abjection, and/or powerlessness.165 They create space (through occupying a faith-based institution) or assertions of rights (through hunger strikes) for gendered and minoritized individuals whose embodiment is policed—as Hodge argues, these protesters “perform the sociality being asserted in powerful ways to affrm bodies that matter.”166 This is resistance in a highly asymmetric context in which the state seeks to control overall bodily movements and bodily existence. LeBlanc examines on-going trauma, drawing on Young’s theory of “domination,” in the context of military occupation. The signifcant parallel to migrant detention, deportation, and border policing is evident at the macro level— no meaningful citizenship rights, use of military force, including body searches, use of weaponry to compel obedience, and unrelenting surveillance—as well as the micro level, including limited mobility, precarious resources, and daily verbal abuse and threats. The importance of the notion of domination is to highlight unequal conditions of power that involve a monopoly on resources and authority that the target of power lacks, including any reciprocal authority over the elite group. As he puts it, drawing on Young, “Persons live within structures of domination if other persons or groups can determine without reciprocation the conditions of their action, either directly or by virtue of the structural consequences of their actions.”167 This observation is a reminder that even if one party

24

Introduction

is characterized as primitive, irrational, and illegal, they hold no reciprocal power over their perpetrator—no means to confne them, withhold food, or subject them to violence with impunity. In this way, their alleged Otherness does not merely refect inequality but is an effect of it. While the point may seem obvious, it is important to appreciate the profound levels of stress and fear that occur in these situations, as well as constrained possibilities for political negotiation or resistance. Accordingly, all of these authors (Fierke, LeBlanc, Westoby) argue that “incomplete mourning” (in Fierke’s words) and loss can only be resolved through social (i.e. public) means.168 Detainees and would-be detainees guide the public in their protests, identifying and communicating their needs and challenging incorrect narratives about migrant criminality. In the next section, I discuss key terms I will be using in this book. I.4 States of democratic exception: agency and resistance in a sovereign context

While this book does not focus on Agamben at any length, we can understand detainees occupying a space of “bare life” and yet resisting this bio-political designation of perpetual foreigner, absolute other, and/or biological pollutant.169 Three aspects of Agamben’s theory of “bare life” are relevant to my analyses in this book: frst, he importantly notes that because these are “democratic” forms of sovereign power aiming at total control, these powers are now wielded in a rationalized, bureaucratic manner. While this gives the impression that sovereign power deployed by democracies is just, transparent, and egalitarian, Agamben suggests that, instead, this simply means that sovereign power is diffuse, and in democracies, the law is used to suspend important protections and guarantees. Infuenced by Foucault’s notion of power, sovereign powers wielded by bureaucratic agents suggest that power is a web, it is non-uniform, and it contains “multiple sovereigns,” leaving room for fragmentation, inconsistency, and gaps in power.170 Agamben differs from Foucault in conceiving of the development of Global North sovereignty as founded on bio-power.171 In this book, I treat bio-power as key to understanding Australian and US migration systems beginning in the late 1800s, but they were not historically inevitable. Second, to Agamben and Foucault, bio-power can never be recuperated in a positive manner—it is a form of biological determinism that has reduced human life and the political to species-thinking.172 Practicing democracy can never mean redefning bio-power postively.173 Third, while Agamben rarely analyzes resistance, his theories do not preclude this theorization.174 Wolin’s analysis of how sovereign power operates specifcally

Introduction

25

in the US context (and Australian, by extension), as well as resistance to these power confgurations as forms of “fugitive democracy,” help to fll this gap. In contrast to Agamben, whose critical analyses of oppressive state powers are certainly complementary to Wolin’s (even if Wolin would have denied this), Wolin provides a theory of “fugitive democracy” that helps us understand how even in deeply asymmetric circumstances resistance occurs.175 Both Agamben and Wolin’s work help us to understand the specifcally modern elements of bio-political sovereignty that are deployed in these two countries’ migration systems. The exercise of sovereign power on domestic soil is not a return to an ancient and singular form of sovereignty but is specifcally modern: it is the power wielded mostly at the federal level in both countries, which nonetheless operates in a manner that is diffuse, fragmented, and can be contradictory.176 An important puzzle is, therefore, not to explore a simple return to a “primitive” singular form of authority but rather how liberal representative democracy forms and justifes a set of powers that largely renders migrants as non-persons and migration policy as foreign policy (even if this language is not explicitly used in Australia). This is a modern power dynamic as it is highly rationalized (i.e. bureaucratized) and legal, even if also extra-constitutional. Importantly, as Agamben and Wolin each argue, the suspension of power is only partial—for example, only deployed on marginalized citizens or foreigners—and thus, does not annul the entire government nor all rights.177 The state purposefully creates marginality to produce vulnerability and, therefore, destabilize “alternative cultures” to ensure labor fexibility but also maintain marginalized groups’ legal powerlessness, as Wolin argues.178 Agamben would characterize these power dynamics as a purposeful cultivation of ambivalent subject-formations in which normal laws and procedures converge with extraordinary ones to create a “zone of indistinction.”179 Marginality thus serves as the basis for legitimate arbitrary power in community policing and border policing, increased confnement to control “morals” and public hygiene, and making the use of coercion appear to beneft the public (i.e. the non-marginalized).180 As seemingly extraordinary powers become normal, “inside and outside do not exclude each other but rather blur with each other.”181 For example, freedom of speech is not formally abridged, but security concerns can be held as superseding this right when disenfranchised citizens and foreigners protest.182 As the use of extraordinary powers becomes normal—which was possible with the establishment of plenary powers in the late 1800s and more recent mandatory detention policies since the 1980s (Australia) or 1990s (United States)—there is a blurring of constitutional and extraconstitutional spheres such that this legal gray area becomes the norm.183

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Introduction

Today, journalists and leaders do not often question the rapidity with which the detention and deportation systems became mass systems and now often only ask how they can reform them but not abolish them.184 The two types of protest I explore challenge this blanket criminalization. I view these two protest methods as forms of counter-sovereignty, democratizing otherwise undemocratic spaces and power matrices.185 As I have indicated, these two types of protest operate in a legally gray area that is mostly extra-constitutional. This resistance mimics the geo-spatial dimensions of detention or food and medical deprivation and resists efforts to exert total power. Because this resistance communicates with the state, imploring migration offcials to re-open cases, care for sick detainees, and reconsider deportation decisions, it is not characterized by the “solipsism” of those who are individually traumatized.186 Each protester may experience physical and mental dysregulation, but they are always agents, even if the context is not democratic. They want to bring awareness to their conditions and reframe hostile narratives as most see themselves as forced migrants.187 This includes even “economic migrants” who make dangerous border crossings each year to work in the agricultural industry.188 They feel the compulsion of circumstances, often viewing their border crossings in the context of transnational relations rather than individual choice.189 The coercion of circumstances characterizes not only the motives for undetected border crossing but also the US employment conditions that seek to make workers invisible.190 To recognize the coercion of circumstances is not to argue that migrants lack agency but rather to contextualize migration in broader political, military, and economic structural patterns that Saskia Sassen has termed “bridges” and “linkages.”191 Importantly, the ability to exercise agency does not indicate a context of equality or fairness. Alternatively, the agency of forced migrants is exercised in a public context, but this agency should not be confated with criminality, trickery, or deceit—often the suffering of refugees in detention, the allostatic load of undocumented immigrants and even the trauma of children have been characterized as fake, manipulative, and unimportant.192 Agency simply means that these individuals can exert power and they have dignity— they understand their circumstances and are the best representatives in narrating their experiences and defning what they need. Agency is not mere existence, mere reaction, or simply crossing a border undetected.193 Rather, it is the ability to navigate through diffcult territory, literally and fguratively.194 It entails the capacity to make informed decisions, weigh options, and, often, act on behalf of others who need support (e.g. the sick, elderly, and children).195 In the situations I discuss in this book, all protest is founded on agency, and it is exercised in a community, even if it

Introduction

27

is a hostile or ignorant community. The protest methods migrants adopt in detention or when they receive a notice that they will be detained demonstrate that migrants operate according to “hidden transcripts.”196 These transcripts can involve sporadic communication with outside groups, secret texts and flms, quick phone calls, signs held up at windows, and concerted hunger strikes or sanctuary participation even when isolation is often involved in both cases.197 In this way, we can think of sovereignty as a relationship, opening “productive new ways of thinking about constituting the polis, resistance and the relationship between the state, the nation and the migrant/non-citizen.”198 Resistance is not the equivalent of agency but is certainly founded on it. The two main types of resistance I explore produce a democratic state of exception, frst because they aim at reinstating human rights norms, transparency, and equality (in terms of due process and equal protection) and humanizing criminalizing narratives. Each type of protest stops the bureaucratic process, altering how agents proceed and producing what Martin Luther King called “creative tension.”199 It is creative in that protests produce new spaces, bodily needs, or bodily confgurations as a direct challenge to the state’s efforts to control bodily movements and life span and impose a sort of docility that will lead to self-deportation. As Lucy Fiske argues about Australian detainees she interviewed, their words serve as a “counter-narrative … [which] explain the actions as evidence of detainees’ distress and deteriorating mental health. The voices of the actors themselves … are rarely heard in any depth.”200 Rather, they are usually portrayed “as either victims or villains and almost never as conscious agents.”201 If trauma involves unresolved mourning and a breakdown in meaning, these protests restore meaning (even when using tactics that are isolating/ confning or self-harming) within the terms and material conditions set by the state. Paradoxically, using the “tools” that harmed them in the frst place, these methods throw a wrench in various state processes. As methods are discussed and shared by protesters and their supporters, they become part of public discourse, even if this public is not formally recognized. 202 Civil society groups provide a sort of “glue” for detainees and sanctuary participants, even in the most isolated of circumstances, doing what they can to provide information, transmit messages, and provide support to families and communities outside. 203 As one Chicago leader recently stated at a conference, these groups provide “accompaniment” and support but do not direct, regulate, or police migrants.204 Although some researchers have denied the existence of community when considering self-harming protest, we can consider this protest as calling for a community, even if it is “fugitive”—i.e. issue-based and bound to disappear if

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Introduction

and when the problem has been resolved. A community aiming at exposing injustice and calling not merely for better treatment but “freedom,” in Behrooz Boochani’s words, arises precisely as the issue is identifed and interested parties (victims, witnesses, and allies alike) emerge. Indeed, in Peter Westoby’s words: without a radical re-constituting of praxis—a deconstructive task— community development is at risk of ossifying into a programme that is no longer haunted by justice, is no longer mobilized by the ‘passion-ofnot-knowing’ and is no longer vigilant towards the Other. 205 Arendt has similarly argued that a true political community forms among strangers rather than friends—this is when “civil disobedience” enters the marketplace of ideas, aiming at persuading strangers rather than “preaching to the choir.”206 Inherent in these ideas is that tension, negative reactions, and debates are not signs of failure but democratic engagement (granted in a highly undemocratic context). While the tactics used by these protesters may seem to undermine their democratic aims, it should be noted that neither form of protest harms anyone—in John Stuart Mill’s words, it is “self-regarding” behavior. 207 Their tactics are situated in a social process that involves mourning, outward expressions of grief, and a desire to negotiate and correct mistakes. 208 Healing is a form of “re-membering” the self, as LeBlanc argues, even if this re-membering is taking one’s life before the state does, risking arrest through faith-based sanctuary, or self-harming to shake others out of their complacency. The repulsion or disgust of others is at least a reaction where there was previously no response. Indeed, I am arguing that repulsion and disgust do not necessarily lead us to rejection and eventually indifference but can involve a dialectical process of initial disgust and then empathy, action and engagement. 209 This resistance is grounded in a context of state force and violence; it is resistance to inadequate sewage, hygiene, and food but, more importantly, a struggle for autonomy and a challenge to neo-imperial relations, racism on the basis of alienage, gendered assault and abuse (from sexism to transphobia), and much more. 210 Decolonial work by Frantz Fanon, Achille Mbembé, and James Scott helps us understand the deeply violent, sovereign circumstances in which these protesters assert agency. 211 As Mbembé has termed it, self-harming acts in a violent asymmetric context are “necro-protest.” While faith-based sanctuary is not “necro,” it aligns with detainee hunger strikes, for example, in the same largely rightless context, undergirded by arbitrary power and the possibility of the use of lethal force.

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Punitive policies and harsh conditions set by militarized borders are what make this protest thanatic—that is, the context is set by the deployment of the state’s monopoly on violence and forced displacement and confnement. Protest occurs in an already-coercive context, and it is not “necro” because of its methods but the broader political circumstances. As I have argued above, even trauma—taken to be individual—is produced by harsh treatment, hateful discourse, and punitive policies that displace and confne non-criminal, civilian migrants. Paradoxically, putting oneself into the isolation of a faith-based institution, withdrawing from food, and/or engaging in self-harming protest “alter being” and “transform the spectator into a privileged actor,” even if this is not a “murderous confrontation,” according to Fanon. 212 These actions challenge easy binaries of inside and out, legal and “illegal,” and resident and foreigner. Because this is not a confrontation with subtle bias, indirect harm (as with exploitation based on surplus value in wealthy countries), or mere political apathy, protest is directly challenging state sovereignty with counter-sovereign moves (which I explain in greater depth in Chapter 2). As Fanon suggests, the violence of counter-sovereign moves is a means to a greater, more inclusive end. However, importantly, indiscriminate violence and a lack of a political program (or critical consciousness) are simply destructive in his perspective.213 But consciously chosen violent tactics, often reviewed and shared with others, aiming at democratic transformation are necessary when violence is overt—from barbed wire to armed guards to attack dogs to esophageal force-feeding. Working within the system does not confront, challenge, or upend these extreme tactics.214 For the purposes of organizational clarity, I will suggest that the key terms I use in this book can be grouped together as forming a democratic state of exception: “fugitive democracy,” dissensus, and counter-sovereignty are theoretical concepts with which we can understand democratic activity by an illegible or unauthorized demos, using methods that do not harm others but which are considered outside of the realm of everyday civil disobedience, and reclaiming bodily autonomy and space as a direct challenge to state sovereignty. Wolin has characterized “fugitive democracy”215 as a critique of the strength of US democracy but also to indicate something other democratic theorists have argued: truly democratic activity ebbs and fows depending on the issues at hand. 216 These ebbs and fows do not just mark successes and failures that end movements but also the fuctuating nature of the demos as some individuals commit their time to different issues, often based on interest. With regard to the more critical sense of this term, “fugitive democracy” indicates a “popular distrust of government,” which “exposes the shallowness” of

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totalizing, undemocratic forms of government.217 Hunger strikes, lip-sewing, and faith-based sanctuary are rooted in this necessarily critical stance towards their home government, as they explain why they fear being forcibly returned to their country and how the US or Australian governments have missed the key elements of their cases here (as well as treatment in detention). The degree to which there is often a relationship between the persecuting country of origin and the host country makes this a transnational form of “fugitive democracy.” At the same time, fugitive democracy is often fuid in meaning and tactics, again, interest-based, and indicates a shifting political community. In this way, it is “fugitive,” refecting how modern power is fuid, with multiple sites of power, and because there are appeals to formal and informal agents. Wolin notes that it is a break from “the modern and classical conception that ascribes to democracy ‘a’ proper or settled form” and that the ephemeral element of civic participation, resistance, and dissent ensures that democracy is not “tamed” through institutionalization.218 Chantal Mouffe, Saskia Sassen, Naomi Klein, and others have argued that more complex, sometimes sporadic, forms of protest, often involving micropower, logically mirror today’s fragmented forms of power, both informal and formal, economic and political. 219 This fugitive quality is particularly important when resisting the state’s monopoly on power and violence. 220 While modern sovereignty has historically involved demarcating home/ homeland, control over life-sustaining resources, and autonomy, countersovereignty challenges the specifc sphere of state power (the warfare state: military, foreign relations, constitution-free zones) that aims at intentionally harming the protester. 221 Destabilizing these processes in some way is often the goal to interrupt and alter what would otherwise be a “sovereign monologue” (i.e. unbroken authority, discursively, and at the level of enforcement). Clear policy changes such as the abolition of detention centers and borders might not occur, but each attempt at destabilization produces an exception to the totalizing, seemingly rightless sphere. As protest destabilizes, troubles, inconveniences, or simply gestures towards others, it invokes a political community that had not been evident. For these reasons, I hold that protests are not merely reactive—instead, they can be viewed as building a political community and as democratizing undemocratic spaces. In each case, protest is a way to interrupt lethal power, to counter displacement, to humanize the dehumanized. Although tactics involve isolation, food withdrawal, or self-harm, they paradoxically restore meaning and some form of truth, if only in the limited sense of “telling one’s truth.”222 These might be “radical practices of the self,” as Bargu argues, but focusing on agency in the context of trauma helps to reorient our view from pathologization to a more nuanced perspective.

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Investigating agency while traumatized allows us to understand that agency would be a process of “re-membering” as LeBlanc has characterized it. Re-membering acknowledges coercive policies and violent enforcement that seeks to destroy the political subject at the bodily and legal level (taking away their legal personhood as well as disorienting them through soft torture methods, popularly called “torture lite” in the United States in the years right after the 9/11 attacks). 223 While sovereignty—as it has been exercised historically in the Global North and elsewhere—is rooted in home and homeland, aiming at “an invulnerable collective self in contrast to the weak and vulnerable victim,” these democratizing protests work with weakness and vulnerability, destabilizing fxed territorial claims.224 In this way, they use “weapons of the weak” to delegitimize the power of state elites. I.5 Conclusions: democratic sovereignty? Interrupting the sovereign monologue

In this chapter, I have explained how policies in both Australia and the United States are increasingly intolerant of migrants arriving without prior authorization. Two signifcant changes in both countries’ policies have been implementation of mass detention legislation and increased numbers of deportations of long-term residents in both countries. As stated above, legal scholars and migrants in this system view detention as a form of disappearance, while deportation has been linked to forms of exile and social death, as well as capital punishment. In response to the buildup of these systems, two signifcant forms of protest have emerged to challenge these policies, as well as the sometimes xenophobic, sometimes ignorant rhetoric that justifes these practices. In the next chapter, I explain in greater depth how the policies are extra-constitutional and yet legally authorized, both creating massive bureaucracies but also suspending important rights—they effectively create a state of exception. What is important to note is that the enlargement of discretionary power in a context of secrecy, racism, and neo-imperialism is not a temporary state of things. That is, this sort of sovereignty is not anomalous, short term, or based on any one emergency: rather, it is deployed as a temporally seamless and regular power, whether at the border, in traffc stops, in the workplace, or in homes. 225 For change to occur, we cannot retain the nation-state model and simply open borders, as the nation-state itself—as it is confgured in the United States and in other wealthy “host” countries—is the  source  of exclusion and uprootedness. This is particularly true to the degree that any of these wealthy nation-states privilege warfare over welfare and operate

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according to a false dichotomy by which only a select few have the “right to have rights.” As I have argued above, these protest forms challenge the centrality of the nation-state as the interpreter of belonging and rights and who counts as a refugee. In Chapter 1, I explain how these two democracies formed federal migration systems at the turn of the last century that were intimately bound up with eugenics and eugenic concerns. The latter points are important because they justifed the suspension of legal protections based on a racialized status. Neither country had mass detention or deportation programs until more recently, but the legal apparatuses undergirding each system made it unsurprising that this became a key facet of migration policing in the age of terror. In the second and third chapters, I focus on self-harming protest by detainees (Chapter 2) and faith-based sanctuary (Chapter 3), again arguing that this activism creates a “democratic state of exception,” interrupting the legal process, altering discretionary forms of sovereign power, and enacting rights not formally granted; these efforts go beyond the assertion of liberal rights or merely restoring the rule of law (even if these are goals), challenging the “warfare state” while constituting an informal demos that is formally illegible. While each protest form I discuss in the following chapters replicates the facets of the state’s attempt to achieve total control in these spheres, these protests should be viewed not merely as an individual reaction to their circumstances but as a meaningful form of protest that democratizes otherwise undemocratic spaces, rejects dehumanizing treatment and narratives, and which creates and communicates to a political community. 226 As the state carves out exceptional powers and spaces, these protest forms create a  democratic state of exception—that is, powers and techniques that are not legally authorized but assert human rights over and above state laws. In this way, they create communities outside of the national community. They are forms of counter-sovereignty in that they directly respond to state sovereign powers normally exercised in wartime with practices of self-confnement, food withdrawal, or lip-sewing to reestablish control over their bodies and what space they are inhabiting. In Chapter 4, I explore a theory of counter-sovereignty that can help us to understand that protest can happen even in totalizing circumstances. As I discuss in Chapters 1 and 4, notions of the common good, currently portrayed as national security issues, justify the use and expansion of arbitrary sovereign power, even as it is not always clear who or which moral community is being protected. Accordingly, I believe, we must at least consider a more radical proposal in which the refugee becomes the guiding principle of new politics. In the next chapter, I discuss the recent history of migration policy in each country to better understand

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the specifc dynamics of control occurring in these sites and the radical nature of these protests, given that it challenges the monopoly of the state’s violence. Notes 1 Brittany Renee Mayes and Marcia Sacchetti, “They Moved into Churches to Avoid Deportation. Now They’re Asking: Is it Safe to Leave?” The Washington Post, April 5, 2021, https://www.washingtonpost.com/dc-md -va/2021/04/05/trump-immigration-sanctuary/. 2 Philip Marcelo, et al., “Immigrants in Sanctuary in Churches Hope Biden Offers Relief,” AP News, February 4, 2021, https://apnews.com/article/immigration-churches-sanctuary-biden-9904b23125e3db6fa0844be34982438c 3 Seth Freed Wessler, “Immigrant Detainees Stage Protest for More COVID19 Protections: ‘WE ARE NOT SAFE’,” Huffngton Post, April 14, 2020, https://www.huffpost.com/entry/immigrants-detained-protest-coronavirus _n_5e94b015c5b6ff1965993e87. Two detained Cuban doctors most likely wrote the petition. 4 Kathy Marks, “Refugee Camp Children Sew Their Lips Together in Protest,” The Independent, January 22, 2002, https://www.independent.co.uk/news /world/australasia/refugee-camp-children-sew-their-lips-in-protest-5362577 .html. 5 “Between 2003 and 2018, 4,617,463 foreign nationals were deported from the United States. 2012 and 2009 saw the highest number of deportation[s] with 407,821 and 401,501 deportations respectively,” World Population Review, “Deportation Statistics,” n.d., https://worldpopulationreview.com /state-rankings/deportation-statistics. Since 2014, roughly 10,000 people have been deported from Australia because they failed the character test. As Shepherd remarks, “If a non-citizen committed any of the offences designated under the bill they would be deemed to have automatically failed the character test, meaning their visa could be cancelled, although discretion would remain with the immigration minister.” Similar to US provisions triggering deportation, the character test includes: “violence against a person, weapons offences, breaching of an apprehended violence order and non-consensual sexual acts punishable by at least two years in prison.” Tory Shepherd, “Deported to a Land They Barely Know: Anger Rises Over Australia’s ‘Character Test’ for Non-Citizens,” The Guardian, March 12, 2022, https://www.theguardian.com/australia-news/2022/mar/13/deported -to-a-land-they-barely-know-anger-rises-over-australias-character-test-for -non-citizens. Kanstroom provides very good reasons not to use deportation as punishment—see Daniel Kanstroom, Deportation Nation (Cambridge, MA: Harvard University Press, 2007); Daniel Kanstroom, “Deportation as a Global Phenomenon: Refections on the Draft Articles on the Expulsion of Aliens,” Harvard Human Rights Journal 30, ILC Forum Essays (March 1, 2017): 49–75. 6 As Anna Sampaio explains, 1996 laws provided for mass detention and deportation of US residents, but mass systems were not established until 2003, in reaction to the events of 9/11/01. Anna Sampaio, Terrorizing Latina/o Immigrants (Philadelphia: Temple University Press, 2015). Regarding Australia, see Australian Citizen Test, “How Can a Permanent Resident be Deported from Australia?” 2019, https://www.australiancitiz

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entest.com /how-can-a-permanent-resident-be-deported-from-australia; Michelle Foster, “An ‘Alien’ By the Barest of Threads’—The Legality of the Deportation of Long-Term Residents from Australia,” Melbourne University Law Review 33 (2009): 483–541; “Morrison’s Plan to Deport Thousands of Migrants,” 7am podcast, The Monthly, March 3, 2022, https://www. themonthly.com.au/podcast/morrisons-plan-deport-thousands-migrants. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979), ch. 9, 283. On this complicated question—if prisoners and criminal suspects have more rights than a stateless person—see: Kathleen Arnold, Arendt, Agamben and the Issue of Hyper-Legality: In Between the Prisoner-Stateless Nexus (New York and London: Routledge, 2018); Juliet P. Stumpf, “The Crimmigration Crisis: Immigrants, Crime and Sovereign Power,” American University Law Review 56 (2006): 367–418. See also Dani McAlister, Harriot Beazley, and Wynonna Raha, “‘I See Nothing but a Fence of Tears’: The Impact of Australia’s Immigration Detention and Border Protection Policies on the Asylum Seeker Child's Geographies of Hope and Hopelessness,” Jeunesse Young People Texts Cultures 11, no. 2 (February 2020): 73–98 Arendt, Origins of Totalitarianism, 296, 298. See Lisa Frydman, et al., “A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System,” Center for Gender and Refugee Studies and Kids in Needs of Defense, 2014, http://www.uchastings.edu/centers/cgrs -docs/treacherous_journey_cgrs_kind_report.pdf; Udi Ofer, et al., NYCLU, “Voices from Varick: Detainee Grievances at New York City’s Only Federal Immigration Detention Facility,” n.d., https://www.nyclu.org/sites/default /fles/publications/Varick_Report_fnal.pdf; Lucy Fiske, “Human Rights and Refugee Protest Against Immigration Detention: Refugees’ Struggles for Recognition as Human,” Refuge 32, no. 1 (2016): 18–27. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998); Giorgio Agamben, “State of Exception as a Paradigm of Government,” in State of Exception (University of Chicago, 2005); see also Nicholas de Genova, “The Deportation Regime: Sovereignty, Space, and the Freedom of Movement,” in The Deportation Regime: Sovereignty, Space, and the Freedom of Movement (Duke University Press, 2010), 33–68. On statelessness, see Park et al.’s fascinating analysis in Susin Park, “Climate Change and the Risk of Statelessness: The Situation of Low-lying Island States,” UNHCR—Legal and Protection Policy Research Series, 2011, https:// www.unhcr.org/4df9cb0c9.pdf#:~:text=This%20paper%20was%20initially %20prepared%20in%202009%20as,Change%20%28UNFCCC%29%20 %E2%80%98Climate%20Change%20and%20Statelessness%3A%20An %20Overview%E2%80%99. On host country’s narrow interpretation of a refugee see: Mary S. Corcoran, “Spectacular Suffering: Transgressive Performance in Penal Activism,” Theoretical Criminology 24, no. 4 (2020): 651–668; Ilana Feldman, “Gaza’s Humanitarianism, Problem,” Journal of Palestine Studies (2009), https:// www.academia.edu/3426851/Gazas_Humanitarianism_Problem; Pierre Hassner, “Refugees: A Special Case for Cosmopolitan Citizenship?” ch. 13 (273–286) in Re-Imagining Political Community, ed. Daniele Archibugi, David Held, and Martin Köhler (Stanford: Stanford University Press, 1998); Francesco P. Motta, “Between a Rock and A Hard Place: Australia’s Mandatory Detention System,” Refuge 20, no. 3 (2002): 12–43; Ayelet

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Shachar, “Beyond Open and Closed Borders: The Grand Transformation of Citizenship,” Jurisprudence 11, no. 1 (2020): 1–27. As Ayelet Shachar points out, wealthy host countries have introduced less tolerant policies for poor displaced individuals while also opening membership to wealthier migrants: Schachar, “Beyond Open and Closed Borders.” Monica Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood: Neoliberalism, Immigration and the State,” Annals of the Association of American Geographers 98, no. 4 (2008): 877–896. See also Arnold, Arendt, Agamben and the Issue of Hyper-Legality, ch. 1. Shepherd, “Deported to a Land They Barely Know.” Consider also the #hometobilo case in which a mother and her family were put into detention to be deported, due to her expired bridging visa—the website explaining this case is: #hometobilo website: https://www.hometobilo.com/. US border sites have been Constitution-free since the Chinese Exclusion cases designated federal powers as plenary powers outside of constitutional scrutiny. Nevertheless, the term “Constitution-free” is more recent. Australia has only recently used “excision” as a tactic, which means that border policy has produced a state of exception since mandatory detention polices began. Both countries treat the high seas as an area of non-jurisdiction in terms of duties to protect refugees and yet have deployed military force in the same situations in which they abdicate responsibility for refugee protections. On the use of these tactics among a range of wealthier countries, see Schachar, “Beyond Open and Closed Borders.” In the US context see Stumpf, “The Crimmigration Crisis”; Australia, see Foster, “An ‘Alien’ By the Barest of Threads’.” Butler, Dayan, and Hussain (separately) all portray Agamben’s work in this way. Judith Butler, Precarious Life: The Powers of Mourning and Violence (New York: Verso, 2006), 61; Nasser Hussain, “Beyond Norm and Exception: Guantánamo,” Critical Inquiry 33, no. 4, (Summer 2007), 734, 740–742; Colin Dayan, “Legal Terrors,” Representations 92, no. 1 (Fall 2005): 42–80. See also Patricia Owens, “Reclaiming ‘Bare Life’?: Against Agamben on Refugees,” International Relations 23, no. 4 (2009): 567–582. On this misunderstanding, see de Genova, who argues that Agamben’s idea of bare life is “more subtle”: it “revolves around ‘the zone of indistinction between outside and inside, exclusion and inclusion,’ whereby bare life is produced by sovereign (state) power” (37)—de Genova, “The Deportation Regime.” Geoffrey Heeren, “The Status of Nonstatus,” American University Law Review 64 (May 11, 2015): 1115–1181. See more in-depth analyses of Agamben in Kathleen R. Arnold, America’s New Working Class (College Station: Penn State University Press, 2008); Arnold, Arendt, Agamben and the Issue of Hyper-Legality. In the Australian context, see: David Isaacs, “Are Healthcare Professionals Working in Australia’s Immigration Detention Centres Condoning Torture?” Journal of Medical Ethics 42, no. 7 (July 2017): 413–415. See also S. Mares and J. Jureidini, “Psychiatric Assessment of Children and Families in Immigration Detention—Clinical, Administrative, and Ethical Issues,” Australian and New Zealand Journal of Public Health (2004): 520–526; S. Mares, L. Newman, et al., “Seeking Refuge, Losing Hope: Parents and Children in Immigration Detention,” Australasian (2002): 91–96; McAlister, et al., “I See Nothing but a Fence of Tears”; Motta, “Between a Rock and A Hard Place.” As O’Sullivan notes, “whistleblowing laws now prevent

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doctors from speaking out against aspects of immigration detention centres.” (258); Maria O’Sullivan, “The Sanctity of Asylum: The Legality of Church Sanctuary in Australia,” Alternative Law Journal 41 (2016): 254–258. In the US context, see Robert Koulish and Kate Evans, “Punishing With Impunity: The Legacy of Risk Classifcation Assessment in Immigration Detention,” Georgetown Immigration Law Journal 36, no. 1 (2021): 1–72; Blaine Bookey, “Domestic Violence as a Basis for Asylum: An Analysis of 206 Case Outcomes in the United States from 1994 to 2012,” Hastings Women’s Law Journal 24 (Winter 2013): 107–148. Legal groups at UC Hastings School of Law (the Center for Gender and Refugee Studies) and Georgetown Law (e.g. Philip G. Schrag, Andrew Schoenholtz, Jaya Ramji-Nogales, James P. Domba) have kept databases of decisions and more, trying to provide transparency and information where the US government does not. See Kitty Calavita, Inside the State: The Bracero Program, Immigration and the I.N.S. (New York: Routledge, 1992); Susan Sterett, “In an Indeterminate State: Calavita on the Bracero Program,” Law & Social Inquiry 20, no. 2 (Spring, 1995): 655–673. See Udi Ofer, et al., “Voices from Varick.” See also McAlister, et al., “I See Nothing but a Fence of Tears”; access to centers is highly restricted even when an NGO is providing legal advice to detainees—see the Southern Poverty Law Center’s account of diffcult access to detainee clients: Sarah Rich, “Access Denied: SPLC and Allies Reject Incomplete ICE Report on Counsel Visits to Detained Immigrants,” SPLC Center News, April 1, 2022, https:// www.splcenter.org /news/2022/04/01/ice-report-counsel-visits-detained -immigrants. See also O’Sullivan, “The Sanctity of Asylum,” 258: Australian “whistleblowing laws now prevent doctors from speaking out against aspects of immigration detention centres. This is also illustrated by the policy of secrecy which forms a central component of Operation Sovereign Borders. The development of grass-roots religious movements led by certain religious leaders in Australia is therefore signifcant as a challenge to the manner in which the Australian government is operating its refugee policy.” See Fiske, “Human Rights and Refugee Protest”; Ofer, et al., “Voices from Varick.” Retaliation can include beatings; being transferred to another center without warning or notifcation given to supporting lawyers or NGOs; and other lower-level tactics. Behrooz Boochani’s removal to a black site (Chauka) is a famous example of this sort of retaliation. See Fiske, “Human Rights and Refugee Protest”; Mares and Jureidini, “Psychiatric Assessment of Children and Families”; The Nauru Files, The Guardian, 2013–2015, https://www.theguardian.com/news/series/nauru -fles See Bridget Arimond, et al., Center for International Human Rights, Northwestern Pritzker School of Law, “Report on the Role of Private Security Companies in Migrant Detention in the U.S. and Their Impact on the Protection of the Rights of Migrants,” submitted to United Nations Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, May 26, 2020, https://www.law.northwestern.edu/legalclinic/humanrights/documents/report-on-role-of-pscs-in-migrant-detention-27-may-2020-fnal.pdf; The Nauru Files, The Guardian; Andrea Pitzer, One Long Night: A Global History of Concentration Camps (Boston: Hachette/Little Brown, 2018); Rise Refugee group (REFUGEES, SURVIVORS AND EX-DETAINEES),

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eX-detainees’ Day Statement: ‘In Australia, the eX-detainee community is arguably ONE of the poorest, racially profled and systematically discriminated community group, September 21, 2020, https://www.riserefugee.org/ ex-detainees-day-statement-2020/. Please note that the word “faith” is open ended and include synagogues and mosques, granted that the latter group is newer to this form of organizing: Dora Ballew, “The Man Trying to Turn Mosques Into Places of Sanctuary,” Ozy, February 7, 2017, https://www.ozy.com/the-new-and-the-next/the-man -trying-to-turn-mosques-into-places-of-sanctuary/75559/; Renee Montagne, “Mosques Consider Sanctuary For Immigrants,” NPR, March 4, 2018, https://www.npr.org/2018/03/04/590670163/mosques-consider-sanctuary -for-immigrants; Sean Rehaag, “Bordering on Legality: Canadian Church Sanctuary and the Rule of Law,” Refuge: Canada’s Journal on Refugees 26, no. 1 (Spring 2009): 43–56 (see p. 53, n. 6); Imam Omar Suleiman’s website: https://imamomar.com/about/; Kimberly Winston, “First to Join Sanctuary Movement,” Sojourners, January 23, 2017, https://sojo.net/articles/ohio -mosque-frst-join-sanctuary-movement. Granted that self-immolation has occurred in Australian detention centers, I argue that it is not a dominant protest form. On bodily appropriation see Colette Guillaumin, Racism, Sexism, Power and Ideology (New York: Routledge, 1995). On protest responding to specifc contexts see these very different sources: Frantz Fanon, The Wretched of the Earth (New York: Grove Press, 2005); Saskia Sassen, Globalization and Its Discontents: Essays on the New Mobility of People and Money (New York: New Press, 1998); Joseph Stiglitz, Globalization and Its Discontents (New York: W.W. Norton and Co., 2002); James Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven: Yale University Press, 1987). See Scott, Weapons of the Weak. This is particularly true of President Trump and AG Sessions’ near-obsession with sanctuary cities in the United States and Australian leaders’ pathologization of detainee protests. Both countries employed strict COVID protocols that led to mass exclusions and arguably a shut down of the US refugee system. Consider Hobbes’ and Locke’s work on the importance of rationality, marking a tradition in political theory that is evident in late twentieth century work on justice and citizenship in Rawlsian and Habermasian research. The focus on rationality was and is not merely a precondition for citizenship but has been argued to be a condition that makes us equal as we engage in or participate in a societally accepted, rational and rationalized manner. Foucault challenged these claims, exposing their normalizing power. Regarding Enlightenment splits between rational and irrational, normal versus abnormal, and Enlightenment “monsters.” Kathleen R. Arnold, Why Don’t You Just Talk to Him? The Politics of Domestic Violence (Oxford: Oxford University Press, 2015). Relatedly, Corcoran explains: dissensus is not just “some difference of opinion”—not replacing one power elite with another; rather, “it consists in challenging the very logic of counting that marks out some bodies as political beings in possession of speech and consigns others to the mere emitting of noise; some as beings of decision and action, others as consigned to the passive sphere of reproduction; some as capable of refned sentiment and thought, others as brutish and caught up in simple survival; some as capable of thought and keeping up with the times, others as capable

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only of reacting to change.” (5) Jacques Rancière, Dissensus: On Politics and Aesthetics, trans. Steven Corcoran, (New York: Bloomsbury Academic, 2015) In policy, both the US and Australia have historically blocked “mental defectives” from entering the respective countries since each implemented eugenic policies in the late 1800s, only (partially) ending them in the 1960s (US) and 1970s (Australia). As Foucault would say, the “shadows” of these policies remain in assessing moral character, racial profling, and in other status “crimes.” Mainstream political discourse in Australia pathologizes migrant protesters, particularly when the Woomera lip-sewing action took place; conversely, in the United States, this pathologization occurs in policy and enforcement from treatment of these protests as an administrative infraction to esophageal force-feeding of hunger striking prisoners. In both cases, hunger strikes and other self-harming campaigns have been treated by both states as violence against the state. See Colette Guillaumin on “minority Theory” in Racism, Sexism, Power and Ideology. Self-harming and other forms of radical protest can also involve creating “webs of affect” even as individuals experience displacement and trauma. See Hodge’s discussion of Salih’s work on Palestinian women’s efforts to create community in the midst of hardship. Salih 2017, quoted in Peter Hodge, “#LetThemStay #BringThemHere: Embodied Politics, Asylum Seeking, and Performativities of Protest Opposing Australia’s Operation Sovereign Borders,” Politics and Space 37, no. 3 (2019): 386–406. (Quote: 390). K.M. Fierke, “Whereof we Can Speak, Thereof We Must Not Be Silent: Trauma, Political Solipsism and War,” Review of International Studies 30 (2004): 471–491. Fierke, “Whereof We Can Speak,” 473. See also Peter Westoby, “‘A Community Development Yet-to-Come’: Jacques Derrida and Re-constructing Community Development Praxis,” Community Development Journal 56, no. 3 (2021): 375–390. See Hodge, “#LetThemStay #BringThemHere” in his call for “emotional geographies” as well as McAlister, et al., “I See Nothing But a Fence of Tears” for their application of this concept in investigating poems and art by child detainees in offshore centers off of Australia. As Ben Robinson of NYU has recently suggested to me, what is communicated through self-harming and self-isolating protest could be characterized (drawing on Alaimo’s work) as “performing exposure” and “insurgent vulnerability” (p. 5). Stacy Alaimo, Exposed (Minneapolis: University of Minnesota Press, 2016). See Michael Feola, “The Body Politic: Bodily Spectacle and Democratic Agency,” Political Theory 26 no. 2 (2018): 197–217. Martin Luther King, “Letter from a Birmingham Jail.” On dissensus, see Rancière, Dissensus; see Feola’s discussion of protest and dissensus in “The Body Politic”; Davidé Panagia, “The Improper Event: On Jacques Rancière’s Mannerism,” Citizenship Studies 13, no. 3 (2009): 297–308. See also Raffaella Puggioni, “Border Politics, Right to Life and Acts of Dissensus: Voices from the Lampedusa Borderland,” Third World Quarterly 36, no. 6 (2015): 1145–1159. Steven Corcoran ed of Ranciere’s Dissensus, 3; on plurality. Hannah Arendt has characterized a plurality of voices in which strangers must be convinced (not friends) as the necessary condition for a truly political community. See Hannah Arendt, “Civil Disobedience,” ch. 2 in Crises of the Republic: Lying

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in Politics; Civil Disobedience; On Violence; Thoughts on Politics and Revolution (New York: Harvest Books, 1972). See also Westoby on Derrida and hospitality and/or a community yet to come: Westoby, “‘A Community Development Yet-to-Come.’” On Rancière’s critique of Agamben, see this article for an interesting interpretation of the relationship between the two authors: Jessica Whyte, “Particular Rights and Absolute Wrongs: Giorgio Agamben on Life and Politics,” Law and Critique 20 (2009): 147–161, https://link.springer.com/article/10.1007/s10978-009-9045-2. Hodge, “#LetThemStay,” 390. See also Katherine Tonkiss, “‘A Baby Is a Baby’: The Asha Protests and the Sociology of Affective Post-Nationalism,” Sociology 55, no. 1 (2021): 146–162. In contrast to Tonkiss, I believe this is true even if this is not the intention of various protesters. Tonkiss, “‘A Baby Is a Baby.’” Rancière, Dissensus. Rancière, Dissensus; Fiske, “Human Rights and Refugee Protest.” On the individualizing nature of the deportation regime, see de Genova, “The Deportation Regime,” 34–35. Examples of pathologization are portraying the protester(s) as entirely depressed and irrational; as mute victims who futilely self-harm; and as individuals who commit repulsive acts. See Fiske regarding detainee self-reports. Fiske, “Human Rights and Refugee Protest.” Fiske, “Human Rights and Refugee Protest,” 25. See Fiske, “Human Rights and Refugee Protest”; Mares et al., “Seeking Refuge, Losing Hope.” Behrouz Boochani, “All We Want Is Freedom—Not Another Prison Camp,” The Guardian, November 12, 2017, https://www.theguardian.com/commentisfree/2017/nov/13/all-we-want-is-freedom-not-another-prison-camp. Feola, “The Body Politic,” 205. Puggioni argues something similar about detainee protests in Italy: “Success is not evaluated here according to immediate outcomes, and thus according to policy changes. Simply the recognition that acts of dissent contest dominant politics of aliens should already be considered as a success.” Raffaela Puggioni, “Against Camps’ Violence: Some Voices on Italian Holding Centres,” Political Studies 62 (2014): 953. This has even been true of protest in extreme captivity, including Guantánamo protests and hunger strikes in supermax prisons. With regard to shortened times in detention-this was when migrant mothers staged a hunger strike at the end of Obama’s presidency and this briefy led to shorter detention times for mothers. On the success of Pelican Bay hunger strikers, see Alex Zamalin, “Angela Davis, Prison Abolition, and the end of the American Carceral State,” ch. 4, in Zamalin Struggle on Their Minds: The Political Thought of African American Resistance (Columbia University Press), 119–149. Nevertheless, the Baby Asha case and the #hometobilo case demonstrate that the faith-based sanctuary movement is successful in stopping detention, blocking deportation, and reinstating residency status. See Foster, “An ‘Alien’ By the Barest of Threads’.” Again, this occurs far more in the US but/and see Foster, “An ‘Alien’ By the Barest of Threads’.” This is debatable in that the Australian “character test” provides a somewhat arbitrary basis to judge crimes that would trigger forced removal. While Australia has not deported the same number of resident foreigners that the US has, they could. Those with expiring bridging visas have also been put

40 Introduction

61 62

63 64

65

66 67

68 69

70 71 72

73 74 75 76

into detention after years of residency as the #hometobilo case demonstrates: https://www.hometobilo.com/. See Foster, “‘An ‘Alien’ By the Barest of Threads’”; Shepherd, “Deported to a Land They Barely Know.” Kanstroom, “Deportation as a Global Phenomenon,” 49–75. See also Kanstroom, Deportation Nation. Elvira Arellano’s case, the case that spurred the US New Sanctuary Movement in 2006, is more complex and her situation has not been rectifed as of this writing. See Marcelo, et al., “Immigrants in Sanctuary in Churches Hope Biden Offers Relief.” This occurs through petitions (e.g. through Groundswell); blogs on church websites; and press releases. See Susan Bibler Coutin, Hector Perla, “Legacies and origins of the 1980s US-Central American Sanctuary Movement,” Refuge 26, no. 1 (Spring 2009): 7–19; Lawrence McAndrews, Refuge in the Lord (Washington, DC: Catholic University of America Press, 2015). See De Genova’s critique of faith-based sanctuary in “The Deportation Regime,” 35–36; 59–60 n3. After this, several church leaders met in DC on January 29, 2007, to establish a new sanctuary movement for migrants seeking refuge from unjust deportations—see their website: http://www.newsanc tuarymovement.org. Corcoran 4–5 in Dissensus, my emphasis. See Teresa Hayter’s detailed accounts of French, UK and Irish detention conditions, protests, and building occupations: Teresa Hayter, Open Borders: The Case Against Immigration Controls (Pluto Press, 2004). See especially ch. 4: “Resistance—Resistance in Britain + the Sans-Papiers Movement,” 134–148. Again, encampments are not detention or refugee camps although Rygiel equates them: Kim Rygiel, “Bordering Solidarities: Migrant Activism and the Politics of Movement and Camps at Calais,” Citizenship Studies 15 (2011): 1–19. This is related to the importance of Occupy Wallstreet and other occupy movements in their claiming of space once viewed as “public.” Sheldon Wolin, “Democracy and the Welfare State: The Political and Theoretical Connections Between Staatsräson and Wohlfahrsstaatsräson,” in Wolin The Presence of the Past: Essays on the State and the Constitution (Baltimore: Johns Hopkins Press, 1989), 151–179. Wolin, “Democracy and the Welfare State.” On these terms, see Wolin, “Democracy and the Welfare State.” Notably in 2015, Australia passed the Australian Border Force Act, which included gag orders for health practitioners, teachers, and other staff in detention such that they could not reveal what they found or experienced when entering offshore sites. See Human Rights Law Centre, #8YearsTooLong, 2021, https://www.hrlc.org.au/timeline-offshore-detention; https://www .hrlc.org.au/timeline-offshore-detention. Large-scale raids mostly occurred during George W. Bush’s presidency and were ended during the Obama presidency; they were revived under Trump but have disappeared again under Biden. The frst reference (“swarming”) is from Fanon, Wretched of the Earth, 7; Arendt, Origins of Totalitarianism, “unidentifable beggars”—269. See also Agamben, Homo Sacer, 178. Hannah Arendt, “We Refugees,” in The Jewish Writings, ed. Jerome Kohn and Ron H. Feldman (New York: Schocken Books, 2007), 264. Arendt, “We Refugees,” 264

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77 Edward Said, Refections on Exile (London: Granta, 2002), ch. 17, 175; see also Mary McCarthy, “A Guide to Exiles, Expatriates, and Internal Emigrés,” New York Review of Books, March 9, 1972, https://www.nybooks.com/ articles/1972/03/09/a-guide-to-exiles-expatriates-and-internal-emigres/ 78 Said, Refections on Exile, 176. 79 Said, Refections on Exile, 176. Said also states (ch. 17, p. 174): “What is different about contemporary times is the scale—“our age—is indeed the age of the refugee, the displaced person, mass immigration.” 80 On the notion of a bio-politicized, mass of “people” see Giorgio Agamben, “What Is a People?” 16 Beaver, May 1, 2004, https://16beavergroup.org/ articles/2004/05/01/rene-agamben-what-is-a-people/; see also Ranciere, Dissensus, ch 5: “The People or the Multitude?” 92–98; Butler tries to resolve this by calling attention to performative assemblies and grievability over and above lumping together and racializing protesters (e.g. BLM). See: Butler, Precarious Life; Judith Butler, Frames of War: When Is Life Grievable? (London: Verso, 2009); Judith Butler, Notes Towards a Performative Theory of Assembly (Cambridge, MA: Harvard University Press, 2015). 81 The UN Working Group on Enforced or Involuntary Disappearances defnes disappearance as: “the underlying criminal act of enforced disappearance of persons as follows: […] the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.” (p. 1); And: the Working Group has indicated, in its 2008 General Comment on the defnition of enforced disappearances, that: “In accordance with article 1, paragraph 2, of the Declaration, any act of enforced disappearance has the consequence of placing the persons subjected thereto outside the protection of the law.” (p. 2)—UN Working Group on Enforced or Involuntary Disappearances, “Defnition of Enforced Disappearances,” n.d., https://legal.un.org/ilc/sessions /71/pdfs/english/cah_un_wg_disappearances.pdf#:~:text=%5D%20the%5B %26%20arrest%2C%20detention%20or%20abduction%20of%20persons ,the%20law%20for%20a%20prolonged%20period%20of%20time. See also International Convention for the Protection of All Persons from Enforced Disappearance, United Nations General Assembly resolution 47/133, December 23, 2010, https://www.ohchr.org/en/instruments-mechanisms/instruments/ international-convention-protection-all-persons-enforced#:~:text=For%20the %20purposes%20of%20this%20Convention%2C%20%22enforced%20disappearance%22,a%20person%20outside%20the%20protection%20of%20the %20law; Pitzer,  One Long Night; Banu Bargu, “Sovereignty as Erasure: Rethinking Enforced Disappearances,” Qui Parle 23, no. 1 (2014): 35–67. 82 Kanstroom, Deportation Nation. 83 See Boochani, “All We Want Is Freedom”; Ajay Kumar’s story in Rozina Ali— 2019, “A Hunger Strike in ICE Detention,” The New Yorker, October 29 https://www.newyorker.com/news/as-told-to/a-hunger-strike-in-ice -detention Tina Vásquez, “ICE Ordered to End Contract with Facility Where Detained Women Were Sterilized,” Prism, May 20, 2021, https://prismreports.org /2021/05/20/ice-ordered-to-end-contract-with-facility-where -detained-women-were-sterilized/ regarding ICDC protests. 84 Gabriel Jackson Chin, “Is There a Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange but Unexceptional Constitutional Immigration Law,” Georgetown Immigration Law Review 14, no. 2 (2000):

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257–287; see also Anna Law’s work, which disputes the primacy of plenary power and even the primacy of federal power over migrants—for example: Anna Law, “The Historical Amnesia of Contemporary Immigration Federalism Debates,” Polity 47, no. 3 (July 2015): 302–319. To Law, the existence of local policy that undermines federal power combined with proof that migrants can and do appeal their cases proves that migrants have “rights” in some meaningful way. My analyses suggest a similar fragmentation of power, but I assess the effects of detention and deportation as much more signifcant to considerations of immigration policy than does she. See for example: Associated Press, “Many Haitian Migrants Are Staying in the US Even As Expulsion Flights Rise,” NPR website, September 23, 2021, https://www.npr.org /2021/09/23/1040000579/many-haitian-migrants -are-staying-in-the-u-s-even-as-expulsion-fights-rise; Katie Balevic, “Vice President Kamala Harris Said Images at the Border of Offcers Chasing Haitian Refugees Reminded her of ‘Times of Slavery,’” MSN, September 25, 2021, https://www.msn.com/en-us/news/us/vice-president-kamala-harris-said-images-at-the-border-of-offcers-chasing-haitian-refugees-reminded -her-of-times-of-slavery/ar-AAOOK9M; Ben Doherty, “UN Human Rights Expert Decries Boat Turnbacks as Australia Criticised for Secrecy of ‘On-Water Matters,’” The Guardian, July 8, 2021, https://www.theguardian.com/australia-news/2021/jul/08/un-human-rights-expert-decries-boat -turnbacks-as-australia-criticised-for-secrecy-of-on-water-matters; Yan Zhuang, “Australia tells Afghan Refugees: ‘Do not Attempt an Illegal Boat Journey,’” New York Times, August 23, 2021, https://www.nytimes.com /2021/08/23/world/asia/australia-tells-afghan-refugees-do-not-attempt-an -illegal-boat-journey.html. An additional issue is the tendency to confate sanctuary cities with faithbased sanctuary, as I discuss in chapter 4. See Kathleen R. Arnold, “Sanctuary in a Trumpist Context: Creating Spaces of Democratic Exception,” Political Research Quarterly, October 22, 2021, https://journals.sagepub.com/doi/10.1177/10659129211052493?fbclid =IwAR3sB4DmwBgHKXPixdGuSCmpEAb1WWhIk2AH902yuChmeC7nc Z1O4C2JPZA&. In the US, former Atty General Jeff Sessions often used terms like “smuggling” and “traffcking” to characterize migrant fows even though this concern did not lead to increased T-Visa approvals, nor an expansion of rights or aid for actual traffcking victims. The Australian government has used similar language and threats about ship captains e.g. aiding distressed refugees on boats and rafts in the high seas. In fact, the Tampa Solution was precisely aimed at alleged smugglers—see Motta, “Between a Rock and A Hard Place,” 17, 21–22, in particular. Australian leaders and the mainstream press have often expressed these views whereas in the US, detainee protests or faith-based sanctuary are rarely covered at all. See Mark Krikorian, “Hitting the Boiling Point Over the Border,” The Washington Times, July 17, 2014, https://www.washingtontimes.com /news/2014/jul/17/krikorian-hitting-the-boiling-point-over-the-borde/; see also “In Praise of Mark Krikorian’s Honesty,” HuffPost, https://www.huffpost.com/entry/in-praise-of-mark-krikori_b_5742314. Regarding the ubiquity of this language by Australian leaders, see Motta, “Between a Rock and A Hard Place”; Michael Wesley, “Perspectives on Australian Foreign Policy,” Australian Journal of International Affairs 56, no. 1 (April 1, 2004): 47–63. This is due to the political questions doctrine and the plenary power doctrine (in the immigration context).

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90 I discuss these views in chapters 2 and 3 of this book. See an example of decontextualizing these strikes and individualizing protest in Europe: Rita Vanobberghen, et al., “Five Years Later: the Impact of a Hunger Strike on Undocumented Migrant Workers in Brussels,” Journal of Immigrant and Minority Health 22 (2020): 392–398, https://link.springer.com/article/10 .1007/s10903-019-00886-6. 91 This is also a stereotypical and erroneous view of Agamben’s arguments in Homo Sacer and State of Exception. See for example, Mainwaring’s narrow reading of Agamben in Ċetta Mainwaring, “Migrant Agency: Negotiating Borders and Migration Controls,” Migration Studies 4, no. 3 (November 2016): 289–308. On pp. 292, 294, she interprets his work as based on refugees as exceptional and therefore largely absent from policy considerations much less capable of agency; Owens, “Reclaiming ‘Bare Life’?,” 567–582— she also misreads his work, especially on 577 where she argues that Agamben wants to “reclaim ‘bare life.’” 92 See Butler, Precarious Life; Katie Oliviero, Vulnerability Politics: The Uses and Abuses of Precarity in Political Debate (New York University Press, 2018); Nithya Rajan, “What do Refugees Want? Reading Refugee Lip-Sewing Protests Through a Critical Lens,” International Feminist Journal of Politics 21, no. 4 (2019): 527–543; see Karuna Mantena on Banu Bargu’s work and migrant protest in Emily Gruber, “Summary of Karuna Mantena’s Remarks on Bargu Starve and Immolate,” Critique and Praxis, April 20, 2019, https://blogs.law.columbia.edu/praxis1313/ karuna-mantena-abjection-and-agency/. See an analysis of these dynamics in Toby Markham and Rob Cover, “Facts of Life and Liveability: Asylum Seekers, Political Narratives, Ethics,” Journal of Media & Culture Studies 32, no. 5 (2018): 541–552. 93 Michel Foucault, The History of Sexuality, Volume I: An Introduction, trans. Robert Hurley, (New York: Vintage Books, 1980). 94 See Bargu, “Silent Exception,” 9 on negative perspectives of migrant agency and resistance. Banu Bargu, “The Silent Exception: Hunger Striking and LipSewing,” Law, Culture and the Humanities, May 24, 2017, 1–28. I believe this perspective places too much faith in the state as capable of total, seamless, oppressive power and mistakenly construes the state as a unifed entity. 95 De Genova, “The Deportation Regime,” 40; see also 40–66. 96 Bargu, “Silent Exception,” 1. As she discusses Engin Isin and Kim Rygiel call these places “abject,” as detainees are not characterized as subjects or agents, Bargu, “Silent Exception,” 5. See Engin Isin and Kim Rygiel, “Abject Spaces: Frontiers, Zones, Camps,” The Logics of Biopower and the War on Terror: Living, Dying, Surviving, ed. Dauphinee et al. (London: Palgrave Macmillan, 2007), 181–203. Rygiel has shifted their thinking more recently (e.g. Suzan Ilcan and Kim Rygiel, “‘Resiliency Humanitarianism’: Responsibilizing Refugees through Humanitarian Emergency Governance in the Camp,” International Political Sociology 9, no. 4 (December 1, 2015): 333–351). See also Nicholas de Genova, “Denizenship,” (ch. 14) in Precarity and Belonging, ed. Ramirez et al. (Rutgers University Press, 2021), 227–242. 97 Bargu, “The Silent Exception,” 5. 98 See for example: Sterett, “In an Indeterminate State”; see also Kitty Calavita, “U.S. Immigration Policy: Contradictions and Projections for the Future,” Indiana Journal of Global Legal Studies 2, no. 1, Symposium: Global Migration and the future of the Nation-State (Fall 1994): 143–152. 99 Again, see Isin and Rygiel, “Abject Spaces.”

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100 Arendt, Origins of Totalitarianism, 286. For contemporary analyses of these conditions, see Arnold, Arendt, Agamben and the Issue of HyperLegality; César Cuauhtémoc García Hernández, “Immigration Detention as Punishment,” UCLA Law Review 61, no. 5 (2014): 1346–1414; U Denver Legal Studies Research Paper NO. 13–41, August 22, 2013, http://papers.ssrn .com/sol3/papers.cfm?abstract_id=2321219; Stumpf, “The Crimmigration Crisis.” 101 On detainee rightlessness, see: Arnold, Arendt, Agamben and the Issue of Hyper-Legality. 102 This is Monica Varsanyi’s term for the sphere of authority authorized by the plenary power doctrine—mostly exercised at the federal level—which treats foreigners as if they have no legal personality per the 14th Amendment. This situation would be mitigated if foreigners made it past “border” areas and established territorial residency, even if, after 1996, the plenary power doctrine has chipped away at 14th amendment rights guaranteed at state and local levels. Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood,” 877– 896. See Arnold Arendt, Agamben and the Issue of Hyper-Legality; Linda Bosniak, “Sanctuary and the Contested Ethics of Presence in the United States,” Borders and Boundaries: Mapping Out Contemporary Societies, ed. Didier Fassin (University of California Press, 2018), ch. 10 (189–213); Kanstroom, Deportation Nation; Stumpf, “The Crimmigration Crisis.” 103 On the comparison between prisons and migrant detention centers, see Arnold, Arendt, Agamben and the Issue of Hyper-Legality. 104 Regarding violations of any mass detention system, see: Offce of the High Commissioner for Human Rights, “2021 Report of the Working Group on Arbitrary Detention,” United Nations, presented to the 48th Session of the HRC (Human Rights Commission), July 6, 2021, https://www.ohchr.org/en /calls-for-input/2021-report-working-group-arbitrary-detention. 105 See Bridget Arimond, et al., Center for International Human Rights, Northwestern Pritzker School of Law, “Report on the Role of Private Security Companies in Migrant Detention in the U.S. and Their Impact on the Protection of the Rights of Migrants,” submitted to United Nations Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, May 26, 2020, https://www.law.northwestern.edu/legalclinic/humanrights/documents/report-on-role-of-pscs-in-migrant-detention-27-may-2020-fnal.pdf; Grace Meng, “Holding Companies Accountable for US Detention Abuses,” Human Rights Watch website, November 25, 2019, https://www.hrw.org/ news/2019/11/25/holding-companies-accountable-us-detention-abuses. 106 See Eleanor Acer and Tara Magner, “Restoring America’s Commitment to Refugees and Humanitarian Commitment,” Georgetown Immigration Law Journal 27 (Spring 2013): 445–481; Kanstroom, Deportation Nation; Pitzer,  One Long Night; Motta, “Between a Rock and A Hard Place”; Rise Refugee group (REFUGEES, SURVIVORS AND EX-DETAINEES), eXdetainees’ Day Statement: ‘In Australia, the eX-detainee community is arguably ONE of the poorest, racially profled and systematically discriminated community group, September 21, 2020, https://www.riserefugee.org/ex -detainees-day-statement-2020/. 107 This is a human rights violation See for example, Mark Dow, American Gulag: Inside U.S. Immigration Prisons  (Los Angeles and Berkeley: University of California Press, 2004); Acer and Magner, “Restoring America’s Commitment to Refugees and Humanitarian Commitment”; Sara

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109

110 111

112 113

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Sidner, Jason Kravarik, “They Asked for Asylum. Instead, They Say They Were Sent to a Prison and Treated like Criminals,” CNN, July 24, 2018, https://edition.cnn.com/2018/07/24/politics/oregon-prison-asylum-detainees /index.html. See Max Boddy, “Detainees on Australia’s Christmas Island Continue Protests Against Appalling Conditions,” World Socialist Website, January 15, 2021, https://www.wsws.org/en/articles/2021/01/15/chri-j15.html; Centro Legal de La Raza, “Despite Months of Warnings, at Least One Immigrant at Mesa Verde Detention Facility Tests Positive for COVID-19,” July 9, 2020, https://www.centrolegal.org/despite-months-of-warnings-at-least-one-immigrant-at-mesa-verde-detention-facility-tests-positive-for-covid-19/; Maurizio Guerrero, “Covid-19 Hunger Strikes Sweep Migrant Detention Centers,” In These Times, September 1, 2020, https://inthesetimes.com/article/jailed -migrants-hunger-strike-ice-detention-centers-covid-19; The Monthly, “Morrison’s Plan to Deport Thousands of Migrants,” 7am podcast, The Monthly, March 3, 2022, https://www.themonthly.com.au/podcast/morrisons-plan-deport-thousands-migrants; Jack Herrera, “Immigrants Stage a Hunger Strike for Black Lives Inside ICE Detention Facility,” Prism Reports, June 12, 2020, https://prismreports.org/2020/06/12/immigrants-stage-a -hunger-strike-for-black-lives-inside-ice-detention-facility/. See Fiske, “Human Rights and Refugee Protest”; Mares and Jureidini, “Psychiatric Assessment of Children and Families”; Mares, et al., “Seeking Refuge, Losing Hope”; McAlister, et al., “I See Nothing but a Fence of Tears”; and see “What’s It Like in Australian Detention Centres?” Institute of Sisters of Mercy of Australia and Papua New Guinea, December12, 2007, https:// institute.mercy.org.au/what-it-s-like-in-australia-s-detention-centres/. Kanstroom has written extensively on this, particularly in Deportation Nation. The Universal Declaration of Human Rights, article 9, stipulates that: “No one shall be subjected to arbitrary arrest, detention or exile.” The Working Group on Arbitrary Detention, “No One Shall be Subjected to Arbitrary Arrest, Detention, or Exile,” Fact Sheet No. 26, https://www.ohchr.org/sites /default/fles/Documents/Publications/FactSheet26en.pdf, explains that this can mean that people have “been imprisoned without an arrest warrant and without being charged or tried by an independent judicial authority, or without access to a lawyer; detainees are sometimes held incommunicado for several months or years, or even indefnitely”; this can happen “because of the growing and preoccupying practice of administrative detention, notably for those seeking asylum.” See: UNICEF, “Latest Statistics and Graphics on Refugee and Migrant Children,” UNICEF website, n.d. (circa 2020), https://www.unicef.org/eca /emergencies/latest-statistics-and-graphics-refugee-and-migrant-children. See Melissa A. Jamison, “Detention of Juvenile Enemy Combatants at Guantanamo Bay: The Special Concerns of the Children,” UC Davis J Juv Law and Policy 127 (2005): 1–44—the author provides compelling reasons to avoid detaining children and teens and points out that teens are more vulnerable to coercion and trauma than younger children. See also Center for Gender and Refugee Studies, “A Treacherous Journey,” UC Hastings School of Law, n.d., https://cgrs.uchastings.edu/sites/default/fles/Treacherous %20Journey%20Executive%20Summary.pdf. Australia similarly disregards childhood status, violating international law on the “best interest of the child” standard.”

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114 See Jamison, “Detention of Juvenile Enemy Combatants at Guantanamo Bay.” 115 McAlister, et al., “I See Nothing but a Fence of Tears”: “As a signatory to both the United Nation Refugee Convention and the United Nations Convention on the Rights of the Child (74); “For the past two decades, Australia has attracted global attention for its controversial treatment of children seeking asylum. No other country mandates the closed and indefnite offshore detention of children.” (74–75) See also Australian Human Rights Commission, “An Overview of the Children in Detention,” 2014, https://humanrights.gov .au/our-work/4-overview-children-detention. 116 See Susan Maira, “Freedom to Move, Freedom to Stay, Freedom to Return: A Transnational Roundtable on Sanctuary Activism,” Radical History Review, October 1, 2019, 138–159, https://read.dukeupress.edu/radical-history-review/article/2019/135/138/140471/Freedom-to-Move-Freedom-to -Stay-Freedom-to-ReturnA?casa_token=0kEv_vaKipoAAAAA:Zvmr1CD BVYrUgfD2g1LUk1VE_BYBJMDPKVTM6vyNl4zXep8IF8xO2u6nPdErlIr -UZyAu0k; O’Sullivan, “The Sanctity of Asylum.” 117 See Mina Fazel, et al., “Detention, Denial and Death: Migration Hazards for Refugee Children,” The Lancet Global Health 2, no. 6 (June 1, 2014), https:// www.thelancet.com /journals/langlo/article/PIIS2214-109X(14)70225-6/ fulltext; Mares and Jureidini, “Psychiatric Assessment of Children and Families”; Mares et al., “Seeking Refuge, Losing Hope.” 118 Today the use of Title 42 provisions blocks legitimate refugee seekers from reaching US borders. Australia has similarly used COVID provisions to deter refugee-seekers from reaching the country’s shores. See Shachar, “Beyond Open and Closed Borders” on the diffculties of applying for refugee status from a third country. On the treatment of unaccompanied minors see: Center for Gender and Refugee Studies, Universidad Nacional de Lanus, et al., “Childhood and Migration in Central and North America: Causes, Policies, Practices, and Challenges,” (2015), https://cgrs.uchastings.edu/sites/default/ fles/Childhood_Migration_HumanRights_English_1.pdf; Frydman, et al., “A Treacherous Journey.” 119 US Attorney General Jeff Sessions treated families traveling together as “smuggling children”—see Frontline: Zero Tolerance: How Trump Turned Immigration into a Political Weapon (54 min), premiered October 22, 2019, https://www.youtube.com/watch?v=eW4kQ4akZ1A. 120 See Stumpf on crimmigration and how it undermines the presumption of innocence, often treating people as if they were guilty with innocence to be proved: Stumpf, “The Crimmigration Crisis.” 121 See Vargas et al. on the stress and trauma communities felt simply from fear of detention and deportation (granted that it’s connected to a complex set of processes): Edward D. Vargas, et al., “Fear by Association: Perceptions of Anti-Immigrant Policy and Health Outcomes,” Journal of Health Politics, Policy and Law 42, no. 3 (June 2017): 459–483, https://heliuw.fles.wordpress.com/2016/03/jhppl-2017-vargas.pdf. 122 Australia has developed similarly harsh policies towards refugees arriving in boats as a method of compassionate deterrence (even if family separation is not part of the policy), see Hodge, “#LetThemStay #BringThemHere.” 123 Both Max Weber and Karl Polanyi emphasize the irrationality of devaluing human life in their work. Max Weber, The Protestant Ethic and the Spirit of Capitalism, trans. Talcott Parson, (New York: Routledge, 2001); Karl Polanyi, The Great Transformation (Boston: Beacon Press, 2001),

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124 See David Dyzenhaus, “Emergency, Liberalism, and the State,” Perspectives on Politics 9, no. 1 (2011): 69–78; David Dyzenhaus, “Schmitt v Dicey: Are States of Emergency Inside or Outside the Legal Order?” Cardozo Law Review 27 no. 5 (2006): 2005–2040. 125 I have written a book about this opposition (and eventual convergence as crimmigration): Arnold, Arendt, Agamben and the Issue of Hyper-Legality. 126 See Sassen, Globalization and Its Discontents. 127 I have arrived at this defnition infuenced by Andrea Pitzer and Hannah Arendt: Andrea Pitzer,  One Long Night;  Arendt, The Origins of Totalitarianism. 128 On this odd circular reasoning, see Wong Wing v United States 163 US 228 (1896); César Cuauhtémoc García Hernández, “Immigration Detention as Punishment”; Kanstroom, Deportation Nation; Stumpf, “The Crimmigration Crisis.” 129 Regarding retaliation for simply complaining, see Dow, American Gulag. 130 Arendt, The Origins of Totalitarianism. 131 See the work of the National Immigration Justice Center in Chicago (NIJC) and the Center for Gender & Refugee Studies at UC Hastings as well as the work of (separately and together): Eleanor Acer, Blaine Bookey, Lynn Frydman, Mary Meg McCarthy, Karen Musalo, Jaya Ramji-Nogales, Andrew Schoenholtz, and Philip Schrag (and others) who are tracking cases, mistakes, training levels, abuses, and variability in adjudication offces. 132 The government will not release minutes, proceedings, or all decisions and it makes FOIA diffcult, so these academic centers must attempt to keep track of these decisions. Regarding mistaken judgments, see for example, these two articles: Bookey, “Domestic Violence as a Basis for Asylum,” 107–148; Stephen Knight, “Asylum from Traffcking: A Failure of Protection,” Immigrant Briefngs, July 7, 2007, https://cgrs.uchastings .edu /sites/default /files/Asylum _from _Trafficking _Knight _Immigration _Briefngs_7_07.pdf#:~:text=Asylum%20from%20TrAffcking%3A%20A %20fAilure%20of%20ProTecTion%20by,trafficking%20cases%20from %20the%20CGRS%20database%2C%20and%20his. See also  Melissa Cruz, “ICE May Have Deported as Many as 70 US Citizens in the Last Five Years,” Immigration Impact, July 30, 2021, https://immigrationimpact.com /2021/07/30/ice-deport-us-citizens/.  Much like US legal scholarship on the subject, Australian leaders question if they can make mistakes in this context since the content of these policies and enforcement cannot be constitutionally scrutinized—see, e.g.  Justice Colvin, “Reviewing Judicial Power for Jurisdictional Error: Some Recent Migration Cases,” Address to the WA Chapter of the Australian Institute of Administrative law, Federal Court of Australia, August 24, 2021, https://www.fedcourt.gov.au/digital-law-library /judges-speeches/justice-colvin/colvin-j-20210824. 133 This is not to argue that there is a pure void—bureaucratic rules, new classifcations, and norms abound but do not protect an individual’s inalienable rights, much less any constitutional rights. This includes accidentally detaining citizens in each country. The Netfix show Stateless dramatizes such a situation: Elise McCredie and Belinda Chayko, “Stateless” TV shows, Netfix, Matchbox Pictures,” Original Release March 1, 2020. 134 Regarding the migration system lacking transparency, see: Andrea Gittleman, “The Need for Transparency in US Detention and Interrogation Practices,” Physicians for Human Rights, January 1, 2014, https://phr .org/our-work/resources/the-need-for-transparency-in-u-s-detention-and

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135

136 137

138

139 140

141 142

-interrogation-practices/; Tsion Gurmu and Emily Creighton, “Groups Call for Transparency Regarding Abuse and Mistreatment of Black Immigrants in Detention,”  The Immigration Today, November 14, 2021, https:// www.theimmigrationtoday.com /united-states/groups-call-for-transparency-regarding-abuse-and-mistreatment-of-black-immigrants-in-detention-2/; International Detention Coalition, “Transparency and Oversight Essential in Immigration Detention,” August 10, 2016, https://idcoalition .org /news /transparency-and-oversight-essential-in-immigration-detention/; Koulish and Evans, “Punishing With Impunity,” 1–72; UNHCR, Executive Committee of the High Commissioner’s Programme, “Detention of Asylum-Seekers and Refugees: The Framework, the Problem and Recommended Practice,” June 4, 1999, https://www.unhcr.org/3cc413ae4 .pdf#:~:text=The%20requirement%20that%20detention%20be%20subjected%20to%20either,detention%20orders%20before%20an%20independent%20and%20impartial%20body; Claudia Valenzuela, Tara Tidwell Cullen, et al., “Freedom of Information Act Litigation Reveals Systemic Lack of Accountability in Immigration Detention Contracting,” August 2015 Report, https://immigrantjustice.org/sites/immigrantjustice.org/fles/ images/NIJC%20Transparency%20and%20Human%20Rights%20Project %20August%202015%20Report%20FINAL3.pdf. See also Pitzer, One Long Night, 411–414; Gilberto Rosas, “NecroSubjection: On Borders, Asylum, and Making Dead to Let Live,” Theory & Event 22, no. 2 (April 2019): 303–324 re: the US context); Isaacs, “Are Healthcare Professionals Working in Australia’s Immigration Detention Centres Condoning Torture?” 413–415. See also de Genova who believes that what is being punished is the attempt exercise one’s freedom of movement—de Genova, “The Deportation Regime,” 39. This is an example of an image and article posted on a conservative website: Wesley Smith, “The Crisis on Our Southern Border Grows,” ACLJ, April 2, 2019, https://aclj.org/national-security/the-crisis-on-our-southern-border -grows. Arendt’s analyses of camps—as contrasted to prisons—are an important contribution to understanding the political uniqueness of camps, how they seemingly provide proof of culpability, and how detainees are conceived of as “outlaws” rather than “criminals.” Arendt, The Origins of Totalitarianism, 437–458. In contemporary political debates even political “moderates” like Pres. Obama referred to undocumented foreigners as “illegal.” As Behrouz Boochani reminds us, this is not what detainees want us to focus on—they have risked so much by protesting to gain freedom, not better conditions of captivity. Boochani, “All We Want is Freedom.” Migration issues are largely bipartisan, with both sides largely agreeing on harsh methods, walls, and criminalization but differing in how to approach these policies— on US migration as a bipartisan issue, see Cheryl Shanks, Immigration and Politics of American Sovereignty, 1890–1990 (Ann Arbor: University of Michigan Press, 2001); see also Arnold, Arendt, Agamben and the Issue of Hyper-Legality; on Australia, see R. Birrell, “A New Era in Australian Migration Policy,” International Migration Review 18, no. 1 (1984): 65–84. On binary modes of operation, see Bonnie Honig, Democracy and the Foreigner (Princeton: Princeton University Press, 2001). Arendt, Origins of Totalitarianism, 437–458.

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143 See Peter Westoby’s insightful work on the agency of traumatized refugees. As he states, refugees were able to exercise agency and rebuild community when their voices and needs were placed above western therapeutic interventions and “solutions”: “The dimensions of privileging emic perspectives (the insider perspectives of Sudanese refugees in contrast to etic or outsider professional perspectives), using a dialogical method (the creation of a safe space to make sense of the new settlement context), taking an elicitive stance (whereby the community development worker orients themselves towards facilitation and discovery) and focusing on the resources of culture, community and power are outlined.” Peter Westoby, “Developing a Community-Development Approach Through Engaging Resettling Southern Sudanese Refugees Within Australia,” Community Development Journal 43, no. 4 (October 2008): 483–495; see also Amie Thurber and James Fraser, “Disrupting the Order of Things,” Cities 57 (2016): 55–61. 144 On the greater knowledge of marginalized individuals about their context, experiences, and treatment, see Thurber and Fraser, “Disrupting the Order of Things.” 145 They are also resisting becoming “pawns” of state power—something Fiske noted that the detainees she interviewed reported in Fiske, “Human Rights and Refugee Protest.” This argument should not be interpreted to mean that we should ignore trauma and hold migrants responsible for their fates—what it means is that even when people are destabilized and in need, they are the most knowledgeable about what they need. 146 Vargas, et al., “Fear by Association.” See also L. Rojas-Flores and M.L. Clements, et al., “Trauma and Psychological Distress in Latino Citizen Children Following Parental Detention and Deportation,” Practice and Policy, 2017, 352–362. 147 Vargas, et al., “Fear by Association.” See also Jeffrey T. Kullgren, MPH, “Restrictions on Undocumented Immigrants’ Access to Health Services: The Public Health Implications of Welfare Reform,” American Journal of Public Health 93, no. 10 (October 2003): 1630–1633, https://ajph.aphapublications .org/doi/epub/10.2105/AJPH.93.10.1630; See Arnold, Arendt, Agamben and the Issue of Hyper-Legality; de Genova, “The Deportation Regime”; and Kanstroom, Deportation Nation on why legal status is not protection from marginalization or coercive migration policies. 148 See Leo R. Chavez, The Latino Threat: Constructing Immigrants, Citizens, and the Nation (Palo Alto: Stanford University Press, 2008); Seth Holmes, Fresh Fruit, Broken Bodies: Migrant Farmworkers in the United States (Berkeley: University of California Press, 2014); Vargas, et al., “Fear by Association.” 149 Karen Johansson Blight, “Questioning Fairness in Swedish Asylum Decisions,” State Crime 4, no. 1 (Spring 2015): 52–76; see also Rachel Aviv, “The Trauma of Facing Deportation,” The New Yorker, 2017, https://www .newyorker.com/magazine/2017/04/03/the-trauma-of-facing-deportation. 150 See Samantha Artiga and Maria Diaz, “Health Coverage and Care of Undocumented Immigrants,” Kaiser Family Foundation, https://www .kff.org /racial-equity-and-health-policy/issue-brief/health-coverage-and -care-of-undocumented-immigrants/; Amana Cheong, Douglas Massey, “Undocumented and Unwell: Legal Status and Health Among Mexican Migrants,” International Migration Review 53, no. 2 (2019): 571–601; Jacqueline Torres and Roger Waldinger, “Civic Stratifcation and the Exclusion of Undocumented Immigrants from Cross-border Health Care,”

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153 154

155 156 157 158 159

160 161 162 163 164

165

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Journal of Health and Social Behavior 56 no. 4 (2015): 438–459; Vargas, et al., “Fear by Association.” Blight, “Questioning Fairness.” See Arendt’s analysis of this disbelief when Nazi camp survivors attempted to relate what happened to them in “We Refugees.” These are technically not errors if the substance of law is not judicially scrutinized but they are nevertheless mistakes of some kind. See also an Australian document in which the author that there is no error in areas of discretionFederal Court of Australia, “Reviewing Judicial Power for Jurisdictional Error: Some Recent Migration Cases,” Government of Australia website, August 24, 2021, https://www.fedcourt.gov.au/digital-law-library/judges -speeches/justice-colvin/colvin-j-20210824. Blight, “Questioning Fairness,” 64. Blight goes further and argues that adversarial treatment is: “This practice is by itself an abuse of power, and a form of destructive behaviour and civilized aggression” (64). Blight, “Questioning Fairness,” 64, my emphasis; see also Philip G. Schrag, Andrew Schoenholtz, Jaya Ramji-Nogales, and James P. Dombach, “Rejecting Refugees: Homeland Security’s Administration of the One-Year Bar to Asylum,” William and Mary Law Review 52, no. 3 (2010): 651–804; Frydman, et al., “A Treacherous Journey.” As Fierke argues in “Whereof we Can Speak.” Westoby, “Developing a Community-Development Approach,” 486, my emphasis. Fierke, “Whereof we Can Speak,” 472–473; see also Holmes’ discussion of Foucault, Birth of the Clinic, and the “gaze” in Holmes, Fresh Fruit, Broken Bodies. Fierke, “Whereof we Can Speak,” 475; Sigmund Freud, Civilization and Its Discontents, ed. Peter Gay and Christopher Hitchens (New York: Norton, 2010); Butler, Precarious Life. John Randolph LeBlanc, “Occupied Body, Occupied Mind,” Conference Presentation, American Political Science Association Meeting, 2016, https://www.academia.edu /91141117/Occupied _Body_Occupied _Mind _Transforming_Vulnerability_in_Raja_Shehadeh. See Fierke, “Whereof We Can Speak”; LeBlanc, “Occupied Body, Occupied Mind”; McAlister, et al., “I See Nothing but a Fence of Tears.” Mares, et al., “Seeking Refuge, Losing Hope,” 93. Mares, et al., “Seeking Refuge, Losing Hope,” 87. LeBlanc quoting Butler, Frames of War (2010) in “Occupied Body, Occupied Mind.” On the importance of invoking a community, see: Westoby, “‘A Community Development Yet-to-Come.’” This is in line with Wolin’s notion of “fugitive democracy” in that democratic solidarities must remain active, fresh, and fexible to be truly inclusive and equitable. Sheldon Wolin, Politics and Vision, expanded edition (Princeton: Princeton University Press, 2004), 602; Sheldon Wolin, Fugitive Democracy and Other Essays, ed. Nicholas Xenos (Princeton: Princeton University Press, 2016). See Mantena’s brief discussion of these issues in: Emily Gruber, “Summary of Karuna Mantena’s Remarks on Bargu Starve and Immolate,” Critique and Praxis, April 20, 2019, https://blogs.law.columbia.edu/praxis1313/ karuna-mantena-abjection-and-agency/. Hodge, “#LetThemStay #BringThemHere,” 389.

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167 LeBlanc, “Occupied Body, Occupied Mind”; Iris Marion Young, “Is Male Gender Identity the Cause of Male Domination?” in Feminist Social Thought: A Reader, ed. Diana Tietjens Meyers (New York: Routledge, 1997), 21–37. My emphasis. 168 In the Palestinian context, see Ruba Salih, “Bodies That Walk, Bodies That Talk, Bodies that Love: Palestinian Women Refugees, Affectivity, and the Politics of the Ordinary,” Antipode: A Radical Journal of Geography 49, no. 3 (June 2017): 742–760. 169 Agamben, “State of Exception as a Paradigm of Government,” 3, 84, 87 (e.g.); see De Genova’s critique of Butler’s rejection of this concept: 61 n 8 in De Genova, “The Deportation Regime.” See Puggioni’s important work on this subject: “Against Camps’ Violence.” 170 In Homo Sacer, Agamben explains that he draws on Foucault’s concept of power. The major difference between the two authors is that for Agamben, bio-power and sovereign power are not necessarily distinct. See Homo Sacer introduction, especially pp. 5–6 and 39–44. In State of Exception, he disputes the relevance of Carl Schmitt’s focus on one sovereign decision maker—see: chapters 1 and 2; power is now wielded as a sort of “machine” (87–88). 171 Foucault views bio-power as more modern while Agamben argues that we can understand its roots even in ancient Greece with the distinction between oikos and the political sphere. Agamben, Homo Sacer; Foucault, History of Sexuality v. 1, conclusion. See Jenny Edkins and Véronique PinFat, “Through the Wire: Relations of Power and Relations of Violence,” Millennium: Journal of International Studies 34, no. 1 (2005): 1–26. 172 Bargu, “The Silent Exception,” calls lip-sewing a “silent exception” or the “exception from the exception” (5). With Bargu, I view bio-power and bare life as entirely negative and therefore, not something to positively reframe. However, I disagree with her that Agamben’s notion of bare life is apolitical/ depoliticized (even if it’s negative). 173 This is why I disagree with Patricia Owens’ interpretation of Agamben, even if her work is otherwise interesting: Owens, “Reclaiming ‘Bare Life’?” 174 Agamben, “We Refugees” is one instance in which he discusses resistance to the exclusivity of the nation-state. See also my more extensive exploration of agency and protest in his work in the conclusion of America’s New Working Class. 175 Regarding fugitive democracy, see Wolin, Politics and Vision, 602–608; Wolin, Fugitive Democracy and Other Essays. 176 See Calavita, Inside the State; Calavita, “U.S. Immigration Policy”; Sterett, “In an Indeterminate State.” 177 Agamben, State of Exception, 33: the State of Exception is not equivalent to anarchy. 178 Wolin, “Democracy and the Welfare State,” 159–161. 179 See Agamben, Homo Sacer, 18. See de Genova, “The Deportation Regime,” 36. On 46 Genova argues: “if the refugee may be invoked as an icon of statelessness and therefore also of bare life, then deportability perfectly and precisely marks the zone of indistinction between a condition that is (virtually) stateless and one that is positively saturated within the state…deportation is, indeed, a premier means for perpetrating, embellishing, and reinstating a ‘threshold…that distinguishes and separates what is inside from what is outside.’”

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180 Fair Punishment Project, Immigrant Defense Project and Immigrant Legal Resource Center, “The Promise of Sanctuary Cities and the need for Criminal Justice Reform in an Era of Mass Deportation,” April 2017, https://www .immigrantdefenseproject.org/wp-content/uploads/FPP-Sanctuary-Cities -Report-Final.pdf. As Wolin argues in “Democracy and the Welfare State”: “Thus, marginality is a means of expanding a particular kind of state power, one less hedged by ordinary rules (due process), one freer to respond in accordance with the ‘objective situation.’” (160, 161). 181 Agamben, State of Exception, 23. 182 This is also an example Marx provides in “On the Jewish Question,” in Friedrich Engels and Karl Marx, The Marx-Engels Reader, 2nd ed., ed. Robert C. Tucker (New York: W.W. Norton, 1978). 183 Regarding democracies suspending parts of their constitutions, Agamben discusses various theories about how to characterize what emerges. This includes conceiving of this situation as temporary and based on an emergency. Mechanisms include “the extension of the military authority’s wartime powers into the civil sphere” and/or “a suspension of the constitution (or of those constitutional norms that protect individual liberties).” In the end, “the two models end up merging into single juridical phenomenon that is state of exception.” (Agamben, State of Exception, 5). 184 This is something Behrooz Boochani has worked to get people to understand—making jails better does not give migrants freedom. We must abolish the system altogether. Boochani, “All We Want is Freedom.” 185 On the possibility of an agonistic form of (counter) sovereignty, see Bonnie Honig, Antigone, Interrupted (Cambridge: Cambridge University Press, 2013). 186 See Fierke’s discussion of Wittgenstein’s notion of solipsism, which she concludes is still public and political despite the connotation of individual withdrawal. Fierke, “Whereof we Can Speak”; in particular, see her discussion of Wittgenstein solipsism on 477–483. 187 See Fiske, “Human Rights and Refugee Protest.” 188 While they may appear to migrate for individual reasons, Seth Holmes makes a compelling argument for why these journeys are in the context of familial and village needs and transnational ties with US employers. As he argues, those who make this dangerous border crossing “experience their labor migration as anything but voluntary.” Holmes, Fresh Fruit, 15. 189 Related to these arguments, De Genova points out how the vulnerability produced by framing workers as “illegal” enhances their attractiveness as employees. De Genova, “The Deportation Regime,” 38–39. See also Sassen, Globalization and Its Discontents; Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood,” 877–896. 190 Holmes’ analysis of this compulsion in Fresh Fruit Broken Bodies is excellent. 191 Sassen, Globalization and Its Discontents. 192 See Fiske, “Human Rights and Refugee Protest.” Similar to Australian and US discourse, the Swedish government has argued that sick children are “agents” and fake comas to get refugee status: see Blight, “Questioning Fairness,” see esp 57. As Blight explains, “A Government inquiry, commissioned in 2006, promoted a theory, which gained large support, that children may copy each other to secure residency, or that they might be malingering, cheating or poisoned by their parents. The authors suggested that many children with apathy were “far from passive victims.” The inquiry also stated that the police suspected parents poisoned their children but there was no

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proof of this. Blight, “Questioning Fairness,” 57–58. See also, Sarah Willen, ed., “Migration, ‘Illegality,’ and Health: Mapping Embodied Vulnerability and Debating Health-Related Deservingness,” special issue, Social Science & Medicine 74, no. 6 (2012): 808–810. 193 Nor does it entail an individualistic concept of the political. See also Bargu, “The Silent Exception.” 194 See Bargu, “The Silent Exception”; Mainwaring, “Migrant Agency”; Ilcan and Rygiel, “‘Resiliency Humanitarianism’”; Puggioni, “Against Camps’ Violence.” 195 Mainwaring, “Migrant Agency”—see 293 in particular. 196 Scott, Weapons of the Weak. 197 I have discussed some of these tactics that Chicago-based advocates use in the preface. See Scott Weapons of the Weak; see R Parreñas’ discussion of “hidden transcripts” among largely captive domestic workers, who quickly exchange information at playgrounds or on buses, when they can. Rhacel Salazar Parreñas, Servants of Globalization (Stanford: Stanford University Press, 2001). 198 Thank you to an anonymous reviewer for this insight. 199 Granted he was discussing civil disobedience and not hunger strikes, “Letter from a Birmingham Jail.” 200 Fiske, “Human Rights and Refugee Protest,” 19. 201 Fiske, “Human Rights and Refugee Protest,” 19. 202 Information sharing facilitated an 8/17/19 detainee hunger strike in Louisiana’s Pine Prairie ICE processing center run by GEO. Freedom for Immigrants aided protesters and leaked the news to press. Chantal Da Silva, “More Than 100 Immigrants on Hunger Strike at ICE Facility Allegedly Pepper-Sprayed, Shot at With Rubber Bullets and Blocked from Contacting Families,” Newsweek, August 7, 2019, https://www.newsweek.com /ice-detainees-hunger-strike-pepper-sprayed-excessive-force1452953. 203 These groups are too numerous to list but both countries have a rich civil society that acts sometimes in less visible ways and at other times, in very visible ways. Groups provide information to the general public about protests that otherwise would not be broadcast and sanctuary provider networks in both countries regularly compare tactics, share information, advocate for legislation, and help get migrants to safe cities. 204 DePaul Migration Collaborative conference, DePaul University, 4/6/22. Statement by Br. Michael Gosch of the Viatorian Community https://www .viatorians.com/br-michael-gosch-csv-2/p=8397. 205 Westoby, “‘A Community Development Yet-To-Come’”; see Arendt, “Civil Disobedience,” 71–101t; Wolin, Politics and Vision. 206 Arendt, “Civil Disobedience.” 207 John Stuart Mill, On Liberty, ed. Elizabeth Rapaport (Indianapolis: Hackett Publishing Co., 1978), see introduction. 208 See Westoby on the importance of healing from trauma as a social and not individual process: Westoby, “Developing a Community-Development Approach,” 486–487. This does not mean that he would agree with my arguments about self-harm as healing. 209 For opposing views, see: Ayten Gündoğdu, Rightlessness in an Age of Rights: Hannah Arendt and the Contemporary Struggles of Migrants (New York: Oxford, 2015); Rajan, “What do Refugees Want?”; Isin and Rygiel, “Abject Spaces.”

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210 On the megamarches of 2006 and 2007, see Cristina Beltrán, “‘No Papers, no Fear,’: DREAM Activism, New Social media and the Queering of Immigrant Rights,” in Contemporary Latina/o Media: Production, Circulation, Politics, ed. Arlene Dávila and Yeidy M. Rivero (New York University Press, 2014); Alfonso Gonzales, Reform Without Justice: Latino Migrant Politics and the Homeland Security State (New York: Oxford, 2014). 211 Fanon, The Wretched of the Earth; Achille Mbembe, “Necropolitics,” trans. Libby Meintjes, Public Culture 15, no. 1 (2003): 11–40; Scott, Weapons of the Weak. 212 Fanon, The Wretched of the Earth, 2–3. 213 Fanon, The Wretched of the Earth. 214 As Fanon argues with regard to violent decolonial resistance—which I am not holding is equivalent to detainee conditions but an extension of colonization. Fanon, The Wretched of the Earth, 3–4. 215 I am referring to Sheldon Wolin’s notion of “fugitive democracy.” See Wolin, Politics and Vision, 601–606. See also Sheldon Wolin, “What Revolutionary Action Means Today,” in Dimensions of Radical Democracy, ed. Chantal Mouffe (New York and London: Verso, 1992). 216 See, e.g., Chantal Mouffe, “Feminism, Citizenship, and Radical Democratic Politics,” in Feminist Social Thought: A Reader, ed. Diana Tietjens Meyers (New York: Routledge, 1997), 532–544.. 217 Wolin, Politics and Vision, 601. 218 Wolin, Politics and Vision, 606. 219 See Mouffe, “Feminism, Citizenship, and Radical Democratic Politics”; Sassen,  Globalization and Its Discontents; Naomi Klein, “Does Protest Need a Vision?” New Statesman, July 3, 2000, https://www.newstatesman .com/politics/2013/05/3-july-2000-does-protest-need-vision; Naomi Klein, “Reclaiming the Commons,” New Left Review 9 (2001): 81–89, https:// newleftreview.org/issues/ii9/articles/naomi-klein-reclaiming-the-commons. 220 To put it differently, if the state is a site of contestation, it achieves wholeness through its attempts at monopolizing violence—that is, through its assertion of its warfare powers. 221 See, e.g., Daniel Philpott, “Sovereignty: An Introduction and Brief History,” Journal of International Affairs 48, no. 2 (Winter 1995): 353–368; Daniel Philpott, “Usurping the Sovereignty of Sovereignty,” World Politics book review 53, no. 2 (January 2001): 297–324. 222 See Bargu, “Silent Exception,” 20. 223 Jessica Wolfendale, “The Myth of ‘Torture Lite,’” Ethics & International Affairs 23, no. 1 (2009): 47–61. 224 K.M. Fierke, “Memory and Violence in Israel/Palestine,” Human Rights and Human Welfare 8 (2008): 33–41; see 38 in particular. 225 See Nicholas de Genova, “‘Doin’ Hard Time on Planet Earth’: Migrant Detainability, Disciplinary Power and the Disposability of Life,” ch 11, in De Genova, Waiting and the Temporalities of Irregular Migration, ed. Christine M. Jacobsen et al. (Routledge, 2021), 186–201 for a very interesting, related analysis (including arguing that detaining people as a matter of course demonstrates the “banality of evil”). 226 Hodge argues that “Butler’s questions presume that under no circumstances, in the context of contemporary biopolitical management of bodies, can it be taken for granted that all living humans ‘bear the status of a subject, who is worthy of rights and protections, with freedom and a sense of political belonging’ (2015: 196).” Quoted in and paraphrased by Hodge. originally: Butler,

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Notes towards a Performative Theory of Assembly; Hodge, “#LetThemStay #BringThemHere.”

 Select Bibliography Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life, translated by Daniel Heller-Roazen (Stanford: Stanford University Press, 1998). Arendt, Hannah. “Civil Disobedience.” In Hannah Arendt, Crises of the Republic: Lying in Politics; Civil Disobedience; On Violence; Thoughts on Politics and Revolution (New York: Mariner Books/Houghton Miffin Harcourt, 1972), 49–102. Arendt, Hannah. The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979). Arendt, Hannah. “We Refugees.” In The Jewish Writings, edited by Jerome Kohn and Ron H. Feldman (New York: Schocken Books, 2007), 264–274. Bargu, Banu. “The Silent Exception: Hunger Striking and Lip-Sewing.” Law, Culture and the Humanities, May 24, 2017, 1–28. Blight, Karen Johansson. “Questioning Fairness in Swedish Asylum Decisions.” State Crime 4, no. 1 (Spring 2015): 52–76. Boochani, Behrouz. “All We Want is Freedom—Not Another Prison Camp.” The Guardian, November 12, 2017, https://www.theguardian.com/commentisfree /2017/nov/13/all-we-want-is-freedom-not-another-prison-camp. Fierke, K.M. “Whereof We Can Speak, Thereof We Must not be Silent: Trauma, Political Solipsism and War.” Review of International Studies 30 (2004): 471–491. Fiske, Lucy. “Human Rights and Refugee Protest Against Immigration Detention: Refugees’ Struggles for Recognition as Human.” Refuge 32, no. 1 (2016): 18–27. Foucault, Michel. The History of Sexuality, Volume I: An Introduction, translated by Robert Hurley (New York: Vintage Books, 1980). LeBlanc, John Randolph. “Occupied Body, Occupied Mind.” Conference Presentation, American Political Science Association Meeting, 2016, https://www.academia.edu /91141117/Occupied _Body_Occupied _Mind _ Transforming_Vulnerability_in_Raja_Shehadeh. Rancière, Jacques. Dissensus: On Politics and Aesthetics, translated by Steven Corcoran (Bloomsbury Academic, 2015). Said, Edward. Refections on Exile (London: Granta, 2002). Scott, James. Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven: Yale University Press, 1987). Weber, Max. The Protestant Ethic and the Spirit of Capitalism, translated by Talcott Parson, (New York: Routledge, 2001). Westoby, Peter. “Developing a Community-Development Approach Through Engaging Resettling Southern Sudanese Refugees Within Australia.” Community Development Journal 43, no. 4 (October 2008): 483–495. Wolin, Sheldon. “Democracy and the Welfare State: The Political and Theoretical Connections Between Staatsräson and Wohlfahrsstaatsräson.” In Sheldon Wolin, The Presence of the Past: Essays on the State and the Constitution (Baltimore: Johns Hopkins Press, 1989), 151–179.

1 UNDERSTANDING MIGRATION POLICY AS FOREIGN POLICY

1.1 Introduction

Operation Sovereign Borders, run by the Australian Border Force, within the Department of Home Affairs, maintains “it is Australia’s policy to turn back people-smuggling boats where safe to do so. No one who travels to Australia illegally by boat is allowed to remain in Australia.”1 Australia tells Afghan refugees: “Do not attempt an illegal boat journey.”2 Homeland Security Secretary Alejandro Mayorkas, who traveled to Del Rio to promise swift action. “If you come to the United States illegally, you will be returned, your journey will not succeed, and you will be endangering your life and your family's life,” he said at a news conference.3 “I want to be clear to folks in this region who are thinking about making that dangerous trek to the United States-Mexico border: Do not come. Do not come,” [Kamala] Harris said [to Haitians].4 In both Australia and the United States, refugees arriving in boats or at a port of entry without prior authorization are called “illegals” and most conventional accounts of their arrival and treatment are contextualized as “criminal.” Even progressive media and leaders use the language of illegality and criminality, warning people in boats not to arrive “illegally,” as each of the epigraphs above indicate. The designation of “illegal” in both countries is clearly negative in that this discourse holds that people are inherently criminals, that they must be breaking a law to be treated this way, and that their detention is justifed. However, the term “illegal” is also overly positive: it assumes, frst, that a law was broken, that the so-called criminal has rights, and that there are fair procedures to deal DOI: 10.4324/9781003282679-2

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with these individuals. Further, this view suggests that migration institutions are related to or are only slightly different from the criminal justice system. In this chapter, I will explain why these views are wholly incorrect and in fact, essentially justify punishing asylum seekers without cause. What is not recognized in this line of argumentation is that this punitive treatment occurs in a context in which these individuals have “no right to have rights.”5 My aim is to demonstrate that, on the one hand, the systems in each country that deal with refugees on the high seas, detainees, and/or individuals who have received a notice of impending detention/deportation are worse than a criminal system implies. A criminal system is composed of administrative agents bound by the rule of law, constitutional or common law scrutiny, checks and balances, transparency (including open, accessible records), and a system respecting inalienable rights, with the rights of the child superseding all other considerations.6 As I discussed in the introduction, this is not the case—both countries rely on a tortured logic by which geographical sites, including international waters, somehow suspend their human rights obligations but at the same time trigger their protection of borders and warfare powers when faced with starving, dehydrated people in sinking boats.7 In effect, migration policy is deployed as foreign policy, which is largely immune from constitutional scrutiny. Second, even in the interior of the country, both legal status and confnement determine if the state treats migrants as “people” or as “nonpersons”—that is, legally illegible individuals who can be confgured as national security threats on the basis of their status, rather than any criminal act.8 Because the US migration system is based on legal non-personhood at the federal level, the deployment of sovereignty as part of warfare, international relations, and/or in sites that are “constitution-free” occurs regularly within borders, allowing for legal, but undemocratic and unconstitutional, power matrices to be established. Similarly, most of Australia has been “excised,” such that migrants are detained in legally gray areas and/or have been deemed to be outside of common law.9 As I explain below, migration systems in both countries are largely arbitrary, evading the rule of law, and are founded on bio-political concerns and aims.10 Bio-power rests on forms of biological determinism, including bias founded on race, gender, sexuality, class, and able-bodiedness or mental ftness. It involves treating certain populations as a species, often exercised as “altero-referentiality” but is not conceived of as “autoreferential”—that is, power elites do not see themselves as having a “race” or being part of an economic class. Rather, they often view themselves as neutral.11 The arbitrary treatment of forced migrants can lead to a range

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of harms (from unreasonable search and seizure to violations of habeas corpus to cruel and unusual treatment), as well as precluding checks and balances, democratic legitimacy, and transparency. When an individual is no longer considered eligible for asylum or any legal regularization, or they are undocumented, they can be detained and deported. By the same token, if an individual is awaiting asylum or refugee processing, they do not yet have a legal personality. At this moment, I argue they are not only stateless but non-persons in the most radical sense. Because their legal personhood is not recognized, as Hannah Arendt pointed out, nor is their humanity.12 Mandatory detention essentially punishes non-status without any legal acknowledgment of this fact, making dehumanization more profound. In effect, the mandatory detention systems in both countries impose cruel and unusual punishment on forced migrants.13 While this does not lead to waterboarding—for example—or other forms of torture that we associate with black sites and Guantánamo, the range of harms amounts to a long-standing legal abandonment of these individuals, combined with tactics that clearly are torture: solitary confnement, forced medicalization, esophageal force-feeding of conscious individuals, overcrowded cells with little to no food, and sporadic but continuous violence by detention personnel.14 It is important to note that all of these tactics have been tested abroad and at Guantánamo, even if enhanced interrogation is not the aim in detention centers.15 Some form of “cultivated debilitation” is the goal, with the ultimate purpose being a docile detainee who self-deports.16 As people slated for detention or who are already in detention know, both the United States and Australia regularly violate the principle of non-refoulement, sending asylum seekers back to countries where they face future persecution.17 Given the combination of these circumstances, the stress on these detainees is signifcant and can compound the trauma they are already experiencing.18 Interviews with detainees reveal that they feel punished, disappeared, and are dehumanized by state agents.19 Importantly, they reveal over and over that they feel as if they have no rights whatsoever and that fling written complaints does next to nothing. 20 As I explain below, the plight of the stateless who are scheduled for detention or who are in detention is not merely rightless in the sense of an abandoned legal subject but a subject who can be legally abused, forcibly returned to a country they have fed, and whose rights are violated with impunity. The “detainee is a criminal” perspective evidences deep ignorance of the legally gray area created by both countries authorizing the treatment of border arrivals as enemy invaders. Terms like “illegal” and “criminal” are used so frequently—as demonstrated in the epigraphs above—that many associate the treatment of refugees with criminal rights

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and a constitutionally grounded system (even if a problematic one). To this group, refugees who end up in detention are essentially “illegals” and criminals, and detention centers are viewed as only slightly different from prisons. These interlocutors would be baffed and offended by those who call these centers “camps.”21 It is important to note that in Australia, self-harming detainee protests are part of national conversations, while this is not the case in the United States (in fact, it is hard to fnd any reports on these protests). 22 On the other hand, US debates have centered on sanctuary, whereas in Australia, this has been a more recent conversation. 23 To the degree that each of these types of protest is acknowledged, conventional accounts interpret protest as pathological, illegal, and further proof of the unftness of these individuals to reside in the “host country.”24 As I discussed in the introduction, I will call this group the “optimists” because they view migration policy and enforcement as being effective, rule-bound, transparent, and fair. However, there is a second perspective on these issues in which the interlocutor is suffciently informed about detainees’ or would-be detainees’ nearly total formal rightlessness, as well as conditions in these centers which deepen marginalization and reinforce non-personhood, and conclude that detainees cannot express true, authentic, or meaningful agency.25 This second perspective defnes the political as Hannah Arendt and Sheldon Wolin did—as being founded on autonomy, the ability to enter public space, acknowledgment by others, and membership in a polity founded on popular sovereignty. 26 Power relations based on violence, obedience, and minute control of subjects are not “political” to these thinkers. 27 They correctly remark that detention centers are largely invisible in that they are often located in remote areas and because very few visitors are allowed entry. They would recognize that detention centers are camps, not prisons.28 In acknowledging the depth of refugee trauma, these leaders and authors interpret detainee protest as tragic, desperate, and futile. 29 As with some analyses of ungrievable lives, these authors only see negative power dynamics by which the state successfully exercises total control and detainee protesters self-harm in utter abjection.30 In this view, sanctuary merely cooperates with oppressive powers and there is little to no acknowledgment of faith-based sanctuary (or it is seen as a mere extension of sanctuary localities31). This view is more thoughtful and cognizant of the formal rightlessness of those caught up in detention and removal systems, but it also indicates an all-or-nothing approach regarding power itself (power is whole, uniform, homogeneous, seamless) and protest (it is only recognizable if it is formally successful and visible to the broader public; it must effect measurable change; and it must effectively shut down

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the entire system to really count as protest). 32 I will call this group the “pessimists.” Australia has implemented mandatory detention policies for longer than the United States but has a similar legal approach to foreigners, particularly those housed on islands, treating them as non-persons and nonrefugees.33 Accordingly, despite some differences, their policies are similar in important ways: both countries violate UN protocols against arbitrary imprisonment of asylum seekers, both violate principles of non-refoulement, both ignore the “best interest of the child” standards, and both infringe on individuals’ right to freedom of expression.34 Both countries have been accused of detention conditions that promote self-deportation, leading to and/or compounding severe mental illness and inciting signifcant rates of self-harm.35 In this chapter, I will broadly sketch parallel dynamics in both countries that render detainees and those slated for detention as “non-persons” and, therefore, stateless, as well as discuss how detention is a camp and, consequently, based on a legal state of exception.36 In the next chapters, I analyze how protest challenges sovereignty, creating a democratic state of exception. The point of this chapter is to provide the legal and historical context for the emergence of faith-based sanctuary and self-harming protests, with a particular focus on how sovereign powers confgure these individuals as rightless. Below, I offer a third perspective that is critical of the optimists and which is only partly aligned with the pessimists. First, I agree with the pessimists about the formal rightlessness of these protesters and with their claim that self-harming protest is not visible in the same way that mass civil disobedience, conducted by those “on the outside,” is.37 Nevertheless, I argue that protests are not only political but open up a democratic state of exception—that is, democracy exercised by people viewed as “unauthorized” (i.e. they are legally illegible); in spaces in which they do not have rights; and asserting needs, rights, and demands outside of formal notions of political belonging. In this way, their actions are exceptional and based on dissensus: creative tension going against conventional wisdom and behavioral norms.38 They enact forms of counter-sovereignty if sovereignty is an authorized power based in a political community that is seeking autonomy and self-preservation.39 In this case, counter-sovereignty would be “authorizing” the group of foreigners who form a political community and assert their rights to challenge defned meal times, restricted access to showers and toilets, and lack of privacy when sleeping, through re-interpreting how they conduct life-sustaining functions or living spaces, thus exercising their autonomy. Second, the sovereign powers guiding systems in both countries aim at total control in ways that the pessimists clearly understand, but the system

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is also rife with fragmentation, contestation, and errors.40 Moreover, in spite of it all, detention personnel regularly leak information to NGOs and the press; immigration police and administrators sometimes strike bargains with activists and NGOs; and these faith-based sanctuary and self-harming protests are often successful.41 Thus, even in a deeply asymmetrical context in which the state treats these matters as foreign policy (with its attendant military force and lack of transparency or democratic guarantees), there are important gaps in the system and spaces for negotiation and re-negotiation. To be clear, success does not necessarily launch the individual into a right-based status nor is there always formal policy change resulting from any one campaign. Third, I argue that migrant detention is a camp in that it is legally authorized but suspends all constitutionally guaranteed rights and processes. While detainees may have human rights, these rights are regularly and egregiously violated by both countries. This does not mean that human rights agencies stand aside to allow foreigners to be abused but that they are forced into the position of acting in legal gray areas and/or simply demand to be allowed to interview or aid individuals, despite all formal prohibitions on this activity.42 As I explain below, detention camps have been conceived by both governments in dialectical opposition to prisons.43 This is a bit ironic when jail and prison spaces have been used as immigrant detention and most detention centers have signifcant commonalities with prisons. Both governments’ dialectical conception of migrant detention includes claims that detention is not a liberty deprivation like prison is (so no charges or sentencing are needed); detention is not punishment; and criminal rights and protections are not needed because the subjects of detention and deportation are not legally legible.44 In effect, political rhetoric and norms have created a legal gray area: legal and yet extraconstitutional; authorized but arbitrary and secretive.45 Accordingly, it is important to understand that these centers are camps—meaning that they round up civilians who have not committed a crime and who have not been issued charges, given effective legal representation, and/or sentenced.46 Efforts to avoid being detained (as with sanctuary efforts) or to protest their conditions (self-harming protest) counter migration agents’ decisionism, efforts at total control, and dehumanization with political tactics and bodily symbolism that refect this deep violence and domination. I frst discuss the relevant legal history of each of these countries. 1.2 Plenary power—US

This section frst briefy explains the historical origins of the plenary power doctrine, as it was developed in the Chinese Exclusion cases and its history

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over the past century. Importantly, the Supreme Court held in these cases that migration policy was considered foreign policy and therefore “political”—a matter that the Supreme Court could not constitutionally scrutinize. Over the course of the twentieth century, the Court most often upheld this doctrine, protecting the government over and above migrant petitioners.47 This meant that foreigners could be treated as individuals with no legal persona at the federal level, even as resident foreigners were protected at the state and local levels by the 14th Amendment.48 This changed in 1996 when federal power was partly devolved to states, effectively diminishing foreigners’ legal personhood in the areas of welfare and anti-terrorism.49 This meant that states could now treat migrants in discriminatory ways in the areas of welfare and anti-terror policing. While detention and deportation are unconstitutional, there was no large bureaucracy detaining or deporting mass amounts of people before 1996, even if there are important examples of one-time mass detention (Japanese Internment) and deportation operations (the Great Repatriation of Mexicans in 1936 and Operation Wetb%#k in 1954). However, when the laws effectively diminished personhood in anti-terror policing at the state level, a legal opening for mass detention and deportation was established.50 Nevertheless, this did not occur until after 9/11 when Attorney-General John Ashcroft made detention mandatory for numerous foreign entrants and deportation could be triggered more easily.51 Understanding the foundations of migrant policy, beginning in the late 1800s, is crucial to comprehending the mostly extra-constitutional system that Americans have built since 9/11. The plenary power doctrine is one of the most important factors in understanding immigration policy today, and yet, outside of legal studies, it is not accounted for adequately in political research, especially political theory.52 As it pertains to migration policy, this doctrine was frst developed in the Chinese Exclusion cases in which the Supreme Court held that immigration policy was foreign policy.53 The Court maintained that only the executive and legislative branches have authority over matters of immigration, and so immigration policies and enforcement cannot be constitutionally scrutinized. Very simply, at the federal level, foreigners can be treated as if they are on foreign soil, decisions are not bound by precedent, and enforcement is highly discretionary.54 The Court also deemed immigration policy a “civil” and not a criminal matter, and detention and deportation are not considered punishment. Accordingly, there is no right to counsel in this system, and ICE (and the INS before it) does not have to maintain the same records or have the same level of transparency as other public offcials.55 For over a century, the Supreme Court has maintained that migration policy is “political” per the “political questions doctrine” (as stated

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above), and so, ironically, the Court created and has repeatedly upheld the very power that largely excludes judicial review: “[The federal government] is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse with other nations”56 and any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.57 This power authorized Chinese Exclusion, a eugenic quota system, and roundups such as the Great “Repatriation” of Mexicans and Japanese Detention, based on a racialized status rather than any criminal action. These policies were unconstitutional but legal because, as Justice John Paul Stevens famously stated, “in the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”58 This legally arbitrary sphere of law has allowed for the Kafkaesque treatment of many resident foreigners who traveled abroad and encountered federal agents upon their return, as with the 1953 Mezei case.59 Indefnite detention and the use of secret evidence were the unsurprising by-products of this system. Policies were also explicitly racist until 1965, when eugenic quotas were terminated, even if racist enforcement has continued.60 In contrast, resident foreigners who did not travel were often protected from discrimination and unequal treatment at the state and local level based on federal pre-emption of immigration powers.61 Case law throughout the twentieth century often added to rights and protections at the state level (notably in Plyler 1982, which still allows all resident minors to attend public schools based on their personhood62). At the same time, the “Great Repatriation” of Mexican Americans in the 1930s, Japanese Internment, and the McCarthy-era deportations were reminders that residency and minimal rights were privileges that could be revoked at the whim of the federal government.63 Foreigners’ “non-personhood” at the federal level has allowed for a century-long acceptance of racist policies, mass deportations, and arbitrary and unfair refugee enforcement, not to mention separating families.64 Because of this doctrine, immigration and border agents have been able to enforce policy in a highly biased way, violating constitutional norms and protections without scrutiny and the burden of freedom of information. However, detention and deportation

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could not become mass policy tools—due to their extra-constitutional nature—until 1996 (explained below). The historical trajectory of contemporary Australian immigration policy has been somewhat different but shares with the United States importantly similar dynamics of legally gray zones, border policing based on bio-political criteria, and a sharp contrast between migration law and democratic norms. A key point in this chapter is that foreigners in detention or slated for detention and deportation have little judicial recourse, even though they can be granted a stay of removal. Importantly, migration enforcement—even with a positive grant delaying deportation, e.g., does not operate according to the rule of law but rather is highly discretionary. 65 Discretionary authority most often results in murky record-keeping, bureaucracy without freedom of information, and decisions without clear reasons. Bureaucratic obfuscation and relative rightlessness are increased when a migrant is either scheduled for detention and deportation or is in detention. As I explain in the following chapters, protest is often the only way to effect change in a system that is highly discretionary and arbitrary. Below, I explain how Australia tied migration policy to “race” (often based on alienage) and developed extra-legal mechanisms for dealing with racialized foreigners—very much like the United States’s turn to eugenic criteria and establishment of plenary power. 1.3 1880s–1990s’ Australia

[Regarding the White Australia Policy:] that end, put in plain and unequivocal terms … means the prohibition of all alien coloured immigration, and more, it means at the earliest time, by reasonable and just means, the deportation or reduction of the number of aliens now in our midst. The two things go hand in hand, and are the necessary complement of a single policy – the policy of securing a “white Australia.” Attorney-General Alfred Deakin, September 12, 190166 As a British Commonwealth country, Australia was populated for reasons similar to colonization in North America: individuals viewed as poor, criminal, or religious dissenters were either sent to the colony to settle this area and “constrain” indigenous groups and/or were sent purely as punishment.67 Despite this past and like its American cousin, many Australians developed a notion of whiteness over and against class and religious divides—particularly in the nineteenth century.68 From the mid-1800s on, pseudo-scientifc notions of race became popular and

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increasingly informed the policies of European countries and some of their former colonies. The late 1800s’ “Scramble for Africa” marked a time when many ostensible democracies’ foreign and domestic policies were aligned in creating whiteness through restrictive migration policies and internal eugenics programs.69 As with the United States, Asian migrants arrived in Australia due to a gold rush in the mid- to late 1800s, just as these pseudo-scientifc notions of race were becoming popular. Eventually, as Miles and Brown argue, “parameters of racism and nationalism overlapped to determine criteria for membership” in the mid- to late 1800s Australia.70 In 1901, the country formed a federation and began its White Australia Policy, particularly seeking racial closure against Asians and Pacifc Islanders.71 Like the United States, Australia had previously endorsed the idea of free labor as the backbone of the nation while tolerating indentured servitude of Pacifc Islanders in the cotton and sugar industries.72 Just as their US counterparts did, Australian leaders used this racist, exploitative practice to later justify future Asian and Pacifc Islander exclusion.73 In effect, it was argued in both countries that “coolie” (United States) or Kanaka (Australia) labor undermined the free market and democracy—as if the responsibility for these captive labor arrangements was with the workers.74 Restrictionist efforts in Australia were infuenced by the Natal formula, which imposed language tests on foreign arrivals.75 As the National Australian Museum remarks: “Extremely small numbers of non-white migrants were ever allowed to pass. The test was administered 1359 times prior to 1909, with only 52 people granted entry to Australia. After 1909 not a single migrant made to sit the test passed.” 76 In constructing white supremacy through the 1901 Immigration Restriction Act, the country also sought to “transition from a convict settlement” to a bustling fnancial center in alignment with the mother country.77 This would be achieved—as The Sydney Morning Herald advocated—through barring entry to: “Chinese, ‘Hindoos’, and ‘men of other Eastern races.’”78 While the United States had to justify Chinese and then Japanese exclusion when foreign relations with each country were amicable, Australia would potentially be restricting other British subjects from entry and, therefore, literacy tests were viewed as a way to avoid explicit bias.79 During the same time, Australia formed an imperial agreement to bring British citizens living in England to Australia, where they were provided free transportation, temporarily housed, and introduced to work opportunities before they permanently settled.80 This agreement, forged in 1944, was put into action in 1946. The program was accelerated in 1950 but

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ended in 1953.81 However, these efforts were renewed later in the 1950s and early 1960s, this time expanding to areas once viewed as less desirable: northern England, Scotland, and Ireland. As Kathleen Paul explains, this effort was simultaneously to form racial closure against Black and Asian British subjects and to extend British elites’ infuence throughout the globe.82 This particular set of dynamics is very different from the United States, which simply had very low levels of immigration during the explicitly eugenic period—i.e. up through 1965.83 Australia experienced ebbs and fows of migration from Britain during the same time. While there were efforts to end the White Australia system, its termination only occurred piecemeal, fnally ending for good in 1973. Like the United States in 1965, Australia began to focus policy debates and efforts more on family reunifcation (family reunion) from 1975 on and less on employment issues than previously. 84 Also similar to the United States, migration policy was a bipartisan issue: Australian party stances on migration matters were not radically different but only a matter of degrees apart. 85 One such issue was the focus on family reunion at the end of the 1970s and the beginning of the 1980s, which demonstrated a greater awareness of human rights, even if inadvertently. Both countries developed notions of whiteness in the late 1800s as “scientifc” racism became more popular and eventually morphed into eugenic racism. 86 As I have noted, racial closure against foreigners was often based on alienage (country of origin), assigning fxed, negative biological characteristics to residents of certain countries. Nevertheless, both countries defned eugenic needs in an intersectional way: poverty was also often viewed as biological and, therefore, irreversible; crude notions of mental and physical ftness were also criteria for border-crossing; and gender played a signifcant role in considerations of “morality,” particularly with regard to Asian and Pacifc Islander women. 87 In the United States, 1950s civil rights activism and post-Holocaust awareness of the dangers of eugenics led to demands to end bio-political criteria, leading to the 1965 Hart–Celler Act, which equalized entry quotas and led to facially neutral policies from that point until nearly 2017 (when travel bans explicitly blocked individuals from certain countries from entering the country at all). Both Australia and the United States faced nascent human rights pressure and antieugenic calls to end family separation and allow for family reunifcation. Each country changed its border entry policies and recognized the importance of family to all individuals and not just racial elites. Nonetheless, the greater entry and inclusion of these families led to some backlash, as myriad forms of racist beliefs had not and could not be eradicated in such a short time.

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1.4 1980s/1990s changes (Australia, US)

As democracies, both of these countries had policies of constitutional review, but discretionary power and racist, class-biased, ableist, and sexist norms undergirded each migration system.88 This meant that arbitrary power characterized each system, even while there were differences (particularly Australia’s ties to the imperial center, even after World War II). In both countries, there were certainly protests against restrictive policies and norms. These democratic counter-movements led to more inclusive policies from the 1960s on, including provisions for family reunifcation, greater awareness of and compliance with the rights of the refugee, and greater response to the demands of previously excluded communities. More recently, pro-migrant protest movements in both countries have been quite active, militant, and radical, as I discuss in Chapters 2 and 3.89 However, as each country loosened eugenic restrictions and provided clearer paths to citizenship, there was some racist backlash as previously excluded groups settled in urban areas and demographics changed. Economic recessions in the 1970s and neoliberal policies in the 1980s also led to shifts in pay and the job market. These domestic factors combined—granted in different ways—to contribute to fears of migrants and refugees taking jobs and, by the 1990s, concerns about national security, sometimes linked to fears of terrorism. Because Australia implemented mandatory detention policies frst, I will discuss how and why these policies were established in the following section. 1.4.1 Australia

The Vietnam War and the subsequent establishment of a harsh regime in that country led to a mass exodus of individuals traveling by boat to seek refuge in Australia. The frst waves of refugees were integrated into the Australian community and were granted refugee status.90 Australia ratifed the 1967 Protocol on the Rights of Refugees in 1973, and they recognized subsequent waves of refugees traveling by boat as legitimate applicants.91 As stated above, the 1980s was a time when there was some progress in human rights with the establishment of a Special Humanitarian Program by the Fraser government in 1981, greater attention to children’s rights,92 and “women at risk” became a refugee category in 1989. During the same period, civil society activism on behalf of all migrants increased.93 However, by the end of the decade, there was also increased concern about national security, with foreign arrivals a key part of these concerns. As Loughnan argues: Widespread public support for a punitive detention regime has been driven by a dominant perception since the 1980s that those arriving

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by boat are either “bogus” refugees—attempting “easy” entry into Australia for economic gain—or that they constitute a security threat.94 In particular, in 1989, the Migration Legislation Amendment Act was passed, “defning the need for valid entry permits, allowing the Minister to exempt people from holding an entry permit, and allowing discretionary detention of anyone considered to be an ‘illegal entrant’ (Hawke Government).”95 The arrival of a group of Cambodian refugees in 1989, after an eight-year lull, is viewed as the precipitating factor in the exclusionary turn in migration policy.96 At that point, mainstream discourse about refugees had become more hostile, implying that these arrivals were jumping the queue and that they were participating in human smuggling (aka human traffcking).97 There was greater support for jailing refugees in order to properly screen them, without recognizing that border arrival is not a crime (and is, in fact, a key right of asylum).98 In response to the arrival of another boat with Cambodian refugees in 1992 and their subsequent detention, a court case ensued: Chu Kheng Lim v. MILGEA (1992) 110 ALR 97. As Motta explains: The applicants sought injunctive and declaratory relief against both the Minister and the Commonwealth of Australia on the basis that they had exceeded their power by detaining the applicants under s.88, and that a duty was owed to the applicants under the Refugees Convention and/or the ICCPR [the International Covenant on Civil and Political Rights].99 Although the legal maneuvers involved in making detention mandatory were complex, they can be boiled down to this: Australia began to require the automatic detention of individuals from certain countries designated as terrorist and/or which are being sanctioned by the world community (e.g. by the UN Security Council or the EU). This is because the Australian government has classifed residents of these countries as “designated persons,” which means that (as this circular reasoning goes) they must be automatically detained.100 With regard to designated persons, Motta argues: Despite the fact that the Court stated it would review detention of an individual to ensure it was according to law, it was immediately apparent that, given the broad defnition of “designated persons,” it would be diffcult to envisage when detention would be unlawful.101 Detaining refugees is in contravention of international law—specifcally, the rights of refugees to be free of arbitrary imprisonment.102 Nevertheless, the Australian Parliament made detention mandatory for all

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“unauthorized” border arrivals, hoping they would be viewed as invaders rather than refugees. This policy was supported by both parties and has largely cleared constitutional scrutiny over the years.103 Importantly, the High Court ominously argued that Australian citizens had the privilege (not the right) to be free from arbitrary imprisonment when the country was not at war. This privilege does not extend to foreigners: “[T]he citizens of this country, at least in times of peace, enjoy a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.”104 In effect, if an individual or group was being persecuted by an illegitimate and abusive regime, their persecution at the hands of this government would be ignored. Instead, their residency in the confict-ridden country rendered them suspect as “designated persons,” mandating their detention with no investigation of the reasons for their fight or the circumstances of their arrival. Just about 10 years later, the United States developed nearly identical policies.105 Although the point is perhaps obvious, victims of brutal dictatorships and secondary actors (e.g. militia groups) were blamed for their fight and effectively made culpable for their victimization. During the same year (1992), the Asylum Seeker Assistance Scheme was established. This is run by the Australian Red Cross, which contracts with the Department of Immigration and Citizenship. This agency supports those who have received refugee or asylum status. As I argue throughout this book, establishing human rights norms in domestic policy is important, but these provisions are not upheld for any arriving refugee (including those who are eventually regularized) and particularly for de facto refugees who never get to adjust their status and/or whose application is rejected.106 Just after World War II, Arendt pointed out that only those who have citizenship are viewed as “human” according to the law.107 This is ironic in that inalienable or natural rights—particularly the right of self-preservation—were once conceived as preceding any civic community.108 Accordingly, inalienable rights were frst devised as a precondition to and not the equivalent of citizenship. Even more importantly, these rights were viewed as protection against arbitrary authority and, therefore, as a check on excessive authority.109 This dynamic of granting human rights only to those with the correct documentation and from desirable geographical locations was made more profound in the summer of 2001. On August 26, 2001, the MV Tampa (a cargo ship registered with Norway) aided a sinking fshing boat with 434 passengers. The passengers—mostly Afghan Hazaras—wanted to seek asylum in Australia, and the Tampa attempted to let them disembark on Christmas Island.110 The Australian government ordered the air force

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and navy to prevent the ship from accessing the island and to obstruct the refugees from seeking asylum, leading to an eight-day standoff.111 Because of this incident and the attacks on the United States on September 11, 2001, the government cracked down even more on refugees by declaring certain areas excised from the migration zone, eventually also excising the Australian mainland.112 The complex legal maneuvers involving mandatory detention, excision, and offshore processing were/are called the Pacifc Solution.113 This solution effectively creates a state of exception to Australian constitutional law and norms. To put it simply, a foreigner must arrive in a migration zone with some sort of visa (including a bridging visa114) to be treated as a rights-bearing person versus an “unauthorized arrival,” who is deprived of not only legal protections but any human rights encompassed by Australian law.115 In the latter case, such a person can be subject to “arrest and detention … should they enter an excised offshore place.”116 Signifcantly, “the arrest, detention, and transportation of such a person” is not considered to fall under the defnition of “immigration detention’ under the Migration Act.”117 This is because—very much like the US confguration of border zones as “Constitution-free”—Australia has used these two mechanisms (excision and the visa requirement) to treat refugees without documentation as if they hadn’t stepped on the country’s soil. In effect, these individuals are treated as non-persons.118 The full use of sovereign military authority is deployed in these sites, while the government claims that these zones are outside Australia. The frst approach indicates non-personhood, and the second suggests enemy invasion—both create states of exception that are clearly contradictory in important respects.119 Although it is still possible to apply for a visa while detained in one of these offshore sites, decisions to approve these requests are discretionary and rare.120 Otherwise, most individuals must apply directly for refugee status through UNHCR, a process which does not impose any obligations on Australia or its neighbors.121 The majority of arrivals in these circumstances face harsh conditions and are isolated from legal or NGO help to complete their petitions. A more recent legal tool is to forcibly move refugees to another country where they can try to apply for refugee status. Many are re-imprisoned in the third country (the United States, under Trump and Biden, has adopted the same policies on the southern border with similar consequences122). In 2008, the government abolished temporary protection visas. Obstructing boat access to Christmas Island continued, effectively precluding judicial review of these policies. While the High Court ruled that the procedures on this island were unconstitutional, the government has continued to excise territory from the migration zone. For example,

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Norfolk Island was excised in 2016. In each of these areas, the Department of Immigration and Border Protection administers entry and exit.123 Australia’s progressive suspension of the rights of those feeing persecution and other forced migrants arriving without documents has been significantly different from the United States in important respects. Specifcally, Australia’s modern and contemporary history has been marked by white supremacy and imperialism as an extension of the British Empire, which often led to blocked entry for those conceived as non-white. However, foreigners’ permitted entry did have constitutional and, eventually, human rights protections.124 The more recent suspension of nearly all rights for undocumented refugees, and particularly detainees, has been achieved primarily through geo-spatial reconfgurations of what counts as a migration zone. Like Australia, the United States has also drawn on eugenic notions to found modern and contemporary policy. It too has designated certain sites and areas where sovereign authority is deployed in the name of foreign policy, precluding judicial review and even personhood rights. However, in formulating the plenary power doctrine, the United States also created a legal mechanism by which documented and/or naturalized foreigners could have their status stripped, even though they were criminally innocent. Daniel Kanstroom has called this an “eternal guest” model and a form of “post-entry social control.”125 Although Americans often focus on undocumented residents as the only foreigners who experience forms of rightlessness, Kanstroom’s terms indicate how the plenary power doctrine (PPD) has effectively made all foreign residents “non-persons” when they encounter federal agents and/or are in a border zone.126 While the dual system discussed above protected most resident foreigners, the PPD was partially devolved in 1996, only expanding migrant rightlessness, as I explain below. 1.4.2 US

In 1996, the plenary power doctrine was partially devolved to the states in matters of anti-terror policing and welfare.127 This devolution has increased the rightlessness of resident foreigners at the state level, permitted mass detention as a key facet of policy (which was unconstitutional at the state level pre-1996), and expanded the use of removal proceedings triggered by state policing.128 To put it more simply, migrants’ personhood rights at the state level have diminished or even disappeared, depending on the context. Because racial profling in the immigration context is not subject to judicial scrutiny, the US history of immigration is marked by signifcant biases in enforcement.129 In recent years, individuals from Central America

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and countries associated with terrorism have been disproportionately targeted in anti-terror enforcement, from policing to detention.130 Many—if not a majority—would be eligible for refugee screening, but detention hinders or even blocks these processes, leading to criminalization based on detainee status.131 Indeed, under the previous Trump regime, the appearance of being foreign was enough to trigger immigration enforcement, which is why American citizens wind up in detention centers and often spend years trying to get out.132 One could even argue that they are guilty until proven innocent, but this assumes a sort of linearity that does not characterize this sphere of the law.133 Furthermore, to the degree that the immigration system has increasingly criminalized immigrants, this merger has not given foreigners criminal rights. That is, it has subjected immigrants to sanctions and detention conditions that are either prison-like or actually in jails and prisons but without the rights to equal protection, habeas corpus, protection from cruel and unusual punishment, or the right to counsel.134 Important work on “crimmigration” has recognized how the two systems have merged since at least the 1990s, focusing on the differential standards of criminality for immigrants as compared to citizens, which makes some offenses “felonies” or “aggravated felonies” when they would not be classifed as such in the criminal context.135 While some argue that foreigners should just follow the law and apply for citizenship, this assumption misses the fact that the law itself is one of the most arbitrary and unjust ones of any sphere of US law. Detainee protest and sanctuary practices have emerged precisely to combat this undemocratic and yet legal sphere of law. As I explain below, the jailing of migrants based on their status is not a mere inconvenience soon to be rectifed by legal recognition or better treatment. The lack of transparency, absence of checks and balances, and abusive imprisonment conditions amount to a legally authorized state of exception. Interestingly, this state of exception extends beyond physical borders as train jumpers and boat passengers are already characterized as “illegal” before there has been any investigation of the circumstances. As Juliet Stumpf has argued, this means that there is no presumption of innocence in these processes.136 I would add that when certain categories of migrants are already cast as illegal invaders even before they have arrived at a border inspection point, something other than legality is at stake: this form of bio-political “guilt” is based on existence and status (alienage, poverty, age, able-bodiedness, and more). A litmus test of a country’s democratic openness is if a foreigner can arrive at a border, announce themselves, and be treated as a human being with inalienable rights, even if the rights are only protective or “negative.” For example, the Honduran Caravan of would-be refugees, which openly

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traveled to the US border while Trump was the president, should not have been detained or criminalized.137 This is due to the basic fact that a migrant is not on US soil before arriving at the southern border—designating them as illegal before this arrival is an act of criminalization rather than empirical-legal fact. Any arrival at the border—whether openly announced or surreptitious—is not an illegal act in a criminal sense (unless the person has been previously barred from the country). An important element of democracy is the notion of a presumption of innocence until someone has been proven guilty of a criminal act, which is defned as a moral violation.138 Another key reason an individual should be free to arrive without prior authorization and sometimes with fake identifcation documents is that both actions are legal according to the international refugee provisions and US law.139 More broadly, both types of fight (without documents or with fake documents) have been conceived of as acceptable for asylum seekers because it is recognized that refugees do not always have the luxury of accessing documents (or they use fake documents to avoid persecution by their home government).140 Fleeing disaster and/or persecution has historically been understood as exile. This exile is not merely displacement but the loss of everything that is dear to them.141 To expect prior screening and authorization in the context of displacement, loss, and terror not only misreckons the conditions of forced migration but presumes that the refugee system is open, democratic, and just. In reality, numerous individuals would qualify for asylum if the US and Australian vetting systems were not overly narrow and often in defance of UN guidance on the defnition of a refugee and UNHCR’s updated guidance on traffcking victims, gender-based assault, and forced gang and military recruitment.142 At the same time, the foundational documents on the status of the refugee were, and continue to be, conceptualized to exclude internally displaced peoples and/or whose country of origin is a former colony—this is particularly true of anyone feeing a former colony like Palestine.143 Both Australia and the United States discursively criminalize people feeing for their lives even before they have arrived at a border site; both countries use military force to police border sites, including in international waters, deploying war powers against the most desperate people, and both arbitrarily imprison people for their status as undocumented, based on alienage, and poverty. Both countries are guilty of detention practices and administrative punishments like force-feeding and solitary confnement, which amount to torture. To both governments, mere arrival without prior authorization—no matter how visible and open the context is—is not just treated as criminal but entails “punishments” such as physical displacement, confnement, and deportation (refoulement). These

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“punishments” lead to long-term and often permanent mental and physical harm. In both cases, those at the border are not only treated as if they are “outside” the country but also denied legal acknowledgment and rights.144 Accordingly, they are not “criminals” per se but someone who has been cast as a bio-political Other. They have not committed a criminal act, but their very appearance at the border—even when fully transparent, as with the Honduran Caravan, refugees in boats, and childhood arrivals— is treated as a serious security breach. In this way, they are “outlaws” in the way Arendt has conceived of the term:145 not criminals, who have some sort of “right to have rights,” but people whose presence and existence are illegible to the welfare state (i.e. liberal representative democracy).146 In the modern security frame, with looser defnitions of terror and criminalizing migration policies, their very presence signals invasion, incursion, and existence without authorization.147 The slogan “breathing while Latinx,” characterizing Arizona’s 2010 anti-migrant laws, indicates that this is framed as an existential threat and not a criminal one per se.148 The reality is paradoxical: those made stateless because of their appearance at or confnement in denationalized zones are legally non-existent and yet subjects of sovereign power.149 According to human rights policies and norms, refugees’ appearance at borders should not be criminalized in any sense and yet the rhetoric of illegality, criminality, and invasion has only become more widespread since September 11, 2001. Essentially, these sorts of beliefs entail the contradictory idea that the border is passive, unguarded, and fxed, and yet mere appearance triggers a charge of illegality.150 Both the United States and Australia do not just jail some “unauthorized” foreign arrivals but have each institutionalized mass detention and deportation, specifcally linked to a network of private security frms that are invested in maintaining these centers. In the next section, I argue that detention should be viewed as a camp, as Arendt conceived of it. 1.5 Detention as a camp

In The Origins of Totalitarianism, Hannah Arendt recognized that camps became a new and enduring solution to the problem of mass displacement. In a world that has been thoroughly marked out by borders, the camp has served as a proxy for the nation-state.151 Arendt’s analysis highlights the particularly modern dynamics that led to the emergence of camps that were outside normal judicial procedures.152 As Arendt argued, exile was not new, but what was novel was the inability to fnd a new home(land) as well as the sheer number of refugees during the interwar period, which led representative

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democracies to turn to the police to handle unwanted groups.153 The measures these governments took led to the subordination of the “state” (i.e. liberal representative guarantees and institutions) and criminal protections to the deployment of racialized sovereignty.154 That is, measures on behalf of borders, national security (in today’s words), and a racialized notion of political belonging often led to the suspension of rights, protections, and the operation of representative institutions. An important consequence of this development was that the stateless were treated as “outlaws” and not criminals who, despite their suspended liberties, still had criminal rights.155 These “outlaws” were detained in camps—including Internally Displaced Peoples (IDP) and refugee camps—which were conceived of as the dialectical opposite of jails and prisons.156 That is, detainees were marked by their criminal innocence, and the camps were characterized by the absence of any charges or sentencing.157 The goals of the camps in totalitarian regimes were to sow terror more broadly and to establish an “arbitrary system” that “destroy[s] the civil rights of the whole population.”158 Her analysis of camps elucidates a number of contemporary issues: a) the camp becomes material proof that detainees belong there;159 b) the camp is a disciplinary spectacle for all residents of a country, symbolizing the strength of extra-constitutional power and the greater role of the police in everyday governance;160 c) the camp is a geographically ambivalent space that is conceived of as temporary but which becomes a permanent solution to the issue of statelessness;161 d) because of the stigma of detention, the stateless are undeportable, as they have become “unidentifable beggars” such that indefnite detention, forced repatriation, and/or extermination become the logical solutions to their undeportability;162 e) the criminal innocence of detainees is crucial to sowing terror and reinforcing biological determinism. Whether detention consists of bad food or cages, the legal foundations allowing for detention—particularly at the mass level—make even the cleanest center a “camp,” per Arendt’s analysis.163 The proof is not in particular details but rather the broader reality that detention centers have been conceived of as the opposite of prison and do not constitute a “liberty deprivation” to courts.164 Therefore, there is no right to know why an individual is in detention, how long this person will remain there, no right to counsel, and no basic rights of prisoners. The confned are not full “persons” before the law, and the nature of their crime is such that they are more “outlaws” than criminals.165

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Supplementing Arendt’s in-depth philosophical and historical analysis, Andrea Pitzer’s research in One Long Night helps us to understand the emergence of concentration camps across the globe, demonstrating how camps have emerged as a modern tool to control “superfuous” populations in the World War I era. Her careful, thorough research demonstrates that European countries and Japan frst used internment camps in their own countries to lock up individuals on the basis of ideology and suspected dissenting opinions. Nevertheless, many of these countries linked dissidence to race (in the form of alienage, religion, and/or gender166). A key component of the camps was that the person had lost economic and legal status before entering the internment site; that is, they were already non-persons before entering the camp. Signifcantly, they were also considered civilians and not prisoners of war.167 A second important element of these camps is that there is little to no justifcation for interning the person: no impartial trial, no examination of evidence, and no meaningful access to the legal system. For this reason, many camps do not ft prison standards—they often use containers and/or buildings meant for purposes other than housing human beings (including shipping containers, cattle processing centers, and cages). They are often overcrowded, without adequate sewage, and lack consistent access to food or exercise. There can be an indiscriminate mixing of different “enemy” groups, with the key factor being their criminal innocence (and remembering that guilt must be proved—all detainees are, by defnition, innocent of any crime).168 Detention is nevertheless punitive in nature, serving as a warning to others not to challenge the “host” government in any way (whether through political opinion, non-conforming religious belief, or mere arrival as a refugee). As Andrea Pitzer demonstrates and Samantha Power has also suggested, camps can change over time—their meaning is fuid, and they often turn genocidal only after a lengthy period.169 This means that when we recognize that camps are being used, there is time to intervene—genocides have almost never occurred spontaneously but required planning, stockpiling of weapons, and complex legal maneuvers.170 But this observation also signals that while camps might not appear to be lethal at frst, they often become so later: history demonstrates that camps have often become more coercive and violent over time. At the same time, it is urgent to recognize that a camp itself is a harm: the camp signifes the loss of status and, thus, entails radical dehumanization for the internee as well as the suspension of democratic norms and the rule of law for the host government. These two legally gray spheres are mutually interactive to create a population that can be killed without it being designated as homicide, as Giorgio Agamben has theorized in Homo Sacer.171 For example, recent

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exposés about the treatment of detainees at the Al Mabani migrant center in Libya include reports of detainees who have been indiscriminately killed, others who have disappeared, and still others sold as slaves in open-air markets.172 The parallel between Australian and US policies is that a politically sanctioned police force is authorized to use lethal force to deter migrants from landing on the shores of a country where they could exercise rights. Detention is meant to disappear potential claimants as well as serve to deter others from making the same journey. The horrifying treatment of refugees at Al Mabani indicates a legal reality that is related, even if not identical, to the legal lawlessness of the two systems that are the focus of this book. Human rights organizations have found that both the US and Australian detention systems are marked by guard violence, sexual assaults, assaults on children, and signifcant medical and psychological neglect. As I have discussed above, a camp is not defned by death but rather by the legal suspension of the law which occurs in two to three registers: the detainee lacks legal personhood (because they are foreigners or because they have been stripped of their citizenship); the laws guiding this system rely on the suspension of inalienable and civil rights; and the geographical site where the camp is located is denationalized. That is, this site is under the government’s jurisdiction and yet operates in a legally gray area that is “constitution-free.” Before the World War era, camps were sporadically used in the colonies (as with the Boers in South Africa). However, at the end of World War II and particularly during the Cold War era, the use of camps exploded. While we associate camps with repressive dictatorships—and the historical evidence is that the USSR, China, North Korea, and Japan have developed camps as a central feature of their governance—certain Global North countries are just as responsible for spreading counter-insurgency tactics and detention centers for non-criminals, if not more responsible.173 This is a key—and perhaps a surprising element of Pitzer’s work: that detention sites are connected—the French, UK, and United States each shared counter-insurgency tactics and training over the decades.174 Continuity and linkages can also be shown across countries, including using Kenya/the Mau Mau as a frst experiment in neutralizing “native” resistance and then much more escalated forms of detention and torture by the United States in Latin America and the British and French in Asia and Africa. The tactics and lessons of these sites—brutal interrogation methods, tactics for disappearing people, and detention sites that bring horror to everyday activities—have been deployed not only at Guantánamo Bay but also in migrant detention centers.175 These two important sets of links—continuity across time and space— mean that the detention centers for migrants in Australia and the United

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States are not new or simply mistakes.176 They are founded on key tactics Global North countries have used to control former colonies and to allegedly stop the spread of communism, using displacement and disappearance as key methods to disorient and destabilize entire populations. As these security matters have been privatized, this transnational factor is even more evident when investigating the private security frms managing these centers.177 The economic facet of detention centers also helps us understand a driving force behind interning innocent people: detention centers provide jobs, restimulate the economy in economically depressed areas, and facilitate international business.178 They also help shift the responsibility of human rights abuses to non-governmental agents, allowing governments to avoid transparency and accountability. Although Australia is more explicit about this logic, both countries manipulate human rights language to assert their sovereignty over and above allegedly inalienable rights.179 Today, both countries require asylum seekers to get prior authorization to arrive at their borders—even in war-torn and/or highly destabilized areas.180 At the moment that these individuals are persecuted, displaced, and forced to fee, neither country recognizes them as refugees. Paradoxically, only when they have safely arrived at a border point of one of these countries can they be designated refugees. Nevertheless, both governments detain all “unauthorized” arrivals, making any asylum or refugee petition diffcult, if not impossible. In this way, both countries declare that they do not detain refugees, making these governments the arbiters of international law and effectively chipping away at the asylum system as a set of international guarantees and duties.181 Because these individuals are detained before they can apply for status, their detention justifes the legal limbo of these reception centers. In sum, these centers are camps because they are geographical sites in which the law is legally suspended in two mutually interactive ways: the geographical site is not considered national territory, and therefore the site itself is material proof of a legal state of exception.182 The detainees—until and unless they are granted status—are individuals who are radically confgured as non-persons, lacking the right to any rights, while they are detained or scheduled for detention and deportation. The circular arguments that legally restrict the designation of refugee status ensure that very few people become documented refugees, per each country’s norms. Together, these legal dynamics create a space in which Australia and the United States can manipulate international law, subsuming allegedly inalienable guarantees to the national interest, and, thereby, producing the camp as a direct antithesis of a prison. Status is punished but without charges, a trial, legal counsel or constitutional scrutiny, or a sentence.183 Detention is the geo-spatial reinforcement of these norms that were forged

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in dialectical opposition to prisons and the criminal justice system, even as there are punitive goals. As Arendt argued, the criminal innocence of the stateless makes the camp a horrifying deterrent, but the stateless have no choice but to continue feeing. Even a child detainee recognizes that a jail or prison is preferable to migrant detention. As one child detainee in Nauru argued: We are in a very bad condition … We need someone to support us … These constant changes make us feel angry and powerless. They are treating us like we are criminals … What is our fault? That we came to Australia after 19 July? We are not criminals … It will be great if we put in jail instead of detention center.184 Any protest of this system cannot—by defnition—draw on or appeal to existing rights in either country. Each system has subsumed inalienable and human rights to racialized national security concerns. As I discuss in the Conclusion chapter of this book, Arendt once urged Jews to embrace their “pariah status,” not because this status was accepted in most nationstates or because doing so was safe.185 Rather, under harsh and dangerous conditions, the refugee or detainee or deportee already risked their lives— so, why hide their identity or their previous trauma? Instead, Arendt suggests that resistance challenges forced assimilation, exposes the complicity of the host country with the repressive regime, and, importantly, reveals the racism in each of the countries of refuge.186 In the context of deep violence and mass displacement—i.e. a thanatic context—one can risk imprisonment, displacement, and death on one’s own terms.187 Embracing “pariah status” is not hiding or passing or making oppressors comfortable—hunger strikes, lip-sewing, and taking sanctuary in a religious institution openly defy the law and attendant norms. They create a form of dissensus to disrupt the sovereign monologue of refugees as “illegal,” casting into doubt the fantasy of total power and the ideology of the migrant as a criminal. In Chapter 4, I analyze this protest as a form of countersovereignty in greater depth. 1.6 Conclusions

In this chapter, I have explained how Australia and the United States have formulated migration policies over the past century to create sovereign powers over foreigners that bypass, ignore, or suspend inalienable and civil rights. In establishing these powers, there were two major outcomes: frst, both countries instituted a system in which certain groups are treated as racially inferior and, therefore, embodying criminality, and second,

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each state constructed a bureaucratic machinery that has evaded meaningful constitutional scrutiny. While the sovereign power of the warfare state is often thought to be exercised abroad and exclusively in war, these migration powers are politically interesting in that they are exercised on domestic soil and target foreigners who are already residents or would-be residents. Nevertheless, each country has carved out geographical spaces where foreigners lose the “right to have rights” and are abandoned by the law (e.g. if they are sick, they are refused medical help) and yet also construed as enemy-others (or, as Arendt has argued “outlaws”). The protesters I discuss in this book have been slated for detention and deportation (or just deportation) or are detainees. In both cases, they are in the process of removal, and, therefore, the privilege of personhood has been revoked (as de Beauvoir has put it in another context, they are “civic corpses”). Migrants can hire lawyers or consult with NGOs to challenge or aid legal proceedings, which is especially important in the case of detainees hoping to apply for regularization and fle a refugee petition.188 Nevertheless, they do not have the right to legal counsel, and in both countries, it is hard to conduct a legal case while detained.189 Migrants can fle grievances in each country when they are mistreated, or there is a broad issue in the detention center, but these centers are not transparent about the information within these sites or in establishing a transparent link to the public. Detainees are not often given access to information to fle grievances or get legal aid, and when they do, this does not mean information or forms are always available at all sites; and in both countries, despite bureaucratic secrecy, there is a lot of evidence that fling complaints is ineffective.190 Conversely, only when protesters take extreme measures are they heard in some way. In Chapters 2 and 3, I propose frst that hunger strikes, lip-sewing and other forms of self-harming protest, and faith-based sanctuary each directly respond to the harms, legal maneuvers, and displacement each protester experience vis-à-vis the state. Each of these protest forms interrupts, challenges, and redistributes state sovereign powers treating foreigners in dehumanizing ways.191 While the protest forms admittedly weaken and/or displace the foreigner, the individual or group does this on their own terms. Their reaction to attempts at deploying absolute power is to reassert their bodily autonomy and geographical location along the same lines as the state but in ways the state fnds to be a challenge. While outsiders might wish these protesters took a knee or merely held up signs, they do not understand the experience of confning circumstances that seek to physically displace and essentially disappear a person. The public might forget that an individual is not merely suffering property harm but rather has been displaced from family, community, and traditions—all

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of which make a home and homeland. They do not understand being in prison-like circumstances that are nevertheless lacking in any formal rights, meaningful regulations, or accountability—without a sentence or even a crime, the individual learns that they can be locked up for their status. They can be wholly “appropriated” in Colette Guillaumin’s terms, only to have their ties to this country wiped away through assertions of illegality and yet non-personhood. “Appropriation” is a Marxist term connoting hyper-exploitation of one’s labor, but the sense in which I use this term is to understand that different harm occurs when someone can control speech, whether one is in isolation or in a community, and access to recreation and all life-sustaining functions without providing reasons or a sentence. In effect, detention and deportation policies interrupt one’s concept of time and daily routines; they are irrational in their secrecy and inability to be understood or questioned; they are arbitrary in their lack of transparency, uniformity, or accountability.192 In the next chapters, I offer a conception of democratizing and transformative agency by formally rightless migrants in the context of deep asymmetries. I argue that faith-based sanctuary and self-harming resistance are forms of counter-sovereignty, in contrast to civil disobedience. This is not merely a defnitional correction of some mainstream claims about these protests but understanding these protests as constituting a reconfguration of power—even sovereign power of the warfare state aiming at total control over rightless subjects. In the next chapter, I discuss self-harming protest by detainees.

Notes 1 Ben Doherty, “UN Human Rights Expert Decries Boat Turnbacks as Australia Criticised for Secrecy of ‘On-Water Matters’,” The Guardian, July 8, 2021, https://www.theguardian.com/australia-news/2021/jul/08/ un-human-rights-expert-decries-boat-turnbacks-as-australia-criticised-for -secrecy-of-on-water-matters. 2 Yan Zhuang, “Australia tells Afghan Refugees: ‘Do not Attempt an Illegal Boat Journey’,” New York Times, August 23, 2021, https://www.nytimes .com/2021/08/23/world/asia/australia-tells-afghan-refugees-do-not-attempt -an-illegal-boat-journey.html. 3 Associated Press, “Many Haitian Migrants Are Staying in the US Even As Expulsion Flights Rise,” NPR Website, September, 23 2021, https://www .npr.org/2021/09/23/1040000579/many-haitian-migrants-are-staying-in -the-u-s-even-as-expulsion-fights-rise. 4 Katie Balevic, “Vice President Kamala Harris Said Images at the Border of Offcers Chasing Haitian Refugees Reminded Her of ‘Times of Slavery’,” MSN, September 25, 2021, https://www.msn.com/en-us/news/us/vice-president-kamala-harris-said-images-at-the-border-of-offcers-chasing-haitian -refugees-reminded-her-of-times-of-slavery/ar-AAOOK9M.

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5 As stated in the preface, I use terms like “rightless” to indicate that migrants effectively have no rights, even if there are weak due process rights (often undermined by detention) or some screening mechanisms. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979), 296, 298. 6 OHCHR (the Offce of the High Commissioner on Human Rights of the United Nations) has stated: “Although the Convention on the Rights of the Child, the most globally ratifed UN human rights treaty, clearly states that the best interest of the child should be the primary consideration in all actions concerning them, and that no child shall be deprived of his or her liberty unlawfully or arbitrarily, migrant children continue to be detained, either alone or with their family members.” Offce of the High Commissioner for Human Rights, United Nations, “In the Best Interest of the Migrant Child,” September 16, 2016, https://www.ohchr.org/en/stories/2016/09/best-interest -migrant-children. The Convention can be found here: https://www.unicef.org/child-rights -convention/convention-text#. 7 See Arendt, The Origins of Totalitarianism, ch. 9; Giorgio Agamben, State of Exception (Chicago: University of Chicago, 2005); Joseph Pugliese, “The Incommensurability of Law to Justice: Refugees and Australia’s Temporary Protection Visa,” Law and Literature 16, no. 3 (Fall 2004): 285–311; Michael Wesley, “Perspectives on Australian Foreign Policy,” Australian Journal of International Affairs 56, no. 1 (April 1, 2004): 47–63; Francesco P. Motta, “Between a Rock and A Hard Place: Australia’s Mandatory Detention System,” Refuge 20, no. 3 (2002): 12–43. See also Boumediene v. Bush, 553 US 723 (2008). 8 See Ayelet Shachar, “Beyond Open and Closed Borders: The Grand Transformation of Citizenship,” Jurisprudence 11, no. 1 (2020): 1–27. 9 See Pugliese, “The Incommensurability of Law to Justice”; Jorge Carro, “Sanctuary: The Resurgence of an Age-Old Right or a Dangerous Misinterpretation of an Abandoned Ancient Privilege?” University of Cincinnati Law Review 54, no. 3 (1986): 747–778. 10 Australia’s migration system was largely characterized by the White Australia policy from 1901–1966. The United States also implemented eugenic migration policy, beginning with the Chinese Exclusion Cases and codifed as entry barriers from 1924–1965. 11 In conceiving of bio-power in this way, I am drawing on: Michel Foucault, The History of Sexuality, Volume I: An Introduction, trans. Robert Hurley (New York: Vintage Books, 1980); Colette Guillaumin, Racism, Sexism, Power and Ideology (New York: Routledge, 1995); and Robert Miles and Malcolm Brown, Racism, 2nd ed. (London: Routledge, 2003). 12 Arendt, The Origins of Totalitarianism, ch. 9; on personhood see Kathleen Arnold, Arendt, Agamben and the Issue of Hyper-Legality: In Between the Prisoner-Stateless Nexus (New York and London: Routledge, 2018), ch. 2; Monica Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood: Neoliberalism, Immigration and the State,” Annals of the Association of American Geographers 98, no. 4 (2008): 877–896. 13 On this subject see: Colin Dayan, The Law Is a White Dog (Princeton: Princeton University Press, 2011); Daniel Kanstroom, Deportation Nation (Cambridge, MA: Harvard University Press, 2007); Juliet P. Stumpf, “The Crimmigration Crisis: Immigrants, Crime and Sovereign Power,” American University Law Review 56 (2006): 367–418.

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14 The series Stateless is based on true events in an Australian detention center and is worth watching to understand the effects of these circumstances and why guards become violent. Emma Freeman, Jocelyn Moorhouse (directors), “Stateless” short series, Matchbox Pictures/Dirty Films (ABC Australia/ Netfix), Australia, March-July, 2020. The most important themes and events in this show also demonstrate important facts about US detention. See also this important article: David Isaacs, “Are Healthcare Professionals Working in Australia’s Immigration Detention Centres Condoning Torture?” Journal of Medical Ethics 42, no. 7 (July 2017): 413–415. Bargu’s analyses of sovereignty are thought-provoking, but she does not account for the links between detention sites and black sites in-depth. See e.g. Banu Bargu, “Sovereignty as Erasure: Rethinking Enforced Disappearances,” Qui Parle 23, no. 1 (Fall/ Winter 2014): 35–75. On esophageal force-feeding in Australian detention, see Motta, “Between a Rock and A Hard Place,” 30 n6. 15 Arendt, The Origins of Totalitarianism; Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998); Andrea Pitzer, One Long Night: A Global History of Concentration Camps (Boston: Hachette/Little Brown, 2018). 16 On this concept see Dayan, The Law Is a White Dog; see Schmidt’s discussion of torture and the aim of “cultivated debilitation” in Ronald J. Schmidt, Jr. Reading Politics with Machiavelli (Oxford: Oxford University Press, 2018), chs. 1 and 5. 17 Sophie Capicchiano Young, “Australia’s Disengagement from International Refugee Law: The Principle of Non-Refoulement and the Doctrine of Jurisdiction,” International Law Association (ILA) Reporter, April 30, 2018, https://ilareporter.org.au/2018/04/australias-disengagement-from -international-refugee-law-the-principle-of-non-refoulement-and-the-doctrine-of-jurisdiction-sophie-capicchiano-young/; UNHCR, “Monitoring Asylum in Australia,” https://www.unhcr.org/asylum-in-australia.html. 18 UNHCR, “Monitoring Asylum in Australia.” 19 Detainees report feeling disappeared and punished. In Australia, they are called only by their number. See Lucy Fiske, “Human Rights and Refugee Protest Against Immigration Detention: Refugees’ Struggles for Recognition as Human,” Refuge 32, no. 1 (2016): 18–27; S. Mares and J. Jureidini, “Psychiatric Assessment of Children and Families in Immigration Detention—Clinical, Administrative, and Ethical Issues,” Australian and New Zealand Journal of Public Health (2004): 520–526; S. Mares, L. Newman et al., “Seeking Refuge, Losing Hope: Parents and Children in Immigration Detention,” Australasian 2002: 91–96; Pugliese, “The Incommensurability of Law to Justice.” 20 See Fiske, “Human Rights and Refugee Protest”; Mares and Jureidini, “Psychiatric Assessment of Children and Families”; Mares et al., “Seeking Refuge, Losing Hope”; Pugliese, “The Incommensurability of Law to Justice.” 21 For the confation of detention centers and prisoner of war camps—an account with which I disagree for reasons laid out in this chapter—see: Adam Serwer, “A Crime By any Name,” The Atlantic, July 3, 2019, https://www .theatlantic.com/ideas/archive/2019/07/border-facilities/593239/. 22 Some exceptions: ACLU website information and reports (aclu.org); Detention Watch Network: https://www.detentionwatchnetwork.org/; ICDI (Interfaith Community for Detained Immigrants) in Chicago: https://www .icdichicago.org/.

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23 One caveat is that mainstream discussions on US sanctuary focus on sanctuary cities rather than faith-based sanctuary. I discuss this in the sanctuary chapter. In Australia, many date the sanctuary movement as having emerged with the Baby Asha case in 2016. 24 It is important to note that self-harming detainee protests are part of Australian national conversations while this is not the case in the United States (in fact, it is hard to fnd any reports on these protests). On the other hand, US debates have centered on sanctuary for decades, whereas in Australia this is a less prominent topic. 25 For example, Ayten Gündoğdu, Rightlessness in an Age of Rights: Hannah Arendt and the Contemporary Struggles of Migrants (Oxford: Oxford University Press, 2015); Nithya Rajan, “What do Refugees Want? Reading Refugee Lip-Sewing Protests Through a Critical Lens,” International Feminist Journal of Politics 21, no. 4 (2019): 527–543; Miriam Ticktin, “The Sanctuary Movement and Women’s Rights: Sister Struggles,” https://www .academia.edu/33840312/The_Sanctuary_Movement_and_Womens_Rights _Sister_Struggles. 26 Hannah Arendt, “Civil Disobedience,” in Crises of the Republic: Lying in Politics; Civil Disobedience; On Violence; Thoughts on Politics and Revolution (New York: Mariner Books/Houghton Miffin Harcourt, 1972), 71–101; Hannah Arendt, The Human Condition, 2nd ed., intro. Margaret Canovan (Chicago: University of Chicago Press, 1998); Sheldon Wolin, Politics and Vision, expanded ed. (Princeton: Princeton University Press, 2004). See also Linda M.G. Zerilli, Feminism and the Abyss of Freedom (Chicago: University of Chicago Press, 2005), particularly pp 22–23. 27 See in particular, Gündoğdu, Rightlessness in an Age of Rights. 28 Per Arendt’s analysis of camps in Origins of Totalitarianism, Total Domination section, 437–459. 29 See Julie Cox and Stella Minahan, “Unravelling Woomera: Lip Sewing, Morphology and Dystopia,” Journal of Organizational Change 17, no. 3 (2004): 292–230; Gündoğdu, Rightlessness in an Age of Rights; Rajan, “What do Refugees Want?” See discussions of this trend: Banu Bargu, “The Silent Exception: Hunger Striking and Lip-Sewing,” Law, Culture and the Humanities, (May 24, 2017): 1–28; Ċetta Mainwaring, “Migrant Agency: Negotiating Borders and Migration Controls,” Migration Studies 4, no. 3 (November 2016): 289–308. 30 See Katie Oliviero, Vulnerability Politics: The Uses and Abuses of Precarity in Political Debate (New York: New York University Press, 2018)—see the conclusion in particular; Cox and Minahan, “Unravelling Woomera”; Rajan, “What do Refugees Want?” 31 Discussed in the sanctuary chapter (3). 32 On this all-or-nothing view of power, see the conclusion in Kathleen R. Arnold, America’s New Working Class (College Station: Penn State University Press, 2008); Akhil Gupta, Red Tape: Bureaucracy, Structural Violence, and Poverty in India (Durham: Duke University Press, 2012); James Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven: Yale University Press, 1987) especially the preface and his notion of hidden transcripts (e.g. p xviii). 33 To learn more about types of Australian detention facilities, see Refugee Council of Australia, “Australia’s Detention Policies,” May 20, 2020, https:// www.refugeecouncil.org.au/detention-policies/.

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34 See Mina Fazel et al., “Detention, Denial and Death: Migration Hazards for Refugee Children,” The Lancet Global Health 2, no. 6 (June 1, 2014), https:// www.thelancet.com /journals/langlo/article/PIIS2214-109X(14)70225-6/ fulltext; Eleanor Acer et al., “Restoring America’s Commitment to Refugees and Humanitarian Commitment,” Georgetown Immigration Law Journal 27 (Spring 2013): 445–481; Lisa Frydman et al., “A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System,” Center for Gender and Refugee Studies and Kids in Needs of Defense, 2014, http://www.uchastings.edu/centers/cgrs-docs/treacherous_journey_cgrs_kind_report.pdf; Tara Magner, “A Less than ‘Pacifc’ Solution for Asylum-Seekers in Australia,” International Journal of Refugee Law 16, no. 1 (2004): 53–90; Motta, “Between a Rock and A Hard Place”; Mares and Jureidini, “Psychiatric Assessment of Children and Families”; Mares et al., “Seeking Refuge, Losing Hope”; Dani McAlister et al., “‘I See Nothing but a Fence of Tears’: The Impact of Australia's Immigration Detention and Border Protection Policies on the Asylum Seeker Child's Geographies of Hope and Hopelessness,” Jeunesse Young People Texts Cultures 11, no. 2 (February 2020), https:// www.researchgate.net /publication /339600517_I _ See _Nothing _but _a _Fence_of_Tears_The_Impact_of_Australia%27s_Immigration_Detention _and _Border_Protection _Policies _on _the _Asylum _ Seeker_Child%27s _Geographies_of_Hope_and_Hopelessness. 35 However, again, Australian detainee protests have been publicized more widely than US detainee protests, while US sanctuary networks and localities receive more scholarly and media attention than other countries with similar movements. See Isaacs, “Are Healthcare Professionals Working in Australia’s Immigration Detention Centres Condoning Torture?”; Fazel et al., “Detention, Denial and Death”; L. Rojas-Flores, M.L. Clements et al., “Trauma and Psychological Distress in Latino Citizen Children Following Parental Detention and Deportation,” Practice and Policy (2017): 352–362; see also Lorenzo Monasta et al., “Minority Health and Small Numbers Epidemiology: A Case Study of Living Conditions and the Health of Children in 5 Foreign Romá Camps in Italy,” American Journal of Public Health 11 (November 2008): 2035–2041; Ann Lorek et al., “The Mental and Physical Health Diffculties of Children Held Within a British Immigration Detention Center: a Pilot Study,” Child Abuse & Neglect 33, no. 9 (2009): 573–585. 36 This does not mean that detainees and would be detainees cannot complain, fle grievances, hire lawyers, and sometimes appeal their cases in court. What I am suggesting is that when they do this, it’s an entirely different system from constitutionally guided bureaucratic systems in a democracy. Immigration courts, for example, do not meet the standards of criminal justice courts; record-keeping is entirely different in migration bureaucracies; and more. 37 E.g. Gündoğdu, Rightlessness in an Age of Rights. 38 See also Raffaella Puggioni, “Border Politics, Right to Life and Acts of Dissensus: Voices from the Lampedusa Borderland,” Third World Quarterly 36, no. 6 (2015): 1145–1159. 39 See Bargu, “The Silent Exception”; Veronica Zebadua-Yañez, “On Feminist Counter-Sovereignty: Visions of Radical Freedom in Monique Wittig’s ‘Les Guérillères,’” unpublished essay; see also Manu Vimalassery, “CounterSovereignty,” J19: The Journal of Nineteenth-Century Americanists 2, no. 1 (Spring 2014): 142–148 regarding the important point that the United States (and by extension Australia) deploys its sovereign powers as

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“counter-sovereignty” in relation to First People’s prior and existing claims to these territories. These gaps in power are addressed by Kim Rygiel, e.g., but the author overestimates migrant power in suggesting that border control and “camps” are subordinate to migrants’ power of mobility and resistance to domination. This is partly due to confating encampments and camps. See Kim Rygiel, “Bordering Solidarities: Migrant Activism and the Politics of Movement and Camps at Calais,” Citizenship Studies 15 (2011): 1–19. See worthwhile discussions of agency at borders and in camps: Mainwaring, “Migrant Agency”; Liisa H. Malkki, “Speechless Emissaries: Refugees, Humanitarianism, and Dehistoricization,” Cultural Anthropology 11, no. 3 (August 1996): 377–404. Some examples: mental health advocacy groups that have asked the Australian government to interview detainees were allowed to enter centers but were not allowed to fnish their study but did gain insight into detainee mental health; many of the interviewers were traumatized by the little interaction they did have. Mares and Jureidini, “Psychiatric Assessment of Children and Families.” In Chicago, the famous Sisters Patricia Murphy and JoAnn Persch have constantly negotiated with ICE and DHS to be able to bring masks into jails and detention cells and to board deportation buses in order to pray with detainees, for example. UNHCR has also demanded that the United States allow them to screen individuals being held at the border to screen them for refugee status, even when the United States has refused to grant this status. I disagree with blanket dismissals of the benefts of UNHCR and human rights NGOs and attempts to lump these groups together with governments that persecute and traumatize refugees (as, for example, Peter Hodge does). Rather, human rights norms, practices, and civil society should wholly move away from a nation-state model in their interpretation and enforcement of human rights and duties. See Peter Hodge, “#LetThemStay #BringThemHere: Embodied Politics, Asylum Seeking, and Performativities of Protest Opposing Australia’s Operation Sovereign Borders,” Politics and Space 37, no. 3 (2019): 386–406. Please see Wong Wing v US 163 U.S. 228 (1896). See Kanstroom, Deportation Nation; Motta, “Between a Rock and A Hard Place”; Stumpf, “The Crimmigration Crisis.” David Dyzenhaus, “Emergency, Liberalism, and the State,” Perspectives on Politics 9, no. 1 (2011): 69–78; David Dyzenhaus, “Schmitt v Dicey: Are States of Emergency Inside or Outside the Legal Order?” Cardozo Law Review 27 no. 5 (2006): 2005–2040. See Andrea Pitzer’s defnition of a camp and her extensive work on this subject in One Long Night. See Kanstroom, Deportation Nation, on this history. See Stumpf, “The Crimmigration Crisis”; Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood.” See Kathleen R. Arnold, American Immigration After 1996: The Shifting Ground of Political Inclusion (College Station: Penn State University Press, 2011); Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood.” For non-experts, this may seem counterintuitive because 1996 devolved power to the states in matters of immigration. Nevertheless, the federal government has continued to exercise preemptive powers and engage in struggles with various states—particularly Arizona—when they introduce legislation criminalizing migrants and/or exceeding federal authority in some way. The

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devolution simply induced local and state authorities to cooperate more with federal authorities, but the general outcome was not to take power away from the feds. The most signifcant consequence of this devolution was to make foreigners non-persons at the state level in areas of welfare and anti-terror policing. See Stumpf, “The Crimmigration Crisis”; Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood.” These changes were more complex—please see Stumpf, “The Crimmigration Crisis”; César Cuauhtémoc García Hernández, “Immigration Detention as Punishment,” UCLA Law Review 61, no. 5 (2014): 1346–1414; Kanstroom, Deportation Nation; Andrew I. Schoenholtz, “Refugee Protection in the United States Post-September 11,” Columbia Human Rights Law Review 36, no. 2 (2005): 323–364. See J. Matthew Hoye, “Sanctuary Cities and Republican Liberty,” Politics and Society 48, no. 1 (December, 2019): 67–97. The relevant cases are: Chae Chan Ping v US (1889); Fong Yue Ting v US (1893); Wong Wing v US (1896). See Geoffrey Heeren, “The Status of Nonstatus,” American University Law Review 64 (May 11, 2015): 1115–1181, http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2560931; Kanstroom, Deportation Nation; Shoba Wadhia, “The History of Prosecutorial Discretion in Immigration Law,” American University Law Review 64 (May 11, 2015b): 101–118. See Kitty Calavita, Inside the State: The Bracero Program, Immigration and the I.N.S. (New York: Routledge, 1992); Kevin R. Johnson, “Race and Immigration Law and Enforcement: A Response to Is There a Plenary Power Doctrine?,” Georgetown Immigration Law Review 14 no. 2 (2000): 289–305; Kanstroom, Deportation Nation; Grant Martinez, “Indefnite Detention of Immigrant Information: Federal and State overreaching in the Interpretation of 8 C.F.R. §236.6, The Yale Law Journal 120, no. 3 (December 2010): 667–677; Susan Sterett, “In an Indeterminate State: Calavita on the Bracero Program,” Law & Social Inquiry 20, no. 2 (Spring, 1995): 655–673; Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood.” Chae Chan Ping (1889) majority quoted in Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood,” 885. Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood,” n10 893. My emphasis. Mathews v Diaz 1976, 1891; see Hiroshi Motomura, Americans in Waiting (New York: Oxford, 2006), 83–84. Shaughnessy v United States ex rel. Mezei U.S. 206 (1953). In this area of study, racism is defned on the basis of alienage. Foreigners from certain countries are viewed in biologically deterministic ways in which their attributes are often interpreted as societal pollutant. See Johnson, “Race and Immigration Law and Enforcement”; Nancy Ordover, American Eugenics: Race, Queer Anatomy, and the Science of Nationalism (Minneapolis: University of Minnesota Press, 2003; Cheryl Shanks, Immigration and Politics of American Sovereignty, 1890–1990 (Ann Arbor: University of Michigan Press, 2001)). Key examples of this eugenic system included: Chinese Exclusion, the treatment of the Japanese at the turn of the 20th century; the Great Repatriation of Mexicans of 1936; Japanese Internment; and the reaffrmation of eugenic quotas in the 1952 McCarran-Walter Act, and Operation Wetback in 1954. Eugenic quotas were abolished in the 1965 Hart–Celler Act, which equalized numerical limits for all countries. After that, policy was more or less neutral until Pres. Trump’s administration.

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61 However, see Kanstroom, Deportation Nation on “post-entry social control” and Plascencia 2017 on the internalization of the border: Luis FB Plascencia, “Where Is the Border?” in eds. Josiah Heyman and Carlos G. Vélez-Ibáñez, The U.S.-Mexico Transborder Region (Tucson: University of Arizona Press, 2017). 62 Based in the Fifth and Fourteenth Amendments. 63 See Kanstroom, Deportation Nation. It is important to note that while Australia is not perfect, it does not have this “eternal probation”/perpetual foreigner model that the United States has had since the 1880s. 64 See Ordover, American Eugenics; Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood.” 65 See Heeren, “The Status of Nonstatus”; Wadhia, “The History of Prosecutorial Discretion in Immigration Law.” 66 National Museum of Australia, “White Australia Policy,” https://www.nma .gov.au/defning-moments/resources/white-australia-policy. 67 See Thomas Hobbes, Leviathan, ed. Richard Tuck, (Cambridge: Cambridge University Press, 1999); John Locke, Second Treatise of Government, ed. C.B. Macpherson (Cambridge: Hackett Publishing, Classic Series, 1980); Kanstroom, Deportation Nation. 68 See Miles and Brown, Racism; Kathleen Paul, Whitewashing Britain: Race and Citizenship in the Postwar Era (Ithaca: Cornell University Press, 1997); Regarding theories about how whiteness superseded class over time and in certain situations, see Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research 8, no. 4 (2006): 387–409, http://www.kooriweb.org/foley/resources/pdfs/89.pdf. See also the classics: Noel Ignatiev, How the Irish Became White (New York and London: Routledge, 1995); David Roediger, The Wages of Whiteness (Brooklyn: Verso, 1999). 69 These authors do not argue this directly nor about the United States, but see Arendt, Origins of Totalitarianism, ch. 5; Miles and Brown, Racism; Paul, Whitewashing Britain. 70 Miles and Brown, Racism, 150. 71 See National Museum of Australia, “White Australia Policy”; Miles and Brown, Racism, 150–159. 72 Miles and Brown, Racism, 152. 73 Miles and Brown, Racism, 153; Mae M. Ngai, Impossible Subjects (Princeton and Oxford: Princeton University Press, 2004). 74 Miles and Brown, Racism, 153. As the National Museum of Australia notes: “Ironically, Australia saw itself as a utopia and a working man’s paradise, a forward-thinking country that promoted equal rights and opportunities, for ‘desirable’ citizens at least. The nation aimed to attract a well-paid, male, white and skilled labour force to uphold this image.” National Museum of Australia, “White Australia Policy.” 75 Infuenced, but the formula was also debated, as discussed in David Atkinson, “The White Australia Policy, the British Empire, and the World,” Department of History Faculty Publications, Paper 4, (2015), http://dx.doi.org/10.3366/ brw.2015.0191. He argues that the system was more arbitrary than the word “formula” suggests. See National Museum of Australia, “White Australia Policy” for a different perspective: “The Act gave immigration offcers the power to make any non-European migrant sit a 50-word dictation test. This was initially given in any European language, and after 1905 in any prescribed language.”

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76 National Museum of Australia, “White Australia Policy”: “The introduction of two accompanying acts (the Pacifc Island Labourers Act 1901 and the Post and Telegraph Act 1901) further limited access to Australia for non-white migrants by outlawing the use of imported labour and making it mandatory to hire white workers on any vessels transporting Australian mail.” Atkinson challenges this history in Atkinson, “The White Australia Policy,” 2–3. 77 Miles and Brown, Racism, 151. Although not a subject of this book, this racialization of members and political others was also informed by treatment of First Peoples in each country. Miles and Brown, Racism, 151–152. 78 Quoted in Atkinson, “The White Australia Policy,” 1. 79 Atkinson, “The White Australia Policy,” 1–3. 80 Paul, Whitewashing Britain, 32. 81 Paul, Whitewashing Britain, 33. 82 However, because of devastating losses from WWII, they aimed to do this on the cheap—through “migration” and not outright war, for example. Paul, Whitewashing Britain. 83 See Shanks on US isolationism during this period. This does not mean that the United States did not act imperialistically—e.g. in South America—but that there was no explicit tie to Britain as there was for Australia. Shanks, Immigration and Politics of American Sovereignty, 1890–1990. See Fanon on the United States’s mixed legacy of as well as Said’s work on Orientalism, which situates US international hegemony beginning in the 1970s: Frantz Fanon, The Wretched of the Earth (New York: Grove Press, 2005); Edward Said, Orientalism (New York: Vintage, 1979). 84 R. Birrell, “A New Era in Australian Migration Policy,” International Migration Review 18, no. 1 (1984): 65–84. 85 See Birrell, “A New Era in Australian Migration Policy,” 1; Birrell argues that in the late 1970s, foreign-descent communities advocated for family reunion and “modifcation of the N.U.M.A.S. system’s ‘bias’ against ethnic applications … In 1978, minor concessions by the Fraser Government involving the creation of a 'special family reunion' category allowing entry to nondependent parents and some other relatives where compassionate circumstances applied,” 75; See also Paul, Whitewashing Britain. 86 See Miles and Brown, Racism; Ordover, American Eugenics; Paul, Whitewashing Britain. 87 See Mae Ngai, Impossible Subjects; Sonia Shah, ed. Dragon Ladies: Asian American Feminists Breathe Fire (Boston: South End Press, 1997). 88 This is why bio-power is a more apt term than race—as explained in the introduction and preface. 89 See Alfonso Gonzales, Reform Without Justice: Latino Migrant Politics and the Homeland Security State (New York: Oxford, 2014); Zebedee Parkes, “Mandatory Detention: A History of Bipartisan Cruelty,” Green Left Issue 1215, April 5, 2019, https://www.greenleft.org.au/content/mandatory-detention-history-bipartisan-cruelty; SBS, “Thousands March Across Australia to Protest Refugee Detention,” July 21, 2018, https://www.sbs.com.au/news/article/thousands-march-across-australia-to-protest-refugee-detention/ujd74lc3s. 90 Solidarity Network, “Twenty Years Too Long: the History of Mandatory Detention,” June 14, 2012, https://www.solidarity.net.au/refugees/twenty -years-too-long-the-history-of-mandatory-detention/. 91 Royal Children’s Hospital Melbourne, “Refugee Policy and Timeline,” 2021, https://www.rch.org.au/immigranthealth/clinical/refugee-policy-and-timeline/; Solidarity Network, “Twenty Years Too Long.”

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92 For example, in 1983 the “Australian State Governments formed a Working Party on Refugee Children” as the Royal Children’s Hospital Melbourne explains: “Refugee Policy and Timeline,” 2021, https://www.rch.org.au/ immigranthealth/clinical/refugee-policy-and-timeline/. 93 Birrell, “A New Era in Australian Migration Policy,” 75. 94 Claire Loughnan, “Australia’s Harsh Immigration Policy: The Re-Elected Liberal Government in Australia will Continue to Secure the Border, But at What Cost?” The Diplomat September 1, 2019, https://thediplomat.com /2019/08/australias-harsh-immigration-policy/. 95 Royal Children’s Hospital Melbourne, “Refugee Policy and Timeline.” 96 See the annotated chronology of this history on the Australian Parliament site: Parliament of Australia, “Australia and Refugees, 1901–2002: An Annotated Chronology Based on Offcial Sources,” June 16, 2003, https://www.aph.gov .au/About_Parliament/Parliamentary_Departments/Parliamentary_Library /Publications_Archive/online/Refugeess1. See also: Solidarity Network, “Twenty Years Too Long.” 97 Solidarity Network, “Twenty Years Too Long.” 98 Nevertheless, it is now treated as a crime: see Philip G. Schrag et al., “Rejecting Refugees: Homeland Security’s Administration of the One-Year Bar to Asylum,” William and Mary Law Review 52, no. 3 (2010): 651–804. See also Schachar, “Beyond Open and Closed Borders.” 99 As Motta notes, “On 5 May 1992, two days before the case was scheduled for hearing, the government pushed through Parliament the Migration Amendment Act 1992 (Cth). This legalized the applicants’ detention retrospectively...The Migration Amendment Act 1992 inserted into the principle Act Division 6 [Division 4B] which created a new classifcation of ‘designated persons.’ Sections 179, 181, and 183 [s.54L, 54N and 54P] required the detention of a ‘designated person.’…Contingent with the power to detain ‘designated persons,’ s.183 [s.54R] purported to deny the courts the power to order the release of a designated person from custody until their visa applications were fnalized.” Motta, “Between a Rock and A Hard Place,” 15. “A Designated Person means a  person or entity named as a ‘Specially Designated National and Blocked Person’ on the most current list published by OFAC at its offcial website, or any replacement website or a person or entity similarly named on any Sanctions—related list offcially published by the Australian Federal Government, the United Nations Security Council, the European Union, the Federal Republic of Germany or Her Majesty’s Treasury of the United Kingdom, or in each case on any replacement offcial publication of such list.” Law Insider, “Designated Person Defnition,” https://www.lawinsider.com/dictionary/designated-person#:~ :text=Designated%20Person%20means%20a%20person%20or%20entity %20named,on%20any%20replacement%20offcial%20publication%20of %20such%20list. 100 The United States adopted very similar policies under Attorney-General Ashcroft in the GW Bush era, more frmly concretized with Trump’s travel ban. In Australia, this policy was briefy suspended in 2008 and revived from 2012 to the present. 101 Motta, “Between a Rock and A Hard Place,” 15. See Australian Government, Department of Foreign Affairs and Trade, “What You Need to Know” (regarding Designated Persons and Sanctions), https://www.dfat .gov.au/international-relations/what-you-need-know-0; see also Australian Government Federal Register, “Autonomous Sanctions” (Designated Persons

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and Entities and Declared Persons—Thematic Sanctions) Instrument 2022, F2022L00411, https://www.legislation.gov.au/Details/F2022L00411. UNHCR, Executive Committee of the High Commissioner’s Programme, “Detention of Asylum-Seekers and Refugees: The Framework, the Problem and Recommended Practice,” June 4, 1999, https://www.unhcr.org /3cc413ae4.pdf#:~:text=The%20requirement%20that%20detention%20be %20subjected%20to%20either,detention%20orders%20before%20an %20independent%20and%20impartial%20body. See Isaacs, “Are Healthcare Professionals Working in Australia’s Immigration Detention Centres Condoning Torture?” Chu Kheng Lim v. MILGEA (1992) 110 ALR 97 quoted in Motta, “Between a Rock and A Hard Place,” 15. With regard to mandatory detention of individuals feeing countries on terrorist watchlists during the GW Bush era and later, various attempts at travel bans during the Trump regime. An exception—perhaps—is the tennis star Novak Djokovic who refused to disclose his COVID vaccination status and was detained at the border, held in a detention center (a hotel), and deported in January 2022. While many were shocked at his treatment, he was treated better than any refugee in that he did not languish in detention for years and he was detained in a hotel rather than in a remote prison with little food, sewage, or bedding. This was his second time in detention. See The Monthly, “Morrison’s Plan to Deport Thousands of Migrants,” 7am podcast, The Monthly, March 3, 2022, https://www.themonthly.com.au/podcast/morrisons-plan-deport-thousands -migrants. Arendt, Origins of Totalitarianism, ch. 9. For a critique of natural rights, see (among others): Karl Marx, “On the Jewish Question,” in The Marx-Engels Reader, 2nd ed., ed. Robert C. Tucker (New York: W.W. Norton, 1978); Arendt, Origins of Totalitarianism, ch. 9. Locke, Second Treatise of Government; Richard Ashcraft, Revolutionary Politics and Locke's Two Treatises of Government (Princeton: Princeton University Press, 1986). Wesley, “Perspectives on Australian Foreign Policy,” 53–54. See National Museum of Australia, “Tampa Affair,” n.d. https://www.nma.gov.au/defning-moments/resources/tampa-affair National Museum of Australia, “Tampa Affair”: “By 2 September the government had hastily secured agreements with Nauru and New Zealand. The Royal Australian Navy then took the Tampa’s asylum seekers to Nauru from where 131 of them were sent to New Zealand. The remaining 302 were processed on Nauru over coming months (though a handful remained there for three years).” On parliamentary debates about excision see: Parliament of Australia, Migration Amendment (Excision from Migration Zone) Bill 2001, Bills Digest no. 69 2001-02, September 2001, https://www.aph.gov.au/Parliamentary _Business/Bills_Legislation/bd/bd0102/02bd069. National Museum of Australia, “Tampa Affair.” See also Magner, “A Less than ‘Pacifc’ Solution.” As the Australian Government explains, a bridging visa is (was) “A bridging visa is a temporary visa we might grant you in certain circumstances. Bridging visas let you stay in Australia lawfully while your immigration status is resolved. The type of bridging visa we might grant you depends on your circumstances.” Australian Government Immigration and Citizenship,

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“Travelling and Your Visa: Travel on a Bridging Visa,” https://immi.homeaffairs.gov.au/entering-and-leaving-australia/travelling-and-your-visa/travel -on-a-bridging-visa. 115 As Motta explains: “A person who enters Australian territory and thence enters without authority an ‘excised offshore place’ becomes now an “offshore entry person.” The law empowers the arrest and detention of an offshore entry person (or those who would become so should they enter an excised offshore place or would become an unlawful non-citizen if they should enter the migration zone), 108 sanctions their restraint and removal from Australian territory to a designated place outside Australia, and excludes the arrest, detention, and transportation of such a person from the meaning of “immigration detention” under the Migration Act.” Motta, “Between a Rock and A Hard Place,” 17. 116 Motta, “Between a Rock and A Hard Place,” 17. 117 Motta, “Between a Rock and A Hard Place,”17; additionally he explains “the Australian community and thus lengthen the period they will spend in detention. To further deter legal appeals, the government has introduced a “privative clause” which attempts to remove from judicial review all decisions refusing Protection Visas except on the basis of jurisdictional error. Since it is the judiciary’s role to ensure the legality of administrative decision making according to proper principles of law, the policy of removing judicial supervision of administrative decisions regarding refugees, combined with the government’s rhetoric in this regard, represents an attack on the independence of the judiciary itself and severely undermines the rule of law.” Motta, “Between a Rock and A Hard Place,” 22. 118 See Varsanyi on “non-personhood” in Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood.” From a different but related point of view, see Magner, “A Less than ‘Pacifc’ Solution,” regarding the potential human rights abuses of the actions leading to these policies and the policies themselves. 119 How can an abandoned subject also be an enemy? 120 Furthermore, the Australian gov’t is not required to inform refugees about these programs in any sense. See Motta, “Between a Rock and a Hard Place.” 121 Most arrivals are from: Iraq, Afghanistan, and Iran; Motta, “Between a Rock and A Hard Place,” 17. 122 Currently under Title 42 policies (November 2022). 123 Regarding excision generally, see Australia (government), Migration Amendment (Excision from Migration Zone), Act 2001, No. 127, Federal Register of Legislation, https://www.legislation.gov.au/Details/ C2004A00887. 124 See Motta, “Between a Rock and A Hard Place”; thanks to an anonymous reviewer for pointing out this distinction. 125 Kanstroom discusses how US policies make most foreigners “eternal guests”— see Deportation Nation 6, 227; this is different from Australia, where those designated as “legal” are treated as persons, if not citizens (unless they are denied a visa, in which case they are put into removal proceedings). As I have indicated, the character test does provide mechanisms similar to those in the United States triggering deportation. See Motta, “Between a Rock and A Hard Place,” 20. 126 On non-personhood, see Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood.” 127 On this devolution, see Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood”; on the broader effects of the 1996 laws, see Arnold, American Immigration After 1996.

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128 See Linda Bosniak, “Sanctuary and the Contested Ethics of Presence in the United States,” Borders and Boundaries: Mapping Out Contemporary Societies, ed. Didier Fassin (Berkeley: University of California Press, 2018), ch. 10 (189–213)—see pp. 195–197; Stumpf, “The Crimmigration Crisis”; Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood” on these important changes. 129 Johnson, “Race and Immigration Law and Enforcement.” He has more recently argued that there is no plenary power doctrine: Kevin R. Johnson, “Immigration in the Supreme Court, 2009–13: A New Era of Immigration Law Unexceptionalism,” Oklahoma Law Review (2015). 130 See Johnson, “Race and Immigration Law and Enforcement”; Ernesto Verdeja, “Law, Terrorism, and the Plenary Power Doctrine: Limiting Alien Rights,” Constellations 9, no. 1 (2002): 89–97. 131 See Adam Liptak, “Supreme Court Says Rejected Asylum Seekers Have No Right to Object in Court,” New York Times, June 25, 2020, https://www .nytimes.com/2020/06/25/us/supreme-court-asylum-habeas.html. 132 Bosniak, “Sanctuary and the Contested Ethics of Presence in the United States,” 197; Johnson, “Race and Immigration Law and Enforcement.” See Melissa Cruz, “ICE May Have Deported as Many as 70 US Citizens in the Last Five Years,” Immigration Impact, July 30, 2021, https://immigrationimpact.com/2021/07/30/ice-deport-us-citizens/. 133 See Stumpf, “The Crimmigration Crisis.” 134 See Arnold, Arendt, Agamben and the Issue of Hyper-Legality; Hernández, “Immigration Detention as Punishment”; Stumpf, “The Crimmigration Crisis.” 135 Stumpf, “The Crimmigration Crisis”; see Matthew Coleman and Austin Kocher, “Detention, Deportation, Devolution and Immigrant Incapacitation in the US, Post 9/11,” The Geographical Journal 177 no. 3 (September 2011): 228–237; Hernández, “Immigration Detention as Punishment.” 136 Stumpf, “The Crimmigration Crisis.” 137 See Bart Jansen and Alan Gomez, “President Trump Calls Caravan Immigrants ‘Stone Cold Criminals.’ Here’s What We Know,” USA Today, November 26, 2018, https://www.usatoday.com/story/news/2018/11/26/ president-trump-migrant-caravan-criminals/2112846002/. 138 See Hernández, “Immigration Detention as Punishment.” 139 Schoenholtz, “Refugee Protection in the United States Post-September 11.” US border checks have become tighter and there is more inspection of documents, making it more diffcult for refugees to arrive without papers or with fake papers. Recently, Section 1325 of the INA—which criminalizes unauthorized border-crossing—has been revived and enforced, particularly under GW Bush and D Trump. 140 On the legality of unauthorized arrival see Linda Rabben, Give Refuge to the Stranger: The Past, Present, and Future of Sanctuary (Walnut Creek: Left Coast Press, 2011); Shachar, “Beyond Open and Closed Borders,” 1–27; Schoenholtz, “Refugee Protection in the United States Post-September 11.” 141 See Arendt, Origins of Totalitarianism, 293–294. 142 For example, see Kim Thuy Seelinger, “Forced Marriage and Asylum: Perceiving the Invisible Harm,” Columbia Human Rights Law Review 42, no. 1 (2010), https://cgrs.uchastings.edu/sites/default/fles/Forced_marriage _and_asylum_Seelinger_2010_0.pdf. 143 See Ilana Feldman, “Gaza’s Humanitarianism, Problem,” Journal of Palestine Studies 38, no. 3 (2009): 22–37; Pierre Hassner, “Refugees: A Special Case

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for Cosmopolitan Citizenship?” ch. 13 (273–286) in Re-imagining Political Community, ed. Daniele Archibugi, David Held, and Martin Köhler (Stanford: Stanford University Press, 1998). See Bosniak, “Sanctuary and the Contested Ethics of Presence in the United States”; Kitty Calavita, “U.S. Immigration Policy: Contradictions and Projections for the Future,” Indiana Journal of Global Legal Studies 2, no. 1, Symposium: Global Migration and the future of the Nation-State (Fall 1994): 143–152; Hiroshi Motomura, “Arguing About Sanctuary,” UC Davis Law Review 52 (2018): 434–469. Arendt, Origins of Totalitarianism, 283. Sheldon Wolin, “Democracy and the Welfare State: The Political and Theoretical Connections Between Staatsräson and Wohlfahrsstaatsräson,” in The Presence of the Past: Essays on the State and the Constitution (Baltimore: Johns Hopkins Press, 1989); Arendt “right to have rights”: Arendt, Origins of Totalitarianism, 296, 298. Regarding the latter point, while the UN has found that a signifcant percentage of recent arrivals from Central America would be eligible for refugee or humanitarian relief, if properly screened. CGRS, Universidad Nacional de Lanus et al., “Childhood and Migration in Central and North America: Causes, Policies, Practices, and Challenges,” (2015), https://cgrs.uchastings.edu/sites/default/fles/Childhood_Migration _HumanRights_English_1.pdf. See Verdeja, “Law, Terrorism, and the Plenary Power Doctrine”; Stumpf, “The Crimmigration Crisis.” See Edward D. Vargas et al., “Fear by Association: Perceptions of AntiImmigrant Policy and Health Outcomes,” Journal of Health Politics, Policy and Law 42, no. 3 (June 2017): 459–483. That is, ineligible for even minimal constitutional protections (due process, equal protection) and denied judicial review. This notion of “instant illegality” is linked to claims that U.S. constitutional law and refugee laws are inapplicable outside of U.S. borders (narrowly defned): see Sonia Farber, “Forgotten at Guantánamo: The Boumediene Decision and Its Implications for Refugees at the Base Under the Obama Administration,” California Law Review 98, no. 3 (June 2010): 989–1022. In particular, she notes that U.S. enforcement provisions only begin when the border is somehow invoked (see page 998). The irony is that somehow, once constitutional law can be invoked and thus refugee provisions, this is also when sovereign enforcement begins and so stepping over the “border” is when detention and deportation are the political solutions to the problem of political disorder and human need. Australian migration policy treats international waters similarly but has approached the suspension of law differently, again, using excised territories as a primary tool and justifcation for suspending due process. See also arguments on behalf of the petitioner Daniel Benitez, in Benitez v Mata (2004) pointing out that the Constitution protects US citizens abroad and therefore, is not territorially limited in its application: ACLU/Amici professors, ACLU AMICUS BRIEF IN BENITEZ V. MATA, n.d., https://www.aclu.org/legal-document/aclu-amicus-brief -benitez-v-mata--see. Arendt, Origins of Totalitarianism, 284. Arendt, Origins of Totalitarianism, ch. 13. Arendt, Origins of Totalitarianism, ch. 9. As she argued, the “nation conquered the state” when racism became political. Arendt, Origins of Totalitarianism, 275.

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155 Arendt, Origins of Totalitarianism, 273. 156 On the comparison between stateless peoples and criminals, see Arnold, Arendt, Agamben and the Issue of Hyper-Legality. 157 Today, we can understand camps as denationalized and serving as an offshore equivalent of black sites. This is an argument I develop in Arendt, Agamben and the Issue of Hyper-Legality. 158 Arendt, Origins of Totalitarianism, 451. 159 Arendt, Origins of Totalitarianism, ch. 12. 160 Arendt, Origins of Totalitarianism, ch. 12. 161 Arendt, Origins of Totalitarianism, ch. 9. 162 Arendt, Origins of Totalitarianism, ch. 9. 163 As explained in the preface, I disagree with Rygiel’s suggestion that the Jungle in Calais was this sort of camp—rather, it was an encampment and much like homeless and Roma encampments, it was attacked and bulldozed. The resistance to authority in setting up these encampments does not mean that Agamben’s analysis of camps is wrong but that he defnes camps as I do (infuenced by Arendt and Pitzer): the mass detention of civilians on the basis of status. Rygiel, “Bordering Solidarities.” 164 Again, Australia has excluded migration detention from its defnition of detention; the United States has created the plenary power doctrine to make detainees non-persons and provide a legal justifcation for the vast migration bureaucracy that is not held to the same legal standards as other bureaucracies. In considering the defnition of a camp, we can consider the defnition of a sweatshop in contrast to a legally authorized job site. Rather, sweatshops are defned by their conditions, which violate one or more known/ established safety standards and/or zoning laws based on safety standards. See Saskia Sassen, Globalization and Its Discontents: Essays on the New Mobility of People and Money (New York: New Press University Press, 1998), ch. 8 (153–161); John Miller, “Why Economists Are Wrong about Sweatshops and the Antisweatshop Movement,” Challenge 46 (2003): 93–122. 165 For in-depth analyses of US legal personhood see the frst chapter of Arnold, Arendt, Agamben, and the Issue of Hyper-Legality. The term “person” is derived from the 14th Amendment and not philosophy. 166 For example, Japan established different forms of camps in which alienage and gender played key roles. The government has only begun to attempt to apologize or rectify situation in past 4–5 years (and only partially). Australia and the United States also linked suspected communist belief to race, even if their mass detention policies were established decades after the world war period. See Pitzer, One Long Night not simply to learn about the establishment of camps across the globe but their interconnectedness. 167 Which is why I disagree with the approach taken in article that compares detention to POW camps—see Serwer, “A Crime By any Name.” 168 This mixing had occurred in the United States where some localities use jails and prisons as detention holding cells—particularly occurring in the late 90s and early 2000s before detention centers were built. 169 Pitzer, One Long Night; Samantha Power, “Raising the Cost of Genocide,” Dissent 49, no. 2 (Spring 2002): 85–95. 170 See Power, “Raising the Cost of Genocide.” 171 Agamben, Homo Sacer. Unlike some other interpreters of his work, I do not believe Agamben argues that a void has been created—rather, power can be rationalized (in the Weberian sense) and yet thanatic, or at least

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extra-constitutional. See Arnold, America’s New Working Class and Arnold, Arendt, Agamben and the Issue of Hyper-Legality. Ian Urbina, “The Invisible Wall: Inside the Secretive Libyan Prisons that Keep Migrants Out of Europe,” The New Yorker, December 6, 2021, 36–47. See Pitzer, One Long Night Pitzer,  One Long Night; see Urbina to understand how Libyan detention centers and slave markets are directly funded by the EU and Italy, in particular. Urbina, “The Invisible Wall.” I investigate this linkage in greater depth in Arendt, Agamben and the Issue of Hyper-Legality. For example, as Pitzer argues about Japanese Internment: “it is easy to dismiss internment as a mistake perpetrated in ignorance by frightened decision makers.” Pitzer, One Long Night, 251. However, archives show that the lead intelligence offcer on these matters—Kenneth Ringle—had assessed threat level of Japanese Americans and not only said no threat but that if they were interned, it would be racist. He argued that any internment should be on a case-by-case basis and not founded on racism. See Michael Flynn and Cecilia Josephine Cannon, “The Privatization of Immigration Detention: Towards a Global View,” September 1, 2009, https:// ssrn.com/abstract=2344196  or  http://dx.doi.org/10.2139/ssrn.2344196; Steven A. Hirschler, “The Asylum ‘Market’: Deportation, Detention and the Privatisation of Dispersed Accommodation,” in Hostile Homes. Critical Criminological Perspectives (London: Palgrave Macmillan, 2021), 95–135; Cetta Mainwaring and Maria Lorena Cook, “Immigration Detention: An Anglo Model,” Migration Studies 7, no. 4 (December 2019): 455–476; Ruth Gomberg Muñoz, Becoming Legal (Oxford: Oxford University Press, 2017), 145. As Urbina explains in “The Invisible Wall: Inside the Secretive Libyan Prisons,” this includes the ability to sell migrants as slaves in Libya (Libya’s Coast Guard and detention system have received EU funding in the past). In the United States, the jobs and economic stimulation are important factors in understanding the popularity of detention centers but the overall beneft to the local population is low, especially over time. However, as Thorpe argues, these carceral centers stimulate economies, bringing hard currency to certain depressed areas and they provide jobs (even if they do not beneft local individuals in the long-term). Rebecca U. Thorpe, “Perverse Politics: The Persistence of Mass Imprisonment in the Twenty-frst Century,” Perspectives on Politics 13, no. 3 (September 2015): 618–637. In contrast, President Trump did not invoke human rights language to justify punitive, indiscriminate policies targeting arriving and resident foreigners. See Schachar, “Beyond Open and Closed Borders.” See Didier Fassin, “From Right to Favor,” The Nation, April 5, 2016, https:// www.thenation.com/article/archive/from-right-to-favor/; Rabben, Give Refuge to the Stranger. In the United States, border sites are treated as legally exceptional and constitution-free; in Australia, they have excised most of the country from the migration zone (creating the same sort of legal spaces). Detention conditions—from rotten food to inadequate sewage and bedding—are different than prisons by degrees. Second, an individual’s status and criminal innocence defne their internment. Third, both the United States and Australia claim that they do not detain refugees. As Motta explains,

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Australia claims that it does not detain asylum seekers, based on the semantic argument that, until a person is granted refugee status under the Refugees Convention, they are not a refugee and therefore do not come under its provisions. If no claim is made for refugee status, then Australia’s protection obligations are not invoked…Further, the government alleges that: “mandatory detention is the result of unlawful entry, not the seeking of asylum. People being held in immigration detention have broken Australian law, either by seeking to enter Australia without authority, or having entered legally, failing to comply with their visa conditions.” Motta, “Between a Rock and A Hard Place,” 20. In this way, geo-spatial isolation and internal displacement serve as punishments and an alleged deterrent for future asylum seekers. See Hodge, “#LetThemStay #BringThemHere”; Pitzer, One Long Night. 184 McAlister et al., “I See Nothing but a Fence of Tears,” Submission 92 (Child detainee on Nauru, age and gender withheld), 85. 185 See for example, Hannah Arendt, “We Refugees,” in The Jewish Writings, ed. Jerome Kohn and Ron H. Feldman (New York: Schocken Books, 2007), 264–274. 186 Arendt, “We Refugees.” 187 In this way, Arendt’s early work has striking parallels with Fanon’s, although she probably would have denied this. 188 While there is no right to counsel in US migration proceedings, previous studies have shown that an overwhelming majority of cases that are approved were successful because a lawyer was involved. See Acer et al., “Restoring America’s Commitment to Refugees and Humanitarian Commitment,” in Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform, ed. Schrag et al. (New York University Press, 2011), the authors conclude that a refugee is three times more likely to succeed with a case if s/he has counsel. See also: “U.S. Detention of Aliens in Aftermath of September 11 Attacks,” The American Journal of International Law 96, no. 2 (April 2002): 470–475. 189 Acer et al., “Restoring America’s Commitment to Refugees and Humanitarian Commitment”; Schrag et al., Refugee Roulette; U.S. Detention of Aliens in Aftermath of September 11 Attacks. 190 Regarding why/how fling bureaucratic forms is ineffective or meaningless, see: Mark Dow, “Designed to Punish: Immigrant Detention and Deportation,” Social Research 74, no. 2 (Summer 2007): 533–546; Rozina Ali, “A Hunger Strike in ICE Detention,” The New Yorker, October 29, 2019, https://www.newyorker.com/news/as-told-to/a-hunger-strike-in-ice -detention; Fiske, “Human Rights and Refugee Protest.” 191 On the importance of interruption when conceiving of counter-sovereignty, see Bonnie Honig, Antigone, Interrupted (Cambridge: Cambridge University Press, 2013). 192 In the United States, see these sources regarding judges with nearly identical cases ruling differently: Lisa Frydman and Kim Thuy Seelinger, “Kasinga’s Protection Undermined? Recent Developments in Female Genital Cutting Jurisprudence,” Bender’s Immigration Bulletin 13, (September 1, 2008): 1073–1105; Seelinger, “Forced Marriage and Asylum”; Stephen Knight, “Asylum From Traffcking: A Failure of Protection,” Immigrant Briefngs, July 7, 2007, https://cgrs.uchastings.edu/sites/default/fles/Asylum_from _Trafficking _Knight_Immigration_Briefings_7_07.pdf#:~:text=Asylum %20from%20TrAfficking%3A%20A%20fAilure%20of%20ProTecTion

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%20by,traffcking%20cases%20from%20the%20CGRS%20database%2C %20and%20his.

Select bibliography Arendt, Hannah. The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979). Dayan, Colin. The Law is a White Dog (Princeton: Princeton University Press, 2011). Fazel, Mina, et al. “Detention, Denial and Death: Migration Hazards for Refugee Children.” The Lancet Global Health 2, no. 6 (June 1, 2014), https://www .thelancet.com/journals/langlo/article/PIIS2214-109X(14)70225-6/fulltext. Foucault, Michel. The History of Sexuality, Volume I: An Introduction, translated by Robert Hurley (New York: Vintage Books, 1980). Freeman, Emma and Jocelyn Moorhouse (directors), “Stateless.” Short series, Matchbox Pictures/Dirty Films (ABC Australia/Netfix), Australia, MarchJuly, 2020. Isaacs, David. “Are Healthcare Professionals Working in Australia’s Immigration Detention Centres Condoning Torture?” Journal of Medical Ethics 42, no. 7 (July 2017): 413–415. Kanstroom, Daniel. Deportation Nation (Cambridge, MA: Harvard University Press, 2007). Mares, S. and L. Newman, L., et al. “Seeking Refuge, Losing Hope: Parents and Children in Immigration Detention.” Australasian 10, no. 2 (2002): 91–96. Miles, Robert and Malcolm Brown. Racism, 2nd edn. (London: Routledge, 2003). Motta, Francesco P. “Between a Rock and A Hard Place: Australia’s Mandatory Detention System.” Refuge 20, no. 3 (2002): 12–43. Paul, Kathleen. Whitewashing Britain: Race and Citizenship in the Postwar Era (Ithaca: Cornell University Press, 1997). Pugliese, Joseph. “The Incommensurability of Law to Justice: Refugees and Australia’s Temporary Protection Visa.” Law and Literature 16, no. 3 (Fall 2004): 285–311. Shachar, Ayelet. “Beyond Open and Closed Borders: The Grand Transformation of Citizenship.” Jurisprudence 11, no. 1 (2020): 1–27. Stumpf, Juliet P. “The Crimmigration Crisis: Immigrants, Crime and Sovereign Power.” American University Law Review 56 (2006): 367–418. Wesley, Michael. “Perspectives on Australian Foreign Policy.” Australian Journal of International Affairs 56, no. 1 (April 1, 2004): 47–63. Wolfe, Patrick. “Settler Colonialism and the Elimination of the Native.” Journal of Genocide Research 8, no. 4 (2006): 387–409, http://www.kooriweb.org/ foley/resources/pdfs/89.pdf. Wolin, Sheldon. Politics and Vision, expanded edn (Princeton: Princeton University Press, 2004).

2 SELF-HARMING PROTEST

When I think about the stories of these refugees, including myself, the frst thought that springs to mind is the abduction of human beings on the sea. We were kidnapped and forcibly transferred to an island we had never heard of. We were robbed of our identity. We turned into a string of numbers through a carefully planned process of dehumanisation. We were led into an evil system which was designed to diminish our identity. Behrouz Boochani1 ~ I was just saying to myself: “my country is suffering, and I am suffering too, and my name has changed into refugee.” Unaccompanied minor detainee, age and gender withheld 2 ~ As internment expands for a range of marginalized populations, selfharming protest has become an increasingly popular method of challenging material conditions of confnement and the injustice of discourses that silence or pathologize inmates. In this chapter, I explore the political signifcance of self-harming protests by migrant detainees in the United States and Australia. These acts most often include cutting, suicide attempts, hunger strikes, and lip-sewing, and they are frequently committed after bureaucratic efforts fail to produce the desired result and/or

DOI: 10.4324/9781003282679-3

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after a lengthy period in detention when the individual or group aims at challenging their indefnite detention.3 As discussed in the previous chapters, while there are important differences among countries, there are signifcant commonalities: each is a liberal representative democracy, a country of immigration, and both countries are signatories to important human rights conventions, particularly the two conventions on the rights of a refugee. Moreover, each is a settler colonial country with neo-imperial foreign policies that have directly or indirectly caused displacement.4 This paradox unites the two countries, despite their apparent differences: both of these democracies and human rights signatories arbitrarily jail all foreigners appearing at the border without prior authorization and suspend constitutional guarantees and inalienable rights in detention centers.5 Both countries largely ban the entry of all civil society groups into these centers, are not transparent about information regarding events or people in detention, and run the centers as if they were outside of the country.6 There are also some differences: while Australia has taken the extreme measure of moving centers from rural areas to islands (and pressuring other countries to house refugee applicants), the United States has separated families, putting thousands of children up for adoption under Trump; it uses solitary confnement as a punishment for many detainee “transgressions” (including putting children in solitary); and it employs esophageal force-feeding on conscious hunger strikers.7 Both countries retaliate against self-harming activists by moving them to other detention centers to break up their community, disorient them, and cut off access to lawyers and activists groups. Public reactions to these protests are more mixed: from sympathy and activism on behalf of detainees to pathologization, following each government’s lead. The latter reaction seeks to depoliticize self-harming protest, denying the context and import of this resistance and effectively leading to “epistemic injustice.”8 Negative reactions overdetermine protests, projecting bio-political assumptions on protesters, and ignore how these protests occur in a public health context in which detainee trauma is socially produced and experienced.9 Most research concludes that self-harming protest among refugees does not occur at the same rate or intensity outside of detention, even if the stress of uncertainty over legal status, encountering xenophobia, and economic instability take its toll.10 Self-harming protest in detention is correlated with the time spent in detention, the amount of uncertainty under these conditions, and the conditions themselves.11 As a lead organizer in Freedom for Immigrants, Rebekah Entralgo argued, “When people go on hunger strike in immigrant jails and prisons, it is a last resort. They are

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willing to put their bodies on the line for a shot at freedom.”12 This form of protest must be situated in a context of public health, with a recognition of its inherently political character, given the sovereign context and captive circumstances. Public health experts have already noted the allostatic load that undocumented migrants and refugees experience outside of detention, and this load clearly intensifes in a prison-like situation in which the individual or family feels that they have been “disappeared.”13 “Extreme protest” often draws more attention to these conditions than flling out bureaucratic forms because detainees cannot draw on existing rights as once interned, they are treated as individuals who are in the process of removal.14 The detainee is not merely stateless but captive and criminalized along intersectionally racist, gendered, and class-biased lines that align with the host country’s neo-imperial policies. Acts of bodily self-harm have drawn attention to the painful and unjust circumstances they have experienced when simply following the rules did not. Lip-sewing, hunger strikes, and suicide attempts are forms of communication that cannot be reduced to words or conventional protest methods but challenge dominant understanding of their confnement conditions and legal situations.15 As Michael Feola argues, the affective and bodily elements of self-harming protest often propel others to “get their hands dirty,” move the bodies, or otherwise “suffer with.”16 One hunger striker eloquently stated, Hunger striking is the most peaceful form of resistance available. It inficts pain solely on those who participate and on their loved ones, in the hopes that their empty stomachs and their sacrifce will help the message resonate beyond the confnes of their dark cells.17 While these protest methods do not guarantee sympathy, they often lead to change when conventional protest and bureaucratic interaction do not.18 I believe these protests further demonstrate how sovereign power over these subjects may be deeply totalizing and highly asymmetrical, and yet, it is a power relationship that detainees can interrupt, alter, and contest.19 While detention centers are deterritorialized spaces of extra-constitutional activity, creating a “state of exception,” detainee protest produces a “democratic state of exception” by demanding help, better conditions for others, and, ultimately, trying to close down this system. Their actions constitute a state of exception precisely because their statuses are formally illegible, they do not draw on extant rights, and the meaning of their protest cannot be reduced to any one demand or policy outcome. Instead,

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they confront sovereign attempts to control bodily movements and lifesustaining activities while keeping these individuals in legal limbo. There is a small but excellent body of literature on this subject, mostly focused on the meaning of self-harming protest in and of itself.20 Selfharming protest “theatricalizes” bio-political conditions (see Bargu; Edkins and Pin-Fat, Feola); it is a form of “parrhesia” (Bargu) and exposes the conditions under which “necro-protest” (Mbembé) becomes a logical and even necessary response.21 In this chapter, I explore different but complementary facets of migrant self-harming protest than do these authors, drawing on three types of literature—public health, decolonial (Fanon, Mbembé, Scott), and psycho-analytic texts.22 I examine detainee selfharming protest as not only communicating pain and human need but also altering sovereignty. As stated above, I argue that sovereign power is a relationship enmeshed in a web of dynamics involving numerous interlocutors, despite clear asymmetries of power and agency.23 Detainee protest challenges state sovereignty, forcing others to be inconvenienced and/or to suffer with detainees. Accordingly, while protest does not draw on extant rights and may not be “legible” to some, the formally rightless do exercise agency.24 As I have argued, they create “dissensus,” opening a democratic state of exception.25 This state of exception is asserting democratic agency where it is not permitted or legible; that is, it stages a confrontation with state power from a demos that is legally illegible, forcing a relationship that was otherwise refused by the state. It is related to “civil” disobedience, drawing on the same self-discipline and political logic, 26 but it is an assertion of power in a context of deep violence and imperialist racism, which is why work by Fanon, Mbembé, and Scott is more relevant to this situation than rights-based analyses.27 Self-harming protest in a relatively rightless context is “necro-protest” and thanatic, even if the individual survives— the point is understanding that this is not a context of positive freedoms and an uplifting of the human spirit but one in which blood will be shed.28 Negative reactions to protests can be understood psychoanalytically as proof of unresolved conficts and guilt about the treatment of foreigners by the United States and Australia. This is evident when the meaning of self-harming protest is over-determined, as many public leaders and the media frame detainee protests in sexist, racist, class-biased, and other prejudiced ways. The inability to comprehend trauma in a public context leads to forms of denial and projection. In an era of mass displacement as well as mass detention and deportation systems, Fierke’s work helps us to understand that public grief has given way to forms of societal trauma. 29 While in the past, public grief signifed consensus about tragic events, seeking closure through discussions, rites, or symbols, political trauma signifes denial, lack of resolution, and the possibility of on-going harm.

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Fierke suggests that understanding this trauma as part of a political and societal fabric should lead to political solutions and attempts at societal healing—rather than treating merely individual symptoms or simply ending harmful policies.30 I frst analyze self-harming protests in Australia and then the United States. In the third section, I explore the political meaning of detainee trauma and self-harming protest, interpreting them as signs of political communication about their allostatic load. This argument aligns with Banu Bargu’s claim that hunger strikes and lip-sewing are forms of parrhesia, amounting to work on the self but/and in communication with others.31 However, I explore trauma in greater depth than Bargu, drawing on Fierke’s work to consider trauma in an era of mass displacement— that is, to think about the public and, therefore, political dynamics of trauma. In turn, these dynamics expose the degree to which pathologizing or heroizing narratives about self-harming protests overdetermine their meaning.32 I briefy discuss the broad contours of detention in the United States and Australia to understand the sovereign conditions under which detainees exist and how they are bio-politically criminalized (i.e. criminalized according to biologically deterministic categories) and captive rather than merely deprived of their liberty. I also suggest that, infuenced by Jacqueline Rose’s claim that female suicide bombing is a form of “intimate embrace,” self-harming protesters passionately gesture outwards, seeking connection with a demos that sometimes refuses to listen or otherwise denies its complicity in these entrapping conditions.33 In effect, the multifaceted dynamics of bodily resistance constructively destabilize state sovereignty and draw others in, producing a democratic state of exception. In the conclusion section, I argue that we should consider embodied protest as a meaningful and powerful form of resistance that demonstrates the urgency of the issues it seeks to expose.34 At the same time, if these conditions do not change, we must respect detainees’ right to self-expression rather than tolerate the current policies of retaliation and torture—again, in the form of solitary confnement and esophageal force-feeding on a conscious person. 2.1 Australian refugee lip-sewing and hunger strikes: desperate muteness or homeopathic resistance?

As a form of collective resistance to inequality in the modern era, hunger strikes emerged in the Global North and colonized areas as a tactic to protest against British imperialism beginning in the mid- to late 1800s.35 Hunger strikes called attention to mass starvation in the wartime era and to the plight of the Irish and others protesting imperial rule.36 While

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written dissent to elite power structures was also increasingly important, self-harming protest perhaps more clearly communicated discomfort and pain, hope, and anger. Inside confnement, detainees often chose bodily resistance because there was no other “weapon” at their disposal.37 To many detainees, from Irish Republican Army (IRA) members to today’s refugees, self-harming protest draws more attention to grievances than flling out bureaucratic complaints, which can be dismissed by administrators.38 As one group of researcher-advocates have argued: A hunger strike is a dramatic, but civil form of protest. It is civil because it is ultimately a communicative act: it seeks to send a message and open up pathways for discussion and negotiation. It is a radical departure from impersonal bureaucratic communication. It is intended to shock, to bypass the system and reach out directly to the conscience of viewers, forcing them to recognise that they are implicated in the spectacle that they behold.39 The discipline it entails can also feel like a more signifcant challenge to oppression than the written word, in that it unites body and mind: Hunger strikers believe that the voice of hunger has a power disproportionate to its source. Hunger can strengthen the weak, inspire the timid, bully the powerful. The voice of hunger can free the oppressed and right injustice. It can alter history.40 Aligning with Frantz Fanon’s analyses of decolonial resistance, ArmbrusterSandoval characterizes hunger strikers as “high-risk activists” who have moved from a more passive stance to one of self-sacrifce on behalf of a cause.41 This sacrifce is evident at the visceral level—we can remember a time when we have been hungry and appreciate the level of commitment one must have in denying oneself food or water for a period of time—and at the representational level, in shaming political forces responsible for untenable conditions. Lip-sewing arguably takes a hunger strike to the next level. The black thread and large, crude stitches affrm a long-term commitment to the protest as well as the willingness to undergo the pain of stitching. Lip-sewing dramatizes what Arendt has identifed as the stateless’ lack of the “right to have rights,” inviting those witnessing this protest to experience discomfort, revulsion, and destabilization.42 Because of refugees’ profound rightlessness, she argues that “their freedom of opinion is a fool’s freedom, for nothing they think matters anyhow … They are deprived, not of the right to freedom, but of the right to action; not of the right to think whatever they please, but of

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the right to opinion.”43 Thus, the stateless are free to protest but have no right to be heard, much less recognized, as legitimate political agents.44 However, in dramatizing rightlessness, suturing also plays with the binaries she named, simultaneously hyperbolizing the state’s attempt to silence them at the same time as it draws attention to the aspects of refugees’ plight that extend beyond the mere suspension of rights.45 This includes exposing arbitrary imprisonment, lengthy wait times for a capricious vetting process, and overcrowded, unsanitary detention centers. The well-publicized lip-sewing campaign by about 60 individuals confned in the Woomera Detention Centre in Australia in 2002 is evidence of this “freedom” without rights.46 This group joined others who were already staging a hunger strike because the Australian government temporarily stopped processing refugee applications. Arendt’s remarks on the “fool’s freedom” of the stateless help us to understand how detainees may be “free” to write a list of demands to their wardens, but the trouble is that they do not have the right to be politically acknowledged by the relevant state actors who could ameliorate their situation.47 Self-harming protest often forces this confrontation—as one detainee argues, “If you ask for the request—you don’t get it, but if you shout and do something, break something up, you get all these things done.”48 In this campaign and subsequent ones that continue to occur to this day, the Australian government has distorted the context and meaning of these protests in two keys ways: frst, by using images of suffering refugees as a deterrent to future migrants and as a way of asserting a sort of “neutral” state strength.49 In the face of lawsuits and multiple reports of self-harm, the government continues to declare that “The Australian Government’s position has not changed; these individuals will never settle permanently in Australia.”50 The state does not deny the intense suffering of refugees in remote, overcrowded detention centers with little access to water or ventilation but repeatedly warns future immigrants not to wind up in the same circumstances. They shift the burden of responsibility to would-be refugees for their criminalization upon arrival. Second, the government portrays this as a safety issue: through their indifference and continuous cruel treatment of all refugees, regardless of circumstances, age, or disability, the government will prevent refugees from arriving by boat and, thus, save their lives. As former immigration minister Peter Dutton argued in 2016, The fear is that the 50,000 would come again on 800 boats and we would have 1,200 people drowning at sea. The image that people saw on the television screens of the little boy who died in the waters of the Mediterranean—that played out 1,200 times.51

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The repeated airing of this image warns refugees to stay where they are. In this way, notions of “care” and “sympathy” are deployed as weapons against would-be refugees and to send a message to refugees, housed on remote islands, to end their protests and quietly self-deport.52 However, while the state and part of the public may act indifferently to self-harm, confnement is not an indifferent matter to detainees trapped in circumstances beyond their control—their pain and suffering produce an allostatic load that can be relieved through self-willed, controlled harm.53 Gandhi and Martin Luther King each refected deeply on the discipline and critical consciousness needed to wage such a campaign, even if they chose “civil” rather than harmful dissent.54 Both men were deeply aware of and accounted for the violence inficted on them and considered the possibility of self-harming violence as a counter-measure.55 In this way, as Mantena suggests, civil disobedience does not discount violent dissent but rather acknowledges the desire to commit violence and conceives of ways to process these feelings.56 In other words, civil disobedience was not envisioned as the antithesis of self-harming protest or violent resistance but as a counterpart to these tactics. As a homeopathic move, self-harming protest is an assertion of political agency and a way to relieve the pressure of trauma. As one refugee at Woomera argued: Especially after a protest, I would feel proud of myself. ‘Cause I did something that every free man would do … Even if we didn’t achieve what we wanted, like talking with Immigration or bring Immigration to see us, but at least you feel like the things inside your chest come out.57 Taking action is satisfying to detainees such as this individual because— as Fanon hypothesized—the individual moves from being a witness to their own subjection to an active opponent against it.58 As a practice of the self, 59 the use of violence can transform the detainee from a witness to an actor.60 This transformation can entail self-control, and a positive self-perception, even if death is on the horizon. Paradoxically, self-harm strengthens the protester: as Feola argues, “Ultimately, these bodies do something in being undone.”61 However, the protester need not feel optimistic—s/he could feel utterly defeated—to exercise agency and to create a democratic state of exception.62 Banu Bargu believes that lip-sewing interestingly brings together distinct techniques of protest: starvation, which “transforms the body” and “diminishes its existence”; silence, which deepens and symbolizes the violence of starvation; and lip-sewing, which, through “visual and

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visceral demarcation of suturing one’s lips” transforms “silence into an embodied and violent withholding of speech.”63 As I interpret this, silence aims at “creative tension,”64 dissensus,65 and makes an affective appeal to the sympathies of witnesses and the more distant public to paraphrase detainee Behrouz Boochani.66 Despite the isolation of Woomera detainees, the media covered the lip-sewing campaign and numerous images are still on the internet, evidencing how protests were made visible. Similarly, defying all odds, Boochani managed to make a flm of his solitary confnement at the black site Chauku, a place for “troublemaker” detainees, and wrote a book via text message while imprisoned on the island of Manus.67 This is evidence that despite the efforts at total state control, detainees have found creative ways to invite all to witness and experience their legal limbo. Lip-sewing has forced the public to confront unresolved issues, from detention center conditions to the plight of asylum seekers locked in prison-like spaces for feeing persecution in their country. Nevertheless, the powerful symbolism of lip-sewing can lead to deeply reactive forms of public denial and projection. For example, Cox and Minahan explored how the media portrayed lip-sewing as a feminized activity, symbolic of backwardness and barbarism.68 Because children also joined the hunger strike and some sutured their lips, their parents were accused of forcing them to do this to “exploit” public sympathy. These perspectives did not just distort the reality of the lip-sewers’ actions but interestingly dismissed and pathologized them by casting them as irresponsible parents and, thus, bogus asylum claimants. In particular, bad motherhood was projected onto these asylum seekers.69 These deeply reactive interpretations diverted attention from the stark reality the refugees faced and denied complicity with these circumstances. To the extent that gender played a role in this narrative, these claims diverted attention from what was a stark and meaningful gesture—sewing one’s lips to hyperbolize and challenge the law’s attempts to silence them and render them invisible.70 In this way, protesters’ silence challenged state attempts to silence them, as lip-sewing hyperbolized and disrupted state control.71 Cox and Minahan suggest that suturing aimed to destabilize the sensory regime by caricaturizing gendered and racial representations of asylum seekers, pushing witnesses, readers, and television audiences beyond their comfort level. On the other hand, they conclude that protesters “reinforced … [their] invisibility” and that lip-sewing must be interpreted as a form of “masculinist assimilation” and “reinforcement” of speechlessness or “invisibility.”72 Similarly, Nithya Rajan speculatively concludes that even sympathetic photos of lip-sewing campaigns “evoke [only] shock – not pity.”73 Despite their insightful analyses, these authors support the government’s distorted reaction to this campaign with these particular

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conclusions, not to mention being overly wedded to a state-centered analysis of power. Ayten Gündoğdu likewise fnds the lip-sewers’ efforts as a sign of deep desperation and futility: lip-sewing is not taking a knee at a football game, for example.74 One is civil protest as a member of a political community, whose “speech” is meaningful through its properly political expression. The other is performed in a legal limbo absent a visible political community and thus is meaningless due to, according to her logic, the stateless’ non-personhood. While her critique primarily aims at the state powers silencing refugees, she also fnds the protest method lacking because “without words, it cannot reveal ‘who’ the actor is.”75 For these reasons, Gündoğdu concludes that “it becomes impossible to get their utterances recognized as meaningful and relevant speech.”76 In contrast, Bargu interprets these acts as self-sovereignty and parrhesiastic practice, and Lucy Fiske, who performed in-depth interviews with former Australian detainees, fnds that their self-harm enabled self-actualization and a more positive outlook.77 Gündoğdu denies the suffciency of these protests in and of themselves and second as challenges to state sovereignty. That is, she disagrees that embodied protests are “political,” “democratic,” and/or “emancipatory” with each “improper event.”78 In comparison to Fierke (discussed in the introduction and below), she does not account for the fact that trauma produces a different set of circumstances that often defes everyday logic and which cannot be adequately captured by a community’s language.79 Despite acknowledging that these campaigns do draw media attention and can lead to greater awareness of conditions of confnement, Gündoğdu still concludes that they affrm rather than challenge violent and invisible detention conditions.80 Her analyses of self-harming protest are interesting but also narrow; it is clear that lip-sewing did provoke signifcant reactions. These reactions challenge the conclusion that there was indifference, ignorance, and/or no political change. In fact, some lip-sewers argued that they did feel like the public engaged with them sympathetically, despite government pathologization: John Howard was saying “they are criminals” and media were backing it up. But after that we saw how it changed and people started to … journalists, lawyers, everyone, those who saw something in there, you know. I mean, they sew their lips. “Why do they sew their lips?” Not just “seen sewing lips” but going for the reasons of why. Just asking a question … That’s what was good about all these protests, you know, just refecting our feelings to another human being, just to see us not as a danger but as another human being who escape from danger. 81

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Gündoğdu also views the subsequent closure of Woomera as an empty victory since the entire detention system did not shut down.82 I fnd, to the contrary, the detainees’ embodied protest became a subject that was over-determined—lip-sewing became the focus as the refugees’ stories and their pathways to Australia were ignored or effaced in the mainstream press. Gendering and racializing stitching as feminized and “Middle Eastern”83 did not render these practices invisible but rather entailed very public forms of denial and a refusal to engage authentically with detention conditions and asylum seekers’ plight. The distorted lens with which Australian politicians and some of the public viewed embodied protests was a way to homogenize and depoliticize the unique stories of arrival on the shores of this country. This sort of discourse indicated that if they “all” act this way, there is nothing worth considering about each individual protester.84 This depoliticizing move ignores the outward gesture that lip-sewing indicates, cutting off the possibility of recognizing the patterns of fight that would make Australia the logical country in which to seek refuge. In effect, Australian asylum law and some public reactions produced binary modes of operation of “good citizens versus bad refugees” and “civilized mothers versus barbaric ones.”85 In contrast, protesters and their supporters have created connections through motherhood and grandmotherhood, countering these pathologizing narratives.86 Taking these reactions together, one cannot argue that there was no reaction or that the protests were invisible. The lip-sewers have used whatever means they could to speak to NGOs, the media, and sympathetic citizens. Unsurprisingly, the protests also inspired grassroots activism, including demonstrations and attempts to cut down barbed wire and to help detainees escape.87 A lawsuit has now been fled on behalf of 1,200 detainees claiming to have been subjected to neglectful and cruel treatment, and Boochani has been treated as a celebrated artist-writer by Australian universities and arts institutions even while he was still trapped on a remote island.88 Thus, while embodied protest may have provoked reactive and pathologizing responses, it also brought attention to detainees’ backgrounds and conditions when simply fling bureaucratic grievances had not.89 In both cases, self-harming protest reached its audience and shook people out of their complacency. 2.2 US hunger strikes

Like Australia, the United States has implemented harsh policies for people arriving at border points without previous authorization.90 The country has also detained and deported a record number of long-term residents in the past twenty-seven years. This is because US policy operates on the “eternal

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guest model,” in Daniel Kanstroom’s words, such that long-term residency is not always enough to assert Fourteenth Amendment rights. To put it differently, even when people enter this country, they often live in fear of forced removal.91 This fear was heightened during the Trump administration: the administration’s discursive attacks on migrants, caging unaccompanied children, separating families at the border (and putting the children up for adoption), and instituting travel bans, all led to stress in the resident migrant communities.92 However, none of Trump’s policies was unprecedented: family separation at the border was only conceivable in a context in which racial profling, forced sterilization, and minute control over the body have been legally authorized as part of foreign policy over the past century.93 Even before Trump was president, several refugee mothers reacted to this sub-human treatment and indefnite detention by staging hunger strikes.94 A signifcant number of these women had been detained because they were seeking refugee status based on some combination of intimate partner abuse and more public forms of gendered assault by drug cartels, which the UN has classifed as “femicide.”95 Despite the UN’s challenges to the arbitrary detention of asylum seekers by the United States, detaining them continues largely unabated. Although the US government recognizes the gendered elements of women’s and children’s recent fight to the US southern border from Central America, vocal conservatives have argued that a good mother would never expose her children to such a dangerous journey.96 Accordingly, it is held that because mothers appear “illegally” at the border, they are criminals who can have their children removed from them.97 Family separation essentially reduces female refugees to their motherhood status and then attacks the very foundation of that parental connection.98 Their subsequent detention is interpreted as material proof of this criminality, which is construed as further “evidence” that they deserve punishment and family breakup. A specifc example of protest occurred in 2016 when women asylum applicants in detention, who were locked up with their children in Texas and Pennsylvania, went on a hunger strike.99 As the mothers called for legal action to end their unlawful detention, the government issued a gendered threat: Female asylum seekers held with their children at the Berks County Residential Center in Pennsylvania say they have been “pushed to suspend” a two-week long hunger strike “due to threats from immigration offcials.” In a letter to reporters, 22 mothers who refused meals to protest their indefnite detention said they were told: “If our health is weak, the government can take our children from us and send us to jails for adults.”100

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The threat of family separation compounds the already traumatic experiences of detained women who fed dangerous circumstances in their home country, often encountered violence on their pathway north, and then must endure yet another set of traumatic and unjust conditions.101 Immediately separating refugee women from their children, no matter how old they are, is deeply bio-political: foreigners are criminalized based on their status rather than any illegal act and then face losing their children because of this existential illegality. This removes the last thing these families had—each other—in a quest to disrupt and destroy these connections in the name of a purportedly unifed sovereign state. The group Freedom for Immigrants reports that roughly 1600 detainees have staged hunger strikes from 2015 to 2020. They note that since 2018, these protests have increased.102 One leader of the 2020 hunger strikes in the Irwin County Detention Center in Georgia made it clear that the strikes were aimed at the outside world, as he and others unrolled a sign, reading: “We wanted to tell you that we are going to go on a hunger strike. We ask you to join us.”103 As Armbruster-Sandoval argues, hunger does not merely “communicate” but can show the “brutality” of the state, which is a deeply political act.104 It is also an empowering tactic: researcher Lucy Fiske concluded from her interviews with Australian detainees that although they: had less political, material, and semiotic power than the state … they retained human capacities for thought, speech, and action; they retained agency. Resistance was an important way for detainees to experience their own agency, to take a decision not to eat the food on offer, or to create a disturbance and force a response from the authorities such as through self-harming or breaking a piece of camp infrastructure.105 As one of Fiske’s interviewees, Shahin, remarked, “Just to show you are alive, you could make a decision to stop receiving anything in your body. That would show that … you could make a decision, in a place that you can’t make any decision.”106 The common thread of detainees’ experiences in both countries is experiencing a deep form of legal abandonment coupled with signifcant control over their physical well-being. Many are driven to self-harming acts to protest against deprivation, bodily control, and the injustices of the refugee system. Colin Dayan, whose work largely focuses on prisoners in solitary confnement, argues that “hunger strikes are the only weapon these prisoners have left. Legal avenues are closed. Communication with the outside world, even with family members, is so restricted as to be meaningless. Possessions—paper and pencil, reading matter, photos of family members,

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even hand-drawn pictures—are removed.”107 Solitary confnement is a site of “cultivated debilitation” in which cutting, suicide attempts, and other forms of self-harm are preferable to losing touch with reality.108 While self-harming acts are not always interpreted as political, they occur in a deeply political context that seeks control over voice, appetite, and bodily sensation—self-harm resists these moves with affective and sense-oriented countermoves. Like detainees in Australia and the women mentioned above, hunger striker Ajay Kumar, who was detained in the Otero County Processing Center in New Mexico, refused food for nearly two months in 2018.109 Kumar fed political intimidation in Haryana, India, only to experience neglect and abuse in US detention, while also facing the legal limbo of the refugee process. Accordingly, he decided that he must take matters into his own hands through a prolonged hunger strike. Although food withdrawal weakened him and led to partial blindness and memory loss, he felt that a hunger strike allowed him the freedom he otherwise did not have: “I decided if I am going to die, I’ll die here.”110 He continued the strike despite facing an additional form of persecution—esophageal forcefeeding, which is considered torture by most physicians—but argued, “I only thought, freedom or death—I’ll get one of the two.”111 Kumar and other detainees were placed in solitary confnement for minor infractions, deepening the levels of control and abandonment by the state. COVID has exacerbated conditions at these facilities as it spread throughout the centers, and the Trump regime deported very sick detainees back to their countries of origin. For example, “dozens of Guatemalans” were “fown home by” Immigration and Customs Enforcement (ICE) from March 2020 onward although they tested positive for the disease.112 At the same time, hunger strikers at the infamous Irwin County Detention Center (ICDC) facility, which has been implicated in forced sterilizations of detainee women, brought attention to the spread of COVID in this Georgia facility, helping to shut it down.113 As hunger striker Nilson Barahona-Marriaga stated: “the closure of ICDC was not a result of the Biden administration, but ‘the people who spoke out against the abuse they experienced and who took to the streets to demand ICDC’s closure’.” This activist said that when a community comes together, it can “accomplish anything”: “What I am telling people is this: This is happening because of the people who spoke out. There is no other reason this is happening. I feel happy and I want us to celebrate this moment, but it is not the end. We have to close down Stewart and every other detention center.”114 Barahona-Marriaga clearly invokes a political community beyond the detention facility in his actions and statements as well as a clear political goal, even if he lacks formal rights.115

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As I argue below, we can appreciate self-harming protest as a reaction to the allostatic load detainees experience and as richly symbolic of the effects of sovereign authority and undemocratic processes. Self-harm is a signifcant form of control over one’s body and affects when the state has sought total control over bodily existence.116 When the protesters have been discursively feminized and/or racialized—abuse survivors are criminalized due to their “bad mothering,” for example—embodied protest not only dramatizes apparent weakness and voicelessness but also defantly resists the myriad forms of social and political control over people construed as quasi-criminals. As Judith Butler has argued, this sort of performance effectively “mocks the notion of an original”—in this way, biologically determinist arguments that pathologize self-harming protest explode.117 Below, I explore the political context in which detainees choose to self-harm. 2.3 Interpreting trauma: the political signifcance of detainees’ allostatic load and self-harming protest

What kind of bad person am I that this has happened to me?118 Child detainee, Australia ~ Quite a lot of recent public health work has documented and analyzed the psychological and physical effects of previous trauma forced migrants experience, combined with the treatment by the “warfare” or sovereign “host” state of these subjects as criminal, illegal, and sub-human, drawing on imperial and racist logics.119 These studies importantly chronicle the overwhelming effects of the stress of refugees and undocumented fight, leading to stomach aches, headaches, depression, and, in Sweden, “resignation syndrome.”120 Public health experts have found that refugees and undocumented individuals who take risky journeys across fortifed, hostile borders experience trauma, illness, and deprivation in at least three stages: frst, as a result of having faced dire circumstances in their home countries; then experiencing stressful, often life-endangering conditions in their journeys to the country where they hope to seek refuge, and a third time, when they are treated as outlaws at the border of the host country, detained, and threatened with deportation.121 In fact, the allostatic load these individuals experience becomes most severe when detained, after having experienced these previous circumstances.122 However, most research shows that this was not a foreordained outcome—the accumulated stress of diffculty, risk, and hardship during an individual’s fight does not necessarily lead to self-harm.123 Rather, the

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circumstances of detention in both countries—again, food deprivation and poor food options; little to no furniture; no doors on toilets or showers; little to no access to soap or masks for COVID; little to no access to legal counsel; and treatment as prisoners rather than as refugees—have often pushed refugees over the edge.124 Feeling as if they have been jailed without charge and are confned indefinitely—often after escaping diffcult circumstances in their home countries and traumatic conditions en route to these new countries—detainees do fle complaints and speak out against their circumstances as indicated above. However, over time, many realize that from the smallest demand (e.g. medicine for a headache) to asking that their cases be reviewed by migration agents in a timely manner, their efforts are often ignored or they are subjected to retaliation.125 Many then turn to self-harming protest; in most documented cases, precipitating events have spurred selfharming protest, from the passage of time to the denial of refugee status to a government slowdown in processing applications. Some researchers, who have worked directly with detainee children, have discerned a period of “hope” when detainees frst arrive and fle a refugee petition, which often gives way to extreme “despair” and “hopelessness” after a period of time when these forced migrants realize that they are simply languishing in prison.126 This fnding is refected in the literature more broadly: selfharming protest occurs in both the optimistic stage, when refugees stage a hunger strike together, with a defant and resolute stance, or, in the more pessimistic stage, when detainees have lost hope and/or have gone on too long with severe illnesses and mental issues untreated.127 Cutting, suicide attempts, hunger strikes, and lip-sewing in both stages—both optimistic and defant or resigned and depressed—communicate these experiences, the allostatic load these individuals experience, and their reaction to the utterly stark legal circumstances of a detainee cell. Refugee children interviewed at Nauru have framed suicidal thoughts as a product of “sickness” and “hopelessness” but also clearly linked to their inferior, criminalized status. As one teen remarked in 2014: I was a detainee, a prisoner, a criminal, a person of less value, and the guards did their best to make me believe that. Every little thing about my life was a painful experience, and there is only so much strength that someone can have. I attempted suicide multiple times by poisoning myself or taking sleeping pills. I became so sick by the end of our time in Nauru. 128 In the same group of interviewees, another teen argued that because of poor treatment and intolerable conditions, she wanted to die: “We are

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suffering here, as the marquees have no air-conditioning and it is very hot. We also have no water at times. I am under-aged. I am 16 years old and I want to be free of this life. This is our lives.”129 Rather than idealizing self-harming protest, attention to allostatic load allows us to understand the amount of trauma caused by hostile rhetoric, criminalizing practices, and very bad detention conditions. At the same time, we can appreciate how self-harming protest communicates something more—or at least different—than the written word, in that it literally signals extreme need and desperation. These actions destabilize by-standers who witness self-harming protest, as individuals must encounter and deal with the weakened body. It is important to note that an individual’s health is part of a “public” even if this public consists of others who are confned, detainee guards, medical personnel, and administrators. In nearly every case, protest details have been leaked by detention employees, as well as by NGOs that are allowed some minimal contact with these centers. This is evidence that witnesses conceive of themselves as part of a community. The community does not have to be pre-established or even “visible” in the way that Gündoğdu suggests but rather can be a “community to come,” developed through “dialectic tension that produce[s] a particular praxis” aimed at justice.130 However, just as importantly, these behaviors communicate something: they have a logic and rationality of their own that go beyond bureaucratic logic. In theatricalizing trauma through self-harm, detainees hyperbolize their experiences of “meaninglessness and silence” in contrast to grief, as Fierke defnes it, which is experienced in a community often drawing on a symbolically rich “shared language.”131 Embodied acts affect administrators and guards at a visceral level, forcing them to suffer with the inmate and experience related, if not similar, forms of revulsion and pain.132 Selfharm can link societal grief and individual trauma by provoking sensory instability while interrupting bureaucratic processes, thus challenging the temporal rhythms of sovereign bureaucratic power. As these detainees are in legal limbo, their protest brings others into this limbo, creating “dissensus” rather than mere “dissent.”133 In contrast to the binary indicated by dissent, which operates along a formal–informal, legal–illegal axis, dissensus entails a reconfguration of established political arrangements. Drawing on Derrida’s “deconstructive episteme,” Peter Westoby argues that community building can work to overcome “deadening binaries,” opening spaces of hospitality to migrant others in the context of openended justice.134 At the same time, even as protesters undermine their physical and mental health, they psychologically strengthen themselves through this homeopathic harm, asserting their political voice and reframing damaging

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narratives. As Fiske argues, self-harming protest “served important existential functions … [it was] a way for detained refugees to experience their own agency and with it, restoration of some of the ‘essential characteristics of human life’ and a means to use their reduction to ‘bare humanity’ as a basis for insisting upon a place in the polis.”135 Her interviewees and many others have explained their protests as wanting to “call attention” to their conditions, invoking human rights language, and explicitly critiquing state offcials. Importantly, in most frst-hand accounts (including statements quoted by researchers and interviewers), most protesters wanted to be viewed as human beings—their protests communicated pain and trauma and indicated a complex story that their detention did not. In making others feel repulsed, guilty, or empathetic, embodied protest pushed others to think and act when they had not previously.136 This was not an assertion of bio-political legitimacy but—I believe—is connected to Arendt’s famous linkage between political status and humanity. Only those viewed as having rights, including freedom of expression, are (perhaps paradoxically) viewed as human.137 When we understand self-harming protest as political and communicative, we can also acknowledge a certain type of political psychology rooted in totalizing conditions.138 The situations in which hunger strikes, attempting suicide, and lip-sewing occur cannot be reduced to one another, but there are affective reasons each practice is satisfying in some way. The deep pain one can feel in these circumstances, while also being blocked from any alternative, is alleviated by the administration of self-willed and self-managed pain. If you’re going to starve and isolate me while also effacing my legal existence, I will choose the pain I feel, I will choose its meaning, and its time and place. As these protesters have attested, self-harm and hunger strikes feel psychologically more powerful than remaining passive, even if passivity cannot be judged or criticized. The use of self-harming “force” in a context of hierarchical and unjust violence achieves a psycho-political alteration of the circumstances and feelings of an individual-victim’s agency, according to detainees, prisoners, and torture victims.139 Self-directed pain or withdrawal from food confronts dehumanizing indifference or disrespect; it involves a pain that puts an end to sleeplessness, loneliness, and unwanted physical violence. It is a pain that stops time, arrests unwanted assault, and brings a self-fashioned “sovereignty” forward, as Bargu contends.140 Importantly, self-harming protest does not require perfect health or a perfectly sound mind often ascribed to democratic citizenship (both of which are unattainable ideals anyway). These acts can be simultaneously “pathological” and political, destructive and positive, self-harming and politically agentic. At the same time, Fierke

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points out that expressing feelings of trauma is a form of “evaluative judgment”—she draws from Martha Nussbaum’s argument that emotions are “appraisals or value judgements which ascribe to things and persons outside the person’s own control great importance for that person's own fourishing.”141 Trauma does not occur in the individual per se but occurs when others do not value the other person’s expression of pain and grief—in this way, trauma is both public and yet signifes “unresolved mourning.”142 An important political psychology is at work in embodied protest that is irreducible to other forms of protest and dissent. This psychology is at once a gesture of self-assertion and a passionate attempt to connect with others. Self-harming protest can be interpreted as politicizing otherwise isolated, emotionally sterile conditions that are seemingly apolitical in their extreme rightlessness. These forms of protest confront indifference and invisibility with passion, connection, and political signifcance. Importantly, self-harming protest need not be formally successful to be politically signifcant nor does it need to be made more “legible” for power to be reconstituted.143 The act itself is located within a relationship of power that is, in fact, “speaking” to the community and state actors. Because self-harming protest occurs in highly undemocratic conditions of captivity and state attempts at total control over social interactions, the fact that it can occur is evidence that it alters state sovereignty, even if it does not lead to a clear policy or institutional change. Sovereignty is thus a political relationship between the “sovereign” and the subject, even if this relationship is not politically legible in terms of rights, measurable in terms of policy or institutional change, or recognizable in terms of citizenship status. Relevant to this analysis, Veronica Zebadua-Yañez draws on Monique Wittig’s work to conceive of counter-sovereignty. Zebadua-Yañez’s examines dissent against and challenges to sexism and heteronormativity, as dissenters (Wittig’s “elles,” the feminine they) “disorder the order of oppression. Their counter-sovereign practices are anchored in the will to name oneself, that is, the will to subjectivity.”144 In the case of migrant protest, dissent is not just discursive but entails action and potential bodily harm, as it aims to challenge incorrect and damaging narratives, as well as forces the dominating other to suffer with them (in the case of detainee protests). In the context of Pelican Bay prison hunger strikers, Zamalin insightfully argues: Hunger striking replaces the idea of self-defense with self-sacrifce to highlight the intensity of state violence. State violence is so devastating that the only solution is to double down on self-directed violence.

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The state’s commitment to protect a citizen’s body as expressed in the Ninth Amendment’s protection against cruel and unusual punishment is beyond nonexistent. The state actually does the exact opposite: It destroys the body and mind. By dramatizing how prisoners have commitments to transcendent ideals such as human dignity and justice, hunger striking challenges the idea of a fxed criminal identity—the assumption that those who commit crimes are somehow defned by self-interest or immorality. Like the civil rights protestors who continued to march in the streets despite the racial violence that threatened them and thus refected their exemplary civic love of America, hunger strikers say that their commitment to democracy is so intense that they are willing to die for it145 Zamalin’s emphasis on the commitment to democratic ideals is crucial to understanding self-harming protest, which stands in stark contrast to the brutality of detainees’ and prisoners’ treatment. Creating disorder in an already-violent context necessarily requires coercion—even assertions of peaceful agency (as with faith-based sanctuary) involve “violence” because they occupy space as “unauthorized” individuals, deploying power against armed federal authorities who can legitimately use force without meaningful scrutiny.146 As Zebadua-Yañez explains in the context of fghting heteronormativity, this is not a mere reaction, but an assertion of sovereignty.147 Similarly, detainee and sanctuary protests expose the injustice of migrant enforcement as well as the range of microlevel controls that characterize detention. Faith-based sanctuary often reveals the minor “infractions” that led to an order of deportation, which can often involve a bureaucratic agent’s failure to sign off on a report. In detention, these protests can be exercised in individual cells, but they often occur at the same time. Those who only count mass protest as legitimate depoliticize protest in unfree conditions and refuse to recognize these acts as anything more than individual acts of abjection by anonymous, mute, ungrievable bodies. This interpretation is a choice rather than an accurate assessment of conditions on the ground. In particularly oppressive circumstances, decolonial authors like Frantz Fanon and Achille Mbembé have argued that violent protest is not only psychologically transformative but also entails the possibility of sickness, injury, and death, and, thus, is “necro-resistance.”148 In this way, they do not idealize self-harming protest but recognize its tragic character. Nevertheless, as Fanon holds, a psychological alteration occurs when a subject goes from the position of a powerless victim to a warrior, willing to wield tools of violence and sacrifce his/her own

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life if necessary.149 Self-transformation occurs in relation to the outside circumstances imposed by the imperializing country—resistance can be homeopathic, satisfying, and an act of self-sovereignty. “Necro” does not mean futile or invisible but, rather, that life itself is at stake.150 In fact, as I have argued in the previous chapters, the “necro” and “thanatic” circumstances of detainees and would-be detainees is set by the state and not the individual. In turn, forms of necro-protest seek to alter the self and to gesture outward to a public that often disavows responsibility for these conditions through forms of denial and projection. As Jacqueline Rose argues about Palestinian female suicide bombing, embodied protest is a “passionate” gesture towards a public that otherwise reduces these experiences to individual pathology or criminality.151 Although situated in a very different context, Rose’s insights about female Palestinian suicide bombing are relevant to my reframing of these issues: to Rose, self-harm is not merely a terminal act on the self but seeks to resist bodily coercion, to alter sovereign power, and to passionately connect with others, communicating pain, hatred, and unfulflled hopes of peaceful coexistence. Unlike the protests I am analyzing, the aim is not self-harm per se but to die on behalf of one’s beliefs and passionately connect with the oppressor who refuses any contact.152 What is interesting is the desire to connect with one’s oppressor at such a level—to fght the violent abandonment one experiences with a messy and destructive response that requires sacrifce and resoluteness. The intimacy of these acts reconfgures relationships in a way that is not cold or indifferent but passionate, attached, and seeking connection, if only in death. In this way, the act and its consequences are wholly political as the individual who identifes as a victim chooses to die on her own terms. At the same time, the party being communicated with must suffer with their “inferior,” experiencing discomfort and unexpected sensory stimulation—that is, bodily protest “disrupt[s] the sensory regime according to which some groups are seen as full members of the polity (and thus as possessing the full speech of citizen) while others occupy a diminished civic status (they speak only ‘noise’ that can be tuned out, dismissed or ignored).”153 Bodily protest pierces through the bureaucratic shield, reconstituting the political and allowing for us to understand the “transformative power” of acknowledging “the affective realm” as a “site of knowledge.”154 This framing situates self-harming acts in the specifc political context in which they occur, rather than pathologizing them and participating in the historical trend of colonial racism, sexism, and class bias.

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2.4 Conclusions: democratic state of exception

As crimes of status and racism (on the basis of country of origin) are key parts of each country’s migration policies, this does not merely diminish the possibility of democratic politics distinct from life-sustaining activities but affrms biologically deterministic notions of embodiment and normative understandings of class, race, able-bodiedness, heternormativity, gender, and citizenship status. Self-harming protest in captivity is a functioning element of this power relationship, altering the contours of sovereignty through resistance, whether it is for a moment or it leads to a longer-term policy change. More broadly, self-harming protest challenges the “epistemic injustice” of being characterized as criminal, dysfunctional, or barbaric—through this activism, detainees “enact a democratic politics of the part-taking of those with no part.”155 This, in turn, creates a democratic state of exception—producing democracy where it is not authorized nor offcially legible.156 In contrast, “epistemic injustice” involves a “series of images and tropes that center on themes of deviance and aberrant behavior” as detainees’ reports of their experiences and hopes are “discounted,” thereby producing a “credibility defcit.”157 Bodily protest does not aim at mere recognition but reconfgures sovereign arrangements to purposefully create uncertainty through “improper” acts and even inject “democracy” where it purportedly does not belong.158 Activism also allows detainees a new vision as they begin to view themselves as fghting for a future political project and/or to enact solidarity with others, even if in separate cells (as with Ajay Kumar’s fellow inmates who joined his hunger strike, even though he was not aware of this at the time).159 In sum, despite the concerted and intentional nature of self-harming acts, they have been viewed by many (but not all) as rooted in individual pathology and, thus, aberrational; apolitical because the protesters are rightless and invisible (according to some sympathetic analysts); or performed by “illegal” and, thus, criminal and illegitimate refugee petitioners.160 Importantly, these perceptions depoliticize embodied resistance and misreckon the nature of sovereign power, which is not static even in highly asymmetric circumstances.161 What occurs in mainstream reactions to embodied protest is not quite ignoring bodily resistance but dismissing its potential to communicate to others. Aside from historical prejudice, the mind–body split embedded in ideas of rationality can also be at play: if the body is viewed as merely a carrier for the mind and spirit, selfharming protest would be cast as defcient in its ability to clearly convey what is being protested or demanded.162 However, these misunderstandings do not indicate a failure of this protest method but illuminate how the

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context is so radically different from everyday politics, entailing minute control over gestures, food intake, and sleep, in a potentially violent and always-coercive context, that conventional interpretations do not ft. In short, these conditions are forms of “bodily appropriation” that cannot be reduced to mere liberty deprivation.163 Detention circumstances create and reinforce the multiple traumas of inmates, producing conditions that do not resonate with everyday life—indeed, they are characterized precisely by their abnormality and disorienting quality such that language—particularly the bureaucratic language normally used to fle grievances, is not only inadequate in representing these circumstances but also adds to the epistemic disconnect that occurs.164 From a different perspective, there is a failure to recognize the bio-political elements of sovereign power that invite a self-harming response.165 The degree of control in detention, combined with the horror of violent captivity, is perhaps beyond comprehension and the refusal or incapacity to recognize the radically different political context these individuals are in leads to a misrecognition of the import and depth of their protests. As I have argued, whether successful or not, self-harming protest has been reported by detainees to give them a feeling of strength, autonomy, and political agency. Accordingly, we should view detainee self-harm, no matter how mentally destabilized the person is, as not only a refection of their political, captive circumstances and implicated in neo-imperial relations but also as self-willed and agentic. Harsh reactions to these protests—from relocating the individuals to other centers to “punish” them to solitary confnement and/or esophageal force-feeding of conscious individuals—clearly aim at reasserting sovereignty at the bodily and mental level. That is, they aim at producing docility and/or “learned helplessness.”166 If nothing else changes, we must view self-harming protest as relying on the freedom of expression provided for by human rights—in short, we must stop retaliatory practices in the short-run but, ultimately, dismantle the system entirely. Detainee protest is not just an individual cry for help but also a broad expression of the government-induced trauma that forced migrants experience—as democracies, the United States and Australia must end mass detention and deportation.167 The public today is not altogether ignorant of what occurs in detention, but, clearly, some reactions divert from the real issue(s) as public discourse can sink into denial, projection, and wish fulfllment. As Fierke’s work suggests, denial of the political nature of detainees’ pain may also be due to the disjuncture between collectively experienced grief and its apparent antithesis, the isolation of personal trauma.168 Self-harm compounds this trauma and ensures that others “suffer-with,” thus linking (societal) grief and (individual) trauma. While trauma may signal the absence of

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meaning, incomprehensible pain, and, thus, undecidability—not merely at the intellectual (a loss of words) or a legal level (a legal limbo) but also at the sensory level—self-inficted harm strengthens the subject, even in her undoing, and seeks to destabilize witnesses, whether proximately or at a distance. Public forms of denial and distortion highlight the inability to deal with unresolved issues of a clearly societal and not individual nature. In considering the critiques of and projections onto these protesters, I would also suggest that a retroactive teleology is at work that demands a clear institutional or policy change as the measure of a movement’s success. In assessing the worth of resistance through elite policy change, we draw on a formal state-centered defnition of the political. When we explore detainee protest, we can see that even absent clear policy change, power relations do shift. For example, Gonzales points out that hunger-striking mothers in US detention did manage to educate the public, as well as procuring shorter terms in detention at that time.169 Important challenges to Australia’s abusive treatment of refugees have also occurred due to repeated detainee strikes, even as the country has responded by placing them in even more remote areas today. These sorts of positive changes occur because when refugees resist coercion, they “speak” to the state and the broader public. In the case of the Woomera lip-sewers, the government’s need to create a powerful counter-narrative to the one indicated by the lip-sewers is not evidence of the stateless’ muteness or invisibility but rather the stark power and simplicity of this form of protest. Self-harming protest exposes the on-going pain and suffering of a mother’s body or refugees’ political speechlessness as these statuses are built into prison and detention conditions. Thus, the problem is not so much invisibility or lack of acknowledgment but the more general refusal to authentically engage with these unresolved issues. Nevertheless, the fact that self-harming protest can occur proves that the state’s desire for wholeness and uniform, total power is merely a wish. In these circumstances, self-harming protest may “speak” more loudly than any protester with a bullhorn because it directly challenges state sovereignty and discretionary power over migrants in circumstances of neartotal power. It creates dissensus and a democratic state of exception. The challenge is successful insofar as it does occur, even in the worst circumstances. It is in no need of interpretation—it is political—but the circumstances which make it political (and thus gendered, racialized, and based on alienage, class position, and a myriad of other vulnerabilities) must be contested and made more visible. Such protests are an attempt at “intimate embrace” not just of love and seeking connection but also of hate and deep pain. Even if rooted in discomfort and mental destabilization,

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detainee self-harm aims at constructive destabilization. As readers who know about these circumstances, we are the audience and we are the community that is being embraced—the key is to act on this acknowledgment. In the next chapter, I examine local sanctuary and faith-based sanctuary, which—like self-harming protest—aim to challenge arbitrary sovereign power and achieve change, from halting deportations to refusing cooperation with ICE. Like self-harming protest, both forms of sanctuary actively oppose mass detention and deportation, interpreting it as punishment and exile without proof of guilt. And like self-harming protest, sanctuary participants do not merely voice their opposition but physically occupy space from an “unauthorized” subject position. Notes 1 Behrouz Boochani, “For Eight Years, Australia Has Been Taking Refugees as Hostages,” The Guardian, July 20, 2021, https://www.theguardian.com /commentisfree/2021/jul/21/for-eight-years-australia-has-been-taking-refugees-as-hostages-its-time-to-ask-who-has-benefted. 2 Submission 21B, p. 86, in Dani McAlister, et al., “‘I See Nothing but a Fence of Tears’: The Impact of Australia's Immigration Detention and Border Protection Policies on the Asylum Seeker Child's Geographies of Hope and Hopelessness,” Jeunesse Young People Texts Cultures 11, no. 2 (February 2020): 73–98. 3 I make two claims based on inferences from research (but not statistics, e.g.): self-harming protest occurs at a higher rate inside detention rather outside of it; second, that detainees often begin self-harming after spending some time in detention. See Lucy Fiske, et al. “Manus Island Hunger Strikes Are a Call to Australia’s Conscience,” The Conversation, January 18, 2015, https:// theconversation.com/manus-island-hunger-strikes-are-a-call-to-australias -conscience-36419; Lucy Fiske, “Human Rights and Refugee Protest Against Immigration Detention: Refugees’ Struggles for Recognition as Human,” Refuge 32, no. 1 (2016): 23–24; McAlister, et al., “‘I See Nothing but a Fence of Tears’.” 4 See Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research 8, no. 4 (2006), 387–409; Joseph Pugliese, “The Incommensurability of Law to Justice: Refugees and Australia’s Temporary Protection Visa,” Law and Literature 16, no. 3 (Fall 2004): 285–311. 5 See Ayelet Shachar, “Beyond Open and Closed Borders: The Grand Transformation of Citizenship,” Jurisprudence 11, no. 1 (2020): 1–27; Hannah Newlin, “‘Constitution Free Zone’ Questions Border Patrol Security & Search and Seizure Laws,” McCuistion TV Show website, June 16, 2010, https://frtv.org /2010/06/constitution-free-zone-border-patrol-security -search-and-seizure-laws/; Pugliese, “The Incommensurability of Law.” 6 Kathleen Arnold, Arendt, Agamben, and the Issue of Hyper-Legality (New York: Routledge, 2018); Fiske, “Human Rights and Refugee Protest”; see US-based Freedom For Immigrants, an advocacy group that monitors conditions in immigration detention centers: https://www.freedomforimmigrants .org/; McAlister, et al., “‘I See Nothing but a Fence of Tears’.”

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7 Australia employs the same tactics. See David Isaacs, “Are Healthcare Professionals Working in Australia’s Immigration Detention Centres Condoning Torture?” Journal of Medical Ethics 42, no. 7 (July 2017): 413–415. In particular, he argues: “In the past, some Australian healthcare professionals have helped force-feed detainees who go on hunger strike and helped chemically restrain people for deportation, acts that collude with signifcant infringements of autonomy and human rights” (413). Motta remarks that hunger strikes among asylum seekers date back to at least the 1980s and in 1992, three Cambodian women at Villawood were subjected to forcefeeding. Francesco P. Motta, “Between a Rock and A Hard Place: Australia’s Mandatory Detention System,” Refuge 20, no. 3 (2002): 30 n6. 8 Amie Thurber and James Fraser, “Disrupting the Order of Things,” Cities 57 (2016): 55–61. 9 Bio-political: racist, sexist, and other biologically deterministic categories. 10 See in particular, Edward D. Vargas, et al., “Fear by Association: Perceptions of Anti-Immigrant Policy and Health Outcomes,” Journal of Health Politics, Policy and Law 42, no. 3 (June 2017): 459–483; see Janet Cleveland, et al., “The Harmful Effects of Detention and Family Separation on Asylum Seekers’ Mental Health in the Context of Bill C-31. Brief submitted to the House of Commons Standing Committee on Citizenship and Immigration concerning Bill C-31, the Protecting Canada’s Immigration System Act,” April 2012, https://refugeeresearch.net/wp-content/uploads/2016/11/ Cleveland-et-al-2012-Detention-and-asylum-seekers_mental-health.pdf; Juliet Cohen, “Safe In Our Hands?: A Study of Suicide and Self-Harm in Asylum Seekers,” Journal of Forensic and Legal Medicine 15, no. 4 (May 2008): 235–244; and Pugliese’s analysis of a refugee’s death due to “fear” in “The Incommensurability of Law.” 11 This statement is based on an extensive review of the literature but not statistics, as both governments refuse full transparency about detainee conditions, especially when they self-harm. See the brief but important Isaacs, “Are Healthcare Professionals Working in Australia’s Immigration Detention Centres Condoning Torture?” In 2015, Australia passed the Border Force Act, which prohibits all offshore detention center personnel, including medical professionals and teachers, from sharing any information about detention center conditions, stories, and/or experiences. 12 Rozina Ali, “A Hunger Strike in ICE Detention,” The New Yorker, October 29, 2019, https://www.newyorker.com/news/as-told-to/a-hunger-strike-in -ice-detention. 13 On “allostatic load,” see Seth Holmes, Fresh Fruit, Broken Bodies: Migrant Farmworkers in the United States (Oakland: University of California Press, 2014) and Sarah Willen ed., “Migration, ‘Illegality,’ and Health: Mapping Embodied Vulnerability and Debating Health-Related Deservingness,” special issue, Social Science & Medicine 74, no. 6 (2012): 808–810 (she uses the term “embodiment” but also critically analyzes the term’s limitations); see also Pugliese, “The Incommensurability of Law.” Pitzer helps us to understand the important connections between government sponsored disappearance campaigns and ordinary detention centers for status violations. Andrea Pitzer, One Long Night: A Global History of Concentration Camps, (Boston: Hachette/Little Brown, 2018); Vargas, et al., “Fear by Association.” 14 This does not mean that detainees are never released. They are very infrequent but this occurs through informal negotiations. This is not due to

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“right” as Arendt has put but “charity” or privilege. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979). See Kanstroom’s discussion of mercy and/or grace in waiving removal as well as Heeren’s analysis of statuses based on privilege rather than rights: Daniel Kanstroom, Deportation Nation (Cambridge, MA: Harvard University Press, 2007); Geoffrey Heeren, “The Status of Nonstatus,” American University Law Review 64 (May 11, 2015), http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2560931. See also Raffaella Puggioni, “Speaking Through the Body: Detention and Bodily Resistance in Italy,” Citizenship Studies 18, no. 5 (2014): 562–577. Michael Feola, “The Body Politic: Bodily Spectacle and Democratic Agency,” Political Theory 26 no. 2 (2018): 207. Muller argues that lip-sewing is a form of bio-agency: See Benjamin Muller, “(Dis)Qualifed Bodies: Securitization, Citizenship and ‘Identity Management,’” Citizenship Studies 8 no. 3 (2004): 292. Marwan Barghouthi imprisoned parliamentarian on hunger strike quoted in International Federation for Human Rights, “As Hunger Strike Persists, Basic Rights of Participants Must be Upheld,” 3 May 2017, https://www.refworld.org/docid/590b24414.html. See Ralph Armbruster-Sandoval, Starving for Justice (Tucson: University of Arizona Press, 2017); Fiske, “Human Rights and Refugee Protest”; Alfonso Gonzales, “Derechos en Crisis: Central American Asylum Claims in the Age of Authoritarian Neoliberalism,” Politics, Groups and Identities 8, no. 2 (May 2018): 1–19. See Ċetta Mainwaring, “Migrant Agency: Negotiating Borders and Migration Controls,” Migration Studies 4, no. 3 (November 2016): 289–308; Liisa H. Malkki, “Speechless Emissaries: Refugees, Humanitarianism, and Dehistoricization,” Cultural Anthropology, 11, no. 3, Aug 1996: 377–404. See Banu Bargu, “The Silent Exception: Hunger Striking and LipSewing,” Law, Culture, and the Humanities 24 (May, 2017): 1–28; Mary S. Corcoran, “Spectacular Suffering: Transgressive Performance in Penal Activism,” Theoretical Criminology 24, no. 4 (2020): 651–668; Jenny Edkins and Véronique Pin-Fat, “Through the Wire: Relations of Power and Relations of Violence” Millennium: Journal of International Studies 34, no. 1 (2005): 1–26; Feola, “The Body Politic”; Ayten Gündoğdu, Rightlessness in an Age of Rights (New York: Oxford University Press, 2015); Patricia Owens, “Reclaiming ‘Bare Life’?: Against Agamben on Refugees,” International Relations 23, no. 4 (2009): 567–582; Joseph Pugliese, “Penal Asylum: Refugees, Ethics, Hospitality,” Borderlands e-journal 1, no. 1 (2002), http://www.borderlandsejournal.adelaide.edu .au; Nithya Rajan, “What do Refugees Want? Reading Refugee LipSewing Protests Through a Critical Lens,” International Feminist Journal of Politics 21 no. 4 (2019): 527–543. See Bargu, “The Silent Exception”; Edkins and Pin-Fat, “Through the Wire”; Feola, “The Body Politic”; Achille Mbembe, “Necropolitics,” translated by Libby Meintjes, Public Culture 15, no. 1 (2003): 11–40. Frantz Fanon, The Wretched of the Earth (New York: Grove Press, 2005); Mbembe, “Necropolitics”; James Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven: Yale University Press, 1987). My analysis is reliant on Foucault’s analytics of power but also departs from him in conceiving of sovereign power in its contemporary form (and not as archaic or pre-modern). Michel Foucault, The Birth of Biopolitics (New

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24

25

26

27 28 29

30 31 32 33 34

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York: Picador/Palgrave, 2004); Michel Foucault The History of Sexuality, Volume I: An Introduction (New York: Vintage,1980). See Mainwaring, “Migrant Agency”; Jenna M. Loyd, et al., Beyond Walls and Cages: Prisons, Borders, and global Crisis—part 5, “Speaking up! Standing Up! Local Struggles against Walls and Cages” (University of Georgia Press, 2012); Colin Dayan, The Law Is a White Dog (Princeton: Princeton University Press, 2011). Some authors do explore the meaning of these protests in relation to sovereign authority but conclude that the protests are largely invisible and futile, which I dispute below. On dissensus, see Davidé Panagia, “The Improper Event: On Jacques Rancière’s Mannerism,” Citizenship Studies 13, no. 3 (2009): 297–308; on dissensus in this context, see Rajan, “What do Refugees Want?” Thank you to Veronica Zebadua-Yañez for suggesting the term democratic state of exception. On the relationship of civil disobedience to self-harming protest and/or a broader context of violence, see Karuna Mantena, “Another Realism: The Politics of Gandhian Nonviolence,” American Political Science Review 106, no. 2 (May 2012): 455–470. See Feola’s critique of democratic theory and communications-based theories for the same reasons. Feola, “The Body Politic.” Fanon, Wretched of the Earth; Mbembe, “Necropolitics”; Scott, Weapons of the Weak. Necro-protest is Mbembé’s term in “Necropolitics.” In Australia since 1992 and in the United States since 1996. On trauma and grief, see K.M. Fierke, “Whereof we Can Speak, Thereof We Must not be Silent: Trauma, Political Solipsism and War,” Review of International Studies 30 (2004): 471–491. Fierke, “Whereof we Can Speak.” Bargu, “The Silent Exception.” With regard to heroizing these protesters, see Owens, “Reclaiming ‘Bare Life’? Jacqueline Rose, “Deadly Embrace,” London Review of Books, November 4, 2004, https://www.lrb.co.uk/v26/n21/jacqueline-rose/deadly-embrace; see also Mbembé’s “Necropolitics.” Infuenced by the work of Fierke, “Whereof we Can Speak”; Fiske, “Human Rights”; Holmes, Fresh Fruit Broken Bodies; and Randy LeBlanc, “Occupied Body, Occupied Mind,” Conference Presentation, American Political Science Association Meeting, 2016, fle:///C:/Users/Owner/Downloads/Occupied %20Body,%20Occupied%20Mind--APSA16.pdf. Armbruster-Sandoval, Starving for Justice; see also Banu Bargu, Starve and Immolate: The Politics of Human Weapons (New York: Columbia University Press, 2016). Armbruster-Sandoval, Starving for Justice, 10–11. See Feola, “The Body Politic”; see also Dayan, The Law Is a White Dog. See Fiske, “Human Rights”; see also Teresa Hayter, Open Borders: The Case Against Immigration Controls (London: Pluto Press, 2000). Fiske, et al., “Manus Island Hunger Strikes Are a Call to Australia’s Conscience.” Armbruster-Sandoval quoting Sharman Apt Russell, Starving for Justice, 3; see also Fiske, et al., “Manus Island Hunger Strikes Are a Call to Australia’s Conscience”; Mantena, “Another Realism”; Puggioni, “Speaking Through the Body.”

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41 Fanon, The Wretched of the Earth; Armbruster-Sandoval, Starving for Justice, 3. 42 See Edkins, et al., “Through the Wire.” 43 Arendt, Origins of Totalitarianism, 296. 44 See McAlister, et al., “‘I See Nothing but a Fence of Tears’” on the denial of the right to self-expression in detention: silencing their expression is a violation of Article12 in the CRC “declaring the right of children to express their views…” 45 See Edkins, et al., “Through the Wire”; Owens, “Reclaiming ‘Bare Life’?”; Pugliese, “The Incommensurability of Law.” 46 However, there have been numerous other campaigns. 47 Arendt, Origins of Totalitarianism, ch 9, 296. 48 Fiske, “Human Rights,” 23. 49 On the Oz government’s alleged desire for compassionate deterrence, see: Peter Hodge, “#LetThemStay #BringThemHere: Embodied Politics, Asylum Seeking, and Performativities of Protest Opposing Australia’s Operation Sovereign Borders,” Politics and Space 37, no. 3 (2019): 386–406. 50 Shannon Van Sant, “Lawsuits Say Australia Subjects Asylum-Seekers to Torture and Crimes Against Humanity,” NPR website, December 10, 2018, https://www.npr.org/2018/12/10/675356306/lawsuits-say-australia-subjects -asylum-seekers-to-torture-and-crimes-against-hum; on Australia’s hostile rhetoric towards refugees, see Pugliese, “The Incommensurability of Law” and the government’s policy aim of using detention as a deterrent, see Motta, “Between a Rock and A Hard Place.” 51 Van Sant, “Lawsuits Say Australia.” 52 See Miriam Ticktin, “Calais: Containment Politics in the ‘Jungle’,” The Funambulist: Politics of Space and Bodies 5 (May—June, 2016): 28–33. 53 Although this is not always or only indifference but a “war” against refugees—Pugliese, “Incommensurability of Law,” 288–289; please see: Rebekah L. Rollston, “Health Equity Through the Lenses of Intersectionality and Allostatic Load,” Harvard Medical School Primary Care Review Blog, January 30, 2020, http://info.primarycare.hms.harvard.edu/blog/health -equity. 54 See Martin Luther King, “Letter from a Birmingham Jail,” 1963, https:// kinginstitute.stanford.edu/encyclopedia/letter-birmingham-jail; Mantena, “Another Realism.” 55 Mantena, “Another Realism.” 56 Mantena, “Another Realism.” 57 Fiske, “Human Rights,” 22. 58 See, e.g., Fanon, Wretched of the Earth—see ch. 1. 59 See Bargu, “The Silent Exception.” 60 Fanon, Wretched of the Earth. 61 Feola, “The Body Politic,” 197, his emphasis. 62 This attitude of hopelessness has been recorded frequently—see for example: Cleveland, et al., “The Harmful Effects of Detention and Family Separation”; McAlister, et al., “‘I See Nothing but a Fence of Tears’.” 63 Bargu, “The Silent Exception,” 11. 64 King, “Letter from a Birmingham Jail.” 65 See Rajan, “What do Refugees Want?”; Panagia, “The Improper Event.” 66 Masha Gessen, “Behrouz Boochani Is One of Australia’s Most Celebrated Writers but He Can’t Step Onshore,” New Yorker, September 11, 2019,

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https://www.newyorker.com/news/our-columnists/behrouz-boochani-is-one -of-australias-most-celebrated-writers-but-he-cant-step-onshore. Gessen, “Behrouz Boochani Is One.” Julie Cox and Stella Minahan, “Unravelling Woomera: Lip Sewing, Morphology and Dystopia,” Journal of Organizational Change 17, no. 3 (2004): 292–301. Cox and Minahan, “Unravelling Woomera”; Hodge, “#LetThemStay #BringThemHere.” See Cox and Minahan, “Unravelling Woomera”; see also Hodge, “#LetThemStay #BringThemHere.” See Hodge, “#LetThemStay #BringThemHere,” 390–391 (and whole article). Cox and Minahan, “Unravelling Woomera,” 297. Rajan, “What do Refugees Want?” 533. Gündoğdu, Rightlessness in an Age of Rights, see pp. 160–162. Gündoğdu, Rightlessness in an Age, 160. Gündoğdu, Rightlessness in an Age, 161, my emphasis. Bargu, “The Silent Exception”; Fiske, “Human Rights and Refugee Protest.” Panagia, “The Improper Event.” Fierke, “Whereof We Can Speak”; see Arendt, Origins of Totalitarianism; Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (New York: Oxford University Press, 1985). Gündoğdu, Rightlessness in an Age, 161. Fiske, et al., “Manus Island Hunger Strikes Are a Call to Australia’s Conscience.” Gündoğdu, Rightlessness in an Age, 160. Edward Said, Orientalism (New York: Vintage, 1979). On these dynamics, see also Pugliese, “The Incommensurability of Law.” See also Hodge, “#LetThemStay #BringThemHere”; Susan Maira, “Freedom to Move, Freedom to Stay, Freedom to Return: A Transnational Roundtable on Sanctuary Activism,” Radical History Review, October 1, 2019, 138– 159, https://read.dukeupress.edu/radical-history-review/article/2019/135 /138/140471/Freedom-to-Move-Freedom-to-Stay-Freedom-to-ReturnA ?casa_token=0kEv_vaKipoAAAAA:Zvmr1CDBVYrUgfD2g1LUk1VE_BYB JMDPKVTM6vyNl4zXep8IF8xO2u6nPdErlIr-UZyAu0k. Hodge, “#LetThemStay #BringThemHere,” 401; “Invoking familial/mother ing/grandmothering/kinship tropes, these groups deploy explicitly feminine imaginaries in public ‘against the often equally gendered countercosmopolitanisms of state, nationalism and xenophobic politics’ (Stivens, 2018: 86)…groups such as Mums for Refugees and Grandmothers against detention of Refugee Children embed maternal imaginaries within hospitality as part of strategic ‘naming practices and social media presence, and in their public performances of femininity and political motherhood’ … Stivens (2018: 91) describes how motherhood is no longer a restrictive label but a positive force.” Hodge is citing: M. Stivens, “Gendering Cosmopolitanisms: Hospitality and the Asylum Seeker Other,” Women’s Studies International Forum 67 (2018): 85–93. See youtube videos of protests over the years, including: https://www.youtube.com/watch?v=5mO2iIlYCjM. Van Sant, “Lawsuits Say Australia.” Fiske, “Human Rights.” See Shachar, “Beyond Open and Closed Borders.”

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91 In Australia, deportation of long-term residents is unusual unless the person commits a violent crime. Nevertheless, if/when a person is deported, the “system” is similar to the United States in its secrecy, arbitrariness, and absence of meaningful appeals; for example, see this blog: “Deportation Under Australian Migration Law,” Legal Lawyers website, https://www .legallawyers.com.au /legal-topics/immigration-law/deportation-under -australian-migration-law/. For a more critical view of this process in Australia see: Oscar Grenfell, “Australian Government Deporting LifeLong Residents over Minor Offences,” World Socialist Website, November 112, 2015, https://www.wsws.org/en/articles/2015/11/12/depo-n12.html; and the current gov’t (2022) is planning on expanding the grounds for deportation and actual numbers—see: Hannah Dickinson, “Morrison’s Plan to Deport Thousands of Migrants,” 7am Newsletter website, March 3, 2022, https://7ampodcast.com.au/episodes/morrisons-plan-to-deport -thousands-of-migrants. 92 Vargas, et al., “Fear by Association”; L. Rojas-Flores, M.L. Clements, et al., “Trauma and Psychological Distress in Latino Citizen Children Following Parental Detention and Deportation,” Practice and Policy, 2017, 352– 362; Sarah A. MacLean, et al., “Characterization of the Mental Health of Immigrant Children Separated from Their Mothers at the US–Mexico Border,” Psychiatry Research 286 (April 2020): 1–3. 93 As Justice John Paul Stevens, famously stated, “in the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” (Mathews v Diaz 1976, 1891); see Hiroshi Motomura, Americans in Waiting (New York: Oxford, 2006), 83–84. 94 See also this report on 2015 hunger strikes: Robin Urevich, “Conditions Worsen for ICE Detainees Following Hunger Strike,” American Prospect, August 14, 2017, https://prospect.org/civil-rights/conditions-worsen-ice -detainees-following-hunger-strike/. 95 My defnition of femicide is: Femicide is the purposeful targeting of women and people who identify as women to control a territory or region. Tactics include brutal rapes, torture, and murder and often involve a continuum of abuse between the home and public sphere. In areas where femicide occurs, governments are often complicit with this treatment in two ways: encouraging strict gender roles and violent “chastisement” of intimate partners and refusing to help targets of abuse when they report incidents. 96 Under Trump, Jeff Sessions argued that parents were “smuggling” their children to the border and so mothers with children were treated as criminals. 97 See for example, Hans A. von Spakovsky, “Who’s Responsible for Separating Alien Kids From Their Parents? Many People, but Not Trump,” Heritage Foundation website, June 22, 2018, https://www.heritage.org/immigration /commentary/whos-responsible-separating-alien-kids-their-parents-many -people-not-trump. 98 Elise Foley, “Mothers in Immigrant Detention Vow to Continue Hunger Strike Until They’re Released—Or Dead,” Huffngton Post August 16, 2016, https://www.huffngtonpost.com/entry/mothers-immigrant-detention-hunger-strike_us_57b3698be4b04ff883990132. 99 See also Gonzales, “Derechos en Crisis”; Abby C. Wheatley and Ruth Gomberg-Muñoz, “Keep Moving: Collective Agency Along the Migrant Trail,” Citizenship Studies 20, no. 3–4 (2016): 396–410. See also: https://

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landerholmimmigration.com/migrant-women-embark-on-hunger-strike-to -protest-detention/. Renée Feltz, “Migrant Mothers at Pennsylvania Center Suspend Hunger Strike ‘Due to Threats,’” The Guardian August 24, 2016, https://www.theguardian.com/us-news/2016/aug/24/migrant-mothers-pennsylvania-center -hunger-strike-berks. Under Obama, families could be split up within a facility, although the administration did not authorize this practice. under Trump, children are taken away at the border and placed in different facilities and sometimes different states than their parents. See Ali, “Hunger Strike in ICE Detention”; see also Freedom for Immigrants’ website: https://www.freedomforimmigrants.org/. For more recent numbers and facts see: Maurizio Guerrero, “Covid-19 Hunger Strikes Sweep Migrant Detention Centers,” In These Times, September 1, 2020, https:// inthesetimes.com/article/jailed-migrants-hunger-strike-ice-detention-centers -covid-19; Priscilla Alvarez, “Detained Immigrants on Hunger Strike over Poor Conditions at ICE Facilities were Force-fed, Report Says,” CNN, June 25, 2021, https://www.cnn.com/2021/06/23/politics/ice-immigrants-hunger -strikes-force-fed/index.html. John Washington, “The Epidemic of Hunger Strikes in Immigrant Detention Centers,” The Nation, February 13, 2020, https://www.thenation.com/article/society/immigrant-detention-hunger-strike/; Dave Ortiz, “Dozens of Immigrants at a New York Facility Are on a Hunger Strike Over Racist Mistreatment,” Daily Kos, February 23, 2022, https://www.dailykos .com/stories/2022/2/23/2081890/-Dozens-of-immigrants-at-a-New-York -facility-are-on-a-hunger-strike-over-racist-mistreatment; Damian Vergara Bracamontes, “Migrant Insubordination:  Politicizing Detention through Queer Migrant Kinship,” Ethnic Studies Review 45, no. 1 (2022): 3–22. Seth Freed Wessler, “Fear, Illness, and Death in ICE Detention,” New York Times Magazine, June 4, 2020, https://www.nytimes.com/2020/06/04/magazine/covid-ice.html. Nilson started the hunger strike by placing a secret note put in laundry bag and word spread throughout the center, so a number of people joined it. Since this time he has participated in interviews and he formed the group ICE Breakers after he was released. Armbruster-Sandoval, Starving for Justice, 10. Again, see researcher Fiske, et al.’s statement on hunger striking: “Manus Island Hunger Strikes Are a Call to Australia’s Conscience.” Fiske, “Human Rights,” 22. Fiske, “Human Rights,” 23. Colin Dayan, “Barbarous Confnement,” New York Times, July 17, 2011, https://www.nytimes.com/2011/07/18/opinion/18dayan.html, A19; Feola, “The Body Politic,” 204. See also: Jack Herrera, “Immigrants Stage a Hunger Strike for Black Lives Inside ICE Detention Facility,” Prism Reports, June 12, 2020, https://prismreports.org/2020/06/12/immigrants-stage-a-hunger -strike-for-black-lives-inside-ice-detention-facility/. Dayan, The Law Is a White Dog, 86–87. See Ronald Schmidt’s discussion of torture and the aim of “cultivated debilitation” in Ronald J. Schmidt, Jr. Reading Politics with Machiavelli (Oxford: Oxford University Press, 2018). Ali, “A Hunger Strike in ICE Detention.” Ali, “A Hunger Strike in ICE Detention.” Ali, “A Hunger Strike in ICE Detention”: Kumar was released and he appealed his case. See also Rajan, “What do Refugees Want?” 536.

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112 Caitlin Dickerson, et al., “U.S. Deported Thousands Amid Covid-19 Outbreak. Some Proved to be Sick,” New York Times, April 18, 2020, https://www.nytimes.com/2020/04/18/us/deportations-coronavirus-guatemala.html. 113 Tina Vásquez, “ICE Ordered to End Contract with Facility Where Detained Women were Sterilized,” Prism, May 20, 2021, https://prismreports.org /2021/05/20/ice-ordered-to -end-contract-with-facility-where-detained -women-were-sterilized/. 114 Vásquez, “ICE Ordered to End Contract.” 115 As Peter Hodge argues, this community challenges notions of political community centered on the nation-state. Hodge, “#LetThemStay #BringThemHere,” 390. 116 See Puggioni, “Speaking Through the Body.” 117 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (London and New York: Routledge, 1990), 120; Judith Butler, Excerpt from Gender Trouble, ch 6 in ed. Diana Tietjens Meyers, Feminist Social Thought: A Reader (New York: Routledge, 1997), 112–130. 118 Sarah Mares and Jon Jureidini, “Psychiatric Assessment of Children and Families in Immigration Detention—Clinical, Administrative, and Ethical Issues,” Australian and New Zealand Journal of Public Health (2004): 520–526. 119 Not to mention imperial and/or racial others intersecting with class, gender, more—treat as “scum of the earth.” 120 See Karin Johansson Blight, “Questioning Fairness in Swedish Asylum Decisions,” State Crime 4, no. 1 (Spring 2015): 52–76. See also Rachel Aviv, “The Trauma of Facing Deportation,” The New Yorker, 2017, https://www .newyorker.com/magazine/2017/04/03/the-trauma-of-facing-deportation; Amana Cheong and Douglas Massey, “Undocumented and Unwell: Legal Status and Health Among Mexican Migrants,” International Migration Review 53, no. 2 (2019): 571–601; Mina Fazel, et al., “Detention, Denial and Death: Migration Hazards for Refugee Children,” The Lancet Global Health 2, no. 6 (June 1, 2014), https://www.thelancet.com/journals/langlo /article/PIIS2214-109X(14)70225-6/fulltext; Holmes, Fresh Fruit, Broken Bodies, particularly his introduction and chapters 4 and 5; S. Mares, L. Newman, et al., “Seeking Refuge, Losing Hope: Parents and Children in Immigration Detention,” Australasian 10, no. 2 (2002): 91–96; S. Mares, et al., “Psychiatric Assessment of Children and Families”; McAlister, et al., “‘I See Nothing but a Fence of Tears’.” 121 See Portes and Rumbaut on “context of exit” and “context of entry” in relation to trauma and PTSD: Alejandro Portes and Rubén Rumbaut, Immigrant America, 3rd edn (Berkeley and Los Angeles: University of California Press, 2006); see Seth Holmes on allostatic load related to surreptitious border crossing, Holmes, Fresh Fruit, Broken Bodies. 122 In contrast to, e.g., South Sudanese refugees who were permitted to rebuild communities and draw on their cultural practices, even while traumatized. Westoby provides a sharp criticism of western therapeutic approaches that individualize and pathologize refugees—even outside detention—which most often perpetuate trauma. Peter Westoby, “Developing a CommunityDevelopment Approach Through Engaging Resettling Southern Sudanese Refugees Within Australia”, Community Development Journal 43, no. 4 (October 2008): 483–495, https://academic.oup.com/cdj/article-abstract/43 /4/483/274017.

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123 See Westoby’s account of South Sudanese refugees building community organization capacities and rejecting a global north/western therapeutic model that often compounds a refugee’s victimized status. Westoby, “Developing a Community-Development Approach.” See also Peter Westoby, “‘A Community Development Yet-to-Come’: Jacques Derrida and Re-constructing Community Development Praxis,” Community Development Journal 56, no. 3 (2021): 375–390. 124 See Von Werthen, et al. “The Impact of Immigration Detention on Mental Health: A Systematic Review,” BMC Psychiatry, December 6, 2018, https:// bmcpsychiatry.biomedcentral.com /articles /10.1186 /s12888 -018 -1945 -y; Brabeck, et al., “IACHR Report on Psychosocial Impact of Detention and Deportation,” A Report for the Inter-American Human Rights Court August, 2013, https://www.bc.edu/content/dam/fles/centers/humanrights/doc/IACHR%20Report%20on%20Pyschosocial%20Impact%20of %20Detention%20%20Deportation-FINAL%208-16-13.pdf. 125 See Fiske, “Human Rights”; Hayter, Open Borders. 126 McAlister, et al., “I See Nothing but a Fence of Tears”; Fiske, et al., “Manus Island Hunger Strikes Are a Call to Australia’s Conscience.” 127 This tracks onto Agamben’s discussion of Primo Levi’s experiences in a camp versus that of the Musselmänner. See Giorgio Agamben, Remnants of Auschwitz, trans. Daniel Heller-Rozen (New York: Zone Books, 1999). 128 Teen girl detainee. McAlister, et al., “I See Nothing but a Fence of Tears,” 97. 129 McAlister, et al., “I See Nothing but a Fence of Tears,” 92. 130 Westoby, “‘A Community Development Yet-to-Come,” 379. 131 Fierke, “Whereof We Can Speak,” 472; see Edkins and Pin-fat on the idea of theatricalizing embodied circumstances in “Through the Wire.” See also Owens’ reminder not to celebrate this. Owens, “Reclaiming ‘Bare Life’?” 132 See Feola, “The Body Politic.” 133 Panagia, “The Improper Event,” 300; Jacques Rancière, “Who Is the Subject of the Rights of Man?” South Atlantic Quarterly 103, no. 23 (Spring/ Summer, 2004): 297–310. See also Rajan, “What do Refugees Want?” 134 Westoby, “‘A Community Development Yet-to-Come’,” 383, 384. 135 Fiske, “Human Rights,” 19. 136 On the “dual function” of affect in these sorts of protests, see Katherine Tonkiss, “‘A Baby Is a Baby’: The Asha Protests and the Sociology of Affective Post-Nationalism,” Sociology 55, no. 1 (2021): 146–162. 137 Arendt, Origins of Totalitarianism, ch. 9. 138 See Fierke, “Whereof We Can Speak.” 139 See Fiske, “Human Rights”; see Dayan, The Law Is a White Dog, 81–82; Fanon, Wretched of the Earth. 140 Bargu, “The Silent Exception.” 141 Fierke, “Whereof We Can Speak,” 473. 142 Fierke, “Whereof We Can Speak,” 474. 143 However see Zamalin on Pelican Bay hunger strikes and successes: Alex Zamalin, “Angela Davis, Prison Abolition, and the end of the American Carceral State,” ch. 4, Struggle on Their Minds: The Political Thought of African American Resistance (New York: Columbia University Press, 2017), 119–149. 144 Veronica Zebadua-Yañez, “On Feminist Counter-Sovereignty: Visions of Radical Freedom in Monique Wittig’s ‘Les Guérillères’,” unpublished essay, 19. 145 Zamalin, “Angela Davis, Prison Abolition, and the end of the American Carceral State,” 146.

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146 For example, Border Patrol incidents of shooting unarmed teens across the border—these murders have been discussed but committed with impunity. 147 Zebadua-Yañez, “On Feminist Counter-Sovereignty,” 20. 148 Fanon, The Wretched of the Earth; Mbembé, “Necropolitics.” 149 Fanon, The Wretched of the Earth; see also Fiske, “Human Rights.” 150 See Feola, “The Body Politic.” 151 Rose, “Deadly Embrace.” I am not endorsing suicide bombing but rather linking Rose’s analysis of this self-harming practice to detainee protest. 152 Rose, “Deadly Embrace”; see also Mbembé, “Necropolitics,” 35–39. 153 Feola, “The Body Politic,” 205; see also Judith Butler, Precarious Life: The Powers of Mourning and Violence (Brooklyn: Verso, 2006). 154 Katie Oliviero, Vulnerability Politics (New York: New York University Press, 2018), 25. 155 Thurber, et al., “Disrupting the Order,” 56. 156 Thank you to Veronica Zebadua-Yañez for suggesting this term. 157 Thurber, et al., “Disrupting the Order,” 56. 158 Panagia, “The Improper Event,” 304. 159 Ali, “Hunger Strike.” 160 The frst view has been taken by some medical practitioners and researchers—see e.g. Rita Vannobberghen, Fred Louckx, Dirk Devroey, and Jan Vandevoorde, “Five Years Later: The Impact of a Hunger Strike on Undocumented Migrant Workers in Brussels,” Journal of Immigrant and Minority Health 22 (2020): 392–398. The second view—that detainee protests are apolitical because they merely expose the abject position of the subject—can be found (again) in Cox and Minahan, “Unravelling Woomera”; Gündoğdu, Rightlessness in an Age; and Rajan, “What do Refugees Want?”. The third view—that protests demonstrate migrants’ criminal proclivities—is evident in moderate to conservative leaders’ speeches and comments. 161 On this tendency to depoliticize embodied protest and/or self-harming protest, see Fiske, “Human Rights”; Hodge, “#LetThemStay #BringThemHere.” 162 See also Hodge, “#LetThemStay #BringThemHere.” 163 See Colette Guillaumin, Racism, Sexism, Power and Ideology (London: Routledge, 1995). 164 See Fierke, “Whereof We Can Speak”; Panagia, “The Improper Event.” See Scarry on the broad dynamics of pain, The Body in Pain (Oxford: Oxford University Press, 1987). 165 As Edkins and Pin-Fat argue in “Through the Wire.” See also Hodge “#LetThemStay #BringThemHere.” 166 See Schmidt, Jr. Reading Politics with Machiavelli; Dayan, The Law Is a White Dog. 167 As Mares et al. note, after working with detained families: “clinicians report …feelings of impotence, anger, hopelessness, avoidance, numbing, sadness and despair, feelings resonating with those experienced by detainees… Because Australian immigration law takes precedence over State health and child protection jurisdictions, the clinician is unable to effect signifcant change. Some clinicians felt that their expertise had been denigrated; others felt impotence and guilt that so little was achieved to protect patients from the effects of ongoing incarceration that occurs in our name, apparently with majority public support”—S Mares, et al., “Psychiatric Assessment of Children and Families,” 525. 168 Fierke, “Whereof We Can Speak.”

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169 Gonzales, “Derechos en Crisis.” See also A.C. Wheatley and R. GombergMunoz, “Keep Moving: Collective Agency Along the Migrant Trail,” Citizenship Studies 20, no. 3–4 (2016): 396–410.

Select bibliography Armbruster-Sandoval, Ralph. Starving for Justice (Tucson: University of Arizona Press, 2017). Bargu, Banu. “The Silent Exception: Hunger Striking and Lip-Sewing.” Law, Culture, and the Humanities 24 (May, 2017): 1–28. Boochani, Behrouz. “For Eight Years, Australia Has Been Taking Refugees as Hostages.” The Guardian, July 20, 2021, https://www.theguardian .com/commentisfree/2021/jul/21/for-eight-years-australia-has-been-taking -refugees-as-hostages-its-time-to-ask-who-has-benefted David Isaacs, “Are Healthcare Professionals Working in Australia’s Immigration Detention Centres Condoning Torture?” Journal of Medical Ethics 42, no. 7 (July 2017): 413–415. Dayan, Colin. The Law is a White Dog (Princeton: Princeton University Press, 2011). Edkins, Jenny and Véronique Pin-Fat. “Through the Wire: Relations of Power and Relations of Violence.” Millennium: Journal of International Studies 34, no. 1 (2005): 1–26. Feola, Michael. “The Body Politic: Bodily Spectacle and Democratic Agency.” Political Theory 26, no. 2 (2018): 197–217. Fierke, K.M. “Whereof we Can Speak, Thereof We Must not be Silent: Trauma, Political Solipsism and War.” Review of International Studies 30 (2004): 471–491. Fiske, Lucy. “Human Rights and Refugee Protest Against Immigration Detention: Refugees’ Struggles for Recognition as Human.” Refuge 32, no. 1 (2016): 18–27. Fiske, Lucy, et al. “Manus Island Hunger Strikes are a Call to Australia’s Conscience.” The Conversation, January 18, 2015, https://theconversation .com/manus-island-hunger-strikes-are-a-call-to-australias-conscience-36419. Gündoğdu, Ayten. Rightlessness in an Age of Rights: Hannah Arendt and the Contemporary Struggles of Migrants (New York and London: Oxford, 2015). Holmes, Seth. Fresh Fruit, Broken Bodies: Migrant Farmworkers in the United States (Oakland: University of California Press, 2014). Mainwaring, Ċetta. “Migrant Agency: Negotiating Borders and Migration Controls.” Migration Studies 4, no. 3 (November 2016): 289–308. Malkki, Liisa H. “Speechless Emissaries: Refugees, Humanitarianism, and Dehistoricization.” Cultural Anthropology 11, no. 3 (August 1996): 377–404. Mbembe, Achille. “Necropolitics.” Translated by Libby Meintjes, Public Culture 15, no. 1 (2003): 11–40. McAlister, Dani, et al. “‘I See Nothing but a Fence of Tears’: The Impact of Australia’s Immigration Detention and Border Protection Policies on the Asylum Seeker Child's Geographies of Hope and Hopelessness.” Jeunesse Young People Texts Cultures 11, no. 2 (February 2020), 73–98.

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Panagia, Davidé. “The Improper Event: On Jacques Rancière’s Mannerism.” Citizenship Studies 13, no. 3 (2009): 297–308. Puggioni, Raffaella. “Speaking Through the Body: Detention and Bodily Resistance in Italy.” Citizenship Studies 18, no. 5 (2014): 562–577. Pugliese, Joseph. “The Incommensurability of Law to Justice: Refugees and Australia’s Temporary Protection Visa.” Law and Literature 16, no. 3 (Fall 2004): 285–311. Rajan, Nithya. “What do Refugees Want? Reading Refugee Lip-Sewing Protests Through a Critical Lens.” International Feminist Journal of Politics 21, no. 4 (2019): 527–543. Thurber, Amie and James Fraser, “Disrupting the Order of Things.” Cities 57 (2016): 55–61. Vargas, Edward D., et al. “Fear by Association: Perceptions of Anti-Immigrant Policy and Health Outcomes.” Journal of Health Politics, Policy and Law 42, no. 3 (June 2017): 459–483. Willen, Sarah, ed. “Migration, ‘Illegality’, and Health: Mapping Embodied Vulnerability and Debating Health-Related Deservingness.” special issue, Social Science & Medicine 74, no. 6 (2012): 808–810. Wolfe, Patrick. “Settler Colonialism and the Elimination of the Native.” Journal of Genocide Research 8, no. 4 (2006): 387–409.

3 FAITH-BASED SANCTUARY Creating spaces of democratic exception

~ In this chapter, I trace the emergence of sanctuary practices and policies in the United States as well as Australia. I briefy connect recent cases to medieval practices and, in subsequent sections, explore the differences between sanctuary localities and faith-based sanctuary. Like detainee protest, sanctuary practices and tactics counter arbitrary sovereign power, stopping forced displacement and eroding border and immigration agents’ power on the ground. These methods emphasize the importance of space, counter-discourses, and community as they confront state methods aiming to isolate and disappear individuals scheduled for forced removal. In the United States, as President Trump took offce in 2017, issued travel bans, temporarily suspended Deferred Action for Childhood Arrivals (DACA), and rescinded temporary protected status (TPS) for signifcant numbers of people, immigrant sanctuary became a subject of mainstream discussion.1 Trump’s administration did not acknowledge faith-based sanctuary but frequently attacked sanctuary localities, threatening the withdrawal of federal dollars to these areas. Coincidentally, faith-based sanctuary emerged in Australia just a year before, in 2016, often in direct reference to the 1980s sanctuary movement in the United States. Religious and secular leaders used many of the same tactics as their American counterparts: actively preventing the deportation of someone who is about to be “removed” to detention and then forcibly transported back to their home country. 2 While both countries have similar legal arrangements surrounding detention and deportation, a key difference is that in the United States, DOI: 10.4324/9781003282679-4

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any resident migrant who has not been naturalized can be detained and deported for minor to arguably non-existent reasons since 1996.3 Over the last century, US policy has treated migrants as “eternal guests” (in Daniel Kanstroom’s words) rather than long-term residents who contribute to the polity.4 In the 1950s-era War on Crime, the attorney general issued a threat that if any migrant “spits on the sidewalk,” they will be removed.5 This standard is a helpful way to think about the level of intolerance towards foreigners in the United States. Mae Ngai and others have noted the cultural counterpart to this policy approach, arguing that groups such as Asian Americans are treated as “impossible subjects” and perpetual foreigners, regardless of the degree to which they have established long-term, meaningful ties in the United States.6 In 1996, two US anti-terror laws—the Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)—devolved power to states and resulted in diminishing personhood rights and claims for migrants, criminalizing a range of activities and behaviors that would then trigger detention and deportation.7 As discussed in previous chapters, these laws also provided a legal basis to implement a mass detention and deportation system, targeting long-term residents. Since the George W Bush administration fully implemented this system after the events of September 11, 2001, millions of people have been deported, while in contrast, roughly 10,000 people have been deported in Australia on grounds similar to what triggers US deportation.8 Foreigners with expired visas can also be put into detention to await deportation in Australia.9 Thus, while the Australian government has moved towards implementing analogous policies if a foreigner commits a crime, they have not yet created a “ubiquitous” policing and detention network for long-term residents.10 Nevertheless, sanctuary efforts in both countries have arisen from similar conditions using many of the same tactics, with faith-based sanctuary interrupting the detention and deportation process to allow would-be refugees to live in religious institutions. In both countries, the message of hospitality to the stranger, the equal worth and dignity of all humans, and the recognition of resident foreigners as friends and neighbors are not entirely religious, even if faith-based institutions serve as sanctuary spaces.11 These notions have a secular appeal, attracting community members who are dedicated to social justice and norms of democratic civility.12 Numerous Australian interlocutors view the faith-based movement as directly informed by the American one, with the key difference being one of scale.13 Both movements have also been accused by their governments of “harboring” foreigners and/or participating in human traffcking.

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However, the United States has a longer history of these practices as they operate on multiple levels: frst, in the form of faith-based sanctuary; second, in the form of cultural and political norms of welcoming the stranger; and third, as sanctuary localities that issue policies of non-cooperation with federal authorities in matters of immigration.14 As a whole, Australia’s civil society has more ties to faith-based sanctuary than does its US counterpart and has been agitating against migrant detention for years, but the Australian sanctuary movement is relatively new.15 This difference can be explained by the fact that while Australian border policing and detention methods of new arrivals are similar, if not nearly identical, to the US system, they (again) do not police people who become residents as often or as extensively. If individuals slated for deportation were to participate in Australian sanctuary, the numbers would be lower. When individuals do anticipate deportation from the mainland, they would either face removal back to offshore detention after receiving health care under Medevac laws, in which case, they would still be treated as prisoners (including being guarded and shackled), or, like US residents who participate in this movement, risk deportation because of increased enforcement of the “character test.”16 Accordingly, the Australian movement has nearly identical tactics, historical references, and beliefs but does not have a number of would-be detainee participants living in faith-based institutions. In the United States, most mainstream conversations and recent government attention have been on sanctuary localities, especially sanctuary cities. In fact, due to the multiple ways that sanctuary is understood in the United States, I believe there is defnitional confusion in recent literature and public statements on the subject. This is worth examining, even though it is not applicable to Australia, to consider the democratic aims and techniques of future civil society action, which should be of interest to democratic theorists and activists alike. As indicated above, the Trump administration focused exclusively on sanctuary localities, often leading the press to respond within this narrow interpretation of sanctuary. To the degree that any attention was paid to those in the faith-based sanctuary movement—including individuals leaving water and food in the desert for border crossers—the administration quietly charged some individuals with human traffcking.17 Despite the American mainstream’s inattention to faith-based sanctuary, especially when the New Sanctuary Movement emerged in 2006, the little attention it has received has not always been positive.18 For example, as I discuss in the section on “Wohlfaahrstaatsräson” and Fugitive Democracy below, a few progressive interpreters have argued that faithbased sanctuary is “liberal” (i.e. not radically challenging the roots of an unjust system); that it forces people to isolate and confne themselves,

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thereby effecting the same secrecy, isolation, and displacement that the state is criticized for; and/or that it is complicit with “neoliberal” policies aiming at individualization and treating migrants instrumentally.19 Finally, there is some confation of faith-based sanctuary with civil disobedience, which, as I have noted, largely draws on the existing rights of citizens. These three issues—the defnitional one, the charge that sanctuary is liberal or neo-liberal, and the claim that it is merely civil disobedience—hinge on the meaning of sanctuary. I believe that it has been narrowly construed in the American context, and this—at least hypothetically—limits conversations and theorizing about sanctuary internationally. As I argue below, faith-based sanctuary should be viewed as different from sanctuary localities, with the former advancing more radical politics than the latter (i.e. more democratizing, agonistic, and participatory). Nevertheless, I argue that they work best together in effectively attacking the issue of arbitrary jailing and forced displacement in the form of deportation from different angles. First, I provide some examples of contemporary sanctuary in both countries, briefy discussing its relevance to the history of this practice. Second, I will analyze the US movements of the 1980s and the emergence of the New Sanctuary Movement in 2006–2007. I then discuss the Australian sanctuary movement, noting key commonalities and some differences. In both cases, I argue that faith-based sanctuary practices are based on democratic, inclusive norms and tactics, fostering new communities. In the following section, I analyze the difference between faithbased sanctuary and sanctuary localities. While some criticize sanctuary as overly liberal (i.e. reformist), neoliberal, and/or generally ineffective, I believe this is due to confusion between the two types of sanctuary, particularly when faith-based sanctuary is interpreted as a mere extension of sanctuary localities and/or everyday civil disobedience.20 While this defnitional confusion is not as relevant to Australia as of this writing, my analysis of the important differences in each type of sanctuary is relevant to political theory more broadly and Australian activism in the future. In both cases, I fnd that the faith-based movement is an important form of “fugitive democracy” and counter-sovereignty rather than merely liberal, neoliberal, or simply a form of civil disobedience—arguments I discuss in the penultimate section. 21 This is not to discount the radical potential of civil disobedience but to note that hunger strikes, self-harming protest, and faith-based sanctuary are not operating in the same legal sphere as are mass protests, for example. It is also important to note the differences between faith-based sanctuary and sanctuary localities. Below, I briefy explore the historical meaning of sanctuary insofar as current sanctuary efforts align with this history.

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3.1 The historical signifcance of sanctuary: contemporary cases and history

Historically, sanctuary has occurred in a sacred space, even as the individual being protected was not sacred. Sanctuary has often been used for suspected criminals who wanted to express remorse for their actions, explain mitigating circumstances, and negotiate with lawmakers outside of the temporal realm. 22 Less frequently, foreigners sought refuge in sanctuary spaces, including political dissidents. 23 While the origins of the English word can be traced to Latin and French, there is evidence of sanctuary practices across the globe, dating back to ancient times. 24 For example, “sanctuary was a feature of early Greek and Roman society,” most often for criminals and sometimes for foreigners in need of hospitality.25 Some scholars like Linda Rabben have found a close connection between the latter instance—foreigners seeking refuge in new cities—and the development of the twentieth-century asylum system in the Global North.26 Rabben argues that British and European asylum policies in the World War period directly proceeded from the religious tradition of providing sanctuary beginning in the medieval ages.27 Providing asylum for refugees in ancient times was explained and justifed by notions of the fellowship of mankind, treating the stranger as one would oneself, and theological references to sanctuary cities. 28 Hampton notes that “[p]roviding safe haven to the stranger or foreigner was a widespread human practice throughout the ancient world” and was often connected to religious practice. It relates to sanctuary; “asylum” is “from a Greek term meaning ‘safe from violence’ or ‘inviolable’.”29 Additionally, “asylum in the ancient … world meant a state of sanctuary or protection granted out of an obligation defned in religious and ethical terms.”30 Policies of religious tolerance and welcoming the foreigner as a guest were evident in early European history from the 300s through the 700s AD.31 Medieval sanctuary practices in France and Britain were most relevant to the practices I discuss in this book—these practices were instituted in the 900s AD when these spaces were frst established in religious sites. 32 In the 1000s, William the Conqueror recognized sanctuary in key religious sites throughout England, establishing the practice more frmly.33 Similar to ancient practices, those requesting sanctuary in medieval France and Britain were most often either suspected criminals or persecuted individuals seeking protection in another polity.34 The geographical space was conceived of as a refuge, a place in which normal law was suspended while the asylee resolved their situation in some way. As is the case today, even though sanctuary practices operated in a sort of state of exception, they were also ritualized. These rituals involved a local offcial (the coroner)

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who would answer the asylum door or bell and allow the individual to confess their crimes. These rituals occurred exclusively within the church, but the person would have to turn over any money and property to state offcials and “abjure the realm” (agree to leave indefnitely). When they followed these steps, they would live in the faith-based structure until they had to leave (within 40 days of when they frst entered). This process helped criminals to escape much worse fates, including the possibility of vigilante “justice.”35 Today, individuals often live in faith-based institutions for much longer, they have not normally committed a crime, and their goal is to remain in the host country. Nevertheless, today’s processes and the medieval ones required community support, involved well-established practices, and used sacred space to renegotiate legal processes. While the monarchy approved of these practices, they were also treated as a form of counter-sovereignty. What I mean by this is that the power dynamics of sanctuary were not subsidiary to the monarch per se but rather “with medieval conceptions of pious sovereignty and ecclesiastical intercession, dovetailed with a range of medieval penal practices that were understood to be legitimate in their own right.”36 In this way, the practices were legally authorized and yet by operating according to their own logic, worked as forms of countersovereignty. Because they clearly challenged attempts by the monarchy to centralize authority, these practices were eventually questioned and terminated in the late 1500s, with changes in political power. Critics began to argue that sanctuary permitted crime and, again, constituted “small sovereignties” that were threatening to formal power holders.37 Although there are key differences between medieval and contemporary sanctuary, there are interesting connections to the present movement. The medieval case is an example of how ordinary subjects could challenge elite powers, demonstrating that even sovereign power was embedded in a web of fuctuating relationships.38 Thus, despite the appearance of unifed and immortal sovereignty, an ordinary person not only spoke but also exercised agency in changing their legal situation.39 Second, the recognition that this challenge constituted “small sovereignties” is relevant to today’s faith-based sanctuary practices in that non-democratic power relations are challenged by a seemingly powerless and stateless individual. If power is a relationship, as Foucault theorized, this challenge can be characterized as a form of counter-sovereignty in non-democratic circumstances and a form of a “democratic state of exception.”40 This involves democratizing actions and practices in a context that is formally rightless. Finally, the historical origins of the term and relevance of these practices evidence a lengthy history that precedes liberalism and the “neoliberal” era and which, therefore, cannot be reduced to recent policies.41

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While I provide more background to each country’s movement below, it is important to note that each country’s recent sanctuary activity was inspired by a key case: Elvira Arellano’s case in the United States and the Baby Asha case in Australia. In the United States, the Elvira Arellano case spurred the New Sanctuary Movement in Chicago. Arellano moved into the Adalberto United Methodist Church in 2006 after receiving a notice of impending removal.42 Her history is complicated in that she was deported in 1997 and then re-entered the country, getting a job at O’Hare airport cleaning airplanes.43 Arellano was a single mother with a US-born son, and while she had committed a criminal offense by re-entering the United States after being deported in 1997, she was only targeted for deportation in the context of 9/11 when the government staged workplace raids of federal sites, including airports.44 Arellano was advised that she could be deported because of her re-entry and because she was using a fake social security number to work, but she was granted a stay of removal because her son was sick.45 What this meant is that she had the privilege to stay in the United States but not the right, which is the case with all migrants who have various forms of discretionary status.46 Because she was already under scrutiny, she was aware that she could be deported at any moment without cause.47 Living in Chicago in these precarious circumstances, she recounts that she became increasingly involved with the Adalberto Church: I met the Illinois Coalition of Immigrant and Refugee Rights and members of the Adalberto church, including my pastor Emma Lozano. Their organization was called Centro Sin Fronteras; all of them were Puerto Rican. They held a press conference at O’Hare protesting my arrest. The media learned about my case, and I remember telling the press that I was a mother who wanted my son to succeed in life.48 Receiving a fnal order of removal in 2006, she requested sanctuary from the church and moved there with her son Saul for roughly a year (he was 8 at the time).49 A few months after she and Saul took refuge in the church, Time Magazine featured her as a “Person of the Year” in December 2006.50 By the next year, she was considered a prominent fgure not only nationally but also throughout Mexico. Her move into the church is now viewed as the event that relaunched the faith-based sanctuary movement in the United States: The New Sanctuary Movement centered primarily in Chicago and Philadelphia but with supportive sites throughout the United States. In 2007, Arellano and Saul left the church to fy to Los Angeles and support the re-established sanctuary movement there, as well as participate in marches. She was arrested immediately and deported to Mexico the same day with her son.

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While most faith-based sanctuary cases deal with someone who has not yet been deported and is not usually as prominent, Arellano’s arrests at O’Hare and later in Los Angeles can be interpreted as politically based rather than individually.51 In both cases, outside circumstances motivated broad arrest sweeps of migrants with little attention to their backgrounds or prior claims. In the frst case, the Bush administration reacted to the events of September 11, 2001, by changing the key features of migration policy (e.g. making detention mandatory for nearly all “unauthorized” arrivals) and migration institutions (like the Board of Immigration Appeals).52 They relied on spectacular military raids of exploitative job sites, where low-tier workers were often abused, to demonstrate to the public that they were policing the country for terrorists.53 This confation of anti-terror policing and migration was something that has been remarked on by many, but Arellano was one of the earliest to identify this trend: After 9/11, the federal government executed raids of the homes and workplaces of immigrants to fnd potential terrorists. They then went to airports. I was arrested on December 10, 2002, on charges related to using a fake Social Security card in a federal workplace. ICE came to my house and knocked on my door, asking me if I carried weapons. I told them to not enter. I am not a terrorist. I was a worker, a mom — the only thing that I did was work to survive in this country with my son. I was then detained. But my three-year-old son couldn’t come with me. While ICE was processing me, I saw more people detained … when I was arrested, my world was closing in because I wasn’t sure if I would survive in Mexico. Where would I work, especially having my young son? 54 Her second arrest occurred at a time when immigrant mega-marches were occurring, there was greater undocumented activism (e.g. in the Day Without a Mexican), and the New Sanctuary Movement had emerged in several key cities. The Bush administration arrested key fgures in this movement as retaliation for their activism.55 As I explain below, Arellano’s brief time living in the church relied on a provision that immigration police would not enter a house of worship (and later other “sensitive locations” were designated as off-limits if there was no civil strife or criminal activity).56 This provision has led to what some have called a “de facto acceptance” of faith-based sanctuary, even if it is not legally codifed and even though some activists have been charged with human smuggling and/or harboring criminals.57 This makes a seemingly exceptional practice the norm, even though it is still exceptional in its relation to “normal” law. As Nicholas de Genova points out about this case:

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What appeared, however tentatively, to be Arellano’s de facto immunity from deportation was indubitably a testament and a tribute to the vitality and potential volatility of the mass social movement from which her bold but desperate act of insubordination arose.58 In this way, we can interpret Arellano’s case as proof of the strength of sanctuary tactics even at formal political levels and evidence of community support for “irregular” migrants.59 Since Arellano’s participation in faith-based sanctuary, the New Sanctuary Movement, has only grown. It was particularly strengthened during the Obama administration because undocumented activists could “come out” and challenge authority more than in the previous or subsequent administrations.60 At the same time, it was also necessary for the movement to grow, as each of these presidential administrations adopted “totalitarian tools” to increasingly detain and deport people, no matter which party controlled the executive.61 After Arellano’s second deportation, she faced harassment and threats in Mexico, fnding it hard to work or conduct daily activities because of her notoriety as an activist and, therefore, a “troublemaker.”62 Because of these diffculties, she re-entered the country a third time and is currently living in the United States with her son as of this writing (summer 2022). Arellano’s case is not a clear “success” by policy standards (nor a linear approach to democratization), but from the perspective of sparking an entire grassroots movement, spreading awareness about the injustice of migration policy, and confronting sovereign powers that have not provided many avenues for redress, her case was and is one of the most important successes in recent US history.63 Although it is unclear what will happen to her, there are numerous instances of cases being re-opened due to sanctuary participation and agitation. In many instances, bureaucratic mistakes have led to the person’s impending detention and deportation. For example, as I have recounted elsewhere, there is the case of Beatriz who was aided by one of the most prominent fgures in the Chicago sanctuary movement, Fr. José Landaverde.64 Beatriz’s case illustrates the positive and democratizing power dynamics that are generated by faith-based sanctuary, whether the individual is successful or not in rectifying their order of removal. A victim of sexual assault on US soil, Beatriz was eligible for a U-Visa if she named her perpetrator and cooperated with the police per U-Visa stipulations.65 For whatever reason, the police failed to affrm that she was cooperative with their investigation, and she received a notice of deportation. When this occurred, she accepted Father Landaverde’s offer of sanctuary at Our Lady of Guadalupe Mission in the Pilsen neighborhood. This offer was not a simple one—it took hours of meetings before and during

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her time in the church to work out details (including meetings with lawyers to understand how to proceed without triggering ICE intervention), negotiate with parishioners and explain why this was occurring, and work with the press.66 During her stay, faith leaders, the press, and community members continuously formed a human chain around the building. Individuals and groups held press conferences, talks, and masses with Beatriz and her family, while also giving her food and diapers since she was ineligible to work. Beatriz and her supporters educated the public about what type of individuals and circumstances are framed as “illegal” in the immigration context, countering the “epistemic violence” against so-called illegal immigrants and reframing unjust policy and inaccurate discourse.67 With this pressure, the police fnally affrmed that she had been cooperative in their investigation and her status was regularized.68 This example demonstrates how sanctuary actively resists undemocratic sovereign powers. The protest centers on the sanctuary-seekers’ needs, involving her in the entire process. A similar trajectory occurred with Suyapa Reyes when she and her family were targeted by ICE. Her asylum claim had been denied under President Obama, but she only received a notice of removal under Trump, which propelled her to take sanctuary rather than comply with this order. From sanctuary, she fought to rectify the bureaucratic mistakes in her case and have it reconsidered. She and her four children spent over 500 days in the First United Methodist Church of Germantown in Philadelphia before they were granted a stay of removal.69 While Reyes must still fght for a more secure legal status, she understands that this was a victory: “I feel like a bird in the sky with my wings spread. I am so happy that I won my freedom.”70 Other cases are not always as successful, but I believe that this is because of the asymmetry of power between the grassroots and government and not because the sanctuary movement is using incorrect tactics or is morally wrong. De Genova has characterized participating in faith-based sanctuary as “self-selected captivity” and argues that “Arellano incurred not merely a dramatically more excruciating kind of deportability but also a radical immobilization—a veritable encirclement, an asphyxiating abrogation of her freedom of movement.”71 Maria Chavalan Sut sees her participation in sanctuary differently: Ever since I was 13, I’ve been running from place to place. In Guatemala—when they started killing my whole family, that’s when I started running … In my mind, I would see all the dead bodies and all the smells and odors … I went to Richmond [Virginia] and that’s where

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I was for a while. ICE gave me some paperwork that said I had to present myself to ICE in Virginia … They gave me another appointment to go to an ICE offce in Fairfax in 2018 … They told me I missed a court date in July 2017. (The court immediately issued a deportation order in absentia when she failed to appear.) I never got the letter. They gave me an ankle monitor. The ICE offcers had guns. They reminded me of the military in Guatemala … But the church supported me. I came to sanctuary because I didn’t want to hide anymore. I want to live like a normal person. I believe that God has a plan not just for me, but for humanity, for all the injustices. And that’s why I’m here, because I want my justice and I want to fght.72 Another sanctuary participant, José Chicas, argued that sanctuary allowed him to remain with his family and community: “I entered sanctuary to not be separated from my family. I also have a congregation to shepherd and I couldn’t leave them like that, abandoned. The day I entered sanctuary, I spoke to the congregation and they supported me and said it was okay.”73 De Genova is right to suggest that sanctuary-seekers do sometimes feel isolated when they move into a religious institution, and this was particularly true when the COVID pandemic was at its height.74 On the other hand, many participants feel a lack of privacy because the religious structure is in use while they live there—this means that youth groups, self-help groups, and religious services continue, and the family must fnd a way to co-exist with others in a tight space. Nevertheless, from my research and participation in this movement, sanctuary participants do not often view this as equivalent to detention or deportation.75 Like the Elvira Arellano case, the Australian sanctuary movement was sparked in 2016 by focusing on a single case: the famous “Baby Asha” controversy. Although I will discuss this movement in greater depth in the second section of this chapter, I will briefy explain the series of events surrounding Baby Asha in this section. In the wake of 9/11, Australia increasingly excised territory for the next decade and a half, requiring that the majority of “unauthorized” arrivals be detained offshore. As I discussed in Chapter 1, the government made it nearly impossible to challenge unjust or mistaken decisions. As O’Sullivan explains: The current legal position [of the Australian High Court] is that the designation and transfer of asylum seekers to the “Regional Processing Centre” in Nauru is supported by sections 198AB and 198AD of the Migration Act. Legal challenges to these provisions in the Migration Act have not been successful. Indeed, the restrictive way in which the provisions are now worded make it extremely diffcult for litigants to

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successfully utilise judicial review or constitutional arguments to invalidate transfer decisions to Nauru or Papua New Guinea.76 In 2016, 267 refugees who needed medical attention were given urgent care on the Australian mainland (their care was provided for under “Medevac” provisions that have been alternately authorized and suspended77). After they received medical care, they faced deportation back to the detention centers, which had most likely caused or exacerbated their physical and mental illnesses. One of this group of refugees—a pregnant refugee woman receiving medical care in Australia—challenged her impending deportation back to an off-shore site in Australia’s High Court.78 The High Court affrmed the government’s right to deport Medevac refugees, and the negative ruling affected all refugees receiving medical care on the mainland. The High Court of Australia also “confrmed by majority the constitutional validity of Australia’s controversial system of off-shore processing of those claiming to be refugees.”79 This decision sparked the grassroots response that used Baby Asha as its focal point. 80 The #LetThemStay sanctuary movement emerged and was centered on religious institutions “offer[ing] sanctuary to the families who might otherwise be sent off-shore for processing. This refects the reality that most asylum seekers would rather remain in Australia than be sent to an off-shore processing facility.”81 Baby Asha, who had accidentally put her hands in scalding water and needed immediate attention, was one of 37 babies receiving medical care. 82 After being treated for burns, she was slated for deportation back to Nauru as a result of the court decision. Therefore, she faced return to the dangerous conditions she had previously experienced. 83 The community response to her impending deportation was signifcant, with mass demonstrations occurring in several cities, including mass protests outside the hospital (Lady Cilento in Brisbane) where Baby Asha was receiving care for her burns.84 Medical personnel also communicated to the government that they would not release the baby if she were going to be deported to the same site. A number of churches also responded to the High Court ruling at this time, hosting civil disobedience training, including tactics to surround deportees and peacefully resist offcers.85 These tactics included training to extract detainees from authorities’ grasp, and “participants were trained in ‘body blocking.’”86 For example, Dr. Peter Catt, the dean of St. John’s Cathedral in Brisbane, held a training for 250 people and has continuously worked to offer sanctuary since that time.87 The goal was to offer exactly what the US faith-based movement provides, which Misha Coleman of GetUp explained:

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The idea is that human rights groups and advocates will try to get those asylum seekers to a church before the border force offcials come and will then surround them by joining arms in a protective, peaceful human barrier to block them off from the police and border force staff trying to detain them (e.g. if in a hospital on the mainland).88 While this movement is not built around a signifcant group of migrants moving into faith-based institutions, it has rather been established around an on-going offer of hospitality for these detainees and would-be detainees if it were ever needed. Key tactics include(d) interrupting arrests, blocking traffc, and attempting to physically stop migration agents from transporting migrants back to detention. During the Baby Asha controversy, congregants and secular activists joined together for civil disobedience training in the event that deportees could take sanctuary. They also used social media outlets to inform other Australians about this situation so that the public understood that very sick young people were scheduled for detention and likely forced to return to their countries of origin. It is important to note that the explosion of sanctuary activity did not emerge in a vacuum in that faith-based and secular groups had been protesting Australia’s mandatory detention policies for years.89 This activism included offers of sanctuary to East Timorese individuals in 1995, as I discuss below. Other types of activism and advocacy have included gathering and publishing testimonials by detainees; visiting detainees when possible; advocating for legislative change; educating the broader public; and sometimes, traveling to rural areas where detention centers like Woomera were built, to cut through fencing and help refugees escape.90 Baby Asha and her family were put into family detention on the Australian mainland because of these protests, which was considered a victory at the time. Since then, the Australian government has increasingly moved to deport long-term residents for reasons related to “character” and/or poverty.91 To be clear, this does not involve the sort of mass deportation that has been put into motion in the United States (as I have already discussed).92 Nevertheless, the same key fgures and groups from the #LetThemStay movement have mobilized to offer sanctuary to these individuals if they receive notifcation of impending detention and deportation. Clergy and activists have also worked with some local governments to refuse cooperation with migration authorities to detain and deport people, much like US sanctuary localities. Alternatively, as Hodge points out, the near-permanent presence of these protesters in key sites throughout Australia has created informal sanctuary localities.93 Rev. Catt of the #LetThemStay movement also recognized how sanctuary locality practices were emerging to support the faith-based movement: “We were grateful to the state

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and territory governments who offered their territories as sanctuaries as well—as did schools and hospitals,” he said. “We are calling on the Government to reverse its decision to cut support to these vulnerable people.”94 Thus, like the US sanctuary movement, faith-based activism might have been at the center of effective protest activity, but sanctuary locality practices aided these efforts. All these developments are evidence of broad public support for migrants in these circumstances, standing in contrast to the government’s policies. The “Home to Bilo” campaign (#hometobilo) is an important example of what protesters can achieve when they interrupt the government’s deportation of a couple and their two small children to Sri Lanka. Both parents had expressed fear of future persecution if forcibly returned to Sri Lanka: the parents each experienced threats and witnessed violence in their country before seeking refuge. After the mother’s visa expired, the family was put into detention. When the government attempted to deport the family in 2019, protesters intervened: Supporters arrived at Melbourne Airport to protest the imminent deportation, with some gaining access to the tarmac. An injunction to prevent them from being removed from the country was granted while the plane was en route to Darwin.95 The government then re-detained the family, but state authorities have recently allowed them to return to their home in the Bilo community in the spring of 2022.96 This case demonstrates how sanctuary protests can work to interrupt and alter the government’s process of arbitrary confnement and forced removal. At the same time, the family had to withstand quite a lot to achieve this victory, as a headline indicated: the youngest daughter had spent every birthday in detention.97 Reactions to sanctuary in Australia have largely hinged on whether faith-based sanctuary is legal or not, in contrast to the more complex responses in the United States, which involve confating sanctuary localities and faith-based sanctuary.98 What is interesting in understanding broad reactions to faith-based sanctuary is the focus on the practice as a problem rather than the extra-constitutionality of detention.99 Sanctuary practices—from cultural to legal to faith-based—are analyzed outside of the broader context and viewed as either too “liberal” (i.e. insuffciently radical) or a new form of criminal activity.100 Below, I contextualize these practices as forms of counter-sovereignty that are not only “fugitive democracy” but perhaps the best instances of democratic activity in each country. In the next section, I provide more information about the US sanctuary movement.

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3.2 US history of the 1980s faith-based sanctuary and the 2006/2007 New Sanctuary Movement

The contemporary US sanctuary movement began in the 1980s as refugee fows began heading north from Central America.101 These individuals were feeing government repression but were not recognized as genuine asylum applicants for at least two broad reasons. First, they were often feeing political groups installed and trained by the US government. In the 1980s, the Reagan administration had intervened signifcantly in the political dynamics of Nicaragua, El Salvador, and Guatemala, attempting to replace socialist leaders with conservative ones.102 When people began feeing repressive forces, they were under the impression that the US government would recognize their credible fear claims.103 However, by recognizing the refugees’ well-founded fear of persecution, the government would be admitting that American foreign policy in this region was deleterious at best, and illegitimate and destructive at worst. A second, still-relevant reason was that individuals who were persecuted for their political beliefs and activities or journalism were viewed as culpable of their victimization.104 When these persecuted individuals arrived in the United States, they were treated as economic migrants and, therefore, as “illegal.”105 In response, an underground railroad was formed to help individuals and families travel to localities where they could disappear.106 Advocates and providers believed that the US refugee policy denying these individuals’ claims violated notions of equality, hospitality, and the moral duty to shelter those feeing persecution. While this sanctuary was more secretive than faith-based sanctuary practices today, advocates and faith leaders actively fought for refugees’ regularization at the policy level.107 The network was largely unifed, if not homogeneous, and the political platform was relatively united, even if there were infghting and important religious divides between elite and grassroots clergy.108 Today that is not the case: while regional sanctuary networks provide information and support to one another, there is less coordinated action on the ground.109 This is partly because there is no pathway north.110 At the same time, there is signifcant sharing of information on social media and national-level meetings in the New Sanctuary Movement—the movement is not fragmented nor can faith-based sanctuary be reduced to a few “incidents” as in the Canadian case.111 Signifcantly, the 1980s sanctuary movement brought would-be refugees into the country, whereas today’s faith-based movement largely tries to prevent the detention and deportation of long-term residents, even if it does help new arrivals.112 Today, most people who seek sanctuary are from multiple countries, and they

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seek sanctuary between the time they receive a notice of removal and before they are confned.113 Unlike the 1980s movement, each individual has a distinct story that is focused on his/her particular legal situation and ties to this country. There is no one locus of persecution and, thus, no single unifying factor, except for the brutality of US migration policy (which can often also be linked to US foreign policy). Although many refugees would be eligible for some form of relief—from refugee status to a stay of deportation—they are most often undocumented when they take sanctuary in a religious institution. Moreover, the dynamics of refugee fight from Central America today differ from the past—politics has moved from formal and elite-level crises and collapses to greyer connections between civil society drug lords and the state and local authorities.114 More women and children are feeing, as “femicide” is a key tactic in parts of this region.115 Other refugees, such as African, Chinese, or Middle Eastern individuals, often face a mix of persecution by formal government and secondary actors. The US government’s demand that refugees demonstrate a well-founded fear of political persecution occurring at the hands of formal political actors has been exercised selectively and with such a high standard of what counts as “political” that many refugees are rejected despite meeting the defnitional criteria.116 Despite some drawbacks, 1980s sanctuary was very effective in the short term to aid people feeing war and political repression and, in the long run, to effect a long-term policy change, although this took years and activists were often harassed and even arrested for “harboring” foreigners.117 People were able to fee to Canada or remain undocumented in the United States until their status was eventually adjusted, frst in 1989, when the government fnally agreed to grant them Temporary Protected Status and, again in 1991, when approximately 300,000 Salvadorans and Guatemalans were allowed to (re)apply for asylum.118 Unfortunately, the 1996 Anti-Terror and Effective Death Penalty Act (AEPDA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) scaled back these successes and paved the way for a harsher set of immigration and refugee policies today.119 As I discuss below, sanctuary localities also emerged during the 1980s movement, importantly providing a more receptive context for faith-based sanctuary activities.120 At best, sanctuary cities challenge the extraconstitutional nature of migrant policy and enforcement with a restoration of the law and important challenges to unjust aspects of current migration policing.121 This is not simply conserving the status quo but pushing for alternative interpretations of refugee law, challenging foreigners’ criminalization, and questioning the omnipresence of arbitrary, non-transparent coercive powers in a democracy.

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Today, the offer of sanctuary is not as secretive as during the 1980s, but there is no railroad—the immigrant seeking sanctuary lives in the church and then declares that he or she is residing there to rectify his or her legal case. The church then gathers activists and the media to publicize the offer of sanctuary and as a tactic to shame ICE. They are relying on the history of the INS and ICE, respecting the interior of religious buildings as sacred, but again, no law prohibits ICE from entering the institution.122 Lawyers and activists work together on each case, and they share information about what constitutes an offer of sanctuary and what can violate the law. For example, someone in sanctuary cannot sweep or clean the church because ICE can interpret this as work in exchange for shelter. While sanctuary in a church is a more open challenge to federal power in immigration matters than in the past, it often works to rectify the individual or family’s case.123 And it is the fact that it works, even despite the quasi-legality of this system, that importantly instantiates how sovereign power—the power of the government to declare war, to form treaties, and to establish borders—can be challenged and re-constituted.124 Working as a complement to city-based sanctuary, religious-based sanctuary is “political” and “democratic,” per Wolin. It directly involves the affected parties in tactics, identifying interests, and forming relevant community support.125 Arendt famously observed that when an individual has lost the protection of his/her country of origin and is not legally recognized in a host state, they are stateless.126 They do not have the “right to have rights,” and the loss of legal personality essentially leads to dehumanization. To the degree that contemporary dynamics similarly dehumanize non-citizens, sanctuary tactics “humanize” foreigners, directly opposing forces that make them invisible. The combination of protest and media attention demonstrates resistance to state power and the illumination of unjust circumstances in a context of state secrecy and non-transparency (characteristics of what Wolin has theorized as Wohlfahrsstaatsräson127). The need for faith-based sanctuary is also a sign that normal appeals and institutional approaches are ineffective or non-existent. The human chain around the church symbolizes a breakdown in sovereign authority and is evidence that in this sort of case, protest is the only answer. As I have stated, Australian tactics and aims have drawn from US practices since the 1980s and, therefore, are very similar to them. 3.3 Australian history of the faith-based sanctuary movement and informal sanctuary localities

Since mandatory detention began in Australia, faith-based and secular activists have challenged these policies through demonstrations near

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detention centers (when possible), mass street protests, and various forms of discourse challenging mainstream narratives of illegality.128 Although I have dated the beginning of the faith-based sanctuary movement as 2016, sparked by the Baby Asha case, O’Sullivan notes that an earlier offer of sanctuary was made in November 1995 when roughly 1350 East Timorese refugees were threatened with deportation.129 The Australian government was aware that the East Timorese population had been treated brutally by the Indonesian government but did not want to offend leaders by treating those feeing this repression as refugees.130 At this time, the Christian Sanctuary Network argued that it was their moral duty to protect these refugees from deportation: “If all avenues of appeal (have been) exhausted, our group faces a higher moral obligation to consider the offer of sanctuary to East Timorese resisting deportation,” the Christian Sanctuary Network (CSN) said in a statement this week [1995]. The group, which has offered to keep the refugees in churches, monasteries and other sacred sites, said the situation in predominantly Catholic East Timor and Canberra’s position on the refugee issue called for an ‘appropriate Christian response’.131 At stake in this complicated situation was Australia’s refusal to recognize Portugal as representing the East Timorese in any international negotiations regarding their fate and yet claiming that these refugees, who arrived in a boat on Australia’s shores, were Portuguese citizens. Sister Kathleen O’Connor of CSN wanted to show the East Timorese people that Australia recognized its moral obligation to them, to challenge the government’s moral stance, and to encourage debate on moral and social aspects of the East Timor issue rather than just the economic and political concerns currently being debated.132 O’Connor argued that “Australia has a moral duty to the people of East Timor, especially as 40,000 East Timorese died protecting Australian troops during World War II.”133 Despite this debt, Australia viewed Indonesia as an ally and key trading partner and was afraid of offending the government: accepting East Timorese individuals as refugees would (again) amount to a critique of Indonesia’s brutal repression in that region and, thus, potentially undermine this economic partnership.134 In contrast to their leaders, members of the Australian public have been sympathetic to the harsh treatment of people in this region.135

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These refugees ended up living in legal limbo in Australia. Before 1994, they were only considered Indonesians (which was a clearly biased stance, recognizing the invasion of East Timor as legitimate), but after 1995, the government began to argue that they must apply for Portuguese nationality even though most East Timorese individuals lacked any meaningful ties to Portugal.136 This new requirement justifed the Australian government’s refusal to provide credible fear interviews to most arrivals. In turn, Portugal refused to process any individual’s claims for refugee or nationality status if they were forcibly removed by Australia. For these complicated reasons, many East Timorese remained in Australia but without a clear idea of their status or standing with the government.137 Like the 1980s sanctuary network in the United States, the clergy offering sanctuary at this time were also deeply involved in supporting the people of East Timor in their country. As one popular source reports about East Timor: Since the invasion by Indonesian military forces in 1975, the number of Catholics has risen from 29% to 90% of the present population. Under Bishop Belo and his predecessor Monsignor Lopes, the Catholic Church has stood up for universal human rights and self-determination; it has become the “peoples church”, similar to those in other parts of the Third World, in particular, Latin America and South Africa.138 Thus, like the network protecting Central American refugees, this was a transnational movement rooted in on-going resistance to the Indonesian government’s brutality and usurpation of power. In this context, the offer of sanctuary in Australia was connected to the Catholic Church’s support of democracy, student rights, and resistance to Indonesian government violence. Clergy and lay-activists also specifcally criticized the Australian government’s inaction as two key massacres of East Timorese were reported in the 1990s (including the famous Dili Massacre) and weakness in how it handled Indonesian abuses. As I have discussed in previous chapters, Australia’s policies became increasingly restrictive at the turn of this century. No policy change was particularly radical, but each one marked a trend of increasing restriction, reliance on private security frms to manage detention centers, and greater militarization of border sites. One of the most important of these policies was the implementation of Operation Sovereign Borders in September of 2013. The Human Rights Law Centre of Australia characterizes this policy as “a military-led border security operation designed to prevent boats carrying asylum seekers from arriving in Australia.”139 Off-shore detention became standard, and the government swore that it would not process “unauthorized arrivals.” Self-harming protest by detainees escalated

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from this point to the present, including hunger strikes, lip-sewing, and, very tragically, some suicides (including immolations).140 Australian civil society—a mix of secular and religious groups—had been active since mandatory detention began, but particularly so as these policies hardened in 2012 and 2013. As discussed above, the faithbased sanctuary movement emerged as the #LetThemStay movement in February of 2016.141 As 267 migrants receiving medical attention under Medevac provisions were about to be deported, this movement used a variety of methods to protest their possible removal. Premiers from various Australian states and territories also requested that the government delay their deportation.142 Like the US movement, the combination of formal and informal agents drawing on faith-based and informal sanctuary locality tools worked to challenge government secrecy and arbitrariness. While certain churches led this movement, most reports on activism in 2016 indicate that supporters were not only religious, even if they agreed with the religious values that clergy identifed as they trained Australian residents for civil disobedience.143 Key groups and fgures included the Refugee Taskforce of the National Council of Churches (Anglican, Assyrian, Catholic, Churches of Christ, Ecumenical, Lutheran, Quaker, Uniting, and Salvation Army), Misha Coleman of Wesley United Church in Melbourne, GetUp, Reverend Alistair Macrae, and Dr. Peter Catt from St John’s Cathedral in Brisbane. O’Sullivan argues that the Refugee Taskforce of the National Council for Churches is infuenced by the history of sanctuary “and characterises this as an act of civil disobedience on its website”144: The granting of Sanctuary is a strong and pivotal act of civil disobedience on the part of the church. It derives from the ancient power of the church to give “Sanctuary” and offer protection from the authorities to those most vulnerable who are in fear of their lives. The granting of Sanctuary was recognised by English law from the fourth to the seventeenth century to provide immunity to arrest.145 Activists draw on the legal history of sanctuary to demonstrate that their tactics have been supported by centuries of sanctuary practices in the past— an argument that is more easily made by members of a Commonwealth country than the United States.146 These hashtags were disseminated on social media: #GetintheWay, #BringThemHere, and #LetThemStay, and a key technique was to form blockades to “get in the way” in order to “let them stay.”147 For example, Rev. Catt, the dean of St John’s Cathedral in Brisbane, held a training at this time for 250 people to block deportations.148 At the time, Catt argued:

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This sanctuary movement has grown so much we’re in the process of turning the whole of Australia into a sanctuary. The whole nation is on board. People don’t have to form a human barrier, they can also just be there.149 However, Catt noted that his group was not planning on merely standing there in protest but had also developed “strategies’ so that asylum seeker supporters would be made aware if someone faced imminent deportation and needed to be taken to a church.”150 These activists argued that forcibly deporting refugees back to Nauru would be complicit with human rights abuses.151 Training included “form[ing] blockades if detainees being transported or about to be” and activists created simulations of confict with authorities to be prepared for a physical standoff.152 If a detainee could be extricated from authorities, groups like GetUp planned on “forming a protective barrier around that person.”153 GetUp lead organizer Misha Coleman linked the activity of the 120 churches participating in #LetThemStay activism to “the Old Testament concept of sanctuary.” The idea is that human rights groups and advocates will try to get those asylum seekers to a church before the border force offcials come and will then surround them by joining arms in a protective, peaceful human barrier to block them off from the police and border force staff trying to detain them.154 In nearly all sources I found on the subject, leaders drew on human rights language (rather than civil rights) to challenge the power of the state, arguing that their activity was not criminal but a model of respect and civility. This was true even as many characterized their actions as civil disobedience—their goals, expression of their rights, and characterization of detainees’ conditions drew mostly on human rights language. As with the US government, Australia characterized these efforts as potential harboring or human smuggling crimes.155 In response, and like the US movement, these groups believed that they should document what occurred accurately to challenge mischaracterizations by conservative leaders and media outlets. As I have discussed in the frst section, Baby Asha became the focal point of this movement, and on February 12, the hospital, where she was being treated, refused to release her to government offcials unless there was an assurance that she could stay on the Australian mainland in better conditions. Community members and hospital staff formed a circle around the hospital and forced a one-week confrontation with authorities, preventing them from entering. These efforts succeeded in that Baby Asha

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and her Nepalese family were “released” into community detention rather than being forcibly returned to Nauru—organizers saw this as a major victory.156 In the same year, attention was brought on centers on Manus, and Nauru, for human rights abuses, including beatings, sexual assaults, and other conditions, that led to signifcant depression and self-harm in these centers. Although resignation syndrome—the coma-like illness befalling children with high allostatic loads—has mostly been recorded in Sweden, cases were also reported in Nauru.157 Even though it was very diffcult to enter these centers, Human Rights Watch and Amnesty International managed to compile the Nauru Files, based on: Internal working documents from the Nauru detention centre published in the Guardian in 2016, revealed widespread abuse of children in detention. Children were sexually assaulted, beaten, abused and suffered catastrophic mental health effects, leading to depression, suicide attempts and the rarely-seen resignation syndrome.158 Without civil society agitation challenging the secretive, discretionary power of the Australian “warfare” state, the Nauru Files might not have been assembled. These fles consist of documentary evidence of bad detention conditions, children’s depression and self-harming activity, suicidal ideation among many detainees, and forms of abuse amounting to torture. As detention personnel and professional visitors are effectively forbidden from acting as whistleblowers, grassroots agitation provided informal support for the release of over 2000 “leaked reports.”159 The two faith-based sanctuary movements—the US movement and the Australian one—are rooted in ancient and medieval values of hospitality, the fellowship of mankind, and helping strangers in need. Perhaps, most importantly, both movements rely on religious spaces as zones for sanctuary, emphasizing the importance of place. While some have found these spaces an analogue to confnement and isolation or overly wedded to a liberal politics that does not question or transcend borders in any meaningful way (as Bosniak has argued), I believe that these are misinterpretations of these movements.160 Both movements have meaningful links to other countries and regularly contest border sites and sovereign powers exercised in these sites.161 Both have engaged local communities not merely to protect vulnerable detainees or would-be detainees but seek to educate the broader community about harsh policies and abusive treatment and to give a voice to people that the governments try to silence. Both movements have also relied on local powers cooperating with faith-based sanctuary, highlighting the important role of sanctuary localities (even if they only

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exist informally in Australia). While the language of civil disobedience is often used about and by sanctuary activists, I maintain that this is not equivalent to mass protests or boycotts, for example. We could only characterize this activity as civil disobedience if we choose to focus on the citizen activists supporting refugee protesters and not the refugee activists. Faith-based sanctuary is also very different from a sanctuary locality, and while I believe both are important to generate democratic power dynamics, faith-based sanctuary is the most important element of this work. It engages the community to actively resist totalitarian tactics, enforced disappearance, and violations of non-refoulement. Below, I will frst explain the important difference between faith-based sanctuary and sanctuary localities. This distinction is important when considering various critiques of “sanctuary” in the United States and perhaps only potentially in Australia. Second, I argue that faith-based sanctuary is the more radical of the two practices, directly confronting and challenging sovereignty. It is not merely an important part of understanding migrant activism but arguably one of the more interesting and exciting forms of democratic activity in both countries. 3.4 A signifcant defnitional issue: sanctuary localities versus faith-based sanctuary

The two main forms of sanctuary activity in Australia and the United States are sanctuary localities and faith-based sanctuary, occurring in a house of worship.162 They are each important and unique forms of protest and together challenge the highly discretionary and historically unjust deployment of sovereign authority in matters of immigration. While Australian leaders have refused cooperation with unjust migration processes, the practice is more explicit and longstanding in the United States. Accordingly, in this section, I mostly focus on US sanctuary localities to discuss important differences between the two sanctuary tactics. The frst form—welcoming or sanctuary localities, which I will call “sanctuary localities” for the sake of simplicity—reinstates a system that upheld the personhood rights of the 14th Amendment for all state residents up to 1996.163 Sanctuary localities treat resident foreigners as legally acknowledged subjects with protective rights, including due process and equal protection based on residency and long-term ties to the community.164 Sanctuary localities challenge the increasingly discretionary, arbitrary, and unjust use of federal authority in matters of immigration, thus undercutting widespread fears that migrants have when seeking help or operating in the public sphere.165 An important instance of this is when local police protect a resident foreigner’s personhood and refuse to cooperate

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with ICE (Immigration and Customs Enforcement) in detaining them longer than is legally stipulated.166 Another sanctuary practice would be ensuring that schools and public health institutions do not ask questions about immigration status. Upholding the fundamental rights of all residents of a locality is not reformist but challenges the criminalization of migrants’ foreignness.167 Although most authors claim there is no one defnition of an American sanctuary locality, the standard defnition is a set of ordinances, practices, or laws that have been enacted in a city, county, or state that limits or refuses cooperation with federal migration agents in civil matters. I do not include other “integrative” local mechanisms of inclusion—like state-issued identity cards (i.d.s) or resident university tuition for the undocumented—as Motomura does, even if they aid sanctuary efforts to end migrant criminalization because they do not directly aim at noncompliance with ICE.168 While there are a variety of urban approaches, a key determinant of a sanctuary city is if the police refuse to cooperate with ICE except in criminal cases and/or when a judicial warrant has been issued.169 Nevertheless, I believe that these localities should not be called “sanctuary” but rather “constitutional cities” or, as ManfrediSánchez suggests, “resistance cities.”170 Again, these practices are evident in Australia, even if less formally and systematically. Faith-based sanctuary draws on older forms of protest, certainly working together with sanctuary cities, but more directly contesting the power of the state by taking in individuals or families who have received a notice of their impending deportation to halt the process. Although sanctuary can involve a range of participants, many of whom are not religious, faith-based sanctuary involves people living in a house of worship until their situation is resolved (even if negatively). Faith-based sanctuary educates the public about the sanctuary-seekers’ background to recast their criminalization; they pressure ICE agents and the local police (if relevant) to reverse their determinations; and they publicize the injustice of each potential deportation.171 It occurs in a place of worship but necessarily involves the media and community to be successful. Whether it is successful or not, Wolin would fnd that these grassroots efforts are not only more “political” than a sanctuary locality—even if one provides a context for the other—but also an instance of “fugitive democracy,” as each instance of faith-based sanctuary must attend to the particular needs and background of the sanctuary-seeker(s).172 Nevertheless, as I have discussed above, sanctuary participation in a house of worship requires months of preparatory negotiation, including convincing parishioners or synagoguegoers to agree to this use of the structure. Faith-based sanctuary is closer to the historical meaning of “sanctuary,” providing an important instance

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of “dissensus” as an “improper event” is staged by a legally illegible demos.173 Faith-based sanctuary necessarily occurs in houses of worship, as these sites remain “sensitive areas” that ICE will not enter, even though the Trump administration allowed for breaches of other sensitive areas.174 Some prominent immigration scholars like Linda Bosniak contend that both forms of sanctuary are “liberal” in character, reacting to current circumstances by protecting migrants but not fundamentally challenging the undemocratic policies and legal norms that led to the resurgence of this movement in the frst place: while sanctuary’s critics caricature the project as committed to an anti-border or open borders stance, sanctuary’s animating impulse is…about protecting people from border power not deconstructing or destroying it. Sanctuary demands that borders be bounded.175 A variant of this argument is that these policies merely force migrants to withdraw from public view, reinforcing their victimization rather than challenging it.176 Some have even charged that sanctuary policies are neoliberal and, thus, institute less visible but troubling hierarchies.177 In contrast, I interpret these sanctuary forms in terms of an expanded notion of “rights” and as creating a “democratic state of exception”178 that goes beyond a narrowly interpreted, formally oriented notion of rights, even if a mix of rationalities—liberal and more radical—are involved.179 As I explained in the book’s introduction, my argument focuses on a reading of Wolin’s notions of “fugitive democracy” and “Wohlfahrsstaatsräson,” noting affnities with Giorgio Agamben’s analyses of the state of exception.180 First, I believe that migration policing constitutes a state of exception in that it is legal but unconstitutional, creating a form of “Wohlfahrsstaatsräson”: legally authorized sovereignty within US borders, deployed bureaucratically and yet arbitrarily, targeting those with intersecting vulnerable identities.181 Wolin conceives of “Wohlfahrsstaatsräson” to explain how poor, American-born minorities have de jure rights but are subject to bureaucratized exercises of “reason of state” on behalf of the “common good” that makes them de facto rightless.182 I suggest that the same power structure also targets foreigners, especially poorer immigrant residents of color. As Motomura characterizes it, contemporary migration policing has become increasingly bureaucratized and yet arbitrary, reinforcing historical patterns of racist and class-biased enforcement. This enforcement is “rogue by design.”183 Challenging these powers, sanctuary creates a “democratic state of exception,” interrupting the legal process, altering discretionary forms of sovereign power, and enacting rights not formally granted.184 As Bosniak

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argues, this movement confronts a state that has increasingly enforced “aggressive policing practices,” committing a “racial purging of the national political body,”185 which amounts to a: border ubiquitization, which operates in symbolic registers, but is also performed materially by way of reinterpreted statutes, rewritten administrative regulations, and turbo-charged policing186 In short, these two types of sanctuary democratize an unjust sphere of law, which can often amount to a “state of exception” due to the discretionary nature of most migration policies, combined with the “non-personhood” of migrants at the federal level.187 Sanctuary efforts go beyond the assertion of liberal rights or merely restoring the rule of law (even if these are goals), challenging the sovereign power of the state deployed as foreign policy on domestic territory.188 As I have argued throughout this book, this movement is similar to civil rights movements, but importantly, sanctuary efforts operate in the sphere of “foreign policy,” confronting the “warfare” state.189 Although sovereign power and border policing are often viewed “as preconditional for the very existence of democratic states—indeed, as necessarily constitutive of the sovereign space within which liberal democracy is supposed to unfold,” my analysis suggests that these powers allow for an arbitrary, unconstitutional, and harmful treatment of migrants at odds with the rule of law.190 While historically this doctrine was limited to the federal sphere, making foreigners rightless when dealing with federal authorities, its force was undercut by the fact that states were bound to uphold constitutional protections for resident foreigners. Simply put, at borders, foreigners were not “persons,” per the 14th Amendment, but did have protective rights when they encountered state and local authorities, especially with long-term residence.191 However, from 1996 on, this dual system of power was partially ended as the plenary power devolved from the federal government to the states, increasingly diminishing even the most minimal rights of resident foreigners.192 Again, it is important to note key differences between sanctuary localities and faith-based sanctuary, even as each movement works together. The former, I argue, upholds the dual system that I have just explained, allowing for a separation of powers between state authorities (constitutional) and federal authorities (extra-constitutional), while the latter directly reconstitutes and challenges the authority of federal authorities who are legally authorized to act outside of written law. I believe that both forms of sanctuary are necessary to protect resident foreigners from arbitrary and unjust policy enforcement. This is evident in the

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Australian case as well, even if sanctuary localities are entirely informal: local governments’ non-cooperation with immigration authorities have aided grassroots efforts to block deportations. Sanctuary is “political” and “democratic,” as Wolin conceived of these terms, because it does not run parallel to the “warfare” or sovereign state but rather directly challenges it.193 Wolin has famously argued that the rule of law and representative politics are desirable (in contrast to tyranny), but a truly “political” community encourages participation, division, debate, and fexibility. For political theory, what is unusual about the sanctuary movement is that it confronts the power of the “warfare” or sovereign state rather than operating in a context of rights or the rule of law. Without a sanctuary city, migrant rightlessness signifcantly increases. Important work on “crimmigration” has recognized how criminal justice and civil law systems have merged since at least the 1990s, focusing on differential standards of criminality for immigrants as compared to citizens, which makes some offenses “felonies” or “aggravated felonies” when they would not be classifed as such in the criminal context.194 While some argue that foreigners should just follow the law and apply for citizenship, this assumption misses the fact that the law itself is one of the most arbitrary and unjust of any US sphere of law. Sanctuary protest has arisen precisely to combat this undemocratic and yet legal sphere of law. Sanctuary localities maintain the separation of power between federal and state or local power that characterized much of immigration policy throughout the twentieth century. In this sense, a sanctuary city or county upholds the previous status quo, allowing for constitutional protections and serving as a check on unconstitutional federal immigration enforcement.195 Lasch et al. found that there are fve principal categories of sanctuary policies that aim to “resist entanglement of state and local law enforcement in federal immigration enforcement”: (1) barring investigation of civil and criminal immigration violations by local enforcement, (2) limiting compliance with immigration detainers and immigration warrants, (3) refusing U.S. Immigration and Customs Enforcement (“ICE”) access to local jails, (4) limiting local law enforcement’s disclosure of sensitive information, and (5) precluding local participation in joint operations with federal immigration enforcement.196 However, as the authors note, refusing to honor any warrants except for judicial warrants is not just protecting the rights of a particular foreigner but a tactic that more generally disables ICE from violating the Constitution and sowing fear.197 Current debates about sanctuary cities’ refusal to comply with unconstitutional ICE tactics help the broader

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public to understand how migration enforcement undermines the notions of consent, equality, and the premise of innocence until guilt is proven. In this way, tactics are not merely aligned with liberal rights but are educational, integrative, and community-building. A sanctuary city effects a separation of powers between ICE and state and local police personnel and between ICE and city and state administrators. While state and local authorities uphold the Constitution, ICE acts extra-constitutionally and, thus, maintaining this separation preserves constitutional rights and guarantees. This division of powers is also vital for cities’ safety.198 Without sanctuary guarantees, foreigners are often hesitant to report crime—that is, to exercise the minimal protective rights they do have. For example, in Los Angeles, reports by Latiné individuals who were sexually assaulted “dropped 25 percent in 2017 through March 18 [of 2017], compared with the same period last year. Reports of domestic violence fell by 10 percent” at the beginning of 2017.199 Immigrants have also been afraid to seek medical help or to get food aid. 200 These trends were only exacerbated by the coronavirus crisis of 2020, as immigrant policing continued and isolation was more acute. Maintaining the separation of powers between constitutional (police, city administrators) and extra-constitutional (federal immigration authorities) spheres is thus important from a legal standpoint and from a perspective of human needs. 201 To blur these two areas of policing would diminish the positive aspects of community policing and undermine almost a century of this separation of powers. While the police cannot be idealized, the criminal justice system is supposed to be rooted in equality before the law and the enforcement of a suspect’s rights per the Constitution and case law. If these rights are diminished by federal authorities, they will chip away at criminal rights broadly conceived and arguably citizenship itself. 202 For example, a police offcer should not stop an individual based on the appearance of being foreign because it would violate criminal standards of reasonable suspicion. If an offcer were asked to investigate people based on foreign appearance or an accent, they could accidentally detain and deport US citizens and hold resident minors without their parents’ knowledge. 203 Institutionalizing racial profling would entail a presumption of guilt without proof and would end in “punishing” people without resources, breaking up families, and instituting extra-judicial “trials” and “sentencing.”204 Having to police foreign status puts offcers in a contradictory position, having to uphold the Constitution and violate it at the same time. Accordingly, even in non-sanctuary cities, police often still decline to fully cooperate with ICE because of fears of legal liability. 205

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Similarly, faith-based sanctuary confronts a form of sovereign power that is arbitrary, extra-constitutional, and coercive. Faith-based sanctuary arises from the grassroots, involving sanctuary-seekers, as well as clergy, activists, and NGOs, and the faith community, to halt immigration proceedings. This occurs by physically providing a space of sanctuary and surrounding the structure with community members to stop ICE from entering the site. In contrast to sanctuary localities, faith-based sanctuary more actively resists, interrupts, and alters sovereign power by openly sheltering would-be refugees and other undocumented migrants when they are slated for detention and deportation. 206 This is true, even if the two movements are linked in important ways.207 It enacts a form of democracy as “dissensus” because sanctuary participants lack the right to have rights. 208 At the same time, this democratic performance highlights the arbitrary and unjust nature of this system. Unfettered by reformism, faith-based sanctuary creatively approaches what appears to be a terminal case: the undocumented individual or family already slated for deportation and thus legally moribund. 209 Together, sanctuary cities and faith-based sanctuary each tackle this hornet’s nest of legal obscurity and bias in different ways: sanctuary cities do this by reinstating the dual system preceding 1996, when local government treated resident foreigners as legal persons per the 14th Amendment, deserving of rights-based protections. They maintain an important separation of powers that reinforces political equality, inalienable rights, equal protection, and due process. This is not a mere separation however; as the federal government and ICE introduce new tactics to bypass the law, these localities must also use a fuid and innovative approach to devise legal mechanisms that challenge each of these techniques. 210 In doing this, they contest the current meaning of political membership.211 In a context of indiscriminate and selective (i.e. racist) migration policing, upholding personhood rights is radical. Working together with a sanctuary locality, faith-based sanctuary interrupts and challenges the sovereign power of immigration authorities. 212 Faith-based sanctuary confronts decisionistic, coercive, and unjust immigration enforcement with a spontaneous, non-uniform assertion of claims that meets government coercion and narrowly construed categories with counter-narratives and communal solidarity. 213 Both forms of sanctuary are necessary in this political environment, but faith-based sanctuary is more “political” and an example of “fugitive democracy,” as Wolin has defned these terms. 214 Wolin conceives of democracy as occurring when “Power is not merely … shared, but something … used collaboratively in order to initiate, to invent, to bring about.”215 Democratic power involves the demos in

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a meaningful way beyond the mere symbolism of individualistic, largely passive “rights.”216 As explained above and in previous chapters, sanctuary efforts do not occur in a rights-based context but signifcantly confront extra-constitutional sovereign powers historically rooted in racism based on alienage. 217 Even if subjects arguably can draw on long-term residence to seek a cancellation of impending deportation, this does not amount to the rights of a citizen or even criminal rights of the imprisoned. 218 The status most often conferred by the government—some form of immigration parole—confers privileges but not rights. 219 Given the Trump administration’s attacks on sanctuary cities, including developing new tools to compel police cooperation with ICE, sanctuary localities resisted these moves and challenged the unjust use of coercive sovereign power. 220 However, the term “sanctuary” does not ft the historical meaning of the term. Even in sanctuary cities, ICE can unoffcially raid an apartment building, harass workers, or repeatedly visit a workplace because, as Plascencia has argued, the border was and is in multiple shifting sites. 221 Although they are vital, sanctuary cities and campuses, as they are currently confgured, are not “sanctuary” in the same way that faith-based institutions are. In contrast to the US movement, the Australian movement is smaller, more recently established, and nearly entirely faith-based. At the same time, it has developed numerous tactics of dissent, activism, and advocacy that draw on a complex democratic community of citizens and noncitizens, like its US counterpart. These tactics include using wire cutters to help detainees escape and, again, stopping a deportation fight from taking off while it was on the tarmac. While I have argued that Australian protesters have drawn on the US movement, the US movement could learn a lot from tactics Australian activists have used since the 1980s. Moreover, unoffcial sanctuary locality tactics in Australia—from local governments’ non-cooperation with the federal government to medical personnel refusing to release Baby Asha—demonstrate the importance of formal agents’ non-cooperation with detention and deportation enforcement. In the next section, I frame these activities as “fugitive democracy” that challenges modern deployments of “Reason of State.” 3.5 “Wohlfahrsstaatsräson” and fugitive democracy

Faith-based sanctuary enacts the political as a democratic and solidaristic activity in the face of individualizing and hierarchizing modes of (de)politicization in an era of harsher migration policies in both countries. It does not accept the status quo but challenges it, rewriting pathologizing narratives about migrant illegality and counterposing the allegedly unbroken

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authority of federal agents with the power of a community. This undermines what Arendt identifed as a totalitarian aim: isolating individuals and creating a form of “loneliness” that destroys a political community. 222 Faith-based sanctuary is a radical response to undemocratic assertions of sovereign power over individuals on US soil, while a sanctuary city is not “sanctuary” in this sense. Sanctuary cities would more accurately be described as “constitutional cities” or “resistance cities” that seek to recover the rule of law as well as challenge unjust laws and practices. 223 The highly bureaucratized and policed sphere of immigration policy has the appearance of a liberal order but legally suspends the law, acting in a discretionary way according to “reason of state” and “rational domination” on behalf of the common good, thus conforming to liberal norms while being deployed undemocratically. Wolin conceives of this form of power as “Wohlfahrsstaatsräson,” a power that appears to be democratically oriented as it discursively claims to uphold national interest and societal well-being and yet is deployed as almost pure discretion, with the power of the warfare state behind it.224 Its “punishments” in the US context are disproportionate to the “crime”—militarized raids, detention, and deportation for status violations, for example. 225 In Australia, border arrivals are treated as enemy invaders, not refugees, and arrested and detained before they can attempt to fle for refugee status. In all cases, bureaucratic power is not merely decisionistic but systematically coercive and violent. 226 In the United States, Wohlfahrsstaatsräson eclipses both marginalized citizens’ and migrant residents’ formal “rights,” particularly as terror is sown through reports of children in cages, the indiscriminate use of migrant policing powers to detain and deport any resident foreigner, and the targeting of refugees whose credible fear was affrmed, hospitalized individuals, and other criminally innocent people.227 In Australia, these enforcement tools are not systematic nor omnipresent, but they are possible de jure. 228 The targets of this power may seem to have minimal rights, but the exercise of unchecked sovereign authority blocks access to these low-level rights, making them effectively meaningless.229 It is worth remembering that arbitrary detention contravenes human rights law and that deportation is the legal equivalent of capital punishment. 230 In this context, sanctuary is necessarily “fugitive” as “rights” are performed, even if they are not authorized. 231 “Outlaws” create an inherently “improper” act due to this rightlessness.232 While the sovereign state draws on an “illiberal” state of exception, sanctuary efforts create a democratic state of exception, as it interrupts temporal rhythms, pokes holes in hegemonic narratives, and undermines attempts at the monopoly of power. 233 In this way, faith-based sanctuary operates in the

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same context as that of detainee self-harming protest. This protest is “dissensus” because it creates tension and is not formally legible. 234 Political researchers should appreciate how this movement challenges and modifes the state’s attempt at monopolizing sovereign power, thus altering the contours of sovereignty. In contrast to sanctuary cities, faith-based sanctuary more literally creates a sanctuary space that resists current laws and contests unfree power dynamics. Following Panagia, it stages an “improper event” by people who are not conceived of as the demos, creating democracy-as-dissensus or “fugitive democracy.”235 Sanctuary engages an entire community in unique ways that lead to deep and meaningful participation. In the context of raids, arbitrary arrests, racial profling, and ideological policing, faith-based sanctuary challenges, interrupts, and alters these deployments of power. The largely disenfranchised and criminalized demos halts a seemingly inevitable bureaucratic process, creating something new in their challenge to established authority. In turn, the original and participatory elements of these processes are deeply political and democratic. In Wolin’s terminology, sanctuary is “fugitive” (i.e. issue-driven and non-institutionalized) because it is necessary to emphasize particular details of each different case in the face of mediatic and offcial homogenization (e.g. in racist and criminalizing discourses). 236 For example, the power of Beatriz’s story (in the frst section) was communicating about who she was beyond the narrow view of her as undocumented— this included sharing that she has always been a hard worker, she was a mother with two children under fve (at the time), and someone who had been the victim of sexual assault. In contrast, Baby Asha’s story was different in that she had been living in an offshore detention site and was severely burned—her Nepalese family wanted to remain in Australia and not be forcibly deported back to Nauru. Faith-based sanctuary activists and these individuals work together to form counter-narratives that provide a more robust and human account of their plight. 237 What is often clear is that their criminalization has been structured by forces outside of their control. These different elements of faith-based sanctuary taken together— actions by an unauthorized demos staging an improper event as fugitive democracy to halt bureaucratic processes and reverse detention and deportation—amount to creating a democratic state of exception. Even if liberal language is employed—e.g. restoring the rule of law—the context and tactics cannot be liberal in that rights cannot simply be granted: decades of racist criminalization must be dismantled to create a new, more dynamic understanding of rights. 238  Instead, faith-based sanctuary is closer to detainee hunger strikes and self-harming protest as it enacts

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forms of democratic counter-sovereignty. It creates a democratic “state of exception”; that is, it produces an exception to the exception, aiming at democratizing a highly unjust sphere of law and enforcement. This occurs not merely when people hold up signs but physically create alternative spaces that resist individual criminalization. In sum, the “improper” and “fugitive” elements of sanctuary occur for three interlocking reasons: despite the appearance of bureaucracy, the power wielded by state powers is arbitrary and decisionistic (it operates according to Wohlfahrsstaatsräson); the subjects of this power are de facto rightless; and the protest method itself is entirely grassroots and issue bound. However, neither approach (sanctuary localities or faithbased sanctuary) is merely invoking rights but, following Wolin, “constituting power” by acting with and on behalf of the demos and through this democratic performance, challenging injustice.239 As Wolin argues, “What is at stake is not a vapid issue of dissent but the status of democracy as standing opposition and the importance to it of the continuous recreation of political experience.”240 Per Wolin, faith-based sanctuary efforts and similar grassroots activism confront the undemocratic aspects of immigration policy, reconstituting power in a harsher policy context. These efforts expose how “legitimate” and formal political dynamics of federal immigration police are based in secrecy, randomness, arbitrariness, and coercion. Sanctuary pokes holes in, transforms, and otherwise contests the sovereign state’s wish for absolute, unbroken authority. This offer of sanctuary is both legal and yet extra-legal, in keeping with more ancient notions of sanctuary as a sacred place that should not be violated by temporal powers and as a haven from misjudgment and abuse. 241 As in the past, it is the institution that is sacred and, which, thus far, has not been violated by immigration police, while the individual is only safe insofar as he or she doesn’t step outside of the church structure.242 The examples of sanctuary in the frst section demonstrate how the individual or family seeking sanctuary chooses to hyperbolize their confnement through an active and open confrontation with sovereign powers seeking to deport them. They draw on extant human rights and a lengthy history of sanctuary practices to democratize an otherwise undemocratic enforcement context. Whether sanctuary-seekers are successful in having their cases re-opened or not, they call forth a community that is issue bound and which educates the public about the harms of migrant detention and deportation. 243 Nevertheless, as mentioned previously, the US sanctuary movement has been criticized as merely reactive and even neoliberal, cooperating with the very powers that exploit and politically oppress foreigners.244 For example, critics charge that sanctuary policies are “neoliberal” because

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cities do not prevent ICE activities and raids. 245 These raids create an atmosphere of terror for low-tier workers, ensuring that they endure hardship and sacrifce without any recourse. Second, critics charge that sanctuary city discourse can rest on an individualized and economic set of assumptions about migrants (e.g. the argument that we should protect foreign workers because they are vital to the economy). While both facts may be true, the locus of the problem is not the sanctuary city per se but the deployment of plenary powers of the warfare state, combined with an increasingly neoliberal view of human worth, such that migrant workers have become “neoliberal subjects.”246 To blame sanctuary cities for these dynamics is to ignore pre-9/11 policy changes in both countries. For example, in the United States, 1996 policy changes diminished constitutional personhood at the state and local level, combined with neoliberal employment practices and conditions. At the same time, Australia increasingly excised territory and deployed military force on refugees arriving in boats. At the very least, even if sanctuary city policies are rooted in an economic and individualistic understanding of migrants’ worth, upholding a separation of powers is still important. These criticisms imply that abolishing sanctuary would help migrants—I believe this would perpetuate the most unjust dynamics of migration policy rather than solving them. Most importantly, both countries would lose important democratic communities and democratizing tactics at a time when each government is shoring up its more decisionistic, less transparent power structures resting on their monopolies on violence. 3.6 Conclusions

Today, faith-based sanctuary in both countries helps individuals to tell their unique stories of persecution in their home countries. Accordingly, today’s movements are perhaps less unifed on the policy and advocacy front. 247 But what sanctuary-seekers have in common is having to confront the relatively absolute authority of migration policing in the “host” country, with little judicial review, few enforceable rights, and little recognition of legal existence in any positive sense. In contrast to civil disobedients reclaiming already-granted rights, sanctuary activists and participants face a type of power that does not operate according to notions of democratic equality or normally taken-for-granted freedoms. Sanctuary does not and cannot aim at mere reform or conventional policy prescriptions because the authority justifying and guiding matters of immigration is wholly different than liberal politics. 248 In particular, faith-based sanctuary is an important example of visionary grassroots activism aspiring not merely to restore the status quo but

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to explode criminalizing paradigms and terrorizing discourses. Rather than viewing it in the context of everyday protest, I have suggested that it should be conceived of as fugitive counter-sovereignty confronting Wohlfahrsstaatsräson. The fact that sanctuary works—as with the cases discussed in the frst section—is evidence that even this type of power that operates on a binary of life or death can be challenged and reconstituted. Sanctuary localities, which have historically worked with faith-based activists, also do important work in reconstituting power even if they are not particularly “political” or “fugitive.” In the United States, the Trumpist era was criticized as tyrannical and fascist, but the truth about the immigration system is that it has been rotten to the core since the Chinese Exclusion Cases. It has just taken an extreme leader to make possible the worst-case scenario of an extraconstitutional police force arbitrarily picking up anyone who looks or is foreign. Similarly, Australian migration has been rooted in plenary powers and eugenic racism against non-whites; contemporary policies such as mandatory detention, excision of border sites, and the pretense that refugee seekers do not legally exist must be interpreted as a continuation of the previous policies. In both countries, national political parties often have more in common on the subject of migration than not—the question is not whether each party wants to dismantle the legal foundations of these harsh policies but rather, how harsh to be. The sanctuary offered by religious institutions today meets this challenge and exposes a power structure that must be dismantled entirely. This movement is certainly weaker than the state and is run by very poor churches and even poorer activists and migrants. 249 However, it provides an important nexus to detainee protest, whether this is intentional or not. Democratic theorists and researchers should pay attention to what is arguably one of the more interesting types of protest occurring in each country, just as researchers who view sanctuary in narrow terms should broaden their view of this movement. This is a grassroots movement rooted in the demos, allowing for collaboration between citizens and the foreign-born that has exploded borders, recast sovereignty, and often succeeded in interrupting seemingly absolute power. Sanctuary is not the problem—the injustice of migration policy is. In the next chapter, I discuss state sovereignty and activist counter-sovereignty in greater depth, examining how the latter can create a democratic state of exception. Notes 1 See Rafl Kroll-Zaidi, “The Revival of Church Sanctuary,” New York Review of Books, November 19, 2020, https://www.nybooks.com/articles/2020/11

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2

3

4 5

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7 8

/19/the-revival-of-church-sanctuary/?utm_medium=email&utm_campaign =NYR%20How%20Trump%20lost&utm_content=NYR%20How%20T rump%20lost+CID_e63fdc3e4c4e6b84ee9e23becd7cd919&utm_source =Newsletter&utm_term=The%20Revival%20of%20Church%20Sanctuary; Christopher N. Lasch et al., “Understanding ‘Sanctuary Cities,’” Boston College Law Review 59, no. 5, Article 5 (2018): 1702–1775. Regarding secular reasons for joining these protests see Melissa Davey, “‘The Whole Nation Is on Board’: Inside the Sanctuary Movement to Protect Asylum Seekers,” The Guardian, March 13, 2016, https://www.theguardian .com/australia-news/2016/mar/13/the-whole-nation-is-on-board-inside-the -sanctuary-movement-to-protect-asylum-seekers. See Kathleen R. Arnold, American Immigration After 1996: The Shifting Ground of Political Inclusion, (College Station: Penn State University Press, 2011); Kathleen Arnold, Arendt, Agamben and the Issue of Hyper-Legality: In Between the Prisoner-Stateless Nexus (New York and London: Routledge, 2018); Daniel Kanstroom, Deportation Nation (Cambridge, MA: Harvard University Press, 2007), especially the introduction; and Juliet P. Stumpf, “The Crimmigration Crisis: Immigrants, Crime and Sovereign Power,” American University Law Review 56 (2006): 367–418. Kanstroom, Deportation Nation, discusses the eternal guest or probation model on p. 6; 227. Robert F Kennedy issued this threat in a campaign against mob crime but the threat has since been repeated in warning foreigners to “stay in their lane.” Like Broken Windows policing: minor offenses are confated with major offenses, the line between civil law and criminal law is blurred, and foreigners are then subjected to an “eternal guest” model by which their status is never fully secure. See Kanstroom, Deportation Nation, 6, 227. Mae M. Ngai, Impossible Subjects (Princeton and Oxford: Princeton University Press, 2004). More broadly, Derrida has written on the limitations of hospitality when foreigners are treated as guests—see Jacques Derrida, On Cosmopolitanism and Forgiveness, trans. Mark Dooley and Michael Hughes (New York and London: Routledge, 2001); see also Anne Deslandes, “Sanctuary Cities Are As Old as the Bible,” JStor Daily, March 22, 2017, https://daily.jstor.org/sanctuary-cities-as-old-as-bible/ for an interesting discussion of sanctuary cities in relation to Derrida’s work. See Kanstroom, Deportation Nation, preface and introduction; Stumpf, “The Crimmigration Crisis.” Regarding recent statistics on migration and detention, see Abby Budiman, “Key Findings About U.S. Immigrants,” Pew Research Center Website, August 20, 2020, https://www.pewresearch.org/fact-tank/2020/08/20/ key-fndings-about-u-s-immigrants/; Tory Shepherd, “Deported to a Land They Barely Know: Anger Rises over Australia’s ‘Character Test’ for NonCitizens,” The Guardian, March 12, 2022, https://www.theguardian.com /australia-news/2022/mar/13/deported-to-a-land-they-barely-know-anger -rises-over-australias-character-test-for-non-citizens. The “Home to Bilo” case is an incredibly important example of the detention of long-term residents when one family member’s visa expired. It is also an example of how protesters physically stopped their deportation. See ABC News (Australia), “The Girl from Biloela who has Spent Every Birthday in Detention with her Tamil Family,” ABC News (Australia), June 11, 2021, https://www.abc.net .au/news/2021-06-12/biloela-tamil-family-christmas-island-detention-tharnicaa/100207676.

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9 Again, the #hometobilo case is instructive. See its website: https://www .hometobilo.com/. 10 As I have discussed, Australia has done this recently through the “character test”—see Shepherd, “Deported to a Land They Barely Know”; Linda Bosniak calls US policing “ubiquitous” in “Sanctuary and the Contested Ethics of Presence in the United States,” in Borders and Boundaries: Mapping Out Contemporary Societies, ed. Didier Fassin (Berkeley: University of California Press, 2018), ch. 10, 193. 11 See for example Anthony Gray, “The Status of Sanctuary in Australian Law,” Monash University Law Review 42, no. 3 (2016): 685–711. 12 A few brief observations: as de Tocqueville and Rousseau noted, some religious beliefs are inherently democratic and thus, work with or even foster civic mores and second, the Catholic Church has not only served a conservative function in various countries but since the late 1960s, there has also been a radical branch aligned with Marxism and/or socialism—this is evident in both countries’ sanctuary movements. See Mike Davis, City of Quartz (New York: Vintage, 1992) 13 See e.g. Gray, “The Status of Sanctuary in Australian Law”; Maria O’Sullivan, “The Sanctity of Asylum: The Legality of Church Sanctuary in Australia,” Alternative Law Journal 41 (2016): 254–258. 14 I should also note that some—like Hoye—view the Underground Railroad as an early predecessor to the 1980s sanctuary movement. J. Matthew Hoye, “Sanctuary Cities and Republican Liberty,” Politics and Society 48, no. 1 (December 2019): 67–97. 15 Australian groups have been traveling to remote detention locations for years, often with wire cutters and sometimes helping detainees escape. While US protesters have staged die-ins and physically blocked traffc or detention buses, for example, they have not gone to these lengths. On the other hand, the US sanctuary leaders have aided individuals’ entry into this country for years, providing another type of progressive tactic for countering undemocratic sovereign powers. 16 On the character test, see The Monthly, “Morrison’s Plan to Deport Thousands of Migrants,” 7am podcast, The Monthly, March 3, 2022, https://www.themonthly.com.au/podcast/morrisons-plan-deport-thousands -migrants; Shepherd, “Deported to a Land They Barely Know.” Nevertheless, the movement has similar tactics, principles, and aims—see for example Ben Doherty, “Churches Offer Sanctuary to Asylum Seekers Left Homeless by Coalition Cuts,” The Guardian, August 29, 2017, https://www.theguardian.com/australia-news/2017/aug/30/churches-offer-sanctuary-to-asylum -seekers-left-homeless-by-coalition-cuts; see also the website for St. John’s Cathedral, which is at the center of this movement: https://www.stjohnscathedral.com.au/contact-us/. 17 Under Reagan, there were several “burglaries” of sanctuary personnel offces, and 16 sanctuary-providers were arrested in 1984. See Lawrence J. McAndrews, Refuge in the Lord: Catholics, Presidents, and the Political of Immigration, 1981–2013 (Washington, DC: Catholic University of America Press, 2015), 41–43. Perla and Coutin recount how 11 sanctuary activists were indicted on charges of conspiracy and alien-smuggling in American Baptist Churches v Thornburgh (1985). Susan Coutin and Hector Perla, “Legacies and Origins of the 1980s US-Central American Sanctuary Movement,” Refuge 26, no. 1 (Spring, 2009): 7–19. In June 2020, the Trump administration arrested at least 5 people as traffckers for providing water

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18 19

20

21 22

23 24

25 26

and aid to undocumented immigrants in Arizona. A key group that has worked to prevent deaths in the Arizona desert is No More Deaths and Scott Warren, an Arizona State professor, was one of those arrested for providing water to thirsty migrants. Carrot Quinn, “Why Was This Man Arrested for Giving Water to Migrants Crossing the Border?” The Guardian, January 26, 2018, https://www.theguardian.com/global/2018/jan/26/scott-warren-no-more-death-arrested-migrants-water. See also Peter Wade, “Trump Is Sending Elite Border Patrol Units to Make Arrests in Sanctuary Cities,” Rolling Stone, February 15, 2020, https://www.rollingstone.com/politics/ politics-news/trump-border-patrol-units-sanctuary-cities-953661/. See McAndrews, Refuge in the Lord. See Bosniak, “Sanctuary and the Contested Ethics of Presence”; Serin Houston and Olivia Lawrence-Weilmann, “The Model Migrant and Multiculturalism: Analyzing Neoliberal Logics in US Sanctuary Legislation,” in Migration Policy and Practice: Interventions and Solutions, ed. Harald Bauder and Christian Matheis (New York: Palgrave, 2016), ch. 5. However, as I have argued throughout this book, the protesters in these circumstances are not always recognized as “persons” per constitutional provisions and nor are they confronting the welfare or constitutional state. Rather, they are acting at the intersection of the “welfare” and “warfare” spheres in a legally grey area marked by secrecy, irregularity, and coercion. Sheldon Wolin, Politics and Vision, expanded edition (Princeton: Princeton University Press, 2004), 602. See e.g. Greta Austin, “Austin on Shoemaker, ‘Sanctuary and Crime in the Middle Ages, 400-1500’,” H-Law, June 2013, https://networks.h-net.org/ node/16794/reviews/17275/austin-shoemaker-sanctuary-and-crime-middle -ages-400-1500; L. Collingwood and B.G. O’Brien, Sanctuary Cities: The Politics of Refuge (New York: Oxford University Press, 2019); Deslandes, “Sanctuary Cities Are As Old as the Bible”; Gray, “The Status of Sanctuary in Australian Law”; Hoye, “Sanctuary Cities and Republican Liberty”; McAndrews, Refuge in the Lord; Linda Rabben, Give Refuge to the Stranger: The Past, Present, and Future of Sanctuary (Walnut Creek: Left Coast Press, 2011); Karl Shoemaker, Sanctuary and Crime in the Middle Ages, 400–1500 (New York: Fordham University Press, 2011). Nevertheless, Rabben argues that this component of sanctuary eventually led to asylum practices and law in the world war era. Rabben, Give Refuge to the Stranger. See Harold Bauder, “Sanctuary Cities: Policies and Practices in International Perspective,” International Migration 55, no. 2 (2017): 174–187; Simon Behrman, Law and Asylum: Space, Subject, Resistance (Abingdon-onThames: Routledge, 2018); Hoye, “Sanctuary Cities and Republican Liberty”; Randy Lippert et al., “Introduction: Sanctuary Across Countries, Institutions, and Disciplines,” in Sanctuary Practices in International Perspectives: Migration, Citizenship, and Social Movements, ed. Lippert and Rehaag (New York: Routledge, 2013), 1–12; Rabben, Give Refuge to the Stranger; Shoemaker, Sanctuary and Crime. Gray, “The Status of Sanctuary in Australian Law,” 686. Rabben, Give Refuge to the Stranger. See also Gray, “The Status of Sanctuary in Australian Law,” 687; Kasimis on the treatment of the metic (foreigner) in Athens: Demetra Kasimis, “The Tragedy of Blood-Based Membership: Secrecy and the Politics of Immigration in Euripides’s Ion.” Political Theory 41, no. 2 (2013): 231–256.

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27 Rabben, Give Refuge to the Stranger. 28 Gray, “The Status of Sanctuary in Australian Law,” 686. In ancient times, the “golden rule” is evident in Socrates and Plato’s work; Cicero’s work invokes the same values for strangers and even prisoners of war. 29 Hampton cited in Gray, “The Status of Sanctuary in Australian Law”; Lance Hampton, “Step Away from the Altar, Joab: The Failure of Religious Asylum Claims in the United States in Light of the Primacy of Asylum Within Human Rights,” Transnational Law & Contemporary Problems 12 (2002): 453–486. 30 Gray quoting Hampton, “The Status of Sanctuary in Australian Law,” 687. Hampton, “Step Away from the Altar, Joab.” 31 Gray explains: “The frst written evidence of the doctrine is often taken to be Constantine’s Edict of Toleration of 313. Further evidence of it appears in the Theodosian Code of 392. The Council of Sardinia of 343 stated it was necessary to rescue anyone, regardless of guilt, ‘who sought “refuge in the mercy of the church” and the Franks recognised sanctuary. This was also recognised by the Saxons; this is sometimes attributed to Augustine’s arrival in 597. Laws of Ine, King of the West Saxons 688–725 AD, provided that a person subject to the death penalty could escape it if they fed to a church and paid appropriate money.” Gray, “The Status of Sanctuary in Australian Law,” 687–688. See also the very helpful analysis in Philip Marfeet, “Understanding ‘Sanctuary’: Faith and Traditions of Asylum,” Journal of Refugee Studies 24, no. 3 (2011): 440–455. 32 In most sources on contemporary movements in the US and Australia, sanctuary leaders and authors also invoke medieval practices, particularly those in Britain (perhaps for very obvious reasons tied to both countries’ direct relationship to the “mother” country). For example, see Peter Hodge, “#LetThemStay #BringThemHere: Embodied Politics, Asylum Seeking, and Performativities of Protest Opposing Australia’s Operation Sovereign Borders,” Politics and Space 37, no. 3 (2019): 386–406. 33 Gray argues that “In the 10th century sanctuary was further extended to include chartered sanctuaries. These sanctuaries extended the physical environment in which sanctuary could be claimed beyond the church and its immediate environs, applied to a broader range of offences, and provided sanctuary for a longer period. Sanctuary was recognised by William the Conqueror. The church continued to recognise a very broad principle of sanctuary in the 12th century.” Gray, “The Status of Sanctuary in Australian Law,” 688. 34 Shoemaker, Sanctuary and Crime in the Middle Ages; see also Bauder, “Sanctuary Cities”; Kroll-Zaidi, “The Revival of Church Sanctuary.” 35 Regarding all of these practices, see Shoemaker, Sanctuary and Crime in the Middle Ages; see also Eric Grundhauser, “What It Was Like to Seek Asylum in Medieval England,” Atlas Obscura blog on Slate dot com, July 31, 2015, http://www.slate.com/blogs/atlas_obscura/2015/07/31/in_medieval_england_fugitives_seeking_sanctuary_needed_only_to_get_themselves.html. 36 Shoemaker, Sanctuary and Crime in the Middle Ages, xi. 37 Shoemaker, Sanctuary and Crime in the Middle Ages, 2; Austin, “Austin on Shoemaker, ‘Sanctuary and Crime in the Middle Ages, 400–1500’.” 38 This is something Foucault suggests throughout Discipline and Punish to challenge the idea that people were freer to exercise challenges and democratic agency only with the fall of monarchies. In fact, power was only vertical at the formal level but while punishment still involved crowds and

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39

40 41

42

43 44

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46 47 48 49

public spectacles, crowd or mob interaction with sovereign authorities constantly questioned, altered, and transformed power. Rather than arguing that this demonstrates a level of democratic rights or freedom, we could interpret this as a disjuncture between the stated aims of the monarch to exercise unbroken authority over the people and enforcement, where a necessary breakdown of authority occurred to make “law” more humane. Michel Foucault, Discipline and Punish, trans. Alan Sheridan (New York: Vintage, 1979). See Kantorowicz on the development of the notion of sovereignty as unbroken and immortal in Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1997). Again, this is a key thesis in Foucault’s Discipline and Punish. Michel Foucault, The History of Sexuality, Volume I: An Introduction, trans. Robert Hurley. (New York: Vintage Books, 1980); Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005). An example of arguing that some faith-based sanctuary is reformist, liberal, and/or complicit with neoliberalism (but without concrete examples as proof) is: Houston and Lawrence-Weilmann, “The Model Migrant and Multiculturalism”; Susan Maira, “Freedom to Move, Freedom to Stay, Freedom to Return: A Transnational Roundtable on Sanctuary Activism,” Radical History Review, October 1, 2019: 138–159; Tyler Simpson, “The Neoliberal City Cannot be a Sanctuary: It’s Tokenism Without Doing More,” thatopinion.com, February 24, 2017, https://thatopinion.com/neoliberal -sanctuary/. See also Bauder, “Sanctuary Cities,” for an analysis (but not an endorsement) of these interpretations. On this case, see Nicholas de Genova, “The Deportation Regime: Sovereignty, Space, and the Freedom of Movement,” in The Deportation Regime: Sovereignty, Space, and the Freedom of Movement (Durham: Duke University Press, 2010), 33–68, see 8. Most of the cases I discuss involve civil infractions but re-entering the country after being deported by the US is a criminal offense. As she recounts in Leslie Hurtado, “Keeping the Faith: The Woman Who Started the Sanctuary Movement,” Borderless, February 15, 2022, https:// borderlessmag.org/2022/02/15/keeping-the-faith-the-woman-who-started -the-sanctuary-movement/ (this article was dictated by Arellano to Hurtado). When someone is deported from the US by the government (rather than agreeing to self-deport) they are barred from the country for ten years. Due to a second re-entry after 2002, she would be hypothetically barred from the country for twenty years if/when she is deported in 2022. Second, Arellano’s use of a fake social security number to get work was considered identity theft at this time but according to the majority decision in Flores-Figueroa—taking work is not “stealing.” Arellano’s activism and “unauthorized” residence during this time was precisely when the US government was just implementing a mass detention and deportation system. In the same time under the Bush Administration, raids became a key tool of migration policy, but were again challenged in the Flores-Figueroa v. United States, 556 U.S. 646 (2009) case. See Geoffrey Heeren, “The Status of Nonstatus,” American University Law Review 64 (May 11, 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract _id=2560931. Hurtado, “Keeping the Faith.” Hurtado, “Keeping the Faith.” See Hurtado, “Keeping the Faith”; de Genova, “The Deportation Regime.”

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50 Wendy Cole, “Person of the Year 2006: Elvira Arellano,” Time, December 25, 2006, https://content.time.com/time/specials/packages/article/0,28804 ,2019341_2017328_2017183,00.html. 51 That is, even though there was a criminal case against her for re-entry after deportation, she would not have been a high-priority criminal before the events of 9/11/2001. 52 See Eleanor Acer and Tara Magner, “Restoring America’s Commitment to Refugees and Humanitarian Commitment,” Georgetown Immigration Law Journal 27 (Spring 2013): 445–481; Andrew I. Schoenholtz, “Refugee Protection in the United States Post-September 11,” Columbia Human Rights Law Review 36, no. 2 (2005): 323–364. 53 I have written about this at length in Kathleen Arnold, America’s New Working Class and American Immigration After 1996 (College Station: Penn State University Press, 2008). See Erik Camayd-Freixas, Statement of Dr. Erik Camayd-Freixas, Federally Certifed Interpreter at the U.S. District Court for the Northern District of Iowa Regarding a Hearing on “the Arrest, Prosecution, and Conviction of 297 Undocumented Workers in Postville, Iowa, from May 12 to 22, 2008.” Before the Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law. July 24, 2008 at 11:00am, 1310 Longworth House Offce Building. http://judiciary.house.gov/hearings/pdf/Camayd -Freixas080724.pdf. 54 Hurtado, “Keeping the Faith.” 55 See Ruth Gomberg-Muñoz, Becoming Legal: Immigration Law and MixedStatus Families, (Oxford: Oxford University Press, 2016); Alfonso Gonzales, Reform Without Justice: Latino Migrant Politics and the Homeland Security State (New York: Oxford, 2014). 56 As various panelists and reviewers have remarked, the irony is that faithbased institutions have been respected above all other “sensitive” locations due to conservative religious beliefs but this does not mean that the same conservatives support undocumented migrants’ resistance to detention and deportation. 57 In Gray’s words: Gray, “The Status of Sanctuary in Australian Law,” 703. On community building through leaving water, food, and blankets in the desert (among other things), see Abby C. Wheatley and Ruth Gomberg-Muñoz, “Keep Moving: Collective Agency Along the Migrant Trail,” Citizenship Studies 20, no. 3–4 (2016): 396–410. 58 De Genova, “The Deportation Regime,” 36. 59 Similar to Arellano, José Antonio Vargas is a nationally recognized public fgure who often gives public talks, interviews, and writes about his undocumented status but has not yet been detained or deported (to the Philippines). See his personal website: https://joseantoniovargas.com/about/. 60 See the history of Undocuqueer at this time (Undocuqueer, “Equality Archive,” n.d., https://equalityarchive.com/history/); see Eithne Luibhéid and Lionel Cantú, eds., Queer Migrations (Minneapolis: University of Minnesota Press, 2005); Karma R. Chávez, Queer Migration Politics: Activist Rhetoric and Coalitional Possibilities (Univ of IL Press, 2013). 61 As I discuss in ch.1, I derive the term “totalitarian tools” from Hannah Arendt’s work in The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979). 62 As she (Elvira Arellano) states in Borderless magazine: prospective Mexican employers “would say, ‘No, we don’t want her here because she’s going to

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assemble workers to join her protests.’” I was fred because of my activism. I was no longer eligible to work. I didn’t fnish high school in Mexico and didn’t have a document that said I had the skills to work at these jobs. So I decided to return, and I graduated.” Hurtado, “Keeping the Faith.” De Genova argues that: “in the face of imminent deportation, Arellano effectively exchanged the life of an undocumented migrant worker (for whom onerous exploitation was the quotidian price of her routinized legal vulnerability as an ‘illegal alien’) for one of self-selected captivity and a heightened and unrelenting exposure to the unfathomable caprices of the state…” The next year, she decided to leave sanctuary to take part in an immigrants’ rights protest in Los Angeles and was apprehended about which de Genova argues that “Arellano’s deportation came, notably, only once she had violated the tacit terms of her voluntary internment.” De Genova, “The Deportation Regime,” 36. See Arnold, Arendt, Agamben and the Issue of Hyper-Legality; K. Arnold, “Sanctuary in a Trumpist Context: Creating Spaces of Democratic Exception,” Political Research Quarterly, October 22, 2021, https://journals.sagepub.com /doi /10.1177/10659129211052493?fbclid=IwA R3sB 4DmwBgHK XPixdGuSCmpE Ab1W WhIk 2AH902yuChmeC7ncZ1O4 C2JPZA&.  See US Customs and Immigration Services (USCIS), “U-Visa,” n.d., https:// www.uscis.gov/humanitarian /victims-of-human-trafficking-and-other -crimes/victims-of-criminal-activity-u-nonimmigrant-status. See Michelle Reyf, “A Win for Beatriz and Her Family,” Groundswell Website, November 6, 2014, http://www.groundswell-mvmt.org/a-win-for-beatriz-and-her-family/. See also Tania Unzueta and Mijente, “Expanding Sanctuary: What Makes a City a Sanctuary Now?” January 27, 2017, https://mijente.net/2017 /01/sanctuary-report/. I held two meetings at my university for this purpose bringing Landaverde, migrant advocates, and lawyers together to discuss what Beatriz (and others like her) should or should not do while in sanctuary; community activists and I also held another large meeting at a local synagogue with another lead advocate. (DePaul University, 2014). See Amie Thurber and James Fraser, “Disrupting the Order of Things: Public Housing Tenant Organizing for Material, Political and Epistemological Justice,” Cities 57 (2016): 55–61. Thank you to my colleague John French for suggesting this article. Fr. Landaverde’s petition: “Stop Beatriz From Being Deported,” https:// action.groundswell-mvmt.org/petitions/tell-the-obama-administration-stop -beatriz-from-being-deported. “Sanctuary Victory: Suyapa and Children,” New Sanctuary Movement of Philadelphia website, n.d. https://www.sanctuaryphiladelphia.org/campaigns/sanctuary-suyapa-and-children/--Suyapa walked out of the church on March 13, 2020. “Sanctuary Victory: Suyapa and Children,” New Sanctuary Movement of Philadelphia website. De Genova, “The Deportation Regime,” 36. Brittany Renee Mayes and Maria Sacchetti, “They Moved into Churches to Avoid Deportation. Now They’re Asking: Is it Safe to Leave?” Washington Post, April 5, 2021, https://www.washingtonpost.com/dc-md-va/2021/04/05 /trump-immigration-sanctuary/. Mayes and Sacchetti, “They Moved into Churches to Avoid Deportation.”

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74 See, for example this account by one sanctuary seeker: “Sanctuary Victory: Carmela Libre,” New Sanctuary Movement of Philadelphia website, n.d., https://www.sanctuaryphiladelphia.org /campaigns /sanctuary-carmela -libre/; Carmela walked out of the church on Marcy 17, 2021. 75 In fact, I have never heard this or read about this view from a sanctuary seeker in my community work or research. See Mayes and Sacchetti, “They Moved into Churches”; Philip Marcelo, Sophia Tareen, and Jim Slater, “Immigrants in Sanctuary in Churches Hope Biden Offers Relief,” AP News, February 4, 2021, https://apnews.com/article/immigration-churches-sanctuary-biden -9904b23125e3db6fa0844be34982438c; “Sanctuary: Angela Navarro Civil Disobedience,” New Sanctuary Movement of Philadelphia, n.d., https:// www.sanctuaryphiladelphia.org/campaigns/sanctuary-2014/; she walked out of sanctuary in January of 2015 because the campaign led to a suspension of her deportation; “Sanctuary Victory: Carmela Libre” among others. 76 O’Sullivan, “The Sanctity of Asylum,” 254. 77 See Ben Doherty, “‘Time Can Break Your Heart’: The Harsh Toll of Eight Years in Australian Immigration Detention,” The Guardian, October 31, 2021, https://www.theguardian.com/australia-news/2021/nov/01/time-can -break-your-heart-the-harsh-toll-of-eight-years-in-australian-immigration -detention. 78 There were fve major decisions upholding the legality of off-shore detention. For analyses of these decisions, see: Jeremy Gans, “News Summarising High Court Judgments,” High Court Blog/University of Melbourne Law School, February 5, 2016, https://blogs.unimelb.edu.au/opinionsonhigh/2016/02/05 /news-summarising-high-court-judgments/; Claire Toner, HRLC (Human Rights Law Centre), “High Court Rejects Challenge to Offshore Detention,” HRLC website, February 3, 2016, https://www.hrlc.org.au/human-rights -case-summaries/high-court-rejects-challenge-to-offshore-detention; Mike Head, “Australian High Court Sanctions Indefnite Offshore Detention of Refugees,” WSW (World Socialist Website), Feb 4, 2016, https://www.wsws .org/en/articles/2016/02/04/aust-f04.html 79 Gray, “The Status of Sanctuary in Australian Law,” 685. 80 On this decision, see: see: Gans, “News Summarising High Court Judgments”; Toner, “High Court Rejects Challenge to Offshore Detention,” (HRLC is the group that defended the Bangladeshi pregnant woman); Head, “Australian High Court Sanctions Indefnite Offshore Detention of Refugees.” 81 Gray, “The Status of Sanctuary in Australian Law,” 685. See #LetThemStay’s petition to the government here: https://actionnetwork.org/petitions/letthemstay?amp. The Human Rights Law Centre dates the emergence of this movement as February 2, 2016 (see https://www.hrlc.org.au/timeline-offshore -detention). For a more in-depth discussion of important groups, slogans, and actions, see Hodge, “#LetThemStay #BringThemHere.” Among these groups were/are: GetUp, RISE, and Grandmothers against Detention of Refugee Children in Newcastle. Key slogans: get in the way; #BringThemHere. 82 O’Sullivan notes: “Signifcantly, the group of 267 asylum seekers affected by this decision were comprised of a large number of children, including 37 babies.” O’Sullivan, “The Sanctity of Asylum,” 254; Davey, “The Whole Nation Is on Board.” 83 As Tonkiss explains (150): “Asha was born on mainland Australian soil to parents who had arrived to seek asylum in the country from Nepal, but shortly afterwards was transferred to Nauru. The area in which she lived was infested with rats and tents leaked. Asha was hospitalised at fve months

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old, suffering from gastroenteritis. Her mother’s milk had failed due to the stress of the transfer to the offshore facility and she did not respond well to the formula milk provided. She was returned to detention, despite warnings from Save the Children that this would be a ‘potentially catastrophic’ move. Then, in February 2016, at 12 months of age, she was once again hospitalised after suffering accidental burns when hot water was spilt on her,” Katherine Tonkiss, “‘A Baby Is a Baby’: The Asha Protests and the Sociology of Affective Post-Nationalism,” Sociology 55, no. 1 (2021): 146–162. For example, (e.g.): Tonkiss, “A Baby Is a Baby”; Joshua Robertson et al., “Baby Asha: Protest Swells at Hospital Amid Fears of Imminent Removal,” The Guardian, February 20, 2016, https://www.theguardian.com/australia-news/2016/feb/20/baby-asha-protest-swells-at-hospital-amid-fears -of-imminent-removal. These protests show the “rebirth of compassion” in Australia (see the cartoon in this source, also) Alex McKean, “Lady Cilento, Baby Asha and the Rebirth of Reason,” Independent Australia, February 21, 2016, https://independentaustralia.net/australia/australia-display/lady -cilento-baby-asha-and-the-rebirth-of-reason,8702. Others think that Asha’s parents “rewarded” and more will harm their kids (etc) to try to get out of off-shore detention. See this article, which reviews the different perspectives on this case: Binoy Kampmark, “Manipulating Child Refugees: The Baby Asha Scandal in Australia,” Counterpunch, February 24, 2016, https://www .counterpunch.org/2016/02/24/manipulating-child-refugees-the-baby-asha -scandal-in-australia/. O’Sullivan, “The Sanctity of Asylum,” 257–258. Hodge, “#LetThemStay #BringThemHere,” 395. See Tonkiss, “A Baby Is a Baby.” Tonkiss reviews participants’ framing of this incident as well as their intentions when participating in these protests, some of which she classifes as “post-national” (i.e. unsettling nation-state exclusionary logics and procedures) and others that are “nationalist” (i.e. reproducing the status quo which is nationalist, operating on a worthy and unworthy axis and more). While her analysis is excellent, her classifcation of some reactions is speculative—for example, arguing that some protesters only found this potential deportation wrong because it involved a mother and child, whereas if it had been a male migrant, reactions would have been different. We can suspect this is true in reading Tonkiss’s interview material, but we do not know this for a fact. Davey, “The Whole Nation Is on Board.” Davey, “The Whole Nation Is on Board.” See Hodge, “#LetThemStay #BringThemHere”; Susan Maira, “Freedom to Move, Freedom to Stay, Freedom to Return: A Transnational Roundtable on Sanctuary Activism”; RISE refugee group: https://www.riserefugee.org/topic /sanction-australia/ While numerous articles and youtube videos document this activity, the Netfix short series Stateless provides an excellent portrayal of the multifaceted activities of these progressive activists. Emma Freeman and Jocelyn Moorhouse (directors), “Stateless” short series, Matchbox Pictures/Dirty Films (ABC Australia/Netfix), Australia, March-July, 2020, As examples of all these activities, see (e.g.) the RISE website (Refugees, Survivors and Ex-Detainees), https://www.riserefugee.org/topic/sanction-australia/; Robertson et al., “Baby Asha”; Davey, “The Whole Nation Is on Board”; Stacks Law Firm: Anneka Frayne, “Sanctuary—Does it Exist?” February 17, 2016, https://www.mondaq.com/australia/human-rights/467450/church

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-sanctuary--does-it-exist-under-australian-law; Glenda Kwek, “Australia Churches to Offer Sanctuary to Asylum-Seekers,” February 4, 2016, https://news.yahoo.com/australia-churches-offer-sanctuary-asylum-seekers -050017315.html. See Michelle Foster, “An ‘Alien’ By the Barest of Threads’—The Legality of the Deportation of Long-Term Residents from Australia,” Melbourne University Law Review 33 (2009): 483–541; Lexy Hamilton-Smith, “Churches Offer Sanctuary to Asylum Seekers Affected by Welfare Crackdown,” August 28, 2017, https://www.abc.net.au/news/2017-08-29/aust-church-sanctuary -offer-asylum-seekers-welfare-crackdown/8852172. See also The Monthly, “Morrison’s Plan to Deport Thousands of Migrants.” See Foster, “An ‘Alien’ By the Barest of Threads.” Hodge, “#LetThemStay #BringThemHere,” 309: “The vigil has become a place where personal lives are shared, along with stories of grief and hope occasionally interrupted by sounds of car horns in support. As an unavoidable part of contemporary inner city Newcastle, the vigil has become a rally point for support and advocacy groups and has led to an allied monthly gathering – the #CantStandBy Newcastle – a block down from the vigil location at Wheeler place. Initiated by a number of groups, #CantStandBy Newcastle has incorporated dance and other choreographed public displays of demonstration. #CantStandBy rallies have sprung up across Australia as groups extend their networks and engage the public in opposition to Operation Sovereign Borders.” Hamilton-Smith, “Churches Offer Sanctuary to Asylum Seekers Affected by Welfare Crackdown.” ABC News (Australia), “The Girl from Biloela who has Spent Every Birthday in Detention with her Tamil Family.” Meredith Wright, “Essay: Home to Bilo…at Last?” Sight Magazine, June 8, 2022, https://www.sightmagazine.com.au/25343-essay-home-to-bilo-at -last. ABC News (Australia), “The Girl from Biloela who has Spent Every Birthday in Detention with her Tamil Family.” See Frayne, “Sanctuary—Does it Exist?; Gray, “The Status of Sanctuary in Australian Law”; O’Sullivan, “The Sanctity of Asylum.” See for example Gray, “The Status of Sanctuary in Australian Law”; O’Sullivan, “The Sanctity of Asylum,” Linda Bosniak criticizes US sanctuary movements as being too liberal in Bosniak, “Sanctuary and the Contested Ethics of Presence.” Prominent US Republicans argue that sanctuary is criminal although they do not often defne their terms, explain their arguments, or provide evidence for this claim. As of September 2022, Gov. Abbott of Texas has forcibly transported some Venezuelan refugees to Chicago and Massachusetts because he argues that both states have encouraged migration through sanctuary practices. These sorts of claims misunderstand what a sanctuary locality is as well as a number of other things related to refugees and migration policy. See Norma Chinchilla et al., “The Sanctuary Movement and Central American Activism in Los Angeles,” Latin American Perspectives 35, no. 6 (November 2009): 101–126; McAndrews, Refuge in the Lord; Coutin and Perla, “Legacies and origins of the 1980s US-Central American Sanctuary Movement.” See McAndrews, Refuge in the Lord. See for example, Davis, City of Quartz.

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104 See Coutin and Perla, “Legacies and origins of the 1980s US-Central American Sanctuary Movement”; on the depoliticization of the defnition of refugee see: Behrman, Law and Asylum; Ilana Feldman, “Diffcult Distinctions: Refugee Law, Humanitarian Practice, and Political Identifcation in Gaza,” Cultural Anthropology 22, no. 1 (February 2007): 129–169. 105 See Cheryl Shanks, Immigration and Politics of American Sovereignty, 1890–1990 (Ann Arbor: University of Michigan Press, 2001), ch 7. 106 See Coutin and Perla, “Legacies and origins of the 1980s US-Central American Sanctuary Movement.”; see also Peter Mancina, “The Birth of a Sanctuary-City: A History of Governmental Sanctuary in San Francisco,” in Sanctuary Practices in International Perspectives: Migration, Citizenship, and Social Movements, ed. Lippert and Rehaag (New York: Routledge, 2013), 205–216. 107 See Lawrence McAndrews, Refuge in the Lord. 108 See Davis, City of Quartz; Mancina, “The Birth of a Sanctuary-City.” 109 I state this as someone who is part of two sanctuary listservs and as a participant in faith-based sanctuary activities during the Obama era. 110 Jake Halpern, “A New Underground Railroad,” The New Yorker, March 13, 2017, 32–40. Although it is a very interesting article, the title of this article is misleading—there is no underground railroad. Halpern investigated the Vive shelter in Buffalo, New York, which helps refugee applicants to apply for refugee status in Canada. 111 On the frst point, see de Genova, “The Deportation Regime”; on the second see Randy Lippert, Sanctuary, Sovereignty, Sacrifce: Canadian Sanctuary Incidents, Power, and Law (Vancouver: University of British Columbia Press, 2005). 112 That is, 1980s activists paid for fights and other forms of transportation to reach the United States. 113 Perhaps this explains more synagogue involvement from 2006 to the present and more mosque involvement since the election of Donald Trump in 2017. See Dora Ballew, “The Man Trying to Turn Mosques Into Places of Sanctuary,” Ozy, February 7, 2017, https://www.ozy.com/the-new-and-the-next/the-man -trying-to-turn-mosques-into-places-of-sanctuary/75559/; Renee Montagne, “Mosques Consider Sanctuary For Immigrants,” NPR, March 4, 2018, https://www.npr.org/2018/03/04/590670163/mosques-consider-sanctuary -for-immigrants; Sean Rehaag, “Bordering on Legality: Canadian Church Sanctuary and the Rule of Law,” Refuge: Canada’s Journal on Refugees 26, no. 1 (Spring 2009): 43–56 (see p 53 n 6); Imam Omar Suleiman—his website: https://imamomar.com/about/; Kimberly Winston, “First to Join Sanctuary Movement,” Sojourners, January 23, 2017, https://sojo.net/articles/ohio-mosque-frst-join-sanctuary-movement. 114 I do expert witness work on these cases, providing country conditions reports (as affdavits) to help interpret these conditions as “political” even though persecution occurs in civil society rather than at the hands of the government. The task of expert witnesses today is to explain to judges why persecution by non-state offcials is still “political” and therefore, meeting the standards of the defnition of a refugee. 115 Femicide is the purposeful targeting of women and people who identify as women to control a territory or region. Tactics include brutal rapes, torture, and murder and often involve a continuum of abuse between the home and public sphere. For example, see Madeline Oden, “Women’s Rights and

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Femicide in El Salvador,” Borgen Project website, April 18, 2019, https:// borgenproject.org/femicide-in-el-salvador/. 116 See Pierre Hassner, “Refugees: A Special Case for Cosmopolitan Citizenship?” ch. 13 (273–286) in Re-imagining Political Community, ed. Daniele Archibugi, David Held, and Martin Köhler (Stanford: Stanford University Press, 1998); Karen Musalo, “A Short History of Gender Asylum in the United States: Resistance and Ambivalence May Very Slowly be Inching Towards Recognition of Women’s Claims,” Refugee Survey Quarterly 29, no. 2 (2010, UNHCR), http://cgrs.uchastings.edu/sites/default/fles/short _history_of_gender_asylum_Musalo_2010_0.pdf. 117 Under Reagan, there were several “burglaries” of sanctuary personnel offces and sixteen sanctuary-providers were arrested in 1984. See McAndrews, Refuge in the Lord, 41–43. Coutin and Perla, “Legacies and Origins of the 1980s US-Central American Sanctuary Movement” recount how eleven sanctuary activists were indicted on charges of conspiracy and alien-smuggling in American Baptist Churches v Thornburgh (1985). By June 2020, the Trump administration arrested at least 5 people as traffckers for providing water and aid to undocumented immigrants in Arizona. 118 Coutin and Perla, “Legacies and origins of the 1980s US-Central American Sanctuary Movement,” 14; see McAndrews Refuge in the Lord. 119 Anna Sampaio, Terrorizing Latina/o Immigrants: Race, Gender, and Immigration Politics in the Age of Security (Philadelphia: Temple University Press 2015); see McAndrews, Refuge in the Lord. 120 See Lasch et al., “Understanding ‘Sanctuary Cities’,” and their Online Appendix: Home, Westminster Law Library, http://libguides.law.du.edu /c.php?g=705342; Mancina, “The Birth of a Sanctuary-City”; Hiroshi Motomura, “Arguing About Sanctuary,” UC Davis Law Review 52 (2018): 434–469. 121 As Lasch et al. argue: Lasch et al., “Understanding ‘Sanctuary Cities’”; see Mancina, “The Birth of a Sanctuary-City”; on the frst point, see Bosniak, “Sanctuary and the Contested Ethics of Presence.” 122 ICE, “Sensitive Locations,” n.d., https://www.ice.gov/ero/enforcement/sensitive-loc. 123 See for example, accounts of success in Philadelphia: “Sanctuary: Angela Navarro Civil Disobedience”; she walked out of sanctuary in January of 2015 because the campaign led to a suspension of her deportation; “Sanctuary Victory: Carmela Libre,” New Sanctuary Movement of Philadelphia website, n.d., https://www.sanctuaryphiladelphia.org/campaigns/sanctuary -carmela-libre/; “Sanctuary Victory: Suyapa and Children,” New Sanctuary Movement of Philadelphia website, n.d., https://www.sanctuaryphiladelphia .org/campaigns/sanctuary-suyapa-and-children/--Suyapa walked out of the church on March 13, 2020; “Sanctuary Victory: The Thompsons,” n.d., https://www.sanctuaryphiladelphia.org/campaigns/sanctuary-oneita-clive -and-supaya/; the Thompsons walked out of the church in December 2020. 124 See Esther Meroño, “Sanctuary 101: How Churches and Synagogues Are Stopping Deportations,” Groundswell, October 22, 2014, https://parliam entofreligions.org/blog/2019-09-13-1207/sanctuary-101-how-churches-and -synagogues-are-stopping-deportations. 125 Perhaps in contrast to the Canadian case—see Lippert, Sanctuary, Sovereignty, Sacrifce—or the past, see Coutin and Perla, “Legacies and origins of the 1980s US-Central American Sanctuary Movement.” 126 Arendt, The Origins of Totalitarianism.

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127 Sheldon Wolin, “Democracy and the Welfare State: The Political and Theoretical Connections Between Staatsräson and Wohlfahrsstaatsräson,” In Wolin, The Presence of the Past: Essays on the State and the Constitution (Baltimore: Johns Hopkins Press, 1989), 151–179. 128 Key groups in this movement are: RISE, LetThemStay, the Human Rights Legal Centre. On this subject, see for example: Editorial Board, “Australia’s Brutal Treatment of Migrants,” New York Times, September 3, 2015, https://www.nytimes.com/2015/09/03/opinion/australias-brutal -treatment-of-migrants.html; Megan Specia, “Australians Protest Five Years of Offshore Detention,” New York Times, July 21, 2018, https:// www.nytimes.com/2018/07/21/world/australia/australia-refugee-policy -protest.html; Megan Specia, “Australians Protest Policy for Detention of Migrants,” New York Times, July 22, 2018, A15; John Shaw, “Australians Rally for Largest Protest Yet Over Refugee Policy,” New York Times, Late Edition, February 13, 2002, A6; Guardian Staff, “Australia Protests: Thousands Take Part in Black Lives Matter and Pro-refugee events Amid Covid-19 Warnings,” The Guardian, June 13, 2020, https:// www.theguardian.com/world/2020/jun/13/australia-proteststhous ands-take-part-in-black-lives-matter-and-pro-refugee-events-amid-healt h-warnings; Baz Ruddick, “Refugee Advocates Protest Outside Brisbane Immigration Centre to Mark Nine Years of Indefnite Detention,” July 18, 2021, https://www.abc.net.au/news/2021-07-18/qld-protesters-refugee-immigration-detention-bita-anniversary/100302690; Sholto Byrnes, “Why Has Nauru Locked up a Hundred Migrants on Australia’s Behalf?” The National News Opinion, February 16, 2022, https://www.thenationalnews.com /opinion/comment/2022/02/16/why-has-nauru-locked-up-a -hundred-migrants-on-australias-behalf/. 129 O’Sullivan, “The Sanctity of Asylum,” 254; the source she cites is: Suganthi Singarayar, “EastTimor-Refugees: Australia Irked by Church's Sanctuary Offer,” InterPress News, 9 November  1995, http://www.ipsnews.net/1995 /11/east-timor-refugees-australia-irked-by-churchs-sanctuary-offer/; see Lisa Kent, “East Timor Asylum Seekers Fight Deportation,” Green Left, September 18, 1996, https://www.greenleft.org.au/content/east-timor-asylum-seekers-fght-deportation. 130 Displacement and other human rights issues were not limited to the Indonesian government; see Daniel Fitzpatrick, “Mediating Land Confict in East Timor,” Australian Government site, Vol. 2 Case Study 9, (n.d. circa 2008) 178–196, https://www.dfat.gov.au/sites/default/fles/MLW _VolumeTwo_CaseStudy_9.pdf. 131 Singarayar, ‘EastTimor-Refugees.” 132 Singarayar, ‘EastTimor-Refugees.” 133 Singarayar, “East Timor-Refugees.” 134 See Jake Skeers, “Australian Government determined to Deport East Timorese Refugees,” World Socialist Web Site, December 10, 2002, https:// www.wsws.org/en/articles/2002/12/refu-d10.html. 135 This includes their recognition of East Timor’s right to self-determination, which the public mostly recognizes as having been violated by Indonesia. See e.g. Kent, “East Timor Asylum Seekers Fight Deportation.” 136 Kent, “East Timor Asylum Seekers Fight Deportation.” 137 See for example: Kent, “East Timor Asylum Seekers Fight Deportation”; James Cotton, “East Timor and Australia- Twenty-fve Years of the Policy Debate,” NAPSNet Special Reports, September 21, 1999, https://nautilus

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.org/napsnet/napsnet-special-reports/east-timor-and-australia-twenty-fve -years-of-the-policy-debate/. Jon Land, “East Timor: Church Slams Australia’s Role,” Green Left Issue 152, July 27, 1994, https://www.greenleft.org.au/content/east-timor-church -slams-australias-role. Human Rights Law Centre, #8YearsTooLong, 2021, https://www.hrlc.org .au/timeline-offshore-detention. See Human Rights Law Centre, #8YearsTooLong, 2021, https://www.hrlc .org.au/timeline-offshore-detention; see also The Nauru Files, The Guardian, https://www.theguardian.com/news/series/nauru-fles. See Hodge, “#LetThemStay #BringThemHere.” Source: Human Rights Law Centre, #8YearsTooLong. See Davey, “The Whole Nation Is on Board,” e.g. O’Sullivan, “The Sanctity of Asylum,” 255. O’Sullivan, “The Sanctity of Asylum,” 255. O’Sullivan, “The Sanctity of Asylum.” See for example this pledge sheet: The Action Network, “Take the Pledge: Get in the Way to #LetThemStay,” The Action Network website, sponsored by Love Makes a Way Australia, n.d. (circa 2016), https://actionnetwork.org /forms/take-the-pledge-get-in-the-way-to-letthemstay; see also CounterAct, “Getting in the Way- to #LetThemStay,” February 12, 2016, https://counteract.org.au/getting-in-the-way-to-letthemstay/. On the Taskforce, see O’Sullivan, “The Sanctity of Asylum,” (254); there were also other trainings including “training demonstrations given at churches in Sydney, Hobart, Perth, Canberra and Adelaide, while Christ Church cathedral in Darwin will hold a demonstration later this afternoon.” Davey, “The Whole Nation is on Board.” Davey, “The Whole Nation Is on Board.” Davey, “The Whole Nation Is on Board.” O’Sullivan, “The Sanctity of Asylum,” 255. Gray, “The Status of Sanctuary in Australian Law,” 685. Davey, “The Whole Nation Is on Board.” Davey, “The Whole Nation Is on Board.” Regarding alleged harboring, human smuggling: Gray “The Status of Sanctuary in Australian Law,” 709; O’Sullivan, “The Sanctity of Asylum,” 255. See this reaction to the government’s concession: Admin, “Allegations Say More About Dutton Than Baby Asha and Family,” Queensland Unions blog, February 27, 2016, https://blog.qldunions.com/media/allegations-say-more -about-dutton-than-baby-asha-and-family#:~:text=The%20Queensland %20union%20movement%20has%20applauded%20the%20community ,and%20her%20family%20being%20released%20into%20community %20detention. Doherty, “Time Can Break Your Heart.” Doherty, “Time Can Break Your Heart”; see the Nauru fles: https://www .theguardian.com/news/series/nauru-fles. Paul Farrell et al., “The Nauru Files: Cache of 2,000 Leaked Reports Reveal Scale of Abuse of Children in Australian Offshore Detention,” The Guardian, August 10, 2016, https://www.theguardian.com/australia-news/2016/aug/10 /the-nauru-fles-2000-leaked-reports-reveal-scale-of-abuse-of-children-in -australian-offshore-detention; O’Sullivan, “The Sanctity of Asylum,” 258: “whistleblowing laws now prevent doctors from speaking out against aspects

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of immigration detention centres. This is also illustrated by the policy of secrecy which forms a central component of Operation Sovereign Borders. The development of grass-roots religious movements led by certain religious leaders in Australia is therefore signifcant as a challenge to the manner in which the Australian government is operating its refugee policy.” Bosniak, “Sanctuary and the Contested Ethics of Presence.” There are several articles exploring these similarities—for example: Gray, “The Status of Sanctuary in Australian Law”; O’Sullivan (starting on p. 57) in “The Sanctity of Asylum.” In the United States, members of the Chicago Religious Leadership Network and the Interfaith Community for Detained Immigrants (both Chicago-based NGOs) have often lived in relevant countries, researched country conditions in-depth and for years, and have regularly agitated not only for US foreign policy change but also change in the sending countries’ governments. Similarly, religious fgures in the Australian sanctuary movement are part of a greater network of clergy stationed in East Timor, for example, and other sending countries as they try to stop political persecution and human rights abuses, as well as educating the Australian government on better foreign policy. See “Understanding ‘Sanctuary Cities’”; Rose Cuison Villazor, “‘Sanctuary Cities’ and Local Citizenship,” Fordham Urban Law Journal 37, no. 2 (2009): 576n20. See William Arrocha, “Expanding the Geographies of ‘Sanctuary’ and the Deepening and Contentious Nature of Immigration Federalism: The Case of California’s SB 54,” Globalizations (March, 2021): 1–18; Hoye, “Sanctuary Cities and Republican Liberty,” 85; Lasch et al., “Understanding ‘Sanctuary Cities’,” 1710. Regarding 1996 policy changes, see Monica Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood: Neoliberalism, Immigration and the State,” Annals of the Association of American Geographers 98, no. 4 (2008): 877–896. I use the term “sanctuary city” as a broad rubric for the variety of ordinances called “welcoming” or “sanctuary,” in cities, counties, and states. These localities employ at least 5 key tactics used for “federal disentanglement,” as delineated by Lasch et al., “Understanding ‘Sanctuary Cities’,” 1703. I use “faith-based sanctuary” as a broad designator of religiously- and/or morally-inspired sanctuary efforts taking place in a house of worship (whether supporters are religious or not). When I use the term sanctuary without qualifers, I am referring to both forms. See Bosniak, “Sanctuary and the Contested Ethics of Presence.” See Mancina, “The Birth of a Sanctuary-City.” See Motomura, “Arguing About Sanctuary,” 439. See Lasch et al., “Understanding ‘Sanctuary Cities’,” 1712; Stumpf, “The Crimmigration Crisis.” See Motomura, “Arguing About Sanctuary.” See Lasch et al., “Understanding ‘Sanctuary Cities’”; Juan Manfredi-Sánchez, “Sanctuary Cities: What Global Migration Means for Local Governments,” Social Sciences 9 no. 8 (August 2020): 146–163; Motomura, “Arguing About Sanctuary.” Manfredi-Sánchez, “Sanctuary Cities.” See also Derrida’s discussion on cities of refuge in Derrida, On Cosmopolitanism and Forgiveness. The police would be involved in a U-Visa case, e.g. Wolin, Politics and Vision, 602. Davidé Panagia, “The Improper Event: On Jacques Rancière’s Mannerism,” Citizenship Studies 13, no. 3 (2009): 297–308.

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174 See Bosniak, “Sanctuary and the Contested Ethics of Presence,” 197; ICE “Sensitive Locations.” While there have been no offcial explanations for this exception, most scholars and activists I know believe this is simply because the Republican Party does not want to offend churches or church-goers. 175 Bosniak, “Sanctuary and the Contested Ethics of Presence,” 206; see also Houston and Lawrence-Weilmann, “The Model Migrant and Multiculturalism”; Simpson, “The Neoliberal City Cannot be a Sanctuary.” While I disagree with Bosniak’s estimation of grassroots groups participating in the sanctuary movement, I agree that any movement based simply on “staying” or mere presence fails to undermine the complex power structure that produces otherness. On the one hand, the Chicago Religious Leadership Network (CRLN) has never fought for people to simply stay but together with groups like ICDI (Interfaith Community for Detained Immigrants), have used direct action; fown and housed people in Chicago who were rejected as refugee applicants; and have fought for policy change at both local and federal levels. On the other hand, as I just stated, I agree that if a group were to do that, they would not effect change at all. 176 See Bosniak, “Sanctuary and the Contested Ethics of Presence”; Genova’s characterization of Elvira Arellano’s year-long stay in a church as “asphyxiating” in Genova, “The Deportation Regime”; and see also Kasimis, “The Tragedy of Blood-Based Membership.” 177 See Jen Bagelman, “Sanctuary: A Politics of Ease? Alternatives: Global, Local, Political,” Alternatives: Global, Local, Political 38, no. 1 (January 2013): 49–62; Jonathan Darling and Vicki Squire, “Everyday Enactments of Sanctuary: The UK City of Sanctuary Movement,” in Sanctuary Practices in International Perspectives: Migration, Citizenship, and Social Movements, ed. Lippert and Rehaag (New York: Routledge, 2013a), 191–216; Houston and Lawrence-Weilmann, “The Model Migrant and Multiculturalism”; Keally McBride, “Sanctuary San Francisco: Recent developments in Local Sovereignty and Spatial Politics,” Theory & Event 12, no. 4 (2009): electronic; Simpson, “The Neoliberal City Cannot be a Sanctuary.” 178 Thank you to Verónica Zebadúa-Yañez for suggesting this term. 179 See Lippert, Sanctuary, Sovereignty, Sacrifce. 180 Agamben, State of Exception; Wolin, “Democracy and the Welfare State.” 181 Wolin, “Democracy and the Welfare State.” 182 Wolin, “Democracy and the Welfare State.” 183 Motomura, “Arguing About Sanctuary,” 465. 184 See Jonathan Darling and Vicki Squire, “The Minor Politics of Rightful Presence: Justice and Relationality in City of Sanctuary,” International Political Sociology 7, no. 1 (2013b): 59–74. 185 Bosniak, “Sanctuary and the Contested Ethics of Presence,” 192. 186 Bosniak, “Sanctuary and the Contested Ethics of Presence,” her emphasis, 193; see also Nicholas de Genova, “The Border Spectacle of Migrant ‘Victimisation,’” Open Democracy website, May 20, 2015, https://www .opendemocracy.net/beyondslavery/nicholas-de-genova/border-spectacle-of -migrant-%E2%80%98victimisation%E2%80%99; Luis F.B. Plascencia, “Where Is the Border?” in The U.S.-Mexico Transborder Region, ed. Josiah Heyman and Carlos G. Vélez-Ibáñez (Tucson: University of Arizona Press, 2017). 187 Agamben, State of Exception; see Kanstroom, Deportation Nation on expansion of discretion in the past few decades; Varsanyi, “Rescaling the ‘Alien,’” on non-personhood. On the prevalence of discretionary statuses in

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the US, see Heeren, “The Status of Nonstatus”; Motomura, “Arguing About Sanctuary”; Shoba Wadhia, “The History of Prosecutorial Discretion in Immigration Law,” American University Law Review 64 (May 11, 2015b): 101–118. Available at Penn State Law Legal Studies Research Paper No. 6-2015, law.psu.edu. 188 In contrast to work that narrowly construes the meaning of sanctuary, providing a sketchy historical background focusing mostly on the question of immigrant criminality, this article frst provides a complex legal and historical context for current sanctuary efforts to problematize claims that sanctuary seekers are “illegals” or even merely undocumented (e.g. Collingwood and O’Brien, Sanctuary Cities). It treats the U.S. as a unique case not to claim exceptionalism or leadership in this movement but to avoid historically and empirically incorrect comparisons and claims. See Bauder, “Sanctuary Cities”; Lippert, Sanctuary, Sovereignty, Sacrifce; Manfredi-Sánchez, “Sanctuary Cities: What Global Migration Means for Local Governments.” 189 See also Bosniak, “Sanctuary and the Contested Ethics of Presence,” 193. 190 Bosniak, “Sanctuary and the Contested Ethics of Presence,” 193; see Arnold, Arendt, Agamben and the Issue of Hyper-Legality; Kevin R. Johnson, “Race and Immigration Law and Enforcement” Geography Immigration 289 (1999–2000): 289–305; Michael Kagan, “Plenary Power Is Dead! Long Live Plenary Power!” Michigan Law Review First Impressions 114, no. 10 (2015): 21–30; Varsanyi “Rescaling the ‘Alien.’” 191 See Johnson, “Race and Immigration Law and Enforcement”; Kanstroom Deportation Nation; Varsanyi “Rescaling the ‘Alien’” 192 On current debates regarding this doctrine, see Kagan “Plenary Power Is Dead! Long Live Plenary Power!”; David Martin, “Symposium: Chae Chan Ping v. United States: 125 Years of Immigration’s Plenary Power Doctrine,” Oklahoma Law Review 68, no. 1 (2015): 29–56. 193 Wolin “Democracy and the Welfare State.” 194 Stumpf, “The Crimmigration Crisis”; see Matthew Coleman and Austin Kocher, “Detention, Deportation, Devolution and Immigrant Incapacitation in the US, Post 9/11,” The Geographical Journal 177 no. 3 (September 2011): 228–237; César Cuauhtémoc García Hernández, “Immigration Detention as Punishment,” UCLA Law Review 61, no. 5 (2014): 1346–1414. 195 See Arrocha “Expanding the Geographies of ‘Sanctuary’”; Bosniak “Sanctuary and the Contested Ethics of Presence”; Villazor, “‘Sanctuary Cities’ and Local Citizenship.” 196 Lasch et al., “Understanding ‘Sanctuary Cities’,” 1707; see also Hoye, “Sanctuary Cities and Republican Liberty,” 85. 197 Lasch et al., “Understanding ‘Sanctuary Cities’,” 1728–1729. 198 See Motomura “Arguing About Sanctuary.” 199 “President Trump’s Reckless Shame Game” 2017; see also Collingwood et al., “The Politics of Refuge: Sanctuary Cities, Crime, and Undocumented Immigration”; Lasch et al., “Understanding ‘Sanctuary Cities’,” 1761–1764; Miriam Ticktin, “The Sanctuary Movement and Women’s Rights: Sister Struggles,” Truthout, April 29, 2017, http://www.truth-out.org/opinion/item /40416-the-sanctuary-movement-and-women-s-rights-sister-struggles. 200 See Vargas and others on not seeking medical help: Edward D. Vargas et al., “Fear by Association: Perceptions of Anti-Immigrant Policy and Health Outcomes,” Journal of Health Politics, Policy and Law 42, no. 3 (June 2017): 459–483; Samantha Artiga and Maria Diaz, “Health Coverage and Care of Undocumented Immigrants,” Kaiser Family Foundation, https://www.kff

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.org/racial-equity-and-health-policy/issue-brief/health-coverage-and-care-of -undocumented-immigrants/. 201 See Hoye, “Sanctuary Cities and Republican Liberty,” 83. 202 This is something I explore in greater depth in Arnold, Arendt, Agamben and the Issue of Hyper-Legality. 203 See Lasch et al., “Understanding ‘Sanctuary Cities’.” 204 See Kanstroom, Deportation Nation. 205 See Motomura, “Arguing About Sanctuary,” 449. 206 See Hoye, “Sanctuary Cities and Republican Liberty,” 84–85. 207 See Mancina, “The Birth of a Sanctuary-City.” 208 Panagia, “The Improper Event.” 209 Individuals who seek sanctuary include refugee seekers whose cases have been deemed “credible” but who receive an order of removal; abused women seeking a U-Visa; and citizen children with undocumented parents. 210 See Villazor, “‘Sanctuary Cities’ and Local Citizenship.” 211 See Hoye, “Sanctuary Cities and Republican Liberty.” 212 See Darling and Squire, “The Minor Politics of Rightful Presence.” 213 See also Hoye, “Sanctuary Cities and Republican Liberty.” 214 Wolin, Politics and Vision. 215 Wolin, “Democracy and the Welfare State,” 154. 216 Wolin, “Democracy and the Welfare State.” 217 Johnson, “Race and Immigration Law and Enforcement: A response to Is There a Plenary Power Doctrine?”; Motomura, “Arguing About Sanctuary.” 218 See Arnold, Arendt, Agamben and the Issue of Hyper-Legality; Bosniak, “Sanctuary and the Contested Ethics of Presence”; Heeren, “The Status of Nonstatus”; Cesar Hernández, “Immigration Detention as Punishment”; Kanstroom, Deportation Nation; Stumpf, “The Crimmigration Crisis”; Wadhia, “The History of Prosecutorial Discretion in Immigration Law.” 219 Heeren, “The Status of Nonstatus.” 220 Current tools are the use of detainers, a “written request that a local jail or other law enforcement agency detain an individual for an additional 48 hours…after his or her release date in order to provide ICE agents extra time to decide whether to take the individual into federal custody for removal purposes”—ACLU, “Immigration Detainers,” ACLU website, https://www .aclu.org/issues/immigrants-rights/ice-and-border-patrol-abuses/immigration-detainers. Among other things, detainers violate due process—see Lasch et al., “Understanding ‘Sanctuary Cities’,” 1757–1761; Motomura, “Arguing About Sanctuary.” A second tool is to issue administrative warrants in order to compel cooperation from state and local authorities. Local authorities have resisted complying with these warrants because “unlike criminal arrest warrants, administrative arrest warrants are neither issued by a judge nor based on sworn testimony”—Lasch et al., “Understanding ‘Sanctuary Cities’,” 1742. See also Ilya Somin, “Fight Over Sanctuary Cities Is also a Right Over Federalism,” The Hill, April 7, 2018, https://thehill.com/opinion/ immigration/381998-fght-over-sanctuary-cities-is-also-a-fght-over-federalism; Villazor, “‘Sanctuary Cities’ and Local Citizenship.” Another important tool ICE is using Operation Community Shield to expand the gang database to more easily deport individuals without proof of gang activity. 221 Plascencia, “Where Is the Border?” 222 Arendt, Origins of Totalitarianism, 438. 223 Manfredi-Sánchez, “Sanctuary Cities: What Global Migration Means for Local Governments.”

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224 Wolin, “Democracy and the Welfare State,” 166. 225 Johnson, “Race and Immigration Law and Enforcement”; Kanstroom, Deportation Nation. 226 See Bosniak, “Sanctuary and the Contested Ethics of Presence”; Motomura, “Arguing About Sanctuary.” 227 See Wolin, Politics and Vision, 590–591. 228 See Foster, “An ‘Alien’ by the Barest of Threads’”; Francesco P. Motta, “Between a Rock and A Hard Place: Australia’s Mandatory Detention System,” Refuge 20, no. 3 (2002): 12–43; Joseph Pugliese, “The Incommensurability of Law to Justice: Refugees and Australia’s Temporary Protection Visa,” Law and Literature 16, no. 3 (Fall 2004): 285–311. 229 See Bosniak, “Sanctuary and the Contested Ethics of Presence in the United States”; see Motta, “Between a Rock and A Hard Place,” in the Australian context. 230 See Acer and Magner, “Restoring America’s Commitment to Refugees”; see Kanstroom, Deportation Nation. 231 Wolin, fugitive democracy in Politics and Vision. 232 See Arendt, Origins of Totalitarianism; Gonzales, Reform Without Justice; Ngai, Impossible Subjects; Panagia, “The Improper Event”; Sheldon Wolin, “What Revolutionary Action Means Today,” in Dimensions of Radical Democracy, ed. Chantal Mouffe (New York and London: Verso, 1992). 233 See Darling and Squire, “The Minor Politics of Rightful Presence”; Mark McBeth et al., “The Narrative Policy Framework, Agendas, and Sanctuary Cities: The Construction of a Public Problem,” Policy Studies Journal 46, no. 4 (November 2018): 868–893. 234 See Jacques Rancière, Dissensus: On Politics and Aesthetics, trans. Steven Corcoran, (London: Bloomsbury Academic, 2015); Panagia, “The Improper Event.” 235 Panagia, “The Improper Event”; Wolin, Politics and Vision. 236 Wolin, fugitive democracy in Politics and Vision; Sheldon Wolin, Fugitive Democracy and Other Essays, ed. Nicholas Xenos (Princeton: Princeton University Press, 2016). 237 For example, Baby Asha’s parents were blamed by outsiders for the baby’s burns despite the lack of evidence that they had purposefully burned her hands. See Kampmark, “Manipulating Child Refugees.” 238 See Patricia Williams on the granting of rights to the dispossessed as radical: Patricia J Williams, “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights,” Harvard Civil Rights-Civil Liberties Law Review 22, no. 2 (Spring 1987): 401–434. 239 Wolin, Politics and Vision, 604. 240 Wolin, Politics and Vision, 604. 241 See Bagelman, “Sanctuary”; Bauder, “Sanctuary Cities.” The legality of sanctuary became a hot topic in Australia in 2016—I have cited some of the more interesting of these arguments in this chapter. 242 To paraphrase de Genova, the law is suspended (“set aside”) when an individual enters sanctuary, but the person remains deportable. De Genova, “The Deportation Regime,” 36. 243 Calling forth such a moral community has been an important feature of some of the best theory on modern democracy, from Alexis de Toqueville to Hannah Arendt to Chantal Mouffe. 244 E.g., see Bosniak, “Sanctuary and the Contested Ethics of Presence”; Houston and Lawrence-Weilmann, “The Model Migrant and Multiculturalism”; Tina

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Vasquez, “‘Crimmigration’ and the Need for Actual Sanctuary Cities,” Rewire website, May 9, 2017, https://rewire.news/article/2017/05/09/crimmigation-needed-reform-sanctuary-cities/. See Houston and Lawrence-Weilmann, “The Model Migrant and Multiculturalism”; Simpson, “The Neoliberal City Cannot be a Sanctuary”; Vasquez, “‘Crimmigration’ and the Need for Actual Sanctuary Cities.” Varsanyi, “Rescaling the ‘Alien’.” Although the Australian movement is more unifed than the current American one in that it seeks to end detention and deportation as well as advocating for better foreign policy. Or, following John Locke, liberalism has provided for prerogative power, which undermines its key premises. A friend who was a lead activist in Chicago was earning roughly $14,000 a year for a full time job that included activism on the weekends and more.

Select bibliography ABC News (Australia). “The Girl from Biloela Who Has Spent Every Birthday in Detention with Her Tamil Family.” ABC News (Australia), June 11, 2021, https://www.abc.net.au /news/2021-06-12/biloela-tamil-family-christmas -island-detention-tharnicaa/100207676 Bauder, Harold. “Sanctuary Cities: Policies and Practices in International Perspective.” International Migration 55, no. 2 (2017): 174–187. Behrman, Simon. Law and Asylum: Space, Subject, Resistance (Abingdon-onThames: Routledge, 2018). Bibler Coutin, Susan and Hector Perla. “Legacies and Origins of the 1980s US-Central American Sanctuary Movement.” Refuge 26, no. 1 (Spring, 2009): 7–19. Bosniak, Linda. “Sanctuary and the Contested Ethics of Presence in the United States.” In Borders and Boundaries: Mapping Out Contemporary Societies, edited by ed. Didier Fassin (Berkeley: University of California Press, 2018), ch. 10. Davis, Mike. City of Quartz (New York: Vintage, 1992). Foster, Michelle. “An ‘Alien’ By the Barest of Threads’—The Legality of the Deportation of Long-Term Residents from Australia.” Melbourne University Law Review 33 (2009): 483–541. Gray, Anthony. “The Status of Sanctuary in Australian Law.” Monash University Law Review 42, no. 3 (2016): 685–711. Hampton, Lance. “Step Away from the Altar, Joab: The Failure of Religious Asylum Claims in the United States in Light of the Primacy of Asylum Within Human Rights.” Transnational Law & Contemporary Problems 12 (2002): 453–486. Hodge, Peter. “#LetThemStay #BringThemHere: Embodied Politics, Asylum Seeking, and Performativities of Protest Opposing Australia’s Operation Sovereign Borders.” Politics and Space 37, no. 3 (2019): 386–406. Houston, Serin and Olivia Lawrence-Weilmann. “The Model Migrant and Multiculturalism: Analyzing Neoliberal Logics in US Sanctuary Legislation.” In Migration Policy and Practice: Interventions and Solutions, edited by Harald Bauder and Christian Matheis (New York: Palgrave, 2016), ch. 5.

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Kanstroom, Daniel. Deportation Nation (Cambridge, MA: Harvard University Press, 2007). Lasch, Christopher N., et al. “Understanding ‘Sanctuary Cities’.” Boston College Law Review 59, no. 5, Article 5 (2018): 1702–1775. Mancina, Peter. “The Birth of a Sanctuary-City: A History of Governmental Sanctuary in San Francisco.” In Sanctuary Practices in International Perspectives: Migration, Citizenship, and Social Movements, edited by Lippert and Rehaag (New York: Routledge, 2013), 205–216. McAndrews, Lawrence J. Refuge in the Lord: Catholics, Presidents, and the Political of Immigration, 1981–2013 (Washington, DC: Catholic University of America Press, 2015). Montagne, Renee. “Mosques Consider Sanctuary For Immigrants.” NPR, March 4, 2018, https://www.npr.org/2018/03/04/590670163/mosques-consider -sanctuary-for-immigrants The Monthly. “Morrison’s Plan to Deport Thousands of Migrants.” 7am podcast, The Monthly, March 3, 2022, https://www.themonthly.com.au/podcast/ morrisons-plan-deport-thousands-migrants Motomura, Hiroshi. “Arguing About Sanctuary.” UC Davis Law Review 52 (2018): 434–469. Ngai, Mae M. Impossible Subjects (Princeton and Oxford: Princeton University Press, 2004). O’Sullivan, Maria. “The Sanctity of Asylum: The Legality of Church Sanctuary in Australia.” Alternative Law Journal 41 (2016): 254–258. Shoemaker, Karl. Sanctuary and Crime in the Middle Ages, 400—1500 (New York: Fordham University Press, 2011). Shoemaker, Karl. “Sanctuary for Crime in the Early Common Law.” In Sanctuary Practices in International Perspectives: Migration, Citizenship and Social Movements, edited by Randy K Lippert and Sean Rehaag (Taylor and Francis/ Routledge, 2012), ch. 1, 15–27. Stumpf, Juliet P. “The Crimmigration Crisis: Immigrants, Crime and Sovereign Power.” American University Law Review 56 (2006): 367–418. Thurber, Amie and James Fraser. “Disrupting the Order of Things: Public Housing Tenant Organizing for Material, Political and Epistemological Justice.” Cities 57 (2016): 55–61. Ticktin, Miriam. “The Sanctuary Movement and Women’s Rights: Sister Struggles.” https://www.academia.edu/33840312/The_Sanctuary_Movement _and_Womens_Rights_Sister_Struggles Tonkiss, Katherine. “‘A Baby is a Baby’: The Asha Protests and the Sociology of Affective Post-Nationalism.” Sociology 55, no. 1 (2021): 146–162. Wolin, Sheldon. “Democracy and the Welfare State: The Political and Theoretical Connections Between Staatsräson and Wohlfahrsstaatsräson.” In Wolin, The Presence of the Past: Essays on the State and the Constitution (Baltimore: Johns Hopkins Press, 1989), 151–179. Wolin, Sheldon. Politics and Vision, expanded edn. (Princeton: Princeton University Press, 2004).

4 SOVEREIGNTY AND COUNTER-SOVEREIGNTY Is democratic sovereignty possible?

4.1 Introduction: legal state of exception

In this chapter, I will explore a historical and political puzzle: how do two liberal representative democracies, rooted in the notion of “popular sovereignty,” justify the emergence of national security and migration policies totally at odds with inalienable rights, notions of equal human worth, and the right to existence? Second, as I discuss below, how can we understand migrant protest in this context? Would forms of counter-sovereignty inevitably replicate the harms of current national security policies in each country? I examine theories of sovereignty more closely in this chapter to answer these questions. As both Karl Marx and Hannah Arendt have argued, mid-nineteenth-century European governments often suspended rights to freedom of expression or assembly by invoking what we would today call matters of national security.1 Both authors also discerned that the state was not neutral when suspending these rights, as it targeted certain groups over others, indicating that there were gradations of political membership based on what Marx identifed as religious prejudice and Arendt attributed to racism (both were particularly concerned about the disenfranchisement of Jewish residents in Germany). Importantly, Arendt demonstrated how liberal representative democracies, which potentially guaranteed inalienable rights, civil liberties and duties, and representative government, began employing totalitarian tactics by the early nineteen-teens.2 The key to this change was twofold: it involved the politicization of “race” at the same time that governments consolidated territories, hardened borders, and shored up centralized powers that Sheldon Wolin has identifed as the “warfare state.”3 While DOI: 10.4324/9781003282679-5

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popular sovereignty was alleged to be the foundation of these nationstates, late-nineteenth-century leaders often claimed that security issues justifed censorship, curtailment of workers’ meetings, and other abridgements of seemingly universal guarantees.4 By the nineteen-teens, race was not simply religious prejudice or a classifcation to be debated but an allegedly natural category that determined political membership. 5 That is, many liberal representative governments carved out elite state powers that legally suspended rights and drew on biologically deterministic criteria to determine membership. This transformation could be understood as motivated by racial closure against entering foreigners, but a key part of these changes entailed identifying certain long-term residents as minorities. As each state developed tools to police all foreigners, they began to use denationalization and forcible displacement for all “outsiders” who were, in fact, long-term inhabitants. This entailed signifcant changes in governmental power confgurations, leading to concentrated, secretive powers not held to require transparency, judicial scrutiny, or consent to or by the demos and at odds with liberal representative government’s promises and guarantees. This history challenges the claim that these less democratic features of the state were practiced only at or outside of borders and not also deployed as totalitarian tools used on state residents. An important element of this history is that these powers are modern and somewhat recent—not age old or “naturally occurring.” Accordingly, we can understand the emergence of biological determinism (i.e. bio-power) as not merely an aspect of governance but the key determinant of political inclusion at this time. Nevertheless, it is striking that liberal representative democracies essentially approved of policy instruments that violated or suspended inalienable rights. These were the sorts of discretionary, arbitrary prerogative powers challenged in absolute monarchies, and, therefore, it should be surprising that these very powers were institutionalized by national governments that rejected absolute rule. As I discuss below, liberal discretionary powers were hierarchized above checks and balances, judicial scrutiny, due process, and equal protection in the early 1900s. While Thomas Hobbes is often the author of choice in understanding modern sovereignty, John Locke’s work is a more appropriate ft; Locke’s work helps us understand how these late nineteenth-century developments proceeded logically from liberal representative government (at least, in analyzing Australia and the United States). Locke shows us a deeper connection between the seemingly different spheres of power (constitutional and egalitarian versus discretionary and arbitrary)—that exposes how the liberal state did not seek to eradicate these powers at all. Rather, it bureaucratized them, fragmenting

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sovereign decision-making and rationalizing (in the Weberian sense) discretionary power over foreigners. A third element of this issue—the contrast between the guarantee of democratic rights and the extra-constitutionality of the warfare state— that I explore in the last sections of this chapter is: if the history of these two countries indicates that modern sovereignty in wealthy representative governments is discretionary, arbitrary, and undemocratic, can the counter-sovereignty of migrant protesters be any better? That is, are all forms of Global North sovereignty inevitably racist, warlike, and entailing the suspension of inalienable rights? I argue that the specifc forms of counter-sovereignty I have examined do not leave the status quo intact but rather democratize unjust and undemocratic spaces, interrupting unjust processes and forming an inclusive political community that enacts more just practices and fairer methods of political interaction. Sovereignty does not need to be interpreted or deployed in dehumanizing, violent ways that pit security against human rights. In fact, whether a democratic version of modern sovereignty has existed or not, it is imperative to conceive of a set of founding powers that isn’t at odds with human well-being or positive political freedoms and duties. This is not just important for the issues I discuss in this book but for political theory more broadly. As discussed in Chapter 1, the establishment of sovereignty in the late 1800s was conceived of in bio-political terms (a term which I use interchangeably with race, even though mental ftness, gender, ablebodiedness, and more were key elements to eugenic border policing). The establishment of federal plenary powers at this time was not an extension of the constitutional state or representative government, even if the law and political leaders authorize plenary powers. Rather, the sphere of power carved out for matters of foreign policy, migration, and war undermines the guarantees of the rule of law, human equality, and positive freedoms and duties. After exploring the history of these changes in the frst section, I examine Sheldon Wolin’s notion of Wohlfaahrstaatsräson, which can be loosely defned as a modern reason of state established in some liberal democracies that discursively justifes deployments of military power and coercion in the name of the common good (a concept explored in Chapter 3).6 Again, Locke is a key thinker to understand why proposals for liberal representative government also provided for prerogative power (the legal suspension of the law) and federative or plenary powers deployed on resident foreigners and arriving foreigners.7 In the remaining sections, I discuss how migrant protest is counter-sovereign action, democratizing a sphere that has been undemocratic for over a century. While migrant protest tactics may not seem entirely desirable methods on which to construct or model democratic

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sovereign powers, there are still good reasons to consider these protest forms as instructive for democratic theory and practice. Today, totalitarian tactics (a term I derive from Arendt) in each country include “kill[ing] the juridical man,” establishing a police charged with extra-constitutional targeting of and policing foreigners, forcibly displacing foreign arrivals and long-term residents in camps, and establishing a mass deportation system.8 The deployment of sovereign power by each country in these instances is an authorized state of exception, just as, I argue below, protesters create a democratic state of exception. The latter group produces a state of exception as they cannot draw on extant rights or even full acknowledgment of personhood but must assert their presence, needs, and/or bodily harm where they have not been able to do so previously. In the next two sections, drawing on Arendt, Foucault, Locke, and Wolin, I review the history of the formation of Australia and the United States’ sovereign powers to more fully understand how they were federal government powers over foreign policy and migration policy. 4.2 Historical context: the emergence of modern state sovereignty in the late 1800s

Global North sovereignty of the 1700s involved power claims that shifted the locus of political authority and legitimacy to the people, away from the singular fgure of an absolute monarch.9 These sovereignty claims were made to establish the body of the populace as a political community, redefne what was political based on the natural equality of mankind, and introduce the notion of inalienable rights. In this way, the shift of sovereignty from monarchical and singular to a more diffuse popular sovereignty was a positive affrmation of new rights claims and confgurations of power, even if they were unfulflled and imperfect. The working defnition of sovereignty at this time involved the establishment of a new basis of authority and a diffusion of political control and was founded on new principles and goals based on equality, mutuality, and consent.10 Notions of legitimacy became important, as were questions of legal representation. An important point is that at this time, many leading interpretations of sovereignty were founded on the power of the demos, aiming at shifting the locus of legitimacy and the operations of any government to fairer, more egalitarian politics.11 Nevertheless, Rogers Brubaker’s historical analysis of the transition to liberal representative government in France and Germany demonstrates that very distinct interpretations of sovereignty were deployed in revolutionary France—from the cosmopolitan phase of the revolution to a more xenophobic, terror-flled stage.12 The point we can discern from Brubaker’s analysis is that sovereignty could be

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defned and enforced in a variety of ways, as evidenced in these phases of the French Revolution.13 Notions of what popular sovereignty meant and how it should be operationalized were debated and experimented with, particularly in the 1800s.14 Whether a democratic form of sovereignty was ever achieved is a different question, but the point is that sovereignty need not be defned as singular, concentrated, or hierarchical. As discussed in Chapter 1, while these ideas were established as revolutionary claims and developed over time, by the mid- to late 1800s, they were asserted as war powers by the United States and Australia, backed up by a monopoly on violence and marked by deeply bio-political exclusions. In the European context, Arendt argued that this was a major shift from the past: one that would end up subsuming democratic guarantees and liberties to questions on national interest and “race.” Arendt explains that by the late1800s, political power had shifted in liberal representative democracies.15 The formation of federal powers to protect borders, include or expel foreigners, and conduct foreign relations also entailed the development of totalitarian tactics aimed at racialized Others, whether citizens or migrants. As Arendt has elucidated, the modern character of totalitarian tactics (Beiner calls them “totalitarian elements”) involves the use of the law to suspend the law (thus, “killing the juridical person”), border policing to reinforce territorial integrity, and deploying mass deportations to assert and maintain sovereignty.16 As racial classifcations increasingly determined who was a citizen and who was now a foreigner, the democratic guarantees of the state were undermined.17 To the degree to which capitalism played a role in these dynamics, inadvertently strengthening racism, the bounds of the nation-state expanded in individualistic (i.e. Hobbesian) and coercive ways.18 In effect, she notes the enticing simplicity of racism as a universal signifer that defnes national interest and supersedes guarantees of equality, consent, and representation.19 Interestingly, Arendt did not believe that the turn-of-the-century US legal dynamics followed the same trajectory as European counterparts.20 To the extent that US and Australian geographical isolation and slower industrialization held both countries back from becoming full modern nation-states, she was right. She also incorrectly believed that the United States, and Australia by extension, had not built up concentrated federal powers to the extent that they did. 21 Both notably strengthened federal power in the late 1800s to centralize power over foreigners and to carve out a racialized sovereignty, treating people from certain countries as biologically inferior and undesirable. Both Australia and the United States engaged quite signifcantly in eugenic thought and the development of eugenic tactics and policies that she believed only applied to Europe. 22 In

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other words, the European introduction and strengthening of borders and border policing in the late nineteenth century also occurred in Australia and the United States. Despite Arendt’s blindness to these parallels outside of Europe, her analyses of how the racialized “nation conquered the state” are very relevant to both countries’ twentieth-century migration policies. 23 As discussed in Chapter 1, US and Australian legal history and settlement were different than Europe’s, but both countries share important commonalities in the modern era. As each country is a settler country coming from the same imperial center, it is important to remember that neither one was properly a nation-state until the mid- to late 1800s when borders became more important in US “foreign relations,” with Native American tribes and Mexico and Australian racial closure against indigenous peoples. 24 As capitalism expanded markets and prompted migrant fows, both countries began to restrict border entry and expel some resident foreigners in the late 1800s. While these declarations of sovereignty occurred in stages and had different modalities, they share these commonalities: 1 at the turn of the century, the establishment of a federation (Australia in 1901) or the consolidation and expansion of federal powers (the United States in the 1880s), which, in both cases, meant allowing broad discretionary powers in forming treaties with indigenous peoples, forcibly removing First Peoples from sacred lands, and expelling resident foreigners or obstructing the entry of newly arriving foreigners 2 from the mid-1800s through the turn of the century, the importance of race shifted: “race” was broadly defned as the key lens with which these sovereign claims were asserted—from Chinese Exclusion (US) to anti-Asian and Pacifc Island entry (Australia) to exclusionary health screenings to racist language tests, power over migration was exercised along bio-political hierarchies of mental and physical ftness25 3 the power exercised in these sovereignty-making claims and events was coercive, hierarchical, and based on might equals right 4 these sovereignty claims were asserted dialectically against norms of citizenship and the criminal justice system For example, in the Chinese Exclusion cases (US), justices specifcally argued that detention and deportation were not punishments or liberty deprivations that would invoke any sort of prisoners’ rights; foreigners were often deprived of habeas corpus rights for the same reason; and foreigners could not be sentenced to hard labor or sentenced at all but could be detained indefnitely and deported (see, in particular, Wong Wing v US

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1896). That is, much of the foundations of the modern US immigration policy were dialectically conceived in opposition to the criminal justice system. 26 These shifts can be explained by the fact that the 1800s was a time in both Australia and the United States when previously excluded groups were demanding the franchise; slavery and indentured servitude were being challenged by calls for free labor; and in the context of deep economic polarization, workers were demanding economic autonomy and collective bargaining. Pseudo-scientifc biological determinism was introduced to provide a seemingly neutral theory and a set of “facts” justifying the political exclusion of the majority of these societies’ populations, just as these groups called for greater political membership. 27 The late 1800s through the turn of the century marked a different sort of sovereignty for both the United States and Australia, one characterized by increasing awareness of borders and notions of territorial integrity and, again, by more explicit racial laws that served to confne and punish First Peoples and racialized immigrants, just as they were asserting sovereign and rights claims. Granting more discretionary power to the federal government in foreign affairs at this moment was a way to consolidate elite power over and against more local contestations. 28 In sum, as both the United States and Australia founded their modern claims to sovereignty at the turn of the twentieth century, they both did so by asserting federal power over local authorities (a federal power that was more singular, less able to be contested) and through eugenic categories that founded these claims. These dual modalities were evident in various court cases and policy changes asserted against Others, particularly racialized foreigners, whether at the border or as long-term residents. Both sets of claims can also be contextualized as emerging when capitalism was beginning to take form in each country, allowing us to understand how and why perceived economic interests have been closely linked to the formation of modern sovereignty.29 Each regime developed totalitarian tactics over time (discussed above and in Chapter 1), even if neither government could be classifed as totalitarian. These tactics included the development of signifcant policing powers outside of constitutional scrutiny, the blanket and widespread dismissal of entire nations as “inferior” and “immoral” (intersecting with gender and class), and heavy-handed detention and deportation policies (even as policing and detention methods during this time were crude, e.g., trapping Chinese individuals on a boat). In the following decades, Red Scares provided ideological justifcation for blocking entry to the same people and strengthening the arbitrary authority of the state over all foreign relations, both domestic and transnational. To be clear, I am arguing that ideological exclusions overlapped

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with the already-existing racist exclusions such that suspicions of communist beliefs often targeted individuals who were from countries viewed as bio-politically inferior. More simply, “proof” of subversive ideology was often based on alienage, conceived of in racist terms. Nevertheless, I believe that none of this had to do with sovereignty in the abstract but with how it had historically developed in these two democracies. Nativist and racist discourse aided these developments. From the late 1800s to the present, the important effects of racist antiforeigner and anti-refugee ideology cannot be underestimated in understanding the development of deeply undemocratic migration policies in each country.30 Marxist theorists of racism note that ideology served an increasingly important role in democracies at the turn of the twentieth century, as governments now had to justify these decisions to the populace.31 Indeed, as Arendt has argued, racist ideology could serve as a better “ally than any Fifth Column,” aiding dictatorial human rights abusers by tapping into biological determinism, anti-Semitism, sexism, heteronormativity, and class bias in each surrounding country. 32 The discursive repetition of xenophobic statements and images thus suggested that citizenship was formulated in a dialectical manner, as citizenship was formulated in opposition to foreignness.33 The Other, in this case, is an intersectionally composed one—not just an Other based on alienage but gender, mental and physical ftness, economic class, and more. These composite statuses were criminalized as existential threats. As Arendt argued, potential host countries have viewed stateless peoples as not only “beggars” and “scum” but also “outlaws” to be forcibly removed and interned in detention camps.34 In the United States, othering processes have been bound with notions of an “eternal foreigner” and/or “perpetual guest” model such that groups remain under surveillance and state control even after establishing residence and forming meaningful ties—especially in the age of anti-terror.35 These dynamics are also evident in contemporary Australian policies that judge character and alienage as a means to assess whether a foreigner can remain in the country.36 Protests that challenge sovereign powers seeking to confne, displace, and dehumanize operate on these multiple levels by problematizing dominant biased arguments, deconstructing key myths, and creating alternative bodily practices and spaces. Even in this deeply asymmetric context, these protest methods demonstrate that the sovereignty of the warfare state is malleable, non-uniform, and marked by gaps. Challenges to this oppressive system are not outside of sovereignty but occur within that sphere of authority and, therefore, are logical forms of counter-sovereignty. In the next section, I discuss a key puzzle for this book—how liberal representative governments could justify suspending the law and inalienable rights

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when dealing with foreigners. To put it differently, how can liberal representative government justify the use of discretionary, secretive powers that suspend not just civil rights but inalienable rights? 4.3 The puzzle of this book: the problem of sovereignty in theoretical terms

Although sovereign power and border policing are often viewed “as preconditional for the very existence of democratic states—indeed, as necessarily constitutive of the sovereign space within which liberal democracy is supposed to unfold,” my research suggests that these powers allow for an arbitrary, unconstitutional, and harmful treatment of migrants at odds with the rule of law.37 As I have discussed in the Introduction to this book, Sheldon Wolin’s analyses of state power help us understand the development and justifcation for using the powers of the warfare state at or inside borders.38 The fascinating element of this is that each country claims to be a democracy in all their dealings (from domestic policy to foreign policy), and yet there is little mainstream investigation of the stark contradiction between the national security state and democratic guarantees of equality, positive rights, and human rights.39 Wolin has classifed these differences as existing between the “welfare state” (which is premised on notions of equality, representation, and some adherence to rights, as well as a notion of the common good, broadly conceived) and the “warfare state” (which operates more violently, often more secretively, and is legally authorized but characterized by arbitrary, discretionary power).40 The puzzle is twofold: how a democracy can justify the deployment of powers that violate the rule of law in the context of foreign policy, and why? As discussed in the previous chapter, Wolin developed his notion of Wohlfahrsstaatsräson to explain how the marginalization of poor minoritized individuals occurred in the 1960s and 1970s as they were subjected to highly arbitrary uses of discretionary power aimed at their destabilization. In effect, he wanted to understand how a liberal representative democracy justifed the use of war powers on US citizens residing inside the country (i.e. not at the border). He interprets this as a modern form of reason of state, developing out of liberal ideas: We are in the presence of a new form of Staatsräson. It is the fate of our times that the German language, rather than ancient Greek, allows me to coin an appropriate word for this new power: Wohlfahrtsstaatsräson. As I have contended, the new Staatsräson, like the old, is a response to unpredictability, but the forms of unpredictability are not symbolic of naturalistic politics or of the incomplete politicization of the world,

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as they were in Machiavelli’s image of a raging stream that sweeps all before it. Instead, they are represented in the interplay between a volatile international political economy and a rigidifed bureaucratic structure of decision making.41 As he argues, and I have explored in other works, the key theorist in understanding this sort of power is not Thomas Hobbes but rather John Locke.42 In contrast to Hobbes, Locke proposed the system of governance closest to what emerged in the United States and Australia, holding that the prerogative power exercised arbitrarily and unjustly by absolute monarchs must be preserved but deployed in a more democratic context.43 Locke devised a system based on the rule of law and executive authority that merely enforces the law and yet does not legislate. As he argues, no one is above the law in this system. In this way, the law appears to protect inalienable rights and remains constant even as government power is more diffuse and offces rotate. Nevertheless, he conceived of two powers with discretionary authority that could be exercised indefnitely: federative power (a discretionary form of power over foreigners deployed by the executive power) and prerogative power (acting outside of the law and even against the law in the name of the common good).44 Prerogative power is the legal suspension of the law, exercised by the executive, to deal with matters quickly or in times of emergency.45 Both powers are exercised domestically and transnationally in the name of the common good. Interestingly, he argues that for convenience, the executive authority should be charged with both powers, thus suspending any pretense of checks and balances or separation of powers. While many have read these passages in Locke as limited powers or serving as emergency provisions, close reading demonstrates that he does not limit these discretionary powers at all.46 Rather, he reconceives of these prerogative powers as being authorized by the common good and guided by natural rights; any challenge to the deployment of these powers would occur through popular uprising, not constitutional scrutiny.47 This is because—as Wolin explains—the broadly conceived common good serves as the legitimating factor and aim of particular forms of everyday governance (rather than laws). The system of governance, including elected offcials, rotations of offce, legislative supremacy, and a separation of powers, all protect inalienable rights and, importantly, seem to represent the common good.48 However, Wolin argues that we have misinterpreted the relationship between these guarantees: the existence and possibility of elections, written binding laws, and representative leaders together authorize certain leaders to make discretionary decisions, thereby ensuring that any political power is aimed at interpretations of security

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and the common good beyond any law (and potentially undermining inalienable rights). For this reason, if the executive were to suspend the law, it would not be tyranny.49 Accordingly, the use of prerogative in a wise leader’s hands is simply “the power to do good without a rule.”50 As part of this executive power, federative power is the exercise of discretionary authority over resident foreigners as they are treated as if they are in the State of Nature.51 Because federative power is the power over foreign relations, it links foreign and domestic, and the State of Nature and the commonwealth, rather than deriving its authority from the legislature or any constitution.52 In fact, Wolin and later, Pasquino, both note that Locke never conceived of an inside/outside or domestic/foreign dichotomy.53 This is important to note when studying the formation of migration policies in Australia and the United States in the late 1800s, each of which derived its powers primarily from alienage and not territorial presence. That is, a foreigner’s country of origin determines whether they would be treated as a “person” per domestic law or a “non-person” who is considered to be “outside” the state, even if a resident. Today, the contemporary version of Locke’s “federative power” is the granting of plenary powers to the federal government, the exercise of which is purported to evade arbitrariness because there are enforcement guidelines, fles and documents, and a bureaucratic hierarchy.54 Because elected authorities make these decisions—as opposed to an illegitimate monarch—citizens have authorized such deployments of power (following Locke’s reasoning). More broadly, the connection between prerogative and liberal representative government is not a constitution (which Locke points to repeatedly as having a “supreme” place in his proposed government) but rather the commonwealth, undergirded by natural rights.55 As different individuals come together in a commonwealth, they transfer their executive powers to the elected executive, who acts not to protect the law per se but the moral community created by their tacit or explicit acceptance of this representative. The common good becomes the standard for determining public safety, protecting property, and matters of what we would call national security. In contrast, the written law cannot account for all situations—it serves as a pledge to an altered power dynamic (representative government versus tyranny) rather than as a “hedge” against the sorts of discretionary power allegedly needed to protect the polity.56 In sum, in contrast to the arbitrariness of an absolute monarch, the welfare of the people justifes the suspension of the law, subordinating the rule of law to perceptions of the danger of some sort or simply for convenience. In this way, Locke believed that federative and prerogative powers would not disappear with the end of absolute monarchy but should be wielded for the good of all and deployed by elected offcials authorized by

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citizens to protect the citizenry. In the hands of wise leaders, these powers could be exercised indefnitely.57 Considering these powers in their more contemporary context, Wolin explains that claims about national security, anti-terror, and public safety in local areas do not require explicit public authorization but rather invoke the “public” as a proxy for democratic legitimization. This is what I believe has occurred with anti-terror provisions as they have converged with migration policy: notions of the common good and national security have been not only reconfgured in Australia and the United States to justify the use of sovereign powers seemingly authorized by the demos, representative of its interests, but also formulated as necessarily secretive, arbitrary, and discretionary (undergirded by the monopoly of violence of the state). In starker terms, national security trumps the rule of law and inalienable rights. At the same time, war powers were never conceived to be exercised at or outside borders but as a tool to shape political membership. As I discussed at the beginning of the chapter, Marx and Arendt similarly highlighted an important link between welfare and warfare that Wolin also seeks to illuminate: the dynamics by which security frameworks and policies aim at abridging inalienable and constitutional rights in the name of the common good.58 That is, the notion of the common good is particularly modern and serves as a proxy for rights, equality, and checks and balances.59 In both countries, “the border” (really multiple borders) serves as the ostensible line delineating “inside” and “outside,” “domestic” and “foreign,” and ordered and disordered/anarchical.60 Wolin argues that these assumptions blind us to how sovereign power is deployed inside the country’s borders, as well as to connections between foreign and domestic policies. The regular exercise of warfare powers on domestic soil is a form of “internal imperialism” that eats away at local power.61 As these powers are increasingly exercised regularly and in multiple sites, they constitute a permanent threat to democratic rule, institutions, and agency.62 This is something Arendt warned us about: the tools used on foreigners would be turned on citizens and the undemocratic aspects of arbitrary power would destroy notions of legitimacy and consent.63 As we comprehend that welfare and warfare are not two very different spheres of law running parallel to one another, it is less surprising that in recent years, the exercise of arbitrary power—i.e. prerogative power— domestically has expanded without much outcry. As I have noted, the “necessity” guiding the exercise of this power does not have to involve urgency—rather, in the hands of a wise leader, it can be exercised indefnitely.64 While we could interpret the establishment of these legal but extraordinary powers over foreigners as a nested hierarchy in

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which security must come frst and democracy second, Wolin’s analysis allows us to understand how and why sovereign powers are more fexible, shifting, and ubiquitous than a nested hierarchy would indicate. They do not merely bring the exterior to the interior—in fact, the inside–outside dichotomy only serves to obfuscate how these dynamics are not in opposition.65 Rather, we can now consider a more or less seamless power relation between domestic and foreign relations that can create bridges to other countries, not only spurring migration pathways but also establishing border fortifcations serving disciplinary and bio-political purposes and extending outward and inward.66 To put it differently, physical borders are merely visual and experiential sites of kinetic activity that serve as nodal connections between interior and exterior policies rather than delimiting an authentic inside and outside. They provide rich symbolic meaning and an opportunity to produce illegality and confnement for media participation in normalizing, criminalizing discourse.67 This mainstream criminalizing discourse diverts attention from more extensive fows of power, assuring citizens that they are safe and secure even as their neighbors are dragged out of their homes by immigration police, priests are grabbed in church parking lots, and patients forcibly removed from hospitals. Detention centers are key material sites for the legal suspension of the law. Understanding the degree to which detainees are rightless helps us to understand why protesters are willing to sacrifce their well-being and confront a lethal, militarized state—indeed, I believe it is most helpful if we understand that immigrant detention in both countries is a “camp,” as defned in Chapter 1. It is in this context that we should understand detainee protests as well as their participation in faith-based sanctuary. 4.4 State sovereignty today: bio-power and counter-sovereignty

Given the reality that many migrant arrivals languishing in detention are from groups or countries subject to imperial and neo-imperial relations by these host countries, bio-political detention policies do not merely minimize their needs but also racialize them on the basis of religion, gender, able-bodiedness, and other related categories.68 The deployment of sovereignty is therefore deeply tied to settler colonialism, racism broadly conceived, and neo-imperial relations.69 The minute control over bodily movements and life-sustaining activities should be viewed as an extension of asymmetric foreign relations that spurred migration pathways and the racializing (intersecting with class bias, sexism, and more) rhetoric characterizing refugee arrival.

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In this context, I understand that this sort of state sovereignty—as it is currently practiced in these two countries—indicates a form of modern power based on the warfare state’s wish for a monopoly on violence.70 This entails the legally authorized use of power, guided by discretion and outside of the ordinary rule of law, which may seem to operate in parallel to the welfare state but which often overlaps with it, particularly when bio-power is a key power modality. Targets of this power are often legally construed as “non-persons” with no “right to have rights.”71 Detainees and would-be detainees are treated as outsiders by state powers authorized by and yet operating outside of constitutional guarantees. In contrast to portrayals of the sovereignty exercised in confnement as singular, absolute, and thus “archaic,”72 I hold that sovereignty in confnement is distinctively modern as it is: fragmented due to the multiple agents involved, banal because of its widespread and daily exercise, and bio-political because of the evasion of the rule of law through criminalizing status.73 While distinct, both US and Australian politics have increasingly focused on matters loosely related to “biology,” with a normative assumption that this biology is fxed, natural, and self-evident.74 Accordingly, in the twentieth century, political matters began to revolve around who gets access to safe roads, healthcare, or clean drinking water as a primary focus of politics, displacing a focus on who contributes to the political community, who acts democratically, and/or what debates are important for societal well-being.75 As crimes of status and racism (on the basis of country of origin) have become key parts of each country’s migration policies, this does not merely diminish the possibility of a democratic politics distinct from life-sustaining activities but also affrms biologically deterministic notions of embodiment and normative understandings of class, race, able-bodiedness, heteronormativity, gender, and citizenship status. Self-harming protest in captivity is a functional element of this power relationship, altering the contours of sovereignty through resistance, whether it be for a moment or whether it leads to longer-term policy change. Infuenced by Foucault’s notion of power as something exercised between agents, I conceive of state sovereignty as a relationship between the state and individual detainees. Yet, the dynamics I analyze are marked by highly asymmetric circumstances, in contrast to the relative liberty he posited that French subjects had.76 Viewing power as a relationship helps us to acknowledge that resistance occurs and understand how its features are immanent in these relations. However, decolonial theory is more appropriate to understand these captive circumstances than analyses of protest in the context of relative freedom.77 For example, while Foucault’s

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concept of micro-resistance helps us to appreciate seemingly trivial challenges to bio-power, this resistance is still situated in a more democratic context than the cases I explore.78 James Scott’s similar analysis of peasant “rebellion” involving puns, gossip, and pilfering, for example, are lowlevel moves but occur in a more rightless context as with the cases of detention and rightlessness I discuss throughout this book.79 Scott recognizes that when groups engage in these low-level tactics, power relations change in informal ways, partly because the relatively powerless group develops an understanding of themselves as agents worthy of better treatment.80 To be clear, I am infuenced by signifcant elements of Foucault’s theory of power, but I consider them in a context where “weapons of the weak” and “hidden transcripts” are necessary.81 Given the reality that many migrant arrivals languishing in detention are from groups or countries subject to imperial and neo-imperial relations by these host countries, bio-political detention policies do not merely minimize their needs but also racialize them based on religion, gender, able-bodiedness, and other related categories.82 The deployment of sovereignty is, therefore (again), deeply tied to settler colonialism, racism broadly conceived, and neo-imperial relations. The minute control over bodily movements and needs should be viewed as an extension of asymmetric foreign relations that spurred migration pathways and the racializing (intersecting with class bias, sexism, and more) rhetoric characterizing their arrival. As discussed in Chapter 1, each country has constructed systems aiming at total power, particularly when apprehending foreigners, detaining them, and forcibly displacing them (i.e. deportation). These systems deploy military force in international waters and—at least in the United States— the full use of military power in raids on migrant worksites. Alternatively, both states have used esophageal force-feeding on fully conscious individuals to ostensibly keep them alive when they stage hunger strikes, even though this method is considered incredibly painful and makes the victim sick. The point is that the state wants to exercise control over detainees’ bodily autonomy, including when and how they die. Nevertheless, there are important gaps in enforcement, even if the goal is to exert total power. Even though migration policing is discretionary and arbitrary, the state itself is a site of contestation—not in a democratic way per se but because different branches of the state argue about these dynamics, involving public and economic actors—creating gaps and openings for reframing power/narratives. There are also discursive lacunae due to misjudgment and the incorrectness of narratives. For example, the government often treats undocumented migrants as if they have no long-term ties to this community.83 Faith-based sanctuary challenges this,

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demonstrating that a community will sacrifce a lot for an individual or family because they are valued as key members. This sacrifce includes confronting federal authorities even when the community supporting the individual(s) living in the religious institution suffers from political and economic vulnerabilities; providing food for the individual or family in sanctuary because they have no income and cannot work; and taking time off from work or other duties to form a human chain or group around the institution. Hunger strikes and lip-sewing occur despite tactics to disorient and disable detainees because the state underestimates the degree of strength and courage that the person has—even if their health is failing. Even undocumented migrants and/or refugees’ arrival at a border point without authorization contests the border and border powers.84 Migrant agency is particularly evident in faith-based sanctuary efforts and detainee protests even if, as I have argued, agency is a precondition for resistance. This migrant protest is an important form of counter-sovereignty. 4.5 Is a democratic counter-sovereignty possible?

It is imperative to recognize that the coercion, violence, and destructiveness of current migration policies are all thanatic dynamics structured by Australian and US state laws, norms, and agents. Detainee trauma and illnesses related to allostatic load are the results of these punitive policies. For these reasons, any attention to mental instability, abjectness, or loss expressed by migrant protesters should be understood as inextricably linked to hostile rhetoric about migrants, racism, and poor treatment. However, I believe we should also understand that these protests invoke and form a political community, as they act in relation to the public. First, any migrant protest in such a situation (particularly if already detained) should be viewed as a direct response to attempts to control these foreigners’ lives at a bodily level. For example, when detainees sew their lips together while also refusing food, their actions symbolize the voicelessness and powerlessness they feel when encountering state authorities.85 At the same time, this is an assertion of agency outside of the rigid control over bodily movements, food access, and other life-sustaining activities. Alternatively, when would-be detainees move into a faith-based institution so that federal authorities cannot detain and deport them, they interrupt a sovereign process that seeks to defne and appropriate them. These tactics do bring the detainee closer to death or lead to self-confnement but on the individual’s terms and within a context in which the person is being confronted by the warfare state—that is, a state prepared to deploy violence. It is important to note the constraints on any individual as they face deportation or when they are detained—agency cannot be defned by

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“choice or free will, but rather how even on the edges of states and societies, faced with formidable levels of marginalization, people continue to resist, fnd room for negotiation, and exploit these narrow margins,” as Mainwaring states.86 Mainwaring defnes agency as: a “temporally embedded engagement by actors of different structural environments… which, through the interplay of habit, imagination, and judgment, both reproduces and transforms those structures in interactive response to the problems posed by changing situations.” This defnition emphasizes the relational and social properties of agency87 While she analyzes migrants who are en route to borders or who have just crossed a border, the individuals I analyze have been tracked and captured by the state in one way or another. She also focuses on an agency that is not formally staged but involves acts of subterfuge, negotiations with border guards, and existing undetected in border sites; in contrast, my focus is on individual and concerted efforts to engage in acts of conscious and open resistance that communicate political aims and express pain.88 Nevertheless, her defnition of agency is relevant to my analysis: this agency is exercised in a political sphere absent of rights but still involves human interaction that alters power relations.89 Even if physically or mentally weakened, detainees or would-be detainees consciously protest state power and seek to transform the contours of borders, detention conditions, and the meaning of foreignness. This is an exertion of the will, even if it is not freedom.90 It is also worth noting that migrant protest as agency is not desirable outside of its specifc context—while both self-harming protest and faith-based sanctuary may achieve good ends, their methods require sacrifce and hardship.91 Working with the given does not mean accepting the status quo but admitting that there is “no outside to power,” as Foucault observed.92 At the same time, power is not an object to be exclusively held but a relationship. The embodied elements of each type of protest call attention to material effects on people (trauma, illness, injury) as indicators of why policies are not mere inconveniences or hypothetical property losses.93 Importantly, accounting for illness and trauma helps us to understand that individuals are suffering from the conditions of their apprehension and imprisonment in a way that can affect them in the future, if not the rest of their lives.94 As I discussed in Chapter 2, the temporality of trauma and its replication over generations can exceed bureaucratic calculations of what constitutes a liberty deprivation or harm.95 Similarly, just because refugees in Australia are eventually granted legal status or children ripped from their parents’ arms (in the United States) are eventually reunited with them does

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not erase their experiences of displacement, abandonment due to illness, or coercion by border agents and detention guards. It is one thing to note that children in detention lose education or time with family; it is another thing to recognize that after months of being in detention, they begin self-harming. Eventual release from detention does not erase the circumstances or mental harm leading to that sort of situation; at the same time, it is the material that detainees have to work with, either in hunger strikes or in sanctuary—their bodies go from being deportable to being protected only through entry into a faith-based institution.96 Protests entail physical sacrifce and discomfort, including risking lives, but they also involve practices that are assertions of counter-sovereignty as they regain control of bodily movement, eating, and when and how they will die. In this violent context, protest is a process of “re-membering.”97 As John R LeBlanc asks, “The question is how to ‘re-member’ when you are subject to near permanent domination.” LeBlanc fnds that this can only happen when recognizing the humanity of the dominating agent: I include the hyphen in re-member here to connect the common understanding of remembering with a broader one. For our purposes, the more common understanding of remembering has to do with processing one’s own memories and experiences, in this case, of one’s suffering and recollecting our responses to those experiences … it also signals an aspiration to reconnect with oneself through recognizing that self’s inherent relationality to other selves … the self recognizes its locus in the presence of one’s others, especially those others whose purpose seems to be undoing you. Recognizing the suffering of one’s other, resisting the temptation to relish and desire it, serves as a prelude to seeking a reconnection to the other as human being rather than seeing a barely human presence as a mortal threat or radical other.98 In the context of self-harming and sanctuary protests, this entails appealing to the very people who have dehumanized foreigners. Neither form of protest relies on the innate compassion of coercive, prejudiced agents but rather the discomfort and dissensus produced by these practices that force a “creative tension.” In creating dissensus, protesters use countersovereign tactics, democratizing the legal state of exception that largely constitutes migration policy. Some authors (Berlant, Butler, Zerilli) have compellingly argued that sovereignty is inherently negative, “archaic” (i.e. singular, lethal, arbitrary), and static (i.e. uniform, non-dialectical, unchanging), I believe this is not necessarily true.99 While each analysis is complex and unique, these critiques of sovereignty point in two directions. They rightly call attention

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to how bodily well-being is both ignored and threatened by contemporary state sovereignty as bodies are simultaneously over-policed and yet abandoned by public health, education, and welfare systems. This seemingly contradictory process depends on discretionary power and the use of military force, subsuming or eliminating democratic processes and protections, whether these dynamics are manifested in the general population (Berlant) or in sites that seek to elicit “helplessness” in inmates (Butler on Guantánamo).100 Second, in each of these works, but most explicitly in Zerilli’s, freedom is defned as the opposite of sovereignty: based on Arendt’s work, Zerilli conceives of freedom exercised spontaneously and in a truly political community as only possible when sovereign power disappears.101 While certainly very different, these authors also exclude violence, muteness, and long-term illness as the background conditions under which democratic activity can be exercised (which again they conceive of as a freedom from sovereignty). For example, the suicide attempt of a Guantánamo detainee would not ft into this sort of account, much less be interpreted as an act of counter-sovereignty but would rather be an example of the abject position from which the individual is acting. Framing the state’s treatment of certain lives as ungrievable can exclude the reactions, empathy, and acts of solidarity of other detainees, health professionals, journalists, or NGOs.102 Each analysis is important and compelling in that the authors recognize that sovereignty, as it has developed historically in the Global North, has often been at odds with democracy. Zerilli’s particularly in-depth analysis notes that the “fantasy of sovereignty” has also historically demanded the submission of marginalized subjects, required to obey this power but not to participate in the political community.103 As Zerilli rightly points out, sovereignty and freedom have been unquestioningly equated, even in dissenting movements, obliterating particularity as an “omnipotent we” is asserted.104 Freedom as action requires plurality, she argues, even as a community must be formed to be truly political.105 Her critiques illuminate important problems with contemporary sovereignty as it is currently deployed by these two states, but sovereignty does not need to be defned by its worst historical moments. Sovereignty could be defned as a foundational claim to assert power by a political community committed to plurality and egalitarian relations. It need not be conceived based on its historical legacy of violent displacement of First Peoples and other instances of the use of the state’s monopoly on violence for undemocratic ends. In contrast to these authors, I argue that sovereignty is—at this moment in time and in these circumstances—a

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part of modern power relations and is defnitionally and practically malleable, as Goldstein contends: Despite its now conventional defnition as supreme, unconditional, and indivisible authority, sovereignty is a necessarily relational and interdependent set of claims and strategies that are made and mobilized in specifc times and circumstances with regard to particular antagonisms. Sovereignty is neither a self-evident principle nor does it have inherent explanatory value. In the juridical and political sense, sovereignty names an ensemble of claims, practices, and aspirations that take on specifc meaning in the agonistic conditions in which it is enunciated.106 Defning sovereignty as “agonistic” with Goldstein, rather than static, I claim that (again) there is no outside to power, but just as importantly, detainee protest in circumstances of domination and violence demonstrates that human agency can be exercised.107 Second, with Foucault, I conceive of power as a relationship and not a static thing, even if we note that the forms of agency I explore in this book are not desirable in and of themselves—sewing one’s lips or struggling to live in a church that could be raided by federal agents refect the violence and inequality of migration policy. These protest techniques are not democratic per se but evidence that domination is still a relationship.108 In this way, I agree with authors who argue that these sorts of actions are not exercises of democratic freedoms, but they are important instances of counter-sovereignty and protest, despite this lack of freedom.109 At the same time, they use embodied “tools” that are available to them—physical occupation of a sacred space, food withdrawal, and self-harming methods—to democratize undemocratic spaces and to interrupt and challenge the temporality of “expedited” processes. Although she examines a different type of subordination, Veronica Zebadua-Yañez’s unpublished analysis of counter-sovereignty, drawing on Monique Wittig’s work on counter-sovereignty, is helpful in conceiving of these migrant protest forms as instances of a democratic state of exception.110 Zebadua-Yañez examines dissent against and challenges to sexism and heteronormativity: dissenters (Wittig’s “elles,” the feminine they) “disorder the order of oppression. Their counter-sovereign practices are anchored in the will to name oneself, that is, the will to subjectivity.”111 In the case of migrant protest, dissent is not just discursive but also entails action and potential bodily harm, as it aims to challenge incorrect and damaging narratives, as well as force the dominating other to suffer with them (in the case of detainee protests).

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Creating disorder in an already-violent context necessarily requires force—even assertions of peaceful agency (as with faith-based sanctuary) involve “violence” because they occupy space as “unauthorized” individuals, deploying power against armed federal authorities who can legitimately use force without meaningful scrutiny.112 As Zebadua-Yañez explains, this is not a mere reaction but an assertion of sovereignty: If the appropriation of the universality by the straight mind is an act of philosophical, symbolic, and discursive violence, then it is by exercising violence that elles become legible as sovereign subjects, irrupting in, and erupting the psychic and material injunctions of sex-gendered embodiment.113 Like Fanon, she fnds that forceful resistance to and dissent against established powers make the agent “sovereign”—it is the process that shapes sovereign power relations. She further argues that the violence of these fghters: humanizes the human itself by undoing “woman” and “man,” opening a range of possibilities for signifying a subjectivity in freedom114… Indeed, they affrm their individual and collective counter-sovereignty most unapologetically—they make themselves felt, forcing themselves into universal language, stamping the world with, as Wittig says, their “sovereign presence.”115 Detainee and sanctuary protests are not mass protests, but they each represent an act of solidarity, a call to community, and resistance to the warfare state.116 4.6 Stateless agency and detainee protest: the meaning of counter-sovereignty

As I have indicated, there are two important modalities of these migrant protests to consider. First, there is the thanatic element in which we understand the violence of self-harming tactics, which are injurious, even lethal, but also self-regarding and which reveal state violence and forced displacement. At the same time, protesters create a democratic state of exception within the legal state of exception: they expose injustice, act on behalf of causes affecting signifcant numbers of people, and assert the equal human worth of all foreigners. Through research and participation, I have found that the two protest forms I explore reveal quite a lot about democratic agency and community formation, even in repressive circumstances.

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Resistance to dehumanizing practices is foundational to these efforts as a dynamic and kinetic activity that cannot be founded on a static notion of freedom or rights.117 It involves a “deconstructive episteme” that does not merely critique but provides alternatives: alternative spaces, communities, and relations to the law. This “deconstructive episteme,” as Peter Westoby conceives of it, involves: a way of reading, a way of viewing, or being in the world, a practice, a sensibility—that insists, or summons the reader or practitioner to be disrupted or disrupt. In using the word disruption, I am not necessarily meaning being a trouble-maker, although deconstruction is often a pre-cursor for trouble—but it is to reorient to a kind of interpreting writing, or ideas, programmes or institutions … that does not settle for the familiar or easy.118 Migrant resistance is a form of counter-sovereignty that aims to “trouble” and to deconstruct and reorient; to interpret it as such is to recognize its deep political nature, which involves an assertion of bodily agency as a challenge to powers aiming at docility. The sovereign element is not tied to life and death per se but autonomy, which involves bodily and spatial control over one’s circumstances.119 While this control has been conceived of as preconditional to civil liberties by modern theorists such as Locke, Rousseau, and de Tocqueville,120 in circumstances of captivity and near-total control, these elements of biological life have been politicized and cannot be taken for granted.121 Unsurprisingly, life and death are at stake in the contexts that detainees and would-be detainees encounter, and accordingly the political power these individuals exercise is counteragency in response to a state that wields its tools of violence over foreigners as if they were on foreign soil.122 Any migrant protest in such a situation (particularly if already detained) should be viewed as a direct response to attempts to control these foreigners’ lives at a bodily level, as I have argued above. Detainee and faith-based protests interrupt a sovereign process that seeks to defne and appropriate them. These moves do bring the detainee closer to death or lead to self-confnement but on the individual’s terms and within a context in which the person is being confronted by the warfare state—that is, a state prepared to deploy violence. As I discussed in the introduction and above, some very good work has been done on migrant agency—particularly the agency of the stateless when they are encountering state authorities charged with deploying powers of the warfare state.123 The point of studies highlighting the possibility of agency is that forced migrants are not abject, mute victims,

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even if the power dynamic is highly asymmetrical. The ability to exercise agency at all when confronting the warfare state is politically noteworthy and a precondition for these migrant protests.124 However, I believe it is important to distinguish between stateless individuals’ agency and their political protest: I am not suggesting a defnitional opposition but rather that one is the precondition for the other.125 Agency exercised at border sites while attempting to enter a country surreptitiously, the negotiations of camp dwellers with state agents, and the demands for concessions while drifting on the high seas are all important instances of individual power.126 Understanding that migrants can exercise agency at these moments exposes how the sort of sovereign power deployed by the warfare state still has gaps and openings that could become sites of contestation, resistance, and protest. Detainee and would-be detainee protest differs by degrees, including a different legal context (these individuals have been marked as non-persons and removable), their invocation of a political community (versus the individual agency of a border crosser), and their concerted political efforts to defantly and explicitly resist displacement, bodily control, and limitations on free expression.127 They are not merely exercises of individual autonomy but political because they invoke an ethical community asked to effect broad structural change.128 They are democratic because they rely on persuasive methods to convince a plural community that conventional beliefs and narratives are dehumanizing and destructive; they aim at greater political inclusion; and they invoke justice-oriented notions of duties and responsibilities.129 It is important to note the constraints on any individual as they face deportation or when they are detained—agency cannot be defned by “choice or free will, but rather how even on the edges of states and societies, faced with formidable levels of marginalization, people continue to resist, fnd room for negotiation, and exploit these narrow margins,” as Mainwaring states.130 My focus on the embodied elements of each type of protest calls attention to material effects on people (trauma, illness, injury) as indicators of why policies do not lead to short-term political losses.131 Importantly, accounting for illness and trauma helps us to understand that individuals are not merely inconvenienced by punitive policies for a brief moment in time but in a way that can affect them in the future, if not the rest of their lives.132 As James Scott, Akhil Gupta, Achille Mbembé, and Frantz Fanon have explored, protest in thoroughly coercive, rightless circumstances occurs but involves different methods and higher stakes. On the one hand, Gupta and Scott conceive of acts that Foucault would call acts of micro-resistance, which entail protest methods that are more secretive but serve to

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enact noncompliance and demonstrate that individuals have not internalized dehumanizing narratives. Fanon and Mbembé consider resistance at the necro-level, which is relevant to hunger strikes, lip-sewing, and other self-harming acts that can weaken the body. While faith-based sanctuary cannot be characterized as necro because the practice is tolerated by the state, non-intervention is not guaranteed: state agents could legally use lethal force against individuals resisting arrest. In all cases, the stakes are very high and therefore do not correspond to fghts for civil rights by citizens. Again, non-personhood and spaces that are “constitution free” alter the political context in important ways, as I explained in Chapter 1. In the sense I have used this term to characterize migrant protests, the word sovereign can be defned as the self-governance of a political community, conferring legitimate political authority over migrants’ existence. As Daniel Philpott explains, a standard Global North defnition of sovereignty entails a notion of supremacy over other laws and authorities—in this case, migrant protest asserts the rights of migrants to defne their modes of bodily and spatial existence themselves over and above the warfare state.133 The fact that it is counter-sovereignty indicates a relationship with a power source attempting to assert its total control and supremacy.134 Counter-sovereign agency does not merely react or challenge this authority but destabilizes its territorial claims and exposes the fction of universal democratic citizenship.135 More broadly, these protests illuminate the excess of meaning that these systems have wrought and the long-term damage that punitive policies can have. One example of this is forcing foreigners to wait months, if not years, to fnd out about their legal status, which increases their “precaritisation and serves to enforce the disposability of migrant life.”136 The production of uncertainty and terror is purposeful and arguably totalitarian: “Absolute power is the power to make oneself unpredictable and deny other people any reasonable anticipation, to place them in total uncertainty.”137At the same time, states’ desire for total control over foreigners and foreignness is a fantasy of the modern bureaucratic state that power can be whole and seamless, just as a monarch’s power was purported to be. In the gaps in state power, individuals can tell their stories, reversing dehumanizing narratives or occupying space in unexpected ways.138 Interpreting self-harming protest and faith-based sanctuary as a form of sovereignty is to emphasize the public nature of these protests, their reliance on a pre-existing political community or a community that is yet-to-be-formed, and the political reversals at which they are aiming. It is also to recognize the deeply political nature of the context in which they fnd themselves—we cannot choose to see acts of agency and protest as

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individual or apolitical.139 Most importantly, each protest form involves individual choice and self-defnition but requires solidarity with others in some way—this is true even when the aim is dissensus. We could conceive of the resultant community as one formed by democratic agonism aiming at reaching an agreement on shared vocabulary, issues, and solutions.140 4.7 Conclusions

In Chapter 1, I explained these two states’ approaches to refugee and migration policy as foreign policy, which means that it is discretionary, arbitrary, and treats foreigners as “non-persons” unless they naturalize.141 I have interpreted sovereignty in this sphere as highly unequal, aiming at total power, and decisionistic but also fragmented, diffuse, and open to contestation. Accordingly, even this type of power is a relationship rather than merely imposed on mute, absolutely victimized subjects. As I discussed in the previous two chapters, a range of instances of agency and protest methods are employed by foreigners. Recent policy changes in both countries have made detention and deportation mass policies. Implementing detention and deportation as mass policies means that criminally innocent individuals are swept up into this system, regardless of their individual cases, age, and physical ablebodiedness. As processes are “expedited” and/or carried out by agents that are trained for warfare but not as immigration agents per se, their individual circumstances are not carefully scrutinized. As I have argued, they are policed and jailed based on their status rather than any criminal action. The high bar for what counts as a genuine refugee contributes to mass indefnite incarceration as people are often denied legal status but cannot be deported easily. In Chapter 1, I contended that detention is a “camp” and not a prison—this is crucial to understand why detainees cannot simply draw on extant rights to make their cases and change bureaucratic trajectories.142 Finally, I explored how migrant protests are forms of counter-sovereignty, creating spaces of exception that precisely meet the exceptional state powers that regularly suspend the rule of law to make this system possible. As I discussed in the previous two chapters, what is most interesting is that these forms of protest often work, despite the context.143 This is not proof that somehow, somewhere, protesters have rights, but that important political reversals do not always operate along an axis of rights and liberty. Forms of counter-sovereignty challenge and disrupt what Zerilli calls the “fantasy” of sovereignty as it is currently conceived: as total control, characterized by signifcant biases, and opposed to democratic action. They are developed in a context of domination and are politically

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meaningful, as I have demonstrated in these pages. It is crucial to develop notions of sovereignty that are aligned with human rights and congruent with the rule of law—migrant protesters have given us a vision of a possible future democratic sovereignty. In the concluding chapter, I briefy explore Hannah Arendt’s notion of a “pariah” approach to thanatic circumstances, suggesting that this is the mindset of migrant protesters I have discussed in this book. I further argue that both types of protest should be interesting to all readers interested in democracy, civil society, and radical protest. Notes 1 Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979); Karl Marx, The Marx-Engels Reader, 2nd ed., ed. Robert C. Tucker (New York: W.W. Norton, 1978). 2 Arendt, Origins of Totalitarianism, ch. 9. 3 Bio-power is a more accurate, intersectional term but I will also use “race” in its broadest sense. Sheldon Wolin, “Democracy and the Welfare State: The Political and Theoretical Connections Between Staatsräson and Wohlfahrsstaatsräson,” in Wolin, The Presence of the Past: Essays on the State and the Constitution (Baltimore: Johns Hopkins Press, 1989), 151–179. 4 See John Stuart Mill, On Liberty, ed. Elizabeth Rapaport (Indianapolis: Hackett Publishing Co., 1978) regarding concerns about censorship, the centralization of power, and elite attempts at controlling the poor and women. See also John Stuart Mill, Principles of Political Economy (Oxford: Oxford University Press, 1994) regarding concerns about policing workers’ morality and state attempts to prevent their peaceful assembly. Regarding notions of popular sovereignty in the French Revolution, see Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1998). 5 On the transmogrifcation of “race” from a disputed ideational category (mid 1800s) to an alleged scientifc fact by the early 1900s, see: Arendt, Origins of Totalitarianism, ch 6; Colette Guillaumin, Racism, Sexism, Power and Ideology (New York: Routledge, 1995); Robert Miles and Malcolm Brown, Racism, 2nd ed. (London: Routledge, 2003). 6 Wolin, “Democracy and the Welfare State.” 7 See also Pasquale Pasquino, “Locke on King’s Prerogative,” Political Theory 26, no. 2 (April, 1998): 198–208. 8 Arendt, Origins of Totalitarianism, chs 9 and 13; Ronald Beiner, “Arendt and Nationalism,” The Cambridge Companion to Hannah Arendt, ed. Dana Villa (Cambridge: Cambridge University Press, 2000), 44–64. Beiner uses the term “totalitarian elements.” 9 This is not to idealize the historical moments—see Brubaker, Citizenship and Nationhood in France and Germany and Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press, 2010). 10 See Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1999); John Locke, Second Treatise of Government, ed. C.B. Macpherson (Cambridge: Hackett Publishing, Classic Series, 1980);

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Richard Ashcraft, Revolutionary Politics and Locke’s Two Treatises of Government (Princeton: Princeton University Press, 1986) Important theories of popular sovereignty ranged from the arguably dictatorial in Hobbes to the seemingly more moderate theories of Locke, Rousseau, Mill, de Tocqueville, and Marx (among many others) each struggled to defne the direction these countries should take as they entered the modern age. Brubaker, Citizenship and Nationhood in France and Germany. Brubaker, Citizenship and Nationhood in France and Germany. Brubaker, Citizenship and Nationhood in France and Germany. While Arendt believed that only European polities were nation-states, I have argued elsewhere that she was incorrect to include the United States—and by extension, Australia—from this defnition. See Kathleen R. Arnold, “When the Nation Conquered the State: Arendt’s Contemporary Relevance,” Political Theory, October 2022, https://journals.sagepub.com/doi/full/10 .1177/00905917221104510#_backmatter_ack. Beiner, “Arendt and Nationalism”; Arendt, Origins of Totalitarianism, 447 and ch. 9. In this way, as De Genova notes, “if the refugee may be invoked as an icon of statelessness and therefore also of bare life, then deportability perfectly and precisely marks the zone of indistinction between a condition that is (virtually) stateless and one that is positively saturated within the state…deportation is, indeed, a premier means for perpetrating, embellishing, and reinstating a ‘threshold … that distinguishes and separates what is inside from what is outside.’” Nicholas de Genova, “The Deportation Regime: Sovereignty, Space, and the Freedom of Movement,” in Genova, The Deportation Regime: Sovereignty, Space, and the Freedom of Movement (Durham: Duke University Press, 2010), 46 (227–242). See also Beiner, “Arendt and Nationalism.” Arendt, Origins of Totalitarianism, ch 5. In particular see Arendt, Origins of Totalitarianism, chs. 5, 6, and 9. See Hannah Arendt, “Nation-State and Democracy,” in Thinking without a Banister, ed. and intro. Jerome Kohn (New York: Schocken Books, 2018c), 257; Arendt, Origins of Totalitarianism, 277n21, 297. This mistake is evident in her otherwise excellent work—as she misconstrued the power of the US states regarding racism against Blacks and was ignorant of the federal government’s exclusive power over immigration. See Arnold, “When the Nation Conquered the State.” See Stefan Kühl, The Nazi Connection: Eugenics, American Racism, and German National Socialism (Oxford: Oxford University Press, 2002); Paul Lombardo, “‘The American Breed’: Nazi Eugenics and the Origin of the Pioneer Fund,” Albany Law Review 65, no. 3 (2002): 743–830; James Q. Whitman, Hitler’s American Model: The United States and the Making of Nazi Race Law (Princeton: Princeton University Press, 2014). Arendt, Origins of Totalitarianism, 275. See Arnold, “When the Nation Conquered the State.” See Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research 8, no. 4 (2006), 387–409. See also Amnesty International, “Why Saying ‘Aborigine’ isn’t OK: 8 Facts About Indigenous People in Australia,” August 9, 2015, https://www.amnesty.org/en/latest/ campaigns/2015/08/why-saying-aborigine-isnt-ok-8-facts-about-indigenous -people-in-australia/. Gender was also very important in the calculus or moral and mental ftness—Asian women were viewed as immoral, mysterious, and potentially

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treacherous. See Mae M. Ngai, Impossible Subjects (Princeton and Oxford: Princeton University Press, 2004).; Sonia Shah, ed., Dragon Ladies: Asian American Feminists Breathe Fire, (Boston: South End Press, 1997). Australia established its frst detention center in 1966: the Maribyrnong Immigration Detention Centre (it has since closed). The United States had cells at Ellis Island and Angel Island (Ellis Island’s offcial closure was in 1954; Angel Island was opened as an immigration station in 1910 and was closed in 1940 due to a fre). Regarding Angel Island, see the Angel Island Immigration Station Foundation website: https://www.aiisf.org/ See Miles and Brown, Racism; Kathleen Paul, Whitewashing Britain: Race and Citizenship in the Postwar Era (Ithaca: Cornell University Press, 1997). In other work, I have explored the development of prerogative power in a liberal representative democracy such as the United States; see also Kanstroom on the historical waves in which federal power was asserted and strengthened. See Kathleen R. Arnold, America’s New Working Class (College Station: Penn State University Press, 2008); Daniel Kanstroom, Deportation Nation (Cambridge, MA: Harvard University Press, 2007). See Arendt, Origins of Totalitarianism, ch. 5; Wolfe, “Settler Colonialism and the Elimination of the Native.” For example, arguing that migrants are the reason hate groups are active and curbing migration will reduce racism-see Patrick Wintour, “Hillary Clinton: Europe Must Curb Immigration to Stop Rightwing Populists,” The Guardian, November 22, 2018, https://www.theguardian.com/world /2018/nov/22/hillary-clinton-europe-must-curb-immigration-stop-populists -trump-brexit. See Guillaumin, Racism, Sexism, Power and Ideology; Miles and Brown, Racism. Arendt, Origins of Totalitarianism, ch. 5. See Guillaumin, Racism, Sexism, Power and Ideology; Miles and Brown, Racism; Paul, Whitewashing Britain. Arendt, Origins of Totalitarianism, ch 9. As Miles and Brown have argued about racism more broadly, categories of undesirable foreignness have shifting content such that groups once viewed as inferior are later confgured as acceptable or vice versa. of this as we witness with Afghan refugees in 2021—once confgured as illegals and now suddenly allowed to “jump the line” in terms of ORR (US Offce of Refugee Resettlement) benefts. Miles and Brown, Racism. See Daniel Kanstroom, Deportation Nation (Cambridge, MA: Harvard University Press, 2007); Ngai, Impossible Subjects. Please see: The Monthly, “Morrison’s Plan to Deport Thousands of Migrants,” 7am podcast, The Monthly, March 3, 2022, https://www .themonthly.com.au/podcast/morrisons-plan-deport-thousands-migrants; Tory Shepherd, “Deported to a Land They Barely Know: Anger Rises over Australia’s ‘Character’ Test' for Noncitizens,” The Guardian March 14, 2022, https://www.pressreader.com/australia/the-guardian-australia /20220314/281556589302274; see also Francesco P. Motta, “Between a Rock and A Hard Place: Australia’s Mandatory Detention System,” Refuge 20, no. 3 (2002): 12–43. Linda Bosniak, “Sanctuary and the Contested Ethics of Presence in the United States,” Borders and Boundaries: Mapping Out Contemporary Societies, ed. Didier Fassin (Berkeley: University of California Press, 2018), 193; see Kathleen Arnold, Arendt, Agamben and the Issue of Hyper-Legality: In

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Between the Prisoner-Stateless Nexus (New York and London: Routledge, 2018); Kevin R. Johnson, “Race and Immigration Law and Enforcement: A response to Is There a Plenary Power Doctrine?,” Geography Immigration 289 (1999–2000): 289–305; Michael Kagan, “Plenary Power Is Dead! Long Live Plenary Power!” Michigan Law Review First Impressions 114, no. 10 (2015): 21–30; Monica Varsanyi, “Rescaling the ‘Alien,’ Rescaling Personhood: Neoliberalism, Immigration and the State,” Annals of the Association of American Geographers 98, no. 4 (2008): 877–896. Wolin, “Democracy and the Welfare State.” Bosniak, “Sanctuary and the Contested Ethics of Presence”; Wolin, “Democracy and the Welfare State.” Since the events of 9/11/01, there has been quite a lot of research on the unjust and undemocratic elements of antiterror policy but often with the assumption that sovereignty is inherently bad and borders are a given. Wolin, “Democracy and the Welfare State.” Wolin, “Democracy and the Welfare State,” 177. While many focus on Hobbes or Machiavelli to explain modern sovereignty, Locke’s proposal for representative democracy is more relevant to these two countries. Locke, Second Treatise of Government. Regarding analyses of Hobbes to understand similar dynamics, see: Arendt, Origins of Totalitarianism, ch. 5; Banu Bargu, “Sovereignty as Erasure: Rethinking Enforced Disappearances,” Qui Parle 23, no. 1 (Fall/Winter 2014): 35–75. At the same time, we can also understand Arendt’s critique of modern imperialism as Hobbesian and therefore, apolitical, individual, and rapacious just as David Garland explains how neoliberalism and neo-conservatism coexist. Arendt, Origins of Totalitarianism, ch. 5; David Garland, Culture of Control (Chicago: University of Chicago, 2001). Locke, Second Treatise of Government. Locke, Second Treatise of Government, 76–77 (§146, §147); 82–87 (§156–§166). Wolin, “Democracy and the Welfare State”; see also Arnold, America’s New Working Class; Pasquino, “Locke on King’s Prerogative.” Locke never limits these powers—federative or prerogative—in the Second Treatise of Government; see: 76–77 (§146, §147); 82–87 (§156–§166). Locke, Second Treatise of Government, 82–87. Wolin, “Democracy and the Welfare State.” For example, using executive orders to issue travel bans. Locke, Second Treatise of Government, 87, §166 Locke, Second Treatise of Government, ch. xii, 75–77. The federative power provides continuity with man’s power in the state of nature; it “’contains the Power of War and Peace, Leagues and Alliance, and all the Transactions with all Persons and Communities w/o the Commonwealth’” (2.146); “federative power is much less capable of being circumscribed by law and so must be left to Prudence and Wisdom of those whose hands it is in; because the exercise of power would have to depend on variation of designs and interests of foreigners.” Wolin, “Democracy and the Welfare State,” 168. Pasquino, “Locke on King’s Prerogative”; Kathleen R. Arnold, “Locke on “Domestic War: Locke’s Concept of Prerogative and Implications for U.S. ‘Wars’ Today,” Polity 39, no. 1 (January, 2007): 1–28. On the appearance of “hyper-legality” in a context of arbitrary and unjust discretion, see Arnold, Arendt, Agamben and the Issue of Hyper-Legality.

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55 Without referring to Wolin, Banu Bargu has a very similar analysis of Hobbes in Bargu, “Sovereignty as Erasure”; see Wolin, “Democracy and the Welfare State.” 56 Locke, Second Treatise of Government, ch. xiv. 57 Locke, Second Treatise of Government, ch. xiv. 58 Karl Marx, “On the Jewish Question,” in The Marx-Engels Reader, 2nd ed., ed. Robert C. Tucker (New York: W.W. Norton, 1978); Arendt, Origins of Totalitarianism. 59 Due to space considerations, I will leave aside the important question: did racist sovereignty corrupt the otherwise legitimate liberal governments or were these governments always already corrupt, due to their problematic foundations? See Honig’s discussion of Rogers Smith on this topic in Bonnie Honig, Democracy and the Foreigner (Princeton: Princeton University Press, 2001). 60 Trump’s policies and executive orders—e.g. Exec Order 13768— Enhancing Public Safety in the Interior of the United States, 82 Fed, Reg. 8799, 8800 (2017) (rescinded by Biden)—is an example not merely of inside/outside thinking but a hierarchy of needs such that undemocratic, unconstitutional policy and enforcement is purportedly acceptable at the border to safeguard democracy and the common good (aka national security) in the interior. Trump did not always succeed, but the point is that support for these types of policy was broad enough that it was not surprising or viewed as unconventional. 61 As Wolin argues in “Democracy and the Welfare State,” 157. 62 Wolin, “Democracy and the Welfare State,” 155; see also Kathleen R. Arnold, American Immigration After 1996: The Shifting Ground of Political Inclusion, (College Station: Penn State University Press, 2011). Although it is very brief, see ACLU, “The Constitution in the 100-Mile Border Zone,” ACLU website, n.d. https://www.aclu.org/other/constitution-100-mile-border-zone, which explains how the suspension of the Constitution at/inside the border zone affects all residents and not just arriving foreigners. While Australia has not introduced a “crimmigration” system equivalent to America’s, its stricter border policies have made caring for loved ones abroad more diffcult; have disrupted travel; and have caused diffculties for ex-patriots wishing to travel home. Mistakes have been made when citizens have been treated as foreigners. On these issues, see, e.g., Frances Mao, “Australia Borders: Citizens Living Overseas Could be ‘Trapped’ if They Return,” BBC News, August 6, 2021, https://www.bbc.com/news/world-australia-58110308. 63 Arendt, Origins of Totalitarianism, ch 9. 64 For a contemporary parallel, see Supreme Court debates about and majority decisions on the “political questions” doctrine which is marked by Court deference to the legislative and executive branches in “political matters,” including foreign policy. On necessity as a justifcation for states of emergency, see Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005). 65 Daniel Philpott explains historical and interpretive notions of sovereignty in the Global North as involving: “A fnal pair of adjectives that defne sovereignty is “internal” and “external.” In this case, the words do not describe exclusive sorts of sovereignty, but different aspects of sovereignty that are coexistent and omnipresent. Sovereign authority is exercised within borders, but also, by defnition, with respect to outsiders, who may not interfere with the sovereign’s governance.” Daniel Philpott, “Sovereignty,” Stanford

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Encyclopedia of Philosophy (2003, updated in 2020), https://plato.stanford .edu/entries/sovereignty/. E.g. to produce and discipline minorities and “model” minorities. This is not to say that this power modality is uniform or even seamless in its implementation but rather to suggest that the alleged distinction between domestic and foreign is just that: alleged. See also Harsha Walia, “There Is No ‘Migrant Crisis,’” Boston Review, November 16, 2022, https://www.bostonreview.net/articles/there-is-no -migrant-crisis/. This is perhaps even truer in migrant detention centers in the UK and in migrant jails and encampments in France—see Teresa Hayter, Open Borders: The Case Against Immigration Controls (London: Pluto Press, 2004); see in particular ch. 4 on resistance in Britain and the Sans-Papiers Movement (134–148). See Paul, Whitewashing Britain; Miles and Brown, Racism; Wolfe, “Settler Colonialism and the Elimination of the Native.” See Zerilli’s excellent critique of sovereignty in Linda M.G. Zerilli, Feminism and the Abyss of Freedom (Chicago: University of Chicago Press, 2005). Arendt, Origins of Totalitarianism, 296, 298. See Lauren Berlant, “Slow Death (Sovereignty, Obesity, Lateral Agency),” Critical Inquiry 33, no. 4 (Summer, 2007): 755. I take Michel Foucault’s term bio-power to be critical: it involves the reduction of the population in question to a species. That is, it entails the treatment of a group in biologically deterministic ways, often reducing their needs to a bare minimum in relation to food, hygiene, and housing. See also Patricia Owens, “Reclaiming ‘Bare Life’?: Against Agamben on Refugees,” International Relations 23, no. 4 (2009): 567–582; Raffaela Puggioni, “Against Camps’ Violence: Some Voices on Italian Holding Centres,” Political Studies 62 (2014): 945–960. This is not to say I agree entirely with Puggioni’s interpretation of Agamben. On static, biologizing notions of race deployed in key government policies in both countries (but particularly Australia), see Miles and Brown, Racism. One of the clearest examples of this is both countries’ focus on migrants’ health as a consideration for entry—this has only been exacerbated during the COVID crisis. All of which Foucault has defned as pertaining to bio-power and governmentality. See Michel Foucault, The History of Sexuality, Volume I: An Introduction, trans. Robert Hurley (New York: Vintage Books, 1980); Michel Foucault, “Governmentality,” in Power, ed. James D. Faubion, trans. Robert Hurley et al. (New York: New Press, Essential Works of Foucault, 1954–1984, Vol. 3, 1994); Michel Foucault, The Birth of Biopolitics (New York: Picador/Palgrave, 2004). Foucault, The History of Sexuality; see Jenny Edkins and Véronique PinFat, “Through the Wire: Relations of Power and Relations of Violence,” Millennium: Journal of International Studies 34, no. 1 (2005): 1–26; Didier Fassin, “Another Politics of Life Is Possible,” Theory, Culture & Society 26, no. 5 (2009): 44–60. I am using decolonial theory to analyze Global North dynamics—for this reason, my “archive” cannot be called “non-western”—see Adom Getachew and Karuna Mantena, “Anticolonialism and the Decolonization of Political Theory,” Critical Times: Interventions in Global Critical Theory 4, no. 3 (2021): 359–388.

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78 Foucault, History of Sexuality; see also Edkins and Pin-Fat, “Through the Wire,” 5–6. 79 James Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven: Yale University Press, 1987). 80 See Scott, Weapons of the Weak; see also James C. Scott, “The Analysis of Corruption in Developing Nations,” Comparative Studies in Society and History 11, no. 3 (June, 1969): 315–341. See also Puggioni’s analysis, which is similar to mine on these points: “The important contribution that De Certeau’s work provides is its focus on less visible anti-disciplinary practices whose modes of operation aim to conform to rules ‘only in order to evade them’ (Michel de Certeau, The Practice of Everyday Life (Berkeley: University of California Press, 1984, p. xiv).” Puggioni, “Against Camp Violence” 952. 81 Scott, Weapons of the Weak. 82 This is perhaps even truer in migrant detention centers in the UK and in migrant jails and encampments in France—see Hayter, Open Borders 83 An important consideration in legal understandings of membership (fnd the sup ct decision) and in granting a stay of deportation. 84 See Saskia Sassen, Globalization and Its Discontents: Essays on the New Mobility of People and Money (New York: New Press, 1998), ch. 5. 85 See also Banu Bargu, “The Silent Exception: Hunger Striking and LipSewing,” Law, Culture and the Humanities, May 24, 2017, 1–28. 86 Ċetta Mainwaring, “Migrant Agency: Negotiating Borders and Migration Controls,” Migration Studies 4, no. 3 (Nov 2016): 291 (full page range: 289–308). 87 Mainwaring, “Migrant Agency,” 293, my emphasis. 88 On detainee protest specifcally, see Puggioni, “Against Camps’ Violence.” 89 On this subject see Puggioni, “Against Camps’ Violence”; see also Edkins and Pin-Fat, “Through the Wire.” 90 In the Nietzschean and existentialist sense, even if the “situation” is one of signifcant unfreedom. 91 Nevertheless, I believe that faith-based sanctuary is one of the most exciting democratic activities occurring in both countries today. 92 Foucault, History of Sexuality; see Puggioni, “Against Camps’ Violence” regarding protest within a system of domination. 93 As Seth Holmes urges, we can see illness and injury as markers of “symbolic violence”: Seth Holmes, Fresh Fruit, Broken Bodies: Migrant Farmworkers in the United States (Oakland: University of California Press, 2014), introduction. 94 For example, even if the Tipton Three were released from Guantanamo, they suffered while they were there and they were coerced into false confessions— the measure of these health data indicate the losses and project diffculty into the future. 95 Interestingly, one of the biggest errors US immigration judges make is their belief that certain practices or persecution constitute a one-time harm and therefore do not meet refugee standards. See Lisa Frydman et al., “A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System,” Center for Gender and Refugee Studies and Kids in Needs of Defense, 2014, http://www .uchastings.edu/centers/cgrs-docs/treacherous_journey_cgrs_kind_report.pdf; Lisa Frydman et al., “Kasinga’s Protection Undermined? Recent Developments in Female Genital Cutting Jurisprudence,” Bender’s Immigration Bulletin 13 (September 1, 2008): 1073–1105, http://cgrs.uchastings.edu/sites/default/fles/

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Kasinga%27s_Protection_Undermined_Frydman_Seelinger_2008.pdf; Stephen Knight, “Asylum From Traffcking: A Failure of Protection,” Immigrant Briefngs, 7-07, (2007), https://cgrs.uchastings.edu/sites/default/fles/Asylum _from_Traffcking_Knight_Immigration_Briefngs_7_07.pdf#:~:text=Asylum %20from%20TrAfficking%3A%20A%20fAilure%20of%20ProTecTion %20by,traffcking%20cases%20from%20the%20CGRS%20database%2C %20and%20his. Regarding children’s mental destabilization after frst being forcibly separated from parents and second, reunited with them (due to Trump policies), see Sarah A. MacLean et al., “Characterization of the Mental Health of Immigrant Children Separated From Their Mothers at the US-Mexico Border,” Psychiatry Research 286 (April 2020): 1–3; see also Michael Kirk, director, Michael Kirk et al. producers, Frontline: “Zero Tolerance: How Trump Turned Immigration into a Political Weapon,” PBS, (54 min) October 11, 2019, https://www.pbs.org/wgbh/frontline/announcement/in-zero-tolerance-frontline-investigates-how-donald-trump-turned-immigration-into-a -powerful-political-weapon/. See John Randolph LeBlanc, “Occupied Body, Occupied Mind,” Conference Presentation, American Political Science Association Meeting, 2016, https://www.academia.edu /91141117/Occupied _Body_Occupied _Mind _Transforming_Vulnerability_in_Raja_Shehadeh; Veronica Zebadua-Yañez, “On Feminist Counter-Sovereignty: Visions of Radical Freedom in Monique Wittig’s ‘Les Guérillères’,” unpublished essay, n.d., 19; it is also “necroprotest” as Achille Mbembe explains in Achille Mbembe, “Necropolitics,” trans. Libby Meintjes, Public Culture 15, no. 1 (2003): 11–40. LeBlanc, “Occupied Body, Occupied Mind,” 15–16. On these theorists’ rejection of sovereignty, see Bonnie Honig, Antigone, Interrupted (Cambridge: Cambridge University Press, 2013). It is important to note that the United Nations—particularly UNHCR—does not defne sovereignty as inherently negative—in a report on low-lying states (i.e. states that may become submerged under water in the future), the authors of one report defne a state, state functions, sovereignty, and statelessness. Sovereignty is simply bound up in the authority a state has over a given territory. The question in this report is if the state still exists if the territory disappears. Sovereignty in these cases includes the ability to protect citizens’ rights; to have functioning institutions located in a given territory and exercising power on behalf and over residents of that territory. Susin Park, “Climate Change and the Risk of Statelessness: The Situation of Low-lying Island States” UNHCR—Legal and Protection Policy Research Series, 2011, https://www.unhcr.org/4df9cb0c9.pdf#:~:text=This %20paper%20was%20initially%20prepared%20in%202009%20as,Change %20%28UNFCCC%29%20%E2%80%98Climate%20Change%20and %20Statelessness%3A%20An%20Overview%E2%80%99. Berlant, “Slow Death (Sovereignty, Obesity, Lateral Agency),” 754–780; Judith Butler, Precarious Life: The Powers of Mourning and Violence (New York: Verso, 2006). See also Honig, Antigone, Interrupted. Zerilli, Feminism and the Abyss of Freedom. Some very good accounts of these dynamics (even if they do portray targets of state coercion as largely mute, helpless, and/or ungrievable) are: Katie Oliviero, Vulnerability Politics: The Uses and Abuses of Precarity in Political Debate (New York: New York University Press, 2018); Butler, Precarious Life; Judith Butler, Frames of War: When Is Life Grievable? (London: Verso, 2009). Butler offers a slightly different conception of agency in Judith

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Butler, Notes Toward a Performative Theory of Assembly (Cambridge, MA: Harvard University Press, 2015). Zerilli, Feminism and the Abyss of Freedom, 10. Zerilli, Feminism and the Abyss of Freedom, 10. Zerilli’s notion of plurality does help us to think of the way we can defne the political community to include detainees and undocumented residents. Zerilli, Feminism and the Abyss of Freedom. Alyosha Goldstein, “Colonialism, Constituent Power, and Popular Sovereignty,” J19: The Journal of Nineteenth-Century Americanists 2, no. 1 (Spring 2014): 148. I am infuenced by both Foucault and Butler, even though each rejected sovereignty as a positive political concept or arrangement. See Iris Marion Young for one of the best analyses of domination. Iris Marion Young, “Is Male Gender Identity the Cause of Male Domination?” in Feminist Social Thought: A Reader, ed. Diana Tietjens Meyers (New York: Routledge, 1997), 21–37. See Bargu, “Sovereignty as Erasure”; Edkins and Pin-Fat, “Through the Wire”; de Genova “Deportation Regime”; Owens, “Reclaiming ‘Bare Life’?” Zebadua-Yañez, “On Feminist Counter-Sovereignty.” Zebadua-Yañez, “On Feminist Counter-Sovereignty,” 19. For example, Border Patrol incidents of shooting unarmed teens across the border—these murders have been discussed but committed with impunity. Zebadua-Yañez, “On Feminist Counter-Sovereignty,” 20. Zebadua-Yañez, “On Feminist Counter-Sovereignty,” 20. Zebadua-Yañez, “On Feminist Counter-Sovereignty,” 20–21. See also Peter Hodge, “#LetThemStay #BringThemHere: Embodied Politics, Asylum Seeking, and Performativities of Protest Opposing Australia’s Operation Sovereign Borders,” Politics and Space 37, no. 3 (2019): 386–406. The trajectory of Nilson Barriaga Mohen’s detention, organizing and participating in a hunger strike, and his eventual release are important instances of how “community” operates within and outside detention centers despite their legal impenetrability. As Foucault argues, “Rather than speaking of an essential freedom, it would be better to speak of … a permanent provocation.” Michel Foucault, “The Subject and Power,” Critical Inquiry 8, no. 4 (1982): 777–795; quote: 790. This is something Patricia Williams elucidates in her Alchemical writings. I conceive of these writes claims as post-national rather than national, even if there is no state to guarantee them. Patricia J. Williams, “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights,” Harvard Civil RightsCivil Liberties Law Review 22, no. 2 (Spring 1987): 401–434. See Yasemin Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago, 1994); Sassen, Globalization and Its Discontents. See also Benjamin Lewis Robinson’s (NYU) forthcoming work on conceiving of politics beyond individual agency. Peter Westoby, “‘A Community Development Yet-to-Come’: Jacques Derrida and Re-constructing Community Development Praxis,” Community Development Journal 56, no. 3 (2021): 382. My defnition adheres to some elements of the modern, Global North defnition of sovereignty but is not territorially delimited; nor do I defne sovereignty in terms of its absoluteness. For excellent references on defnitions, history, and debates about Global North sovereignty, see: Philpott, “Sovereignty”; Daniel Philpott, “Sovereignty: An Introduction and Brief History,” Journal

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of International Affairs 48, no. 2 (Winter 1995): 353–368; Daniel Philpott, “Usurping the Sovereignty of Sovereignty,” World Politics book review 53, no. 2 (January 2001): 297–324. That is: their work engages in a hierarchy of what counts as political and what provides the means or foundation for truly political activity. Locke, Second Treatise of Government; John Stuart Mill, On Liberty, ed. Elizabeth Rapaport (Indianapolis: Hackett Publishing Co., 1978); Jean Jacques Rousseau, First and Second Discourses, ed. Masters (Boston: Bedford St. Martin’s Press, 1964); Alexis De Tocqueville, Democracy in America, ed. J.P. Mayer, trans. George Lawrence (New York: Perennial Classics, 2000). I do not disagree with Agamben that bio-power characterizes quite a lot of politics for all residents of a given territory but do want to highlight how actual or threatened detention and deportation are the most explicit and restrictive of this control outside of prisons. My analysis challenges rational choice models as well as a great deal of analytical philosophy on this subject by exposing the political nature of trauma in these circumstances; the historical development of policies that precisely made migration policies bio-political, thus effacing all individual characteristics of fight and identity; and the more recent move to making arbitrary confnement and forced exile mass policies, which entail an impersonal, rote removal of foreigners from the border and the interior of these countries. In this respect, analytical and rational choice studies that focus on the “morality” of migration or individual calculations of self-interest are ideological in their effects. They deny historical context, public health fndings, and the empirical data of mass persecution through confnement and deportation. See also Holmes’ excellent critique of the same analyses of migration in Fresh Fruit, Broken Bodies. Suzan Ilcan and Kim Rygiel, “‘Resiliency Humanitarianism’: Responsibilizing Refugees through Humanitarian Emergency Governance in the Camp,” International Political Sociology 9, no. 4 (December 1, 2015): 333–335; Mainwaring, “Migrant Agency”; Liisa H. Malkki, “Speechless Emissaries: Refugees, Humanitarianism, and Dehistoricization,” Cultural Anthropology 11, no. 3 (August 1996): 377–404; Peter Westoby, “Developing a CommunityDevelopment Approach Through Engaging Resettling Southern Sudanese Refugees Within Australia,” Community Development Journal 43, no. 4 (October 2008): 483–495. See also William Arrocha, “Expanding the Geographies of ‘Sanctuary’ and the Deepening and Contentious Nature of Immigration Federalism: The Case of California’s SB 54,” Globalizations, March 2021, 1–18. He argues that sanctuary practices are “counter-hegemonic”; Bargu on hunger strikes and lip-sewing as forms of counter-sovereignty: Bargu, “The Silent Exception.” See, e.g., Roberta Villalón, “Passage to Citizenship and the Nuances of Agency: Latina Battered Immigrants,” Women’s Studies International Forum 33 (October 12, 2010): 552–560. Please see R. Puggioni, “Speaking Through the Body: Detention and Bodily Resistance in Italy,” Citizenship Studies 18, no. 5 R (2014): 562–577. Puggioni makes the important point that: “more attention should be given to the way in which acts of open dissent blend with coping strategies, to the point of making some dissenting acts almost imperceptible.” (562) I am referring to the work of Ilcan and Rygiel, “‘Resiliency Humanitarianism’”; Malkki, “Speechless Emissaries: Refugees, Humanitarianism, and Dehistoricization”; Mainwaring, “Migrant Agency”

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127 Bargu has helpfully elucidated a key difference between the agency of unauthorized border crossers, refugees drifting on the high seas, and those who create value and meaning even as they are forced to languish in refugee camps versus the sorts of migrant protest that defantly resists displacement, bodily control, and limitations on free expression: “I reserve the meaning of resistance to purposeful, politically motivated acts of protest staged by migrants and refugees.” (Bargu, “The Silent Exception,” 5 n22) This is only evident if we view these protesters, she argues, not merely as subjects produced by an “effect of domination” but as individuals endowed with the capacity to make independent decisions and conduct life-sustaining activities (or life-ending ones, as the case may be) independently. See 7, 9. 128 Accordingly, I reject any political use of the term “sovereignty of the self” even if I understand that it can be used in a non-political, perhaps colloquial sense to indicate individual autonomy. See Bargu, “The Silent Exception,” on self-sovereignty. 129 See also Bargu, “The Silent Exception.” 130 Mainwaring, “Migrant Agency,” 292–293. 131 As Holmes urges, we can see illness and injury as markers of “symbolic violence” in Holmes, Fresh Fruit, Broken Bodies. 132 For example, even if the Tipton Three were released from Guantanamo, they suffered while they were there, they were coerced into false confessions—the measure of these health data indicate the losses and project diffculty into the future. 133 See Philpott, “Sovereignty.” 134 See also Edkins and Pin-Fat, “Through the Wire.” 135 See Bargu, “The Silent Exception”; Nicholas de Genova, “‘Doin’ Hard Time on Planet Earth’: Migrant Detainability, Disciplinary Power and the Disposability of Life,” ch 11, in Waiting and the Temporalities of Irregular Migration, ed. Christine M. Jacobsen et al. (New York and London: Routledge, 2021). 136 Genova, “‘Doin’ Hard Time on Planet Earth’,” 187. UNHCR reports about Australia that “Asylum-seekers who arrive in Australia without a visa are subjected to a number of punitive measures that can signifcantly impair their mental health and general well-being.” This includes: “Waiting up to four years to be granted permission by the Government to apply for protection” and “The inability to apply for permanent residency.” UNHCR, “Monitoring Asylum in Australia,” https://www.unhcr.org/asylum-in-australia.html. 137 Quoted in De Genova, “‘Doin’ Hard Time on Planet Earth’,” 186. 138 See also De Genova, “‘Doin’ Hard Time on Planet Earth’,” 194, who notes: “Such precaritisations of time tend to be productive, if for no other reason than that the human persons subjected to them stubbornly persist in seeking ways to prevail in spite of them.” 139 See also Bargu, “The Silent Exception.” 140 As Bill Connolly explains in William Connolly, Identity/Difference (Ithaca: Cornell University Press, 1992). See also Honig, Antigone, Interrupted. 141 In the United States this has not always been enough to protect foreigners—again, Chinese exclusion, Japanese internment, Red Scares, Mexican Repatriation, and Operation Wetback (sic) all forcibly deported US citizens. 142 Not to idealize the criminal justice system or prisons—see (among others): Michelle Alexander, The New Jim Crow (New York: The New Press, 2011); Arnold, Arendt, Agamben and the Issue of Hyper-Legality; Juliet P. Stumpf, “The Crimmigration Crisis: Immigrants, Crime and Sovereign Power,” American University Law Review 56 (2006): 367–418.

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143 See Susan Bibler Coutin and Hector Perla, “Legacies and origins of the 1980s US-Central American Sanctuary Movement,” Refuge 26, no. 1 (Spring 2009): 7–19; Lucy Fiske, “Human Rights and Refugee Protest Against Immigration Detention: Refugees’ Struggles for Recognition as Human,” Refuge 32, no. 1 (2016): 18–27; Randy Lippert, Sanctuary, Sovereignty, Sacrifce: Canadian Sanctuary Incidents, Power, and Law (Vancouver: University of British Columbia Press, 2005).

Select bibliography Arendt, Hannah. The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979). Arnold, Kathleen R. “Locke on Domestic War: Locke’s Concept of Prerogative and Implications for U.S. ‘Wars’ Today.” Polity 39, no. 1 (January, 2007): 1–28. Beiner, Ronald. “Arendt and Nationalism.” In The Cambridge Companion to Hannah Arendt, edited by Dana Villa (Cambridge University Press, 2000), 44–64. Berlant, Lauren. “Slow Death (Sovereignty, Obesity, Lateral Agency).” Critical Inquiry 33, no. 4 (Summer, 2007): 754–780. Brubaker, Rogers. Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1998). Butler, Judith. Precarious Life: The Powers of Mourning and Violence (New York: Verso, 2006). Butler, Judith. Frames of War: When is Life Grievable? (London: Verso, 2009). Butler, Judith. Notes Toward a Performative Theory of Assembly (Cambridge, MA: Harvard University Press, 2015). Edkins, Jenny and Véronique Pin-Fat. “Through the Wire: Relations of Power and Relations of Violence.” Millennium: Journal of International Studies 34, no. 1 (2005): 1–26. de Genova, Nicholas. “The Deportation Regime: Sovereignty, Space, and the Freedom of Movement.” In The Deportation Regime: Sovereignty, Space, and the Freedom of Movement (Duke University Press, 2010), 33–68. de Genova, Nicholas. “‘Doin’ Hard Time on Planet Earth’: Migrant Detainability, Disciplinary Power and the Disposability of Life.” ch 11, In Waiting and the Temporalities of Irregular Migration, edited by Christine M. Jacobsen et al. (Routledge, 2021). Goldstein, Alyosha. “Colonialism, Constituent Power, and Popular Sovereignty.” J19: The Journal of Nineteenth-Century Americanists 2, no. 1 (Spring 2014). Hobbes, Thomas. Leviathan, edited by Richard Tuck (Cambridge: Cambridge University Press, 1999). Honig, Bonnie. Antigone, Interrupted (Cambridge: Cambridge University Press, 2013). Kanstroom, Daniel. Deportation Nation (Cambridge, MA: Harvard University Press, 2007). Locke, John. Second Treatise of Government, edited by C.B. Macpherson, (Cambridge: Hackett Publishing, Classic Series, 1980).

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Mainwaring, Ċetta. “Migrant Agency: Negotiating Borders and Migration Controls.” Migration Studies 4, no. 3 (November 2016): 289–308. Motta, Francesco P. “Between a Rock and A Hard Place: Australia’s Mandatory Detention System.” Refuge 20, no. 3 (2002): 12–43. Ngai, Mae M. Impossible Subjects (Princeton and Oxford: Princeton University Press, 2004). Owens, Patricia. “Reclaiming ‘Bare Life’?: Against Agamben on Refugees.” International Relations 23, no. 4 (2009): 567–582. Park, Susin. “Climate Change and the Risk of Statelessness: the Situation of Low-lying Island States.” UNHCR—Legal and Protection Policy Research Series, 2011, https://www.unhcr.org/4df9cb0c9.pdf#:~:text=This%20paper %20was%20initially%20prepared%20in%202009%20as ,Change%20 %28U N FC C C %29 %20 %E 2 %80 %98C l i m ate %20 C ha nge %20 a nd %20Statelessness%3A%20An%20Overview%E2%80%99. Pasquino, Pasquale. “Locke on King’s Prerogative.” Political Theory 26, no. 2 (April, 1998): 198–208. Paul, Kathleen. Whitewashing Britain: Race and Citizenship in the Postwar Era (Ithaca: Cornell University Press, 1997). Philpott, Daniel. “Sovereignty: An Introduction and Brief History.” Journal of International Affairs 48, no. 2 (Winter 1995): 353–368. Philpott, Daniel. “Usurping the Sovereignty of Sovereignty.” World Politics book review 53, no. 2 (January 2001): 297–324. Philpott, Daniel. “Sovereignty.” Stanford Encyclopedia of Philosophy (2003, updated in 2020), https://plato.stanford.edu/entries/sovereignty/. Puggioni, Raffaela. “Against Camps’ Violence: Some Voices on Italian Holding Centres.” Political Studies 62 (2014): 945–960. Scott, James. Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven: Yale University Press, 1987). Shah, Sonia, ed. Dragon Ladies: Asian American Feminists Breathe Fire (Boston: South End Press, 1997). Westoby, Peter. “Developing a Community-Development Approach Through Engaging Resettling Southern Sudanese Refugees Within Australia.” Community Development Journal 43, no. 4 (October 2008), 483–495. Westoby, Peter. “‘A Community Development Yet-to-Come’: Jacques Derrida and Re-constructing Community Development Praxis.” Community Development Journal 56, no. 3 (2021): 375–390. Wolin, Sheldon. “Democracy and the Welfare State: The Political and Theoretical Connections Between Staatsräson and Wohlfahrsstaatsräson.” In The Presence of the Past: Essays on the State and the Constitution (Baltimore: Johns Hopkins Press, 1989). Wong Wing v US 1896. Young, Iris Marion. “Is Male Gender Identity the Cause of Male Domination?” In Feminist Social Thought: A Reader, edited by Diana Tietjens Meyers (New York: Routledge, 1997), 21–37. Zerilli, Linda M.G. Feminism and the Abyss of Freedom (Chicago: University of Chicago Press, 2005).

CONCLUSION States of democratic exception: migrant agency and resistance to the warfare state

In the past decade or so, more scholarly attention has been paid to migrant detention and deportation, as they have become key features of immigration policy in countries hosting refugee populations in the past 30 to 40 years. My focus in this book has been to analyze the ramifcations of the increased restrictiveness of migration and refugee policies in two wealthy democracies and interrogate forms of political protest exercised by those most affected by these policies. In the section below, I summarize my points on the deleterious effects of mass detention and deportation, arguing that each is an extreme punishment for status violations.1 In the following section, I argue for the continued relevance of Hannah Arendt’s early essay “We Refugees,” which was written during World War II. 2 As I discuss, Arendt adopts an ironic tone, making two important claims: frst, that assimilation norms of host countries ostensibly opposed to the Nazis were often complicit in anti-Semitic policies and treating Jewish refugees as potential state enemies. Jewish refugees were encouraged to smile and conform to the norms of the host country, avoiding speaking of traumatic experiences that might inconvenience citizens and leaders.3 She notes that when host countries levy refugees fnes, subject them to curfews, and threaten to (or actually) intern them in camps, these assimilation norms indicate that ftting in simply means silence—it is not a guarantee of citizenship. The threat of camps, curfews, confscation, and deportation led to a high allostatic load, as panic and isolation caused refugees to adapt their social interactions to an “optimistic” outlook.4 Assimilating meant never being understood or accepted and living in fear: many of these refugees then committed suicide. DOI: 10.4324/9781003282679-6

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For this reason, her second important claim is that Jewish refugees might as well identify themselves as Jews—that is, pariahs—not to embrace this singular and biologically deterministic classifcation but to use that moment or space to tell their truth, to become a political presence, and to offer a different historical narrative before they were detained, deported, or killed.5 In discussing these two important claims, I argue that they indicate that the nation-state model, as currently confgured, is not neutral, nor can it provide democratic citizenship. Despite the risks, identifying as pariahs could lead to a new analytical frame: treating refugees as a “political vanguard” serves to explode concepts viewed as foundational to and, therefore, unalterable about the nation-state.6 In the last section, I argue that political theorists, migration scholars, and others who care about democracy should view migrant protests as important ways that grassroots democratic activity is occurring across boundaries (e.g. groups with mixed legal statuses working together). Protests and sanctuary localities should not just be of interest to migration scholars but anyone who wants to combat the sorts of decisionistic, biologically deterministic, and secretive power structures that characterize the migrant carceral and forced removal bureaucracies and industries. 5.1 Detention centers are camps, and deportation is equivalent to the death penalty

As I have argued in this book, policymakers have instituted mass migration policies that, frst, efface difference and lump people together. Policy enforcement homogenizes populations and frames them as security threats before any meaningful examination of their circumstances can occur. As discussed in the introduction, Arendt and Said separately expressed concern about this erasure through a focus on “masses” or “waves” of refugees. This “massifcation” leads to characterizing people in dehumanizing ways that divert attention from individual accounts of political persecution and fight. Second, I have contended that detention centers produce material “proof” of illegality where there is no criminal proof: the system substitutes for meaningful charges, an examination of evidence, and/ or any presumption of innocence before being proven guilty.7 The result is, as Arendt once claimed, people outside detention camps often believe that those inside must have done something to be locked up.8 In fact, the spectacle of arrests and detention sites themselves serve as a proxy for actual guilt. Third, the breakup of families and communities, the danger of forcible return to the country of origin, and public health issues that result from these systems are not one-time harms nor temporally isolated. Finally, as mentioned above, these policies are extreme punishments for

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status violations: detention is indefnite and arbitrary, while deportation can be considered the equivalent of exile and/or capital punishment.9 In considering the implementation of mass deportation and detention in the past 30–40 years, an important puzzle emerges: how and why have two democratic states allowed undemocratic, discretionary, and singular powers to become central features of their governments and to affect so many people? Totalitarian tactics have been introduced as reactions to temporary emergencies and yet have become longstanding policies, affecting thousands of people.10 These tools have been used over time and to form the warfare state, which has deployed military force on refugees trapped on the high seas; established migration and border police that act extra-constitutionally and, therefore, on the basis of bio-political (or racial) profling; denationalized geographical areas to suspend constitutional guarantees and protections; practiced systematic refoulement in violation of human rights protocols; and used camps as a key feature of these policies.11 In both countries, extensive systems have been developed to criminalize innocent people based on their status; in this context, we cannot view human rights abuses and deprivations of liberty as accidental or unintentional nor as a mere reaction to the events of 9/11.12 Both the Australian and US governments initiated key facets of these systems before September 11, 2001, using the events that occurred on that date as an additional pretext to make mandatory detention, non-personhood, and deportation systemic features of migration policy at the turn of this century. We must understand that detention and deportation are used as punishment but are departures from the criminal justice system in important ways.13 Migration bureaucracies in both countries lack the rights, transparency, and constitutional scrutiny of criminal justice systems (not to idealize them). So, recognizing the difference between institutions guided by the rule of law in contrast to the legal dynamics of a detention center is crucial. Extreme protests and the risks of faith-based sanctuary are to avoid arbitrary internment (detention) and forced displacement (deportation). As I have discussed in Chapter 1, the defnition of a camp is not death but rather the confnement of non-criminal civilians on the basis of status infractions in a system with no meaningful charges, sentence, examination of evidence, legal counsel, or appeal.14 Detention centers are distinctively extra-constitutional, and as Daniel Kanstroom has argued about the US context, detention is considered equivalent to a life sentence in jail, while deportation is the legal equivalent of exile and/or the death penalty.15 As he has urged us to comprehend, these “punishments” are disproportionate to the “crime”:

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In the United States context, deportation has been described by a prominent immigration judge as equivalent to the “death penalty … in a traffc court setting.” Though analogies are always perilous, the analogy to the death penalty is disturbingly apt, if complex. As once famously described by Justice Stewart, the penalty of death differs from all other forms of criminal punishment, “not in degree but in kind.” It is “unique in its total irrevocability … in its rejection of rehabilitation … [a]nd … in its absolute renunciation of all that is embodied in our concept of humanity.”16 The costs of this system—from illness and trauma in detention to stigma, joblessness, and sometimes re-incarceration in one’s home country—are enormous.17 Due to each country’s largely discretionary system, various mistakes are often made, including treating two similar cases very differently in a court; detaining and deporting nationals; and treating children as “adults in miniature,” although they are, by defnition, minors and cannot be culpable of status infractions.18 Credible fear interviews are often adversarial and triggering; border agents and detention personnel treat migrants as if they were hardened criminals; and complex matters of gender abuse, child abuse, and able-bodiedness are often ignored.19 The lack of transparency, absence of clear guidelines, lack of constitutional scrutiny, and relative absence of oversight also mean that a signifcant number of human rights abuses regularly occur, from food deprivation, to guard violence, to child abuse and rape. 20 While these “punishments” are stressful enough, the fear of deportation, in particular, has led to signifcant levels of stress, stress-related disease, and trauma in migrant populations both inside and outside of detention. One could surmise that the unfairness of this system, its randomness, and its errors create “political isolation” and fear outside of detention walls and fences. 21 Who will be next? What if I act as good as I can— maybe they will not arrest me? Will I lose my mother? Did my cousins run away, or were they detained and deported?22 Arendt warned readers that democracies that began to use extra-constitutional migration police, camps, denationalization, declarations of states of emergency, and racist ideology were not simply trying to control newly arriving foreigners but rather using these as totalitarian tools within the country to instill terror in the resident population. The establishment of camps was to bring about behavioral modifcation, producing docility through terror. Due to their arbitrary and unjust nature, these two migration systems—granted that they have operated differently in each country—have produced a high degree of disease, stress, suicidal ideation, and trauma in mostly

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young, formerly healthy individuals. 23 As I discussed in the introduction and Chapter 2, Fierke has characterized political trauma as a form of “narrative incoherence” and “incomplete mourning.”24As Fierke indicates, pain and suffering are “political” as intentionally produced trauma implicates all residents of a territory with such practices. However, racist (or bio-political) rhetoric creates social truths (such as migrant illegality) and convinces those who are unfamiliar with these policies or migration stories that forced migrants are outlaws: criminals who are outside of any normal law, ignoring these traumatic circumstances. 5.2 Migrant protest: interrupting the sovereign monologue (or why counter-discourses and actions matter)

Political leaders in both countries have justifed new policies (mandatory detention and mass deportation) in two ways: either by framing arriving foreigners as outlaws, labeling would-be refugees “illegals” and invaders, or through a pretense of compassion and care, whereby images of dehydrated, sick refugees are alleged to serve as a deterrent for future refugees. In both polities, foreign arrivals are held to be individual, economic actors with no connection to the host country.25 Although these standpoints appear to be different, they are founded on the notion that undocumented arrivals are “illegal” invaders and, therefore, not refugees. Their reasons for arriving in the host countries are depoliticized through an economic lens  and  denial  of  a  host  country’s  links  to  the  sending  country. While there are numerous sovereign agents, a more singular “sovereign monologue” has been produced that purportedly justifes indefnite, arbitrary confnement and mass exile. In both countries, repeated catchphrases, false narratives, and simplistic solutions (like a border wall) contribute to public debate, winning elections, and gaining support for these policies, even if they are founded on questionable claims.26 To these interlocutors, migrant protest is a sign that foreigners do not and cannot assimilate. This sort of claim aims at preserving the status quo, about which Colette Guillaumin remarks: “Society thus designates as a threat and views as an incomprehensible bother those who are nevertheless its components and its foundation.”27 The danger is not otherness, she argues, but the fear that the truths that power elites have socially produced will be radically questioned and overturned. With both types of protest, the value or worth of a foreigner is seemingly proved only when they are willing to risk their lives and/or livelihoods. 28 The implicit, even unintended, demand that people sacrifce their well-being in the hopes they may be included as members of these political

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communities demonstrates a perverse double standard of democratic citizenship in which some are born with this privilege while others must risk their lives and often be treated as “perpetual foreigners” even after being granted inclusion. 29 For these reasons, protest as political sacrifce is something more than mere agency—these protests democratize and humanize bureaucratic attempts to reduce foreigners to their legal status. Self-harming protest and faith-based sanctuary precisely question and overturn dominant images and repeated phrases using space, embodied protest, emotions, and/or silence to poke holes in these narratives. This draws on a “deconstructive episteme,” a term Peter Westoby conceived of in meditating on Derrida’s work. This approach: invites pulling apart or destabilizing simplistic ways of thinking about community development praxis that are expressed in particular ways. For example, a splitting of body and mind, theory and practice, local and global, or the human and environment. Derrida’s deconstructive episteme suggests that not only are phenomena often reduced to simplistic binaries, but often within those binaries there is an explicit, or usually implicit, hierarchy.30 Migrant protesters clearly draw on a “deconstructive episteme” that challenges the artifcial opposition of mind and body, inside and outside, resident and foreigner, legitimate and illegitimate. Protesters know the risks they are taking, including the risk that their efforts will be discursively manipulated and portrayed as backwards, irrational, or pathological.31 While each protest form is different, each responds to state attempts at total control in importantly similar ways. Each type of protest utilizes forms of bodily protest, the claiming of certain spaces as their own, and a combination of communication and silence to block, disable, and otherwise resist sovereign tactics that seek to control, make docile, and displace. Although embodied communication does not necessarily transcend written communication in its effectiveness, what is important is the role the body plays in these protests, the importance of claiming space through physical occupation, and how protesters’ emotions can provide energy and spirit to their campaigns (rather than resignation and depression). Arguably, it is the emotions of migrant advocates, guards, medical and therapeutic personnel, and many others that move them to care about these protesters and sometimes mobilize others to act as a community.32 Even feelings of repulsion, irritation, and inconvenience are crucial to motivating change. These tactics demonstrate a sophisticated awareness that just as bio-political discourse relies on visceral stimuli to convince people of the “truth” of foreign illegality, plural, democratic debate can

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also harness affective tactics that work at a cognitive and visceral level, indicated by Westoby’s “deconstructive episteme.” In this context, interrupting what is, in effect, a sovereign monologue entails dissenting acts, speech, and bodily comportment. Its aim is frst to produce tension and discomfort, as well as literally disable sovereign tactics, even if only temporarily.33 There are two dominant reactions to these protests: even harsher state retaliation in the form of solitary confnement, violence, and esophageal force-feeding and the reconsideration of migrants’ cases, the reversal of some migration status determinations, and the suspension of removal in other cases. For example, Ajay Kumar was subjected to esophageal force-feeding and solitary confnement because of his hunger strike, but his case was also re-opened and he was eventually released from the Otero Detention Center.34 Faith-based sanctuary participants do not experience torture, but they do face lethal state power even as their cases are often (eventually) re-opened and resolved. Their decision to physically occupy a religious space until their migration status is resolved involves high stakes, including the potential loss of family, community, and life-sustaining materials. Self-harming protest and faith-based sanctuary are important examples of the fact that even in highly oppressive circumstances, power is a relationship. In turn, these expressions are not merely teaching the public more about migrants’ emotions but rather allowing us to understand the deleterious effects of detention and deportation policies. We must pay attention not just to the stories that migrants tell to contextualize their cases but also to foreign relations with their countries of origin that foster displacement and regional trade agreements that justify exploitation and abuse, causing fight after workers’ value has been depleted. We must attend to how wealthy host countries are implicated in a web of duties and responsibilities that the governments of Australia and the United States largely ignore.35 Instead, both countries’ policies have reinforced dynamics of loss, displacement, and persecution through instituting systems often treating visibly suffering and relatively young people as enemy invaders. More broadly, these protests illuminate the long-term damage that punitive policies can have. One example of this is forcing foreigners to wait months, if not years, to fnd out about their legal status, which increases their “precaritisation and serves to enforce the disposability of migrant life.”36 The production of uncertainty and terror is a purposeful totalitarian tactic: “Absolute power is the power to make oneself unpredictable and deny other people any reasonable anticipation, to place them in total uncertainty.”37 At the same time, states’ desire for total control over foreigners and foreignness is a fantasy of the modern bureaucratic state that power can be whole and seamless, just as a monarch’s power

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was purported to be. In these gaps in state power, individuals can tell their stories, reversing dehumanizing narratives or occupying space in unexpected ways.38 They invoke a democratic community by identifying allies who ideally do not condescend nor prescribe what they must do.39 In doing so, protesters destabilize traditional (nation-state) power relations, enacting a form of sovereignty less about control and obedience and more about a fexible notion of time, space, and selfhood. In focusing on these two protest forms, we learn from those who are forcibly displaced and the community that responds  to  their  needs,  modeling  a  response  based  on  duties and responsibilities.40 Arendt’s “We Refugees” provides insights into the risky nature of this protest as Jewish refugees were damned if they do assimilate (they are then overwhelmed with stress and kill themselves) and risked their lives if they did not. Choosing the latter path could expose how the host country was complicit with Nazi policies; these “pariahs” will have inserted their voice in historical narratives of the future even as they faced detention, deportation, and death for communicating their experiences.41 5.3 The importance of Arendt’s “We Refugees”

Arendt called for the refugee to serve as the “vanguard” of a new politics in “We Refugees.”42 She wrote this essay early in her career, before the end of World War II. Her tone was ironic, mocking those who urged refugees to quickly assimilate and pretend that they had not experienced traumatic events. First, she indicates that those who want refugees to forget what happened to them simply want to evade complicity in the events surrounding their trauma and loss. This complicity included support for Hitler and other fascist leaders by implementing similar racial laws, including subjecting Jews and some other foreign nationals to curfews, confscation of property and papers, denationalization, and economic marginalization.43 So, for example, if the young Arendt was disenfranchised in Germany on the basis of her Jewish descent, her experiences as a poor stateless person were very similar in France, as Jewish refugees were asked to report to the police, obey curfews, have radios and other possessions taken from them, and to “agree” to being interned in camps.44 European countries tightened borders and made it diffcult to fnd sanctuary in any country: as Arendt argued, the strengthening of borders in democracies that ostensibly opposed Hitler and his allies fostered anti-Semitism and increased the number of stateless peoples.45 In host countries that urged refugees to forget, ft in, and just smile, Arendt suggests that this allowed citizens in these ostensible democracies to avoid thinking about how they have ignored calls for help, often

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treating those feeing totalitarian repression as enemy agents and spies. For example, “civilized” countries like the United States interned newly arriving refugees and criminally innocent citizens alike, as evident in the Japanese internment of that decade: our friends of the West Coast, during the curfew, should have … such curious notion as to believe that we are not only “prospective citizens” but present “enemy aliens.” In daylight, of course, we become only “technically” enemy aliens—all refugees know this. But when technical reasons prevented you from leaving your home during the dark hours, it certainly was not easy to avoid some dark speculations about the relation between technicality and reality.46 Refugees were faced with multiple traumatizing factors: their denationalization in their home countries, their treatment as potential enemies by host states, and the incredible uncertainty they faced in their new “homelands.” Those who tried to ft in the most—she fnds—then often suffered and some killed themselves. She crystallizes the effects of a forced migrant’s allostatic load in her discussion of the “unusual uses” of gas ovens and skyscrapers.47 Arendt’s examination of the high number of suicides by refugees was not simply a way to critique the dynamics of forced assimilation but illuminated how self-harming methods became a way to deal with the uncertainty and fear behind their precarious status. As she noted, self-harm did not just occur in the country of origin, which is alleged to be inferior and undemocratic, “but in New York and Los Angeles, in Buenos Aires and Montevideo.”48 Indeed, she argues, when faced with outright tyranny in internment camps, persecuted Jews found the will to live, but when they encountered more banal forms of prejudice and the constant encouragement to cover up this previous harm, they lost their political will.49 Those who had escaped so much had convinced themselves that following the rules, smiling cheerfully, and attempting to deny their identity and past would make them worthy of citizenship. They were repeatedly encouraged to think as such by host countries and encouraged to view citizenship as the reward.50 However, we can conclude that just like refugee status, citizenship is by no means neutral or universally attainable if docility, homogenization, and individualism are preconditional categories of formal political membership. The refugee condition does not merely serve as the binary opposite of citizenship, demonstrating the losses or defciencies of an otherwise inclusive category—rather, it undermines the problematic correlation between humanity and citizenship, the latter of which is supposed to adequately capture and politically account for our existence.51

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When refugees are only “free” through self-harm or self-confnement, the thanatic elements of citizenship are revealed.52 Arendt comments on the Jews’ innocence (i.e. their lack of ideology or criminal behavior) that led to their persecution as well as the “freedom” that suicide brings: we are the frst nonreligious Jews persecuted—and we are the frst ones who, not only in extremis, answer with suicide … not being free to create our lives or the world in which we live, we nevertheless are free to throw life away and to leave the world.53 This statement betrays the perversity of the situation—freedom through self-harm, death as liberation, and suicide as the only possible exercise of individual will. Like others who have written about hunger strikes, suicide, and armed resistance against a more powerful adversary have observed, self-harm and suicide become two of the only methods of expressing agency and sovereignty.54 Arendt views these self-harming, often lethal tactics as the coping mechanisms of refugees who try to ft in and, yet, are denying the situation in which they have been forced. In fact, they are denying that they have been categorized and relegated to the status of existential “outlaws” in some way—as Jews, as undocumented, and/ or as “unidentifable beggars.”55 To combat these quiet, seemingly apolitical deaths that occur in the face of lethal power and totalitarian tactics wielded by democratic states, she holds that Jews (including non-believers) must come out and identify themselves as “pariahs,” even though this is not only a political move but a potentially suicidal one.56 In contemporary theoretical terms, we could say that Arendt urges refugees to do this as a form of necro-protest.57 Knowing they could be confned, deported, tortured, or murdered, they may as well identify themselves in this way and die with dignity rather than blending in and living in fear that they will be re-confned and deported to their death. The refugee who assimilates and buries his/her own trauma fails to call their host country to account for complicity in their persecution. To Arendt, this person stands in contrast to the individual who, by claiming a pariah status, identifes the core issues—that their status is being punished, that they are targets of a specifc version of racism, and that their treatment is totalitarian, not democratic.58 Those who have the courage to “come out” as pariahs will die prematurely and unjustly but, in doing so, will expose these core issues in host countries that were and are complicit with forms of racist sovereignty, adopting the same tools as fascist countries they ostensibly opposed.59 While Arendt distinguishes between those who commit suicide and those who embrace the very identity that made them targets of bio-power,

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I believe that detained refugees and those scheduled for detention and deportation have embraced the meaning of the “conscious pariah” using self-harming and self-confning methods to communicate and theatricalize their outsider status. In this way, they have made their refugee status the “vanguard” category of political inclusion, using protest methods that invoke a democratic community in the face of lethal violence; they exercise confnement, displacement, and violence only on themselves but on behalf of all migrants who are similarly situated; and they do so to explode the concept of refugee.60 To be clear, making the “refugee” a vanguard concept is not to recuperate this category but to invalidate its meaning and undermine its centrality to modern politics. These protesters want to demonstrate that they are not merely displaced or sans papieres but artists, students, cousins, performers, farmers, and more. As Arendt rightly suggests, assimilation cannot occur in a system so deeply marked by intersectionally racist, sexist, and class-biased norms; a system that detains people on the basis of their status cannot have a neutral interpretation of political belonging. Accordingly, identifying oneself as the pariah—that is, “out of status” in some way—can lead to a “life sentence” (indefnite detention), expulsion, and the equivalent of a death sentence (deportation), but it is better than being disappeared. Thus, Arendt’s encouragement to Jews during this time to identify as pariahs was not in order to live, to get rights, or to seek reform but to die with dignity.61 The truth will not set them free:62 if we should start telling the truth that we are nothing but Jews, it would mean that we expose ourselves to the fate of human beings who, unprotected by any specifc law or political convention, are nothing but human beings. I can hardly imagine an attitude more dangerous, since we actually live in a world in which human beings as such have ceased to exist for quite a while; since society has discovered discrimination as the great social weapon by which one may kill men without any bloodshed; since passports or birth certifcates, and sometimes even income tax receipts, are no longer formal papers but matters of social distinction.63 While many refugees hid their true identities and experiences, those who openly embrace their Otherness—an Otherness based on damaging biopolitical classifcations—will control their narratives and communicate their truths. The category of refugee was produced based on an allegedly fxed bio-political status—when refugee protesters embrace the very category leading to their marginalization, they aim at exploding this category (not recuperating it).64 As Judith Butler discussed in a much different context in

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Gender Trouble, they would be reclaiming this identity to “mock the notion of an original.”65 Jewish refugees were not allowed to name or identify themselves—their Jewishness was socially constructed by hostile outsiders who devalued their worth and dehumanized their existence. Claiming a “pariah” status is not to celebrate the displacement of the refugee nor the stigma of being a pariah but rather to scorn and question the social and political structures producing these impersonal and dehumanizing categories. The key point in this process is to produce doubt about racist ideology, create productive tensions, and regain control of the historical record. The criminalization of certain statuses in totalitarian and host countries means that: History has forced the status of outlaws upon both, upon pariahs and parvenus alike … Those few refugees who insist upon telling the truth, even to the point of “indecency,” get in exchange for their unpopularity one priceless advantage: history is no longer a closed book to them and politics is no longer the privilege of gentiles.66 Accordingly: Refugees driven from country to country represent the vanguard of their peoples—if they keep their identity. For the frst time Jewish history is not separate but tied up with that of all other nations. The comity of European peoples went to pieces when, and because, it allowed its weakest member to be excluded and persecuted.67 It is upon this basis—a seemingly abject and mute subject position—that refugees must fnd solidarity and expose undemocratic foundations leading to this situation in the frst place. I believe that concerted hunger strikes, symbolic forms of self-harm, and faith-based sanctuary have done just this, even as their methods are ones that Arendt interpreted as signs of despair and loss of will. The refugee becomes the guiding principle of a new politics that destabilizes territorial claims, attempts at total power on behalf of “the people,” and the desire to eradicate foreignness.68 The fact that oppositional stances and counter-sovereign moves are possible is evidence that state sovereign power is a relationship rather than a static thing. As Foucault has argued in the context of freer relations, power is not a commodity that one person possesses and another lacks but is an active, kinetic dynamic always entailing resistance.69 Interestingly, these protests often succeed in various ways: they demonstrate agency in unfree circumstances; they give migrants a feeling of power and control; they democratize unfree legal spheres; and they chip away at undemocratic power matrices.

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There could be several reasons that these protest methods are successful. We could surmise that the authenticity of expressions of human suffering touches people who read, encounter, or participate in these protests in some way. One could also suspect that there is some adherence to democratic ideas and inalienable rights that also motivates people from otherwise different backgrounds to support these protesters. Dedication to “frst principles,” which can include human rights norms, constitutional guarantees, and spiritual or historical notions of hospitality to a stranger, is a possible motivator for bringing people of diverse backgrounds together. In both countries, the invocation of religious principles and a faith community could also sway government agents who recognize the disjuncture between the law and notions that humans are of equal worth. More cynically, some immigration agents and political leaders understand that it’s bad press to attack religious fgures and structures, not to mention traumatized migrants seeking sanctuary. Because protesters offer alternative views of democracy, duty, and sov ereignty, they are also successful.  Hunger strikers and lip-sewers rely on a long-standing history of self-harming protest, even if the practice is largely modern. Self-harming protest has often been a second step after grievances have been fled and civil disobedience has occurred. It might be a practice of the self, but every report of these practices has indicated that protesters wanted public attention, demanded that leaders change their stances, and called for bureaucracies to be transparent and fair. That is, self-harming protest was a clearly communicative act aimed at a broader change. These protests are instances of sovereign agency rather than agency based on the rule of law (including civil disobedience); protesters’ tactics match those of the warfare state, which demonstrates the political character of these methods; and for better or worse, these forms of resistance operate at the level of life and death. Finally, as I have suggested, protesters might refer to civil and human rights claims, but this is not to preserve the status quo. On the other hand, even if protests seem radical or completely outside normal politics, they aim at making what is outside correspond to what is inside. In the next section, I discuss the relationship between migrant protest and civil disobedience and suggest that even when rights are invoked, the aims and effects of these protests go beyond reformism. 5.4 The import of these protests for the feld of political theory

The importance of the topics in this book is not about migration alone but the formation of citizenship at a crucial moment of each country’s history, beginning in the late 1800s, as racialized others, First Peoples, were being

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internally displaced. Bio-power, the biologically deterministic interpretation of class, gender, “race,” able-bodiedness, and more, became a guiding principle for who counted as a citizen and considerations of who was civilized and who must be subjected to warlike tactics. Exposing the undemocratic treatment of foreigners, particularly since the 1980s (Australia) and the 1990s (United States) does not simply show a binary mode by which foreign otherness constitutes the opposite of the citizen. Rather, the development of plenary powers operating according to bio-political criteria has shaped political membership in both countries such that we can recognize that membership was never based on equality, fairness, or democratic processes even if these provisions shaped the lives of some citizens at some times. Arendt has aptly characterized the dynamic by which racial criteria (including “race,” mental ftness, and gender) superseded egalitarian democratic principles determining membership: “the nation conquered the state.”70 Simply put, democratic guarantees of the state were made subsidiary to ideas of “national security” tied to race, country of origin, and related factors. While citizens have sometimes convinced themselves that policies regarding the “foreign problem” or the “immigration crisis” do not affect the rule of law, democratic processes, or the state, Arendt believed the opposite: the political edifce and enforcement tools used on stateless peoples can and will be used on the general population. Indeed, we can conceive of each of these governments’ bureaucracies and federal powers as established and institutionalized precisely at the moment when political membership was racialized and excluded most foreigners. In doing so, these governments have engaged in state building through these sorts of policies, as Foucault has pointed out in his work on bio-power.71 As we have found in the United States, a primary way that the boundaries between inside and outside (or welfare and warfare) have merged is through crimmigration. Crimmigration scholars have recognized this blurring of boundaries for at least a decade and a half when Juliet Stumpf wrote her now canonical article on the subject.72 To the degree that migrant protest helps us to understand foreigners’ deep connections to their host countries, we can also comprehend that foreigners have not been treated as second-class citizens but, often, as “non-persons.” These protests also put into question the requirement that someone exercising agency must be rational, able-bodied, and/or physically well to effectively communicate or act politically.73 Historically, this demand may have been egalitarian in that rationality was allegedly something we are all capable of, but even at its philosophical inception, this proposed category for expanding political power excluded entire groups as “irrational” on the basis of gender, sex, economic class, imperial status,

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indigeneity and much more.74 Defnitionally, rationality often excluded emotion, personal interest, and views that threatened how work and property were interpreted. Democratic theory of the past also privileged the written word, a sedentary life, and market-based economic contributions. These categories excluded the mentally ill and “irrational peoples” (including servants, the working poor, children, women, racial minorities, indigenous people, religious dissenters, and atheists). Emotions were viewed as dangerous, but as Colette Gullaumin has argued, this has only been the case when applied to minority group affect. The emotions of the philosophical and historical canon have instead been interpreted as driven by passion, inspiration, and forms of cognitive energy.75 In the case of traumatized and stressed-out foreigners, we need  not pathologize  marginalized  peoples  because  they  have  emotions. Their protest tactics, as well as the general resilience of refugees and forced migrants, demonstrate that people have great capacities even while sick and destabilized. Migrant protest should more generally be of great interest to political theorists because they are connected to some of the most important forms of democratization. The communities that have arisen around this subject bring together people of all ages, faiths, and backgrounds. These protests consistently invoke duties and responsibilities—not merely rights. That is, the call to an ethical community involves democratic forms of relationships and responsibilities in an ethical community.76 This community is not limited by borders but seeks to eradicate them. 5.5 Conclusion

My aims in this book have been multiple. While Australian readers are likely very familiar with detention protests and conditions, there is much less attention paid to either protest form in the United States. In the latter country, quite a lot of attention has been paid instead to sanctuary localities, which often involves confating what I take to be related but different resistance activities. All protest forms help us to understand how profoundly rightless and destabilized migrants feel. They comprehend the profound consequences they face, as immigrant detention is a camp and deportation a policy legally equivalent to the death penalty. Migrant protest illuminates facets of secretive state powers and undermines neoliberal proft-making as private security frms and personnel become “state sovereigns.” Nevertheless, abolishing immigration police or shutting down individual detention centers will not change this system—both countries need to legally dismantle their entire systems because they are extra-constitutional.77

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This includes dismantling border sites and excised territories and turning to inclusive geographies and spatial confgurations. Migrant protests demonstrate how civil society activity can be generated from “the bottom” or in a rightless state and yet connects a number of diverse people, inspiring them to work for change at the state and local level as well as in foreign relations. Faith-based sanctuary is a particularly important protest form because it is multi-faceted, working mostly at the grassroots level and yet working with state and local authorities to restore personhood rights that were lost with the implementation of mass detention and deportation policies. This restoration does not maintain the status quo but alters the meani ng of “rights.” It is arguably the most exciting democratic development in the recent history of these two countries in its potential to tear down borders, walls, and exclusive political categories. These protesters are the van guard  of  a  new  politics  but  should  not  have  to  sacrifce  their  well-being  to democratize the warfare state. In the end, these protests are worth our attention—as scholars, democrats, and members of political communities. We should be open to subversive knowledge forms, seek migrants’ hidden transcripts where they can be found, and respond to the demands of those in need. Taking cues from migrant protesters, those of us with the privilege of a secure citizenship need to remember the value of the struggle for democracy itself—not just the endgame. Notes 1 As Puggioni notes, this is something argued not just by legal scholars but migrants. See Raffaella Puggioni, “Border Politics, Right to Life and Acts of Dissensus: Voices from the Lampedusa Borderland,” Third World Quarterly 36, no. 6 (2015): 1145–1159. 2 Hannah Arendt, “We Refugees,” in The Jewish Writings, ed. Jerome Kohn and Ron H. Feldman (New York: Schocken Books, 2007), 264–274. 3 See, e.g., Arendt, “We Refugees,” 265–266. 4 See Andrea Pitzer regarding the treatment of German Jews in “host” countries—Canada and Britain each detained refugees; other countries imposed fnes and confscated radios; others imposed curfews, and police surveillance. Andrea Pitzer, One Long Night: A Global History of Concentration Camps (Boston: Hachette/Little Brown, 2018). 5 Arendt, “We Refugees,” 274. 6 Arendt, “We Refugees,” 274. 7 As one child detainee argued in Darwin in 2014: “I’m just a kid, I haven’t done anything wrong. They are putting me in a jail. We can’t talk with Australian people.” Australian Human Rights Commission, “An Overview of the Children in Detention,” 2014, https://humanrights.gov.au/our-work/4 -overview-children-detention. 8 Hannah Arendt, The Origins of Totalitarianism, (New York: Harcourt Brace Jovanovich, 1979), ch. 13.

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9 Which should make us question all mass incarceration. See Michelle Alexander, The New Jim Crow (New York: The New Press, 2011); Kathleen Arnold, Arendt, Agamben and the Issue of Hyper-Legality: In Between the Prisoner-Stateless Nexus (New York and London: Routledge, 2018); Mark Dow, “Designed to Punish: Immigrant Detention and Deportation,” Social Research 74, no. 2 (Summer 2007): 533–546; Nicholas de Genova, “The Deportation Regime: Sovereignty, Space, and the Freedom of Movement,” in his book titled the Deportation Regime: Sovereignty, Space, and the Freedom of Movement (Durham: Duke University Press, 2010), 33–68; Juliet P. Stumpf, “The Crimmigration Crisis: Immigrants, Crime and Sovereign Power,” American University Law Review 56 (2006): 367–418. 10 Ronald Beiner, “Arendt and Nationalism,” in The Cambridge Companion to Hannah Arendt, ed. Dana Villa (Cambridge: Cambridge University Press, 2000), 44–64; Arendt, The Origins of Totalitarianism, 447 and ch. 9. 11 See Arendt, The Origins of Totalitarianism; see also Puggioni on why military force against anyone in need of assistance or rescue on the high seas contravenes human rights laws: Puggioni, “Border Politics, Right to life and Acts of Dissensus.” 12 On the term totalitarian tactics see Kathleen R. Arnold, “When the Nation Conquered the State: Arendt’s Contemporary Relevance,” Political Theory (October 2022; https://journals.sagepub.com/doi/full/10 .1177/00905917221104510#_backmatter_ack); see Beiner, “Arendt and Nationalism.” On these systems being unintentionally bad, see e.g. Adam Serwer, “A Crime By any Name,” The Atlantic, July 3, 2019, https://www .theatlantic.com/ideas/archive/2019/07/border-facilities/593239/. 13 I am indebted to Daniel Kanstroom’s work over the years for analyzing and proving this assertion (e.g. Daniel Kanstroom, Deportation Nation (Cambridge, MA: Harvard University Press, 2007). I also do not mean to idealize the carceral system—particularly in the United States—and have written about crimmigration in Arendt, Agamben and the Issue of HyperLegality; see also Nicholas de Genova, “‘Doin’ Hard Time on Planet Earth’: Migrant Detainability, Disciplinary Power and the Disposability of Life,” ch 11, in Waiting and the Temporalities of Irregular Migration, ed. Christine M. Jacobsen et al. (New York and London: Routledge, 2021), 186–201; Stumpf, “The Crimmigration Crisis.” 14 Pitzer, One Long Night. 15 See Daniel Kanstroom, “Deportation as a Global Phenomenon: Refections on the Draft Articles on the Expulsion of Aliens,” Harvard Human Rights Journal ILC Forum Essays (March 1, 2016), https://lawdigitalcommons.bc.edu /cgi/viewcontent.cgi?article=2038&context=lsfp; Kanstroom, Deportation Nation, introduction and conclusion (e.g.). 16 Kanstroom, “Deportation as a Global Phenomenon,” 1. 17 On the harms of forced repatriation see for example: Aaron Korthuis, “Outsourcing Refoulement: The United States and the Central American Refugee Crisis,” Yale Journal of International Law, October 24, 2016, https:// www.yjil.yale.edu/outsourcing-refoulement-the-united-states-and-the-central -american-refugee-crisis/; Richard Ackland, “Handing Back Asylum Seekers is Called Refoulement. And It’s Illegal,” Guardian (Australia), July 6, 2014, https://www.theguardian.com/world/2014/jul/07/handing-back-asylum-seekers-is-called-refoulement-and-its-illegal; Offce of the High Commissioner for Human Rights, “The Principle of Non-Refoulement Under International Human Rights Law,” n.d., https://www.ohchr.org/sites/default/fles/

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Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon -RefoulementUnderInternationalHumanRightsLaw.pdf. Regarding mistakes and/or uneven judgments, see, e.g., Blaine Bookey, “Domestic Violence as a Basis for Asylum: An Analysis of 206 Case Outcomes in the United States from 1994 to 2012,” Hastings Women’s Law Journal 24 (Winter 2013): 107–148; Stephen Knight, “Asylum From Traffcking: A Failure of Protection,” Immigrant Briefngs, 7-07, (2007)—https://cgrs.uchastings .edu /sites /default /files /Asylum _from _Trafficking _Knight _Immigration _Briefngs_7_07.pdf#:~:text=Asylum%20from%20TrAffcking%3A%20A %20fAilure%20of%20ProTecTion%20by,trafficking%20cases%20from %20the%20CGRS%20database%2C%20and%20his. See also  Melissa Cruz, “ICE May Have Deported as Many as 70 US Citizens in the Last Five Years,”  Immigration Impact, July 30, 2021, https://immigrationimpact.com /2021/07/30/ice-deport-us-citizens/. Regarding the problematic and arguably extra-constitutional practice of treating children as “adults-in-miniature” see Center for Gender and Refugee Studies, “A Treacherous Journey,” UC Hastings School of Law, n.d., https://cgrs.uchastings.edu/sites/default/fles/Treacherous %20Journey%20Executive%20Summary.pdf. See also the majority decision in Plyler, which affrms the legal personhood of resident foreign children in the US. The arguments about the US system apply to Australia in that it also subsumes the “best interest of the child standard” to alleged national security concerns. Plyler v Doe 457 US 202 (1982). Although Blight is a Swedish researcher, please see her excellent analysis of these dynamics–Karen Johansson Blight, “Questioning Fairness in Swedish Asylum Decisions,” State Crime 4, no. 1 (Spring 2015): 52–76. See (among others): Tsion Gurmu, Emily Creighton, “Groups Call for Transparency Regarding Abuse and Mistreatment of Black Immigrants in Detention,” The Immigration Today, November 14, 2021, https://www.theimmigrationtoday.com/united-states/groups-call-for-transparency-regarding -abuse-and-mistreatment-of-black-immigrants-in-detention-2/; Engin Isin and Kim Rygiel, “Abject Spaces: Frontiers, Zones, Camps,” in The Logics of Biopower and the War on Terror: Living, Dying, Surviving, ed. Dauphinee et al. (London: Palgrave Macmillan, 2007), 181–203; Robert Koulish and Kate Evans, “Punishing With Impunity: The Legacy of Risk Classifcation Assessment in Immigration Detention,” Georgetown Immigration Law Journal 36, no. 1, (2021): 1–72; S. Mares and J. Jureidini, “Psychiatric Assessment of Children and Families in Immigration Detention—Clinical, Administrative, and Ethical Issues,” Australian and New Zealand Journal of Public Health 28, no. 6 (2004): 520–526; Grace Meng, “Holding Companies Accountable for US Detention Abuses,” Human Rights Watch website, November 25, 2019, https://www.hrw.org/news/2019/11/25/holding-companies-accountable-us-detention-abuses; Lisa Kent, “East Timor Asylum Seekers Fight Deportation,” Green Left, September 18, 1996, https://www.greenleft .org.au/content/east-timor-asylum-seekers-fght-deportation; Francesco P. Motta, “Between a Rock and A Hard Place: Australia’s Mandatory Detention System,” Refuge 20, no. 3 (2002): 12–43; The Nauru Files, The Guardian, 2013–2015, https://www.theguardian.com/news/series/nauru-fles. This is something confrmed by research such as Leo R. Chavez, The Latino Threat: Constructing Immigrants, Citizens, and the Nation (Palo Alto: Stanford University Press, 2008); Seth Holmes, Fresh Fruit, Broken Bodies: Migrant Farmworkers in the United States (Oakland: University of California Press, 2014); Mares and Jureidini, “Psychiatric Assessment of Children and

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Families in Immigration Detention”; Edward D. Vargas, et al., “Fear by Association: Perceptions of Anti-Immigrant Policy and Health Outcomes,” Journal of Health Politics, Policy and Law 42, no. 3 (June 2017): 459–483. These are questions my students have asked about themselves (if I get good grades, maybe ICE will not go after me) and their family members. In fact, most public health researchers have found that migrants from developmental countries are often healthier than citizens in wealthy countries (particularly the United States) due to their traditional diets and healthier activity levels. For this reason, it is tragic that the stress and trauma of border experiences, racist hostility, and detention severely undermines the “healthy migrant” advantage. See Holmes, Fresh Fruit, Broken Bodies; Jacqueline Torres and Roger Waldinger, “Civic Stratifcation and the Exclusion of Undocumented Immigrants from Cross-border Health Care,” Journal of Health and Social Behavior 56 no. 4 (2015): 438–459; Amana Cheong and Douglas Massey, “Undocumented and Unwell: Legal Status and Health Among Mexican Migrants,” International Migration Review 53, no. 2 (2019): 571–601. K.M. Fierke, “Whereof we Can Speak, Thereof We Must Not Be Silent: Trauma, Political Solipsism and War,” Review of International Studies 30 (2004): 471–491. For an excellent critique of push-pull and/or rational choice models of immigration, see Holmes, Fresh Fruit, Broken Bodies, introduction, chapter 5. See for example, the Frontline investigation of this purposeful set of tactics: Michael Kirk, director, Michael Kirk et al. producers, Frontline: “Zero Tolerance: How Trump Turned Immigration into a Political Weapon,” PBS, (54 min) October 11, 2019, https://www.pbs.org/wgbh/frontline/announcement /in-zero-tolerance-frontline-investigates-how-donald-trump-turned -immigration-into-a-powerful-political-weapon/; see also Kathleen Paul’s work for an example of this dynamic in Britain: Kathleen Paul, Whitewashing Britain: Race and Citizenship in the Postwar Era (Ithaca: Cornell University Press, 1997). Colette Guillaumin, Racism, Sexism, Power and Ideology (New York: Routledge, 1995), 157. Regarding this demand for “earning” citizenship and the need to sacrifce for citizenship, see: Arnold, Arendt, Agamben and the Issue of Hyper-Legality, ch. 4; Barack Obama, “Earned Citizenship,” White House Information page, 2013, https://www.whitehouse.gov/issues/immigration/earned-citizenship; See David DeCosse, “Can Citizenship Be Earned?” America 199, no. 11 (October 13, 2008), https://www.americamagazine.org/issue/671/article/can -citizenship-be-earned, for example. On the double standard in which migrants are asked to “earn” their citizenship while most citizens were simply born into the status, see the concluding chapter of Arnold, Arendt, Agamben and the Issue of Hyper-Legality, ch. 4; on the sacrifce of bodily health, bodily integrity, and life asked of foreign workers, see Melissa Wright, Disposable Women and Other Myths of Global Capitalism (New York: Routledge, 2006). Peter Westoby, “‘A Community Development Yet-to-Come’: Jacques Derrida and Re-constructing Community Development Praxis,” Community Development Journal 56, no. 3 (2021): 383. The US government treats migrant protest as an administrative infraction with consequences including solitary confnement, suspension of “privileges,” and/or being transferred to another location (away from the detainee’s community); Australia has similarly punished migrant protest through the use

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of force on protesters, esophageal force-feeding, or removal to black sites or solitary confnement. See Fiske on leaders’ negative views of detainee protests: Lucy Fiske, “Human Rights and Refugee Protest Against Immigration Detention: Refugees’ Struggles for Recognition as Human,” Refuge 32, no. 1 (2016): 18–27. On US “punishment” of hunger strikers, see e.g. Roque Planas, “Some Hunger-Striking Mothers Were Put In Isolation At Karnes Immigrant Detention Center,” Lawyers Say, Huffngton Post, April 2, 2015, https://www .huffpost.com/entry/karnes-hunger-strike_n_6994436. On this, see Lucy Fiske, Mary Anne Kenny, and Nicholas Procter, “Manus Island Hunger Strikes Are a Call to Australia’s Conscience,” The Conversation, January 18, 2015, https://theconversation.com/manus-island-hunger-strikes -are-a-call-to-australias-conscience-36419. For example, moving into a religious institution halts attempts to arrest and detain a migrant slated for deportation. Rozina Ali, “A Hunger Strike in ICE Detention,” The New Yorker, October 29, 2019, https://www.newyorker.com/news/as-told-to/a-hunger-strike-in-ice -detention. These are things that Saskia Sassen has been arguing for years. de Genova, “‘Doin’ Hard Time on Planet Earth’,” 187. UNHCR reports about Australia that “Asylum-seekers who arrive in Australia without a visa are subjected to a number of punitive measures that can signifcantly impair their mental health and general well-being.” This includes: “Waiting up to four years to be granted permission by the Government to apply for protection” and “The inability to apply for permanent residency.” UNHCR, “Monitoring Asylum in Australia,” h.d. https://www.unhcr.org/asylum-in-australia.html. Quoted in De Genova, “‘Doin’ Hard Time on Planet Earth’,” 186. See also De Genova, “‘Doin’ Hard Time on Planet Earth’,” 194, who notes: “Such precaritisations of time tend to be productive, if for no other reason than that the human persons subjected to them stubbornly persist in seeking ways to prevail in spite of them.” See also William Arrocha, “Expanding the Geographies of ‘Sanctuary’ and the Deepening and Contentious Nature of Immigration Federalism: the Case of California’s SB 54,” Globalizations, March, 2021, 1–18; Banu Bargu, “Sovereignty as Erasure: Rethinking Enforced Disappearances,” Qui Parle 23, no. 1 (2014): 35; Westoby, “‘A Community Development Yet-to-Come’.” See Samuel Moyn, “Rights Versus Duties,” The Boston Review, May 16, 2016, https://bostonreview.net/articles/samuel-moyn-rights-duties/. Arendt, “We Refugees.” Arendt, “We Refugees.” I should note that this does not mean viewing stateless people as more rightless than marginalized citizens who are often jailed more than their racially privileged counterparts. Rather, it means recognizing that singular sources of authority resting on discretion affect both foreigners and certain citizens. See both Arendt, The Origins of Totalitarianism (especially chs. 6 and 9) and “We Refugees.” See Pitzer, One Long Night on the facts of Arendt’s circumstances from her fight as a penniless, stateless individual to France to being interned three times in France, only to escape her camp in a moment of chaos. The remaining detainees were later gassed. It is important to note that Pitzer radically misunderstands Arendt’s work, especially her arguments in “We Refugees” but the empirical research is sound. See Arendt, The Origins of Totalitarianism chs. 6 and 9.

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46 Arendt, “We Refugees,” (266). See Pitzer, One Long Night regarding the UK, US, and Canadian internship of Germans and German Jews seeking refuge in these countries (as well as resident Germans in each country). 47 Arendt, “We Refugees,” 266. 48 Arendt, “We Refugees,” 267. 49 Arendt, “We Refugees,” 268. 50 Arendt, “We Refugees,” 272. 51 See Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998); Arendt, The Origins of Totalitarianism; de Genova, “‘Doin’ Hard Time on Planet Earth’.” 52 In this way, Agamben’s interrogation of the term “human” as an adequate foundation for human rights is correct—the term human is defnitionally malleable and encompasses its theoretical opposite: the corpse. See Agamben, Homo Sacer. 53 Arendt, “We Refugees,” 268. 54 See Colin Dayan, The Law Is a White Dog (Princeton: Princeton University Press, 2011); Alex Zamalin, “Angela Davis, Prison Abolition, and the end of the American Carceral State,” ch. 4, Struggle on Their Minds: The Political Thought of African American Resistance (New York: Columbia University Press), 119–149. 55 Arendt, The Origins of Totalitarianism, on the term outlaws, see 283; unidentifable beggars, see 269; ch 9. 56 While there is evidence that Arendt defnes the “political” in opposition to violence (see On Violence and Origins of Totalitarianism, ch 5, particularly the end of the chapter), “We Refugees” suggests that the fatalistic embracing of pariah status is not only political but could usher in a new politics in a deeply violent context. Arendt, The Origins of Totalitarianism, ch. 5; Hannah Arendt, On Violence (New York: Harvest Book, Harcourt, Inc., 1969). 57 See Achille Mbembe, “Necropolitics,” trans. Libby Meintjes, Public Culture 15, no. 1 (2003): 11–40. 58 This status can include mobility and other markers of “primitivity”—qualities for which the Roma have been punished. Nicholas Xenos’ work has infuenced my interpretations of these dynamics—e.g. Nicholas Xenos, “For and Against Romanistan,” London Review of Books 18, no. 16 (August, 1996), http:// www.lrb.co.uk/v18/n16/nicholas-xenos/for-and-against-romanistan; see also Nicholas de Genova, “Denizenship” (ch. 14) in Precarity and Belonging, ed. Ramirez et al. (New Brunswick: Rutgers University Press, 2021), 227–242; Arendt, On Violence; Edwin Gardner, “Seeing Like a Society Interview with James Scott,” Archis, July 20, 2008, https://archis.org/volume/seeing-like-a -society-interview-with-james-c-scott/. 59 To explore these issues in greater depth regarding Arendt, see Arnold, “When the Nation Conquered the State.” 60 Ben Doherty, “‘Time Can Break Your Heart’: The Harsh Toll of Eight Years in Australian Immigration Detention,” The Guardian, October 31, 2021, https://www.theguardian.com/australia-news/2021/nov/01/time-can-break -your-heart-the-harsh-toll-of-eight-years-in-australian-immigration-detention regarding two cousins who were released from Australian detention and have since pushed the Australian government to similarly free others. 61 One way to frame this is that necro-protest is political but informal and it is a form of power, but it entails violence. See Mbembe, “Necropolitics.” After writing “We Refugees,” Arendt may not have deemed any of these dynamics

Conclusion

62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77

251

“political” or a form of power. Arendt, “We Refugees.” Similarly, Edkins and Pin-Fact conceive of Agamben and Foucault’s work as opposing the domination of camps and any sort of agency. See Jenny Edkins and Véronique Pin-Fat, “Through the Wire: Relations of Power and Relations of Violence,” Millennium: Journal of International Studies 34, no. 1 (2005): 1–26. For example, as some of those who have “come out” as undocumented learned, they can then be deported: the truth does not set them free. Arendt, “We Refugees,” 273. On this issue, see Patricia Owens, “Reclaiming ‘Bare Life’?: Against Agamben on Refugees,” International Relations 23, no. 4 (2009): 567–582. Judith Butler, Gender Trouble (New York and London: Routledge, 1990), 25. 137, 146. Arendt, “We Refugees,” 274. Arendt, “We Refugees,” 274. See also Genova, “Denizenship” for an interesting re-interpretation of the meaning of citizenship. I have established how I am infuenced by Foucault’s notion of power and yet apply this to sovereign circumstances in ways he partially rejected. Arendt, The Origins of Totalitarianism, 275; see Arnold, “When the Nation Conquered the State.” Michel Foucault, The Birth of Biopolitics (New York: Picador/Palgrave, 2004), lecture one; Kanstroom argues something similar in Deportation Nation. Stumpf, “The Crimmigration Crisis.” See Bonnie Honig’s discussion of exclusion or obstacles that are posed for foreigners who cannot speak: Bonnie Honig, Democracy and the Foreigner (Princeton: Princeton University Press, 2001). As is evident in global north work by Thomas Hobbes, John Locke, John Stuart Mill. Guillaumin, Racism, Sexism, Power and Ideology, ch. 7. See also Westoby, “‘A Community Development Yet-to-Come’”; Bargu also discusses this in Banu Bargu, “The Silent Exception: Hunger Striking and Lip-Sewing,” Law, Culture and the Humanities, May 24, 2017, 1–28. In doing so, we can hope that changes and improvements also occur in the criminal justice system, which is only degrees away from detention.

Select bibliography Arendt, Hannah. The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979). Arendt, Hannah. “We Refugees.” In The Jewish Writings, edited by Jerome Kohn and Ron H. Feldman (New York: Schocken Books, 2007), 264–274. Arnold, Kathleen. Arendt, Agamben and the Issue of Hyper-Legality: In Between the Prisoner-Stateless Nexus (New York and London: Routledge, 2018). Arnold, Kathleen R. “When the Nation Conquered the State: Arendt's Contemporary Relevance.” Political Theory (October 2022), https://journals .sagepub.com/doi/full/10.1177/00905917221104510#_backmatter_ack Arrocha, William. “Expanding the Geographies of ‘Sanctuary’ and the Deepening and Contentious Nature of Immigration Federalism: The Case of California’s SB 54.” Globalizations (March, 2021): 1–18.

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Beiner, Ronald. “Arendt and Nationalism.” In The Cambridge Companion to Hannah Arendt, edited by Dana Villa (Cambridge: Cambridge University Press, 2000), 44–64. Blight, Karen Johansson. “Questioning Fairness in Swedish Asylum Decisions.” State Crime 4, no. 1 (Spring 2015): 52–76. Dayan, Colin. The Law is a White Dog (Princeton: Princeton University Press, 2011). Dow, Mark. “Designed to Punish: Immigrant Detention and Deportation.” Social Research 74, no. 2 (Summer 2007): 533–546. Fiske, Lucy, Mary Anne Kenny, and Nicholas Procter. “Manus Island Hunger Strikes are a Call to Australia’s Conscience.” The Conversation, January 18, 2015, https://theconversation.com/manus-island-hunger-strikes-are-a-call-to -australias-conscience-36419 Foucault, Michel. The Birth of Biopolitics (New York: Picador/Palgrave, 2004). de Genova, Nicholas. “The Deportation Regime: Sovereignty, Space, and the Freedom of Movement.” In his book titled The Deportation Regime: Sovereignty, Space, and the Freedom of Movement (Durham: Duke University Press, 2010), 33–68. de Genova, Nicholas. “‘Doin’ Hard Time on Planet Earth’: Migrant Detainability, Disciplinary Power and the Disposability of Life.” ch 11 In Waiting and the Temporalities of Irregular Migration, edited by Christine M. Jacobsen et al. (New York and London: Routledge, 2021), 186–201. Kanstroom, Daniel. Deportation Nation (Cambridge, MA: Harvard University Press, 2007). Kanstroom, Daniel. “Deportation as a Global Phenomenon: Refections on the Draft Articles on the Expulsion of Aliens.” Harvard Human Rights Journal ILC Forum Essays (March 1, 2016), https://lawdigitalcommons.bc.edu/cgi/ viewcontent.cgi?article=2038&context=lsfp Kent, Lisa. “East Timor Asylum Seekers Fight Deportation.” Green Left, September 18, 1996, https://www.greenleft.org.au/content/east-timor-asylum -seekers-fght-deportation Korthuis, Aaron. “Outsourcing Refoulement: The United States and the Central American Refugee Crisis.” Yale Journal of International Law, October 24, 2016 https://www.yjil.yale.edu/outsourcing-refoulement-the-united-states -and-the-central-american-refugee-crisis/ Koulish, Robert and Kate Evans. “Punishing With Impunity: The Legacy of Risk Classifcation Assessment in Immigration Detention.” Georgetown Immigration Law Journal 36, no. 1 (2021): 1–72. Mares, S. and J. Jureidini. “Psychiatric Assessment of Children and Families in Immigration Detention—Clinical, Administrative, and Ethical Issues.” Australian and New Zealand Journal of Public Health 28, no. 6 (2004): 520–526. Mbembe, Achille. “Necropolitics.” Translated by Libby Meintjes, Public Culture 15, no. 1 (2003): 11–40. Meng, Grace. “Holding Companies Accountable for US Detention Abuses.” Human Rights Watch Website, November 25, 2019, https://www.hrw.org/ news/2019/11/25/holding-companies-accountable-us-detention-abuses

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Motta, Francesco P. “Between a Rock and A Hard Place: Australia’s Mandatory Detention System.” Refuge 20, no. 3 (2002): 12–43. Moyn, Samuel. “Rights Versus Duties.” The Boston Review, May 16, 2016, https://bostonreview.net/articles/samuel-moyn-rights-duties/ The Nauru Files, The Guardian, 2013–2015, https://www.theguardian.com/ news/series/nauru-fles Offce of the High Commissioner for Human Rights, “The Principle of NonRefoulement Under International Human Rights Law.” n.d., https://www .ohchr.org/sites/default/fles/Documents/Issues/Migration/GlobalCompactMi gration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw .pdf Pitzer, Andrea. One Long Night:  A Global History of Concentration Camps (Boston: Hachette/Little Brown, 2018). Puggioni, Raffaella. “Border Politics, Right to Life and Acts of Dissensus: Voices from the Lampedusa Borderland.” Third World Quarterly 36, no. 6 (2015): 1145–1159. Serwer, Adam. “A Crime By any Name.” The Atlantic, July 3, 2019, https://www .theatlantic.com/ideas/archive/2019/07/border-facilities/593239/ Stumpf, Juliet P. “The Crimmigration Crisis: Immigrants, Crime and Sovereign Power.” American University Law Review 56 (2006): 367–418. Westoby, Peter. “‘A Community Development Yet-to-Come’: Jacques Derrida and Re-constructing Community Development Praxis.” Community Development Journal 56, no. 3 (2021): 375–390. Xenos, Nicholas. “For and Against Romanistan.” London Review of Books 18, no. 16 (August, 1996), http://www.lrb.co.uk/v18/n16/nicholas-xenos/for-and -against-romanistan

INDEX

abject/abjection 7 Adalberto United Methodist Church 142 Afghan Hazara 69 Agamben, Giorgio xv, 3, 4, 24, 76, 95–96n171 agency (migrant) 19–31, 207–208, 214 allostatic load 19–24, 26, 101, 103, 106, 113–120, 157, 207, 230, 238 American Civil Liberties Union (ACLU) 5, 221n62 Amnesty International xii, 157 Antiterrorism and Effective Death Penalty Act (AEDPA) 137, 151 anti-terror policing 62, 71–72, 137, 143, 151, 199, 203 appropriation 81, 121; see also Guillaumin, Colette arbitrary/arbitrariness 45n111, 69 Arellano, Elvira 142–144, 146, 175n45, 176–177n72, 177n63 Arendt, Hannah xi, xv, 3, 11, 15, 18, 19, 28, 58, 59, 69, 74–76, 79, 80, 104, 116, 152, 166, 192, 195–197, 199, 203, 210, 217, 230, 231, 233, 237–243 Armbruster-Sandoval, Ralph 104–105, 110 Artesia Family Residential Center, New Mexico 9 Ashcroft, John (US Attorney General) 62

Asia/Asians 65, 66, 77, 137, 197 Asylum Seeker Assistance Scheme 69 atrocity crimes xi Australian Border Force 56 Australian Parliament 68 Australian Red Cross 69 Baby Asha 39n57, 142, 146–149, 153, 156–157, 165, 167, 178n83, 179n84 Barahona-Marriaga, Nilson 112 bare life 4, 24 Bargu, Banu 14, 30, 102–103, 106, 108, 116, 227n127 Beatriz 144–145 Behl, Natasha xiv Berks County Residential Center 110 Berlant, Lauren 209 best interest of the child 59 Biden, Joseph 70 bio-power xvi, 14, 15, 57, 74, 100, 205, 222n73, 234 Blight, Karin 20–21, 131n120 Boochani, Behrouz 8, 28, 99, 107, 109 Bosniak, Linda xviiin7, 157, 160, 161, 180n100 “breathing while Latinx” 74 bridging visa 39n60, 70, 91–92n114 #BringThemHere 155 Britain 140 British Commonwealth 64 British Empire 71

256 Index

Brown, Gordon 65; see also Miles, Robert Brubaker, Rogers 195 Bush, George W 137, 143 Butler, Judith 23, 113, 209, 210, 240 caging children 17, 75 Calais xv, 95n163 Calavita, Kitty 5 Cambodian refugees 68 camp/camps xv, 4, 19, 59, 61, 74–79, 204, 231–234 Canada 150, 151 captivity 65 care 106 Catt, Dr. Peter (St John’s Cathedral in Brisbane) 147–149, 155–156 Central America 71, 150, 151, 154 character test (Australia) 4, 33n5, 39n60 Chauku (Australian black site) 107 children/children’s rights (and minors) 16, 100 Chinese descent individuals 65, 198 Chinese Exclusion 61–63, 65, 170, 197 Christmas Island 69, 70 Chu Kheng Lim v. MILGEA (1992) 68 civil disobedience 7, 28, 29, 60, 81, 102, 106, 139, 147, 148, 155, 158, 242 civil law 17 Coleman, Misha 147, 156 common good, the 32, 203 community/community-building xvi, xvii, 7, 10, 23, 26–28, 30, 32, 49n143, 50n164, 60, 69, 100, 108, 112, 115, 117, 123, 132n123, 136, 137, 144–147, 149, 152, 158, 162, 163, 165–168, 194, 202, 205–207, 210, 212, 214–216, 235, 237, 240, 244 constitutional cities 159, 166 constitutional scrutiny 4, 5, 11, 13, 15, 57, 62, 63, 69, 78, 80, 118, 193, 198, 201, 212, 232, 233 Convention on the Rights of the Child 82n6 counter-sovereignty 19, 29, 32, 59, 209 COVID-19 5, 14, 16, 112, 114 Cox, Julie 107–108; see also Minahan, Stella criminal rights 15, 16, 57 crimmigration xi, 72, 162, 243 cultivated debilitation 58, 112

Dayan, Colin 111 Deakin, Attorney-General Alfred 64 death penalty xvi, 231–234 “deconstructive episteme” (Peter Westoby) xvii, 28, 175, 213, 235 Deferred Action for Childhood Arrivals (DACA) 136 democratic state(s) of exception 27, 29, 32, 59, 101, 120, 195 Department of Home Affairs 56 Department of Immigration and Border Protection 71 Derrida, Jacques 115, 175, 235 designated person(s) (Australia) 14, 17, 68, 69 Dili Massacre 154 disappear/disappeared/disappearances x, 12, 17, 41n81, 58 discretion/discretionary power xv, 63, 232–233 dissensus 7–8, 10, 29, 37n36, 60, 79, 102, 107, 115, 122, 160, 164, 167, 209, 216 Djokovic, Novak 91n106 domination (Young, I.M.) 23 Dutton, Peter 105 East Timor/East Timorese 148, 153–154 Edkins, Jenny and Veronique Pin-Fat 102 encampments versus camps 86n40, 95n163 “epistemic violence” 100, 120; errors, bureaucratic and/or judicial 61 esophageal force-feeding 58, 236 Eternal Feminine 14 eternal guest model 71, 109–110; see also Kanstroom, Daniel eugenics/eugenic racism x, 32, 64, 66 excision/excised territory (Australia) 16–17, 35n18, 57, 91–92n115 exile xvi, 17 faith-based sanctuary 2, 6, 9–10 family reunion/reunifcation 67 family separation 17, 100, 110 Fanon, Frantz 28, 29, 102, 104, 106, 118, 214–215 federative power 201–202, 220n52; see also Locke, John femicide 110, 129n95 Feola, Michael 8, 100–102, 106

Index 257

Fierke, K.M. 6–7, 21–22, 24, 102–103, 116, 121, 234 Fiske, Lucy 7, 27, 108, 111, 116 forced assimilation 79 forced sterilization 110 foreign policy 57, 63 Foucault, Michel xvi, 24, 141, 205–206, 208, 211, 214, 241, 243 Fourteenth Amendment 4, 10, 62, 110, 161, 164 France 140, 195, 196 Fraser, Prime Minister Malcolm 67 Freedom for Immigrants 100 freedom of information 5, 47n132 fugitive democracy (Wolin, Sheldon) 25, 27–30, 138, 139, 159–160, 164, 166–169 Gandhi, Mahatma 106 gatekeeping/gatekeeper policies xvi genocide 76 Genova, Nicholas de 143–146, 177n63, 218n16 Germany 195 #GetintheWay 155 GetUp 147, 156 Goldstein, Alyosha 211 Great Repatriation (of Mexican descent individuals) 62, 63 grief 102, 115, 117, 121 Guantánamo 58, 210 Guardian, The 157 Guillaumin, Collette xiv, xvii, 81, 234, 244 Gündoğdu, Ayten 108–109, 114 Gupta, Akhil 214 harboring foreigners 13, 137, 143, 151, 156 Harris, Kamala (US vice president) 56 Hart-Celler Act of 1965 63, 66 hidden transcripts (Scott, James) 27, 245 High Court, Australian 69, 70, 146–147 Hobbes, Thomas 193, 201 Hodge, Peter 7, 23 homeopathic self-harm 103, 106, 115, 119 #hometobilo 39n57, 149 Honduran Caravan 72, 74 Honig, Bonnie 224n99 hospitality 115, 137, 140, 148, 150, 157, 242

Howard, John (Australian prime minister) 108 Human Rights Law Centre of Australia 154 Human Rights Watch xii, 157 hunger strikes 2, 103–113; Australia 103–109; United States 109–113 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) 137, 151 “illegals” 56–58, 234 Illinois Coalition of Immigrant and Refugee Rights (ICIRR) 142 Immigration and Customs Enforcement (ICE) 162–163 Immigration and Naturalization Services (INS) 5 immigration crisis xi imperialism/neo-imperialism xiii, xvii, 13, 28, 31, 65–67, 71, 100–104, 113, 119, 121, 197, 203–206, 243 indefnite detention xvi, 16 indentured servitude (coolie (US), Kanaka labor (Australia)) 65 indigenous/indigeneity 64 Indonesia 154 instant illegality 94n150 internally displaced persons (IDPs) 75 International Covenant on Civil and Political Rights 68 Irish Republican Army (IRA) 103–104 irrationality 37n36 Irwin County Detention Center (ICDC) 2, 110, 112 Japanese descent individuals 65 Japanese Internment 62, 63, 238 Jungle, The xv Kanstroom, Daniel xvi, 12, 71, 110, 137, 232 King, Martin Luther 7, 27, 106 Klein, Naomi 30 Kumar, Ajay 112, 120, 236 Lady Cilento Hospital, Brisbane 147 Landaverde, Fr. José 144 Lasch, Christopher N. et al. xvii LeBlanc, John Randolph 22–24, 28, 209 #LetThemStay 147, 148, 155

258

Index

liberalism, liberal rights 149, 155, 160 life sentence xvi, 12, 232, 240 lip-sewing (Australia) 2, 103–109 literacy tests 65 Locke, John 193–195, 201–202, 213

non-personhood xv, 4, 10–11, 14, 15, 44n102, 57, 62, 71, 161 non-refoulement x, 58, 60, 73, 158, 232 Norfolk Island 71 Nussbaum, Martha 7, 117

Mabani migrant center in Libya, Al 77 Macrae, Reverend Alistair 155 Mainwaring, Cetta 208, 214 mandatory detention 1, 58 Manfredi-Sánchez 159 Mantena, Karuna 106 Manus 107, 157 Marx, Karl (Marxist) 192, 199, 203 mass (as in deportation or detention) xi, 1, 11–12, 15–19, 25, 64, 216, 231 Mayorkas, Alejandro (US Homeland Security Secretary) 56 Mbembé, Achille 28, 102, 118, 214–215 Medevac laws 138, 147, 155 Mexico 17, 56, 142–144, 197 Migration Legislation Amendment Act of 1981 (Australia) 68 migration zone 70 Miles, Robert 65; see also Brown, Gordon Mill, John Stuart 28 Minahan, Stella 107–108; see also Cox, Julie mosques xiv, 37n30 Motomura, Hiroshi 159, 160 Motta, Francesco 68 Mouffe, Chantal 30 mourning (unresolved mourning) 7, 21, 24, 27, 28, 117 MV Tampa 69–70

O’Connor, Sister Kathleen 153 Operation Sovereign Borders (Australia) 56, 154 Operation Wetb%#k (1954, US) 62 optimists 58–59 O’Sullivan, Maria 146, 153 Otero County Processing Center in New Mexico 112, 236 outlaw(s) 10, 74, 75, 166, 239

Natal formula 65 National Australian Museum 65 national security 4, 75, 192 Nauru 9, 22, 79, 114, 146–147, 157, 167 Nauru Files 157 necro-power/necro-protest xvi, 28–29, 102, 118–119, 239 neoliberalism 67, 139, 141, 160, 168–169, 244 Nepal/Nepalese 157, 167 New Sanctuary Movement xiii, 138, 139, 142–143, 150 Ngai, Mae 37 non-governmental organizations (NGOs) xiii, 10, 61, 114

Pacifc Islander(s) 65 Pacifc Solution 70 Panagia, Davide 167 “pariah” 79, 217, 231, 237, 239–241; see also Arendt, Hannah Paul, Kathleen 66 personhood xv, 4, 17, 57, 71, 161, 245 pessimists 59–60 Philpott, Daniel 215 Pitzer, Andrea xi, 76 Plascencia, LB 165 plenary power 3, 61–64, 71 Plyler v Doe (1982) 4, 63 political, the 59, 234 political questions doctrine (US) 62 political trauma 102 Portugal 154 post-entry social control 71 post-national rights xvi, 225n117 post-traumatic stress disorder (PTSD) 21 Power, Samantha 76 prerogative power 201–202 prisons xi public health 22, 100–101 race/racism 57, 87n60, 193, 198–199, 234, 243 raids 142, 143, 166–167, 169, 206 Rajan, Nithya 107–108 Ranciere, Jacques 7 rational choice 226n122 rationality 37–38n36 reason of state 160, 165–166, 194, 200 refoulement (non-refoulement) 73, 232 Refugee Taskforce of the National Council of Churches 155

Index 259

re-membering 23, 28, 31, 209 resignation syndrome 20 rightlessness (de facto) 82n5 Roma/Roma encampments xv, 103, 250n58 Rose, Jacqueline 119 Said, Edward 11–12, 231 sanctuary localities 158–165 sanctuary localities versus faith-based sanctuary 158–165 Sans Papieres movement 10 Sassen, Saskia 26, 30 Scott, James 6, 28, 102, 206, 214 self-regarding behavior 28, 212 September 11, 2001 (9/11/01) 16, 74, 137, 143, 169 Sessions, Jeff (US Attorney General) 13, 17 Shaughnessy v United States ex rel. Mezei U.S. 206 (1953) 63 smuggling 17, 68 solitary confnement 5, 58, 100, 112 Soysal, Yasemin xvi Special Humanitarian Program (1981, Australia) 67 stateless 3, 4, 11, 13, 15, 18, 19, 58, 60, 74, 75, 79, 101, 104, 105, 108, 122, 141, 152, 199, 212–214, 237, 243 state of democratic exception 24–31, 70, 72 state of exception 15 Stateless (televisions series) 83n14 Stevens, Justice John Paul 63 Stumpf, Juliet 72, 243 subversive knowledge 245 Supreme Court, United States 4, 61–62 Sweden 20–21 Sydney Morning Herald, The 65 Tampa Affair 91n111 teenagers 16 terrorist watch list(s) 14 thanatic xvi, 102, 212, 239 Tonkiss, Katherine xixn19 torture x, xvi, 15, 31, 58 torture lite 31, 57, 58, 73, 77, 103, 112, 116, 157, 236, 239 totalitarian/totalitarian tactics 192, 195, 232 traffcking foreigners/traffcked individuals 3, 68, 137

trauma 6–7, 16, 19–24, 102, 207, 239 travel ban(s) 14, 110 Trump, Donald 1, 13, 70, 72, 73, 100, 110, 112, 136, 138, 145, 160, 165, 170 United Nations xi, 3 United Nations High Commissioner on Refugees (UNHCR) 70, 73 UN Security Council 68 U-Visa 5 Vargas, Edward 20 Varsanyi, Monica xv, 4, 44n102 Vietnam War 67 warfare state xvii, 10, 12, 14, 15, 30–32, 57, 80, 81, 112, 113, 157, 161, 162, 166, 169, 192, 194, 199, 200, 203, 205, 207, 212–216, 232, 242 weapons of the weak 6, 23 Weber, Max xiv welfare state 10, 23, 31, 62, 71, 74, 200, 202, 203, 205, 210, 243 “We Refugees” (Hannah Arendt) 230, 237–242 Westoby, Peter xvi, 21, 24, 28, 49n143, 115, 213, 235 whistleblowers xii, 157 White Australia policies (Immigration Restriction Act 1901) 64–66, 88n74, 88n75 whiteness/white supremacy 66, 71 Williams, Patricia xvi Wohlfaahrstaatsräson 138, 152, 166–169, 194, 200; see also Wolin, Sheldon Wolin, Sheldon 10, 15, 19, 24–25, 29, 30, 59, 152, 159–168, 192, 194, 195, 200–204 Wong Wing v US (1896) 197 Woomera Detention Centre 2, 105–106, 122 Yick Wo v Hopkins (1886) 4 Young, Iris Marion 23 Zamalin, Alex 117–118 Zebadua-Yañez, Veronica 117–118, 211–212 Zerilli, Linda 209–210, 216